WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. K. Simone for the Crown

— And —

J.E.

Mr. J. Weisz for the Accused

Heard: September 27, October 18, November 30, 2012, March 5, May 6, 2013

Decision

NAKATSURU J.:

[1] Introduction and Error

[1] This case serves as a valuable reminder that unless due attention and care is paid to all aspects of sentencing, significant mistakes can occur. I made such a mistake. The accused, J.E., pleaded guilty to one count of sexual assault, one count of sexual touching of a person under the age of 16, and one count of failing to comply with a recognizance. The main area of disagreement between the Crown and defence counsel on sentencing, unremarkably, was the length of incarceration. This was resolved by me and ancillary orders were made. One was an order under s. 490.012(1) of the Criminal Code that J.E. complies with the provisions of the Sex Offender Information Registration Act (SOIRA). Based upon representations made to me by counsel and, admittedly, without proper regard to the statutory framework, I made the duration of the order to be ten years. This was in error. It should have been for life.

[2] This error was subsequently brought to my attention by the Crown approximately a month later. I commend Ms. Simone for her diligence and sensitivity in providing me an opportunity to rectify this error. After a number of attendances to re-argue the matter, in brief oral reasons, I dismissed her application. I acknowledge that this is unfortunate since the only recourse left to the Crown is to appeal my order. This is troublesome and involves additional time and resources. Nevertheless, I felt compelled to conclude in this fashion. As promised, this is the written decision outlining my reasons. In brief compass, I find that I no longer have the jurisdiction to grant the remedy requested by the Crown.

OVERVIEW

[3] The offender pleaded guilty to historical sexual offences he committed on two occasions when he touched and licked the genital area of a very young relative whom he was baby-sitting. While he was released on bail on these charges, he attended a public library and accessed a computer looking at images he was not supposed to. He further did not observe the house arrest condition on his bail as he went to see a movie by himself.

[4] While J.E. did not have a prior criminal record, he had been found guilty of making available and having the possession of child pornography by Justice Bovard of the Ontario Court of Justice in 2007: see [2007] O.J. No. 1710. I am advised that some of the probation conditions were varied on appeal. Importantly, Justice Bovard made a SOIRA order for ten years at the time. In addition, before me, J.E. was convicted of more than one designated offence as defined in s. 490.011.

[5] When I sentenced J.E. on October 18, 2012, in addition to a period of incarceration and other ancillary orders, I made a SOIRA order for ten years. The order should have been for life given s. 490.013(4) and s. 490.013(2.1) of the Criminal Code.

[6] Upon notice to J.E., the Crown brought the matter back before me on November 30, 2012, to persuade me that I should correct this mistake. J.E. was represented by the same counsel who had appeared for him at his sentencing. I dismissed the application at that point but made it clear that if counsel could come up with some authority providing further direction on the matter, I would entertain the issue again. On March 5, 2013, the Crown brought J.E. back to court. After hearing submissions from both counsel, I again dismissed the application. The case did not end there. On May 6, 2013, yet again, the Crown applied to have the SOIRA order corrected relying on the case of R. v. D.M., 2013 ONSC 141, [2013] O.J. No. 83 (S.C.J.). Despite her able submissions, I have not been persuaded to alter my decision.

THE ISSUES AND THE POSITIONS OF THE PARTIES

[7] The Crown submitted that the ten year duration of the SOIRA order is plainly in error. Given J.E.'s circumstances, it should have been for life. There can be no dispute in this regard. The Crown submitted that I retained the jurisdiction to amend my order and that I was not functus officio: see R. v. Malicia (2006), 211 C.C.C. (3d) 449 (Ont. C.A.). The Crown submitted that anecdotally some courts have permitted this practice in relation to mistakes made by judges in SOIRA and DNA orders.

[8] Upon permitting the Crown to raise the application again, she has relied on a judgment by Daley J. in R. v. D.M., supra. It is submitted that the facts of that case are nearly identical to the case at bar. Justice Daley mistakenly imposed a SOIRA order of twenty years rather than the statutorily mandated lifetime order. Relying upon Malicia, Daley J. exercised the court's inherent jurisdiction to correct the order.

[9] In addition, the Crown argued that s. 490.012(4) provided this court with the statutory jurisdiction to amend the order. That provision permits a court to make an order within 90 days of sentencing or verdict where it did not consider the matter originally. She submitted that by failing to properly consider the duration of the order as required by the Criminal Code, I had not "considered" the issue and thus, it was open for me to revisit the subject. On this point, the Crown relied on the unreported judgment of R. v. Ponniah, unreported, July 13, 2012, (Ont. C.J.)

[10] The defence submitted that I was indeed functus officio. The endorsement on the information was that the SOIRA order be for ten years. The formal order was signed. Therefore, the defence argued, there was no further jurisdiction to deal with the question. The only way to correct the error was for the Crown to seek an appeal.

[11] With respect to s. 490.012(4), the defence replied that this extended jurisdiction does not apply in this case. Counsel maintained that I had undeniably "considered" the issue. As a result, s. 490.012(4) had no application. The Crown's position would only make sense if the provision permitted a court to "re-consider" the order. Parliament did not intend a court to do so since the word "consider" is used. Thus, the Crown could not rely on this statutory provision.

ANALYSIS

A. STATUTORY JURISDICTION UNDER S. 490.012(4)

[12] Let me begin by addressing the argument that s. 490.012(4) applies and that I retain the jurisdiction to amend the order under that provision. That section reads as follows:

(4) If the court does not consider the matter under subsection (1) or (3) at that time, the court

(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;

(b) retains jurisdiction over the matter; and

(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

[13] I have not been persuaded by the Crown on this point. I cannot agree with the decision of Ponniah. The learned justice in that case decided he retained jurisdiction under s. 490.012(4) because he had not carefully or fully considered the SOIRA issue. Although the justice admitted he erred in making a ten year SOIRA order rather than one for life, as he characterized it, he had just "sort of glided over the matter." Thus, he did not "consider" the matter as required by the section. In my opinion, such an interpretation of "consider" is not warranted. It is neither grammatical nor one normally used in every day parlance. It is further not in keeping with the scheme and object of the amendment as intended by Parliament: see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21.

[14] The purpose of s. 490.012(4) was not to give carte blanche to judges in correcting any mistakes they may have made in making a SOIRA order. The purpose was to permit the court to consider the matter if the consideration of the issue was omitted at the original hearing. This amendment came into effect in 2011. Prior to that amendment, the previous version of s. 490.012 had no provision for this extended jurisdiction to consider a SOIRA order after sentencing or a verdict. It was in light of the wording of the section before it was amended, that I concluded in the case of R. v. Luedecke (2010), 2010 ONCJ 59, 252 C.C.C. (3d) 542 (Ont. C.J.) that the Crown could not bring an application for a SOIRA order over six months from the date I found the offender not criminally responsible due to a mental disorder. The Crown tardily sought the SOIRA order even after the Ontario Review Board reviewed Mr. Luedecke's case and granted him an absolute discharge. Section 490.012(4) would now deal with similar situations like Luedecke provided that the date for the SOIRA application is set within 90 days of the sentence or verdict. No doubt, the legislation was amended to deal with situations as presented in Luedecke.

[15] That type of situation is different from this case. In Luedecke, the SOIRA order was never raised at the initial NCR hearing and never considered by me. In the case at bar, I did consider the matter albeit erroneously. I agree with defence counsel that had Parliament intended such extended remedial jurisdiction, an additional word or term would have been used in s. 490.012(4) such as "properly" consider the matter. As a result, s. 490.012(4) provides no assistance to the Crown.

[16] I note that Daley J. in D.M. came to the same conclusion (at para. 12). In my opinion, any other interpretation is not reasonable.

B. THE DOCTRINE OF FUNCTUS OFFICIO

[17] Functus officio is Latin for "having performed his or her office". When applied to a judge, it means that the judge has no further authority or legal competence because the duties of the office have been fully accomplished. The Supreme Court of Canada in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 79 set out the rationale for the doctrine of functus officio:

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if the court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal.

[18] Pursuant to developments in the common law, there is no longer a bright line approach to when a criminal trial judge is functus. In R. v. Malicia, supra, the Ontario Court of Appeal affirmed that the traditional position was that "[i]n judge alone cases, the point of no return is after the trial judge endorses the indictment (at para. 16)." However, MacPherson J.A. relied upon civil authorities and the decision of R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, a case dealing with criminal jury trials, to incorporate a refined and flexible approach into criminal trials by judge alone when it came to the application of the doctrine. It has never been really disputed that a court, criminal or civil, had the authority to correct an administrative error. The true flexibility was in permitting a court to correct an error in the manifest intention of the court. The only limitation is whether this would involve a reconsideration of the verdict or sentence. If so, then the doctrine of functus officio would apply: see also R. v. Thompson (2010), 2010 ONCA 463, 256 C.C.C. (3d) 51 (Ont. C.A.) at paras. 20–21; Chiang v. Chiang (2009), 2009 ONCA 3, 305 D.L.R. (4th) 655 (Ont. C.A.) at paras. 123-125; R. v. Martel, [2011] O.J. No. 790 (C.J.) at para. 13; R. v. Ermine (2010), 2010 SKCA 47, 254 C.C.C. (3d) 192 (Sask. C.A.) at paras. 19-20.

[19] I agree with the Crown that the facts in D.M. are virtually indistinguishable from that before me. Justice Daley held that there were several factors present that supported the exercise of the inherent jurisdiction of the court to correct the error: (1) the error related to a statutorily mandated ancillary order on sentencing; (2) given that the order and its duration are fixed and there is no discretion left with the court, the correction is more clerical or administrative in nature; (3) the offender offered no evidence of prejudice or perception of bias if the Crown's application was granted and; (4) it was always Daley J.'s intention to make a SOIRA order in the case that complied with the correct and mandatory duration provided for in ss. 490.012 and 490.013 of the Criminal Code.

[20] With the greatest of respect, I am unable to agree with Daley J. The application of the refined and flexible approach in Malicia leads me to a different conclusion.

[21] First of all, the facts of Malicia are distinguishable from D.M. and the case at bar. In Malicia, at the time of the sentencing, the appellant was already serving a three and a half year sentence on unrelated offences. The trial judge did not explicitly state, or endorse on the indictment or the warrant of committal, whether the four and a half year sentence she imposed was to be concurrent or consecutive to the time being served. When she was informed of the omission, after the warrant of committal and the indictment had been signed, she rejected defence counsel's submission that she was functus officio. She stated that it was always her intention that the sentence be consecutive to time served. All the parties at the sentencing hearing proceeded on the basis the sentence would be consecutive to the sentence being served. The correction came soon after the indictment and warrant was originally signed. In my view, the trial judge in Malicia simply omitted to say or endorse what was clearly intended not only by her but by the parties. This can be contrasted to the situation in the case at bar. Both counsel proceeded on the basis that the Crown was seeking a ten year SOIRA order. I expressed my order on the record to be ten years. The information and order was for ten years. The error in this case, unlike in Malicia, was one of commission and not omission.

[22] I should further point out that Simmons and Cronk JJ.A. wrote concurring judgments in Malicia. While they agreed with their colleague, McPherson J.A., as to the disposition of the appeal, as I read their judgments, in the opinion of these two justices, the jurisdiction to correct errors in a judge alone criminal case may be more limited than in a jury trial. There may be different considerations governing its application. In addition to the limitation that the doctrine of functus officio would prohibit any reconsideration of the verdict or sentence, the exercise of the remedial jurisdiction would also be precluded where issues of unfairness or injustice to the accused or a reasonable apprehension of bias or taint arises. Factors such as the passage of time from the decision to the identification of the error or the fact that judges write decisions may be relevant. Justices Simmons and Cronk left the issue open to be revisited in the appropriate case.

[23] Applying Malicia to this fact situation, I agree with some but not all of the factors relevant to this issue relied upon by Daley J. in D.M. I agree with Daley J. that a SOIRA order is an ancillary order of sentencing but it remains a final order and a part of sentencing. There is an express appeal provision provided in s. 490.014. I further agree that there is no statutorily expressed discretion that lies with the court in its imposition. Yet, in my opinion, the error cannot be characterized as simply clerical or administrative. As in D.M., I too cannot see any prejudice or perception of bias that would follow from the granting of the Crown application in J.E.'s case.

[24] The fundamental disagreement I have with the decision in D.M. is the invocation of the factor that it was always the intention of the Court to make a SOIRA order that conforms to the requirements of the Criminal Code in support of the exercise of the inherent jurisdiction. I can only presume that this factor was cited in order to deal with limitation agreed to by all the justices in Malicia that the doctrine of functus officio precludes reconsideration of the verdict or sentence and only permits correction of an error in expressing the manifest intention of the Court.

[25] It is tempting to simply correct the manifest error made by me. By not doing so, nothing is gained but additional inconvenience to the parties who must resort to an appeal. At the hearing of the appeal, the order will be corrected and I will be suitably chastened. However, there is a broader principle at stake which has lead me to conclude that I am functus officio.

[26] Our judicial system depends upon the finality of judgments and the integrity of the appellate process. To permit a judge to correct an error made in his or her decision on the basis that it was always the judge's intention to follow the law would be a slippery slope with no end. No judge intends to err. Every judge diligently tries to do right in each case. On occasion, we endure sleepless nights for our efforts. But we are all human. And therefore we fail sometimes. When a judge fails, his or her decision should speak for itself.[1] The parties and the appellate court should know the foundation upon which the appeal is being launched. To permit an overly liberal definition of the jurisdiction of a trial judge in terms of the doctrine of functus officio would gelatinize that which should be firm. It would invite uncertainty and disorder in what should be a simple, straightforward, and hierarchical process of appellate correction.

[27] The history of this case has been an example. The matter has returned before me a number of times in order to correct the duration of the SOIRA order. If the same is permitted each time a party is dissatisfied with an aspect of a judge's final decision, there would be no end to the trial litigation and no beginning to the appeal. Again, I fully appreciate that in this case, the statutory provision allows for no discretion on the part of the judge in terms of the order. There is no room for uncertainty in the duration of the order. That being said, I cannot see how in principle the doctrine of functus officio can be confined to correction when the trial judge is clearly wrong or when there is a statutory provision that needs to be followed. This is not the first time that an appeal has to be brought when a trial judge has misconstrued a mandatory statutory provision.

[28] In conclusion, it is open for a judge to correct an error in expressing his or her manifest intention. That is not the same as a trial judge simply correcting a manifest error regardless of the true intention of the judge. It was always my intention to impose a ten year SOIRA order. It is what I ordered in court. It is inscribed on the information and on the order. It was always my intention until it was pointed out that I was wrong. Consequently, albeit with reluctance, the dismissal of the Crown application is the only appropriate decision.

Released: May 7, 2013

Signed: Nakatsuru J.

[1] By referring to "decision" I do not mean the "reasoning" of the judge. A judge is permitted to supplement his or her reasons or add to why a certain decision was made. The doctrine of functus officio is concerned with what a decision is and not why. Supplemental reasons are guided by different principles: see R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267; R. v. R. (J.) (2008), 2008 ONCA 200, 59 C.R. (6th) 158 (Ont. C.A.) at para. 15.