PETERBOROUGH

COURT FILE NO.: CR-09-2540-00MO
DATE: 20131206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SCOTT CARROLL

Defendant

K. Eberhard, Assistant Crown Attorney

S. Cowan, for the Defendant (by written submissions)

HEARD: November 20, 2013

RULING

McISAAC J.

BACKGROUND

[1] Mr. Carroll was sentenced by me on October 28, 2013 to a term of imprisonment following his conviction on three offences:

• sexual interference contrary to s.151 Criminal Code of Canada;

• sexual exploitation contrary to s.153(a) Criminal Code of Canada;

• making child pornography contrary to s.163.1(2)(a) Criminal Code of Canada.

[2] The finding of guilt on the charge of sexual assault was stayed pursuant to the election of the Crown on the basis of R. v. Kienapple 1974 14 (SCC), [1975] 1 S.C.R. 729.

[3] At the same time, I made several ancillary orders including an order under s.490.013(2) (b) Criminal Code of Canada purportedly to comply with the Sex Offender Information Registration Act (“SOIRA”). At the time of initial submissions on October 3, 2013, Crown counsel, not Ms. Eberhard, had specifically asked for a SOIRA order of 20 years duration. As it turns out, that submission along with my eventual acceptance of it on October 28, 2013, were in error. Because Mr. Carroll had been convicted of more than one “designated offence” as enumerated in s.490.011(1) of the Criminal Code, s.490.013(2.1) of the Criminal Code mandated that he receive a lifetime SOIRA order.

[4] Once Crown counsel realized her and my error, she made application to rectify the error and Mr. Carroll was re-summonsed for November 13, 2013. On that date the application was adjourned to November 20, 2013 to permit him an opportunity to consult his trial counsel, Mr. Cowan. Mr. Cowan did not appear on the return date but provided brief written submissions suggesting that I was functus and without jurisdiction to correct this patent error. On that date, November 20, 2013, I signed a “fresh” SOIRA order for the lifetime of Mr. Carroll along with an order that the Crown pay him $200 for his two additional attendances in Peterborough. I reserved the right to file formal reasons for those dispositions. These are those reasons.

ISSUES

[5] The Crown suggested two separate bases of jurisdiction for a “fresh” SOIRA order:

(i) pursuant to s.490.012(4) of the Criminal Code; and

(ii) inherent jurisdiction.

[6] Mr. Carroll advanced a discrete submission for an order of costs against the Crown because he was being treated “frivolously”.

ANALYSIS

Jurisdiction

[7] The Crown first advanced an argument based on s.490.012(4) which permits a court to conduct a SOIRA hearing where it “… does not consider the matter …” at the original sentencing disposition. I am unable to accept this argument: see R. v. D.M., 2013 ONSC 141 at para. 12. I agree with Daley, J. in that case that both of us “clearly, albeit incorrectly considered …” this provision at the time the sentence and ancillary orders were imposed. Although I am not bound by this ruling by a judge of concurrent jurisdiction, I am required to follow it unless it was “clearly wrong”: see R. v. Koziolek [1999] O.J. No. 657 at paras. 14a and 15 (O.C.J.G.D.).

[8] The Crown next argues that I can rectify this patent error on the basis of an inherent jurisdiction to correct as recognized by Daley, J. in R. v. D.M., supra, at paras. 21-5. The four factors that favoured rectification, in his opinion, were:

(i) the error related to a statutorily mandated fixed ancillary order;

(ii) since it was fixed by statute and involved no express or residual discretion, it was more clerical or administrative in nature;

(iii) there is no evidence of prejudice or perception of bias if rectification takes place; and

(iv) it was always his intention to comply with these provisions of the Criminal Code.

[9] Although a contrary argument could be mounted against this approach, I cannot say that it is “clearly wrong”: see R. v. Koziolek, supra. Accordingly, the Horizontal Convention of Precedent should apply: see Precedent Unbound? Contemporary Approaches to Precedent in Canada¸ Debra Parkes, (2007) 32 Man. L.J. 135 (“Parkes”) at paras. 49-53. In the result, I am satisfied that this patent error can be rectified by me on the basis of inherent jurisdiction as articulated by Daley J. in R. v. D.M., supra.

[10] For the same reasons, I find that the contrary jurisprudence on this issue relied upon by Mr. Cowan to have been made per incuriam see R. v. J.E., 2013 ONCJ 247 and R. v. Alas [2013] O.J. No. 3738 (O.C.J.). As a matter of Vertical Convention of Precedent, those courts erred by not following R. v. D.M., supra, on the application of inherent jurisdiction as a means to rectify this patent error. If Daley J. was wrong in his interpretation of this concept, it does not lie in the hands of members of the Ontario Court of Justice to come to a contrary conclusion simply because they disagree with his analysis: see Parkes, supra, at para. 6. They were bound to follow his view as a matter of stare decisis.

COSTS

[11] Mr. Carroll sought costs in the amount of $200 for the two days that he was required to attend court in Peterborough having travelled from his residence in Toronto. He not only lost his hours of employment as a gas attendant, he also spent approximately $60 each day for fuel for his vehicle. I find his modest claim most reasonable. I am also satisfied that it engaged the Charter-protected right to liberty guaranteed by s.7 because he was compelled by summons to attend court in Peterborough on two separate occasions.

[12] The Crown submitted that although the prosecutorial/judicial default in issue is unfortunate, it did not rise to the degree of egregiousness to attract an award of costs: see R. v. Brown, 2009 ONCA 633. I disagree. I am satisfied that this event forms part of a systemic pattern of neglect that has been repeated by various officers of the provincial Crown prosecution service since at least May, 2012 as reflected in R. v. D.M., supra. It is far from an isolated occurrence and, in my view, should be documented in the manner proposed by the offender. Mr. Carroll will have his costs in the fixed sum of $200 payable by the Attorney General of Ontario.

[13] See the following additional cases:

• R. v. Ponniah, OCJ, unreported, July 13, 2002;

• R. v. Tichrode, OCJ, unreported, August 28, 2012;

• R. v. Merrick, 2013 ONCJ 480;

McISAAC J.

Released: December 6, 2013