COURT FILE NO.: CR-17-00000269-00MO
DATE: 20180517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KELLY CHANCE
T. Kranjc, for the Crown
K. Chance, self-represented
HEARD: 26 March 2018
s.a.Q. akhtar j.
[1] On appeal from the sentence imposed on 14 September 2017 by Justice Jack Grossman of the Ontario Court of Justice.
Factual Background
[2] On 30 August 2017, the respondent entered a plea of guilty to sexual assault.
[3] The facts of the offence were summarised by the sentencing judge in the following way:
Mr. Chance entered a plea of guilty before me on the 30th August 2017 to a charge of sexual assault which occurred on 4th September 2016 in relation to [the complainant]. On that date Mr. Chance and [the complainant] were both resident at W[…] Avenue, Toronto, which was a safe-bed, temporary shelter for persons with mental health issues. That evening, while [the complainant] was in her residence and showering, she heard a knock on her door; it was Mr. Chance who entered and subsequently placed his hand between her legs and rubbed her vagina, indicating that he wanted to have sex. She slammed the door and went to the office and complained. Mr. Chance was arrested.
[4] The Crown requested a suspended sentence in addition to a period of probation with conditions to last two to three years. The Crown also sought the following ancillary orders: a DNA order pursuant to s. 487.04(a) of the Criminal Code, a weapons prohibition for a period of 10 years pursuant to s. 110 of the Code and an order placing the respondent on the Sexual Offences Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) for 10 years.
[5] Counsel for the respondent, asked that a conditional discharge be imposed along with a period of probation. That submission was grounded on the fact that the respondent was a 26 year-old convention refugee and sentencing him to a conditional discharge would avoid a potential deportation.
[6] The respondent’s counsel informed the judge that a five year weapons prohibition under s. 110 of the Code was already in place as a result of the respondent’s prior convictions, and that a sample of the respondent’s DNA had already been obtained.
[7] Defence counsel opposed the SOIRA order because the respondent lived in a shelter and the terms of any order made would require the notification of any change of address - a frequent occurrence due to the residence conditions. This, argued counsel, would place undesirable extra burdens on the respondent who was already having difficulties coping with daily life.
[8] The sentencing judge rejected the defence submissions finding a conditional discharge would not be in the public interest as it was too lenient Instead he imposed a suspended sentence with two years probation.
[9] After initially resisting the Crown’s request for a DNA order, the judge was informed by his clerk that under s. 477.049(a) of the Code, sexual assault was a primary designated offence which mandated the making of the order. The judge agreed and acceded to the Crown’s request.
[10] However, the judge refused to make the SOIRA order citing the following reasons:
• the nature of the activity giving rise to the charge;
• the fact that consumption of alcohol combined with mental health issues caused the events with which the respondent was convicted; and
• the view that if the respondent could get counselling for various issues he would be “back on the right rails”
[11] The judge also took the view that it was unnecessary to add additional responsibilities of reporting which would be difficult to comply with.
[12] On appeal, the Crown submits that by failing to impose the mandatory SOIRA order the judge acted in error of jurisdiction.
Did the Judge Commit Jurisdictional Error?
[13] Section 490.012(1) of the Criminal Code states:
490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.
[14] Section 490.011 specifies the offences which mandate the imposition of a SOIRA order. Subsection (1) defines “designated offence”, which includes, under subparagaph (a)(xvi), the offence of sexual assault.
[15] The jurisprudence confirms that a judge has no discretion to exempt an offender from the SOIRA once a sexual assault conviction has been entered: R. v. Alvarenga-Alas, 2014 ONSC 4725, at paras. 13-14; R. v. Colosie, 2016 ONSC 1708 at paras. 33-35.
[16] In this case, after the sentencing judge had initially declined to make the SOIRA order, the Crown reminded him of the obligation to do so. In response, defence counsel agreed with the Crown that the order had to be made in light of the conviction entered by the judge. Counsel explained that this was an additional reasons for seeking a conditional discharge.
[17] The sentencing judge responded to these submissions by telling the Crown: “Well I am not going to make the order. You can deal with it as you see fit.”
[18] Based on the judge’s action, there can be no doubt that there was a jurisdictional error.
[19] As previously described, sexual assault is a designated offence as defined by s. 490.011 of the Criminal Code. Given that the Crown had elected to proceed summarily, the judge had to order the respondent was subject to SOIRA for a period of 10 years pursuant to s. 490.013(2)(a) of the Code.
[20] For reasons known only to himself, the sentencing judge refused to follow the Criminal Code provisions, even when alerted to the mandatory nature of the order by both counsel. Although he purported to cite reasons for his refusal, none of those reasons had any relevance in the face of binding statutory authority.
[21] This conduct obviously constitutes jurisdictional error.
The Appropriate Remedy
[22] What, then, is the appropriate remedy?
[23] Decisions of this court have indicated that there is no right of appeal with respect to the non-issuance of a mandatory SOIRA: see, for example, Alvararenga-Alas, at paras. 71-81; Colosie, at para. 39. Other jurisdictions seem to have taken the same view: see, R. v. Chisholm, 2012 NBCA 79, 292 C.C.C. (3d) 132.
[24] However, appellate courts in Ontario do not seemed to have raised the procedural drawbridge when appeals from the non-issuance of SOIRA orders have landed at their doorstep.
[25] In R. v. J.K, 2015 ONCA 458, 326 C.C.C. (3d) 535, the sentencing judge erroneously decided that the offence of break and enter into a dwelling and committing an indictable offence did not fall within the meaning of designated offence and mistakenly rescinded a SOIRA order that she had originally imposed. The Crown appealed. Having found the judge to be in error and obliged to make the order, the Court of Appeal for Ontario allowed the appeal and issued the SOIRA requested by the Crown. See also: R. v. Abel, 2013 NLCA 6, 332 Nflld. & P.E.I.R. 80.
[26] Based on these appellate authorities, there would appear to be a right of appeal based on errors committed in respect of SOIRA orders.
[27] The Crown, however, out of an abundance of caution asks for either of the prerogative remedies of certiorari and mandamus; or, in the alternative, an order under s. 777(1) of the Criminal Code which states:
777 (1) No conviction, order or warrant for enforcing a conviction or order shall, on being removed by certiorari, be held to be invalid by reason of any irregularity, informality or insufficiency therein, where the court before which or the judge before whom the question is raised, on perusal of the evidence, is satisfied
(a) that an offence of the nature described in the conviction, order or warrant, as the case may be, was committed,
(b) that there was jurisdiction to make the conviction or order or issue the warrant, as the case may be, and
(c) that the punishment imposed, if any, was not in excess of the punishment that might lawfully have been imposed,
but the court or judge has the same powers to deal with the proceedings in the manner that the court or judge considers proper that are conferred on a court to which an appeal might have been taken.
[28] As the sentencing judge was required to impose a SOIRA order, he exceeded his jurisdiction by refusing to do so.
[29] Accordingly, I make the following orders:
An order for certiorari quashing the ultimate order made by the sentencing judge which did not contain a SOIRA order; and,
Whilst an order in mandamus requiring the sentencing judge to exercise his statutory jurisdiction and make the necessary SOIRA order would be the usual course of action, in this case, pursuant to s. 777(1) of the Criminal Code, I make an order under s. 490.013(2) that the respondent be subject to SOIRA for 10 years.
S.A.Q. Akhtar J.
Released: 17 May 2018
COURT FILE NO.: CR-17-00000269-00MO
DATE: 20180517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KELLY CHANCE
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.