Her Majesty The Queen v. Dennington Duncan, 2020 ONSC 7849

COURT FILE NO.: 278/20 DATE: 20200826

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN DANIEL GALLUZZO, for the Respondent/Crown Respondent

• and -

DENNINGTON DUNCAN DEREK GRAVESANDE and CECILIA FEARON-FORBES, for the Applicant Applicant

DURNO, J.

[1] The applicant was convicted of sexual assault and received a 9-month conditional sentence followed by 15 months’ probation. The trial judge issued DNA and Sex Offender Registry Orders under the Criminal Code.

[2] The applicant appealed and on consent was granted bail pending appeal and the DNA and SOIRA Orders were stayed.

[3] The Peel Regional Police contacted the applicant and advised he was required to comply with the Ontario Sex Offender Registry (Christopher’s Law). While the police were provided with the Court’s order staying the above noted corollary orders, the police advised the applicant that the orders did not address the applicant’s obligation to comply with Christopher's Law.

[4] The applicant applies for an order staying compliance with the Christopher's Law pending the determination of his appeal. He does not challenge the legislation’s failure to include a provision for staying compliance pending appeal.

[5] The Crown submits the court has no jurisdiction to stay compliance with the provincial legislation.

[6] For the following reasons, the application is dismissed. I find the Superior Court has no jurisdiction to stay compliance with Christopher's Law pending an appeal.

The Sentencing Reasons

[7] The trial judge provided written reasons for sentence in which he set out the conditions for the conditional sentence and probation. His Honour then turned to the corollary orders as follows:

Sexual assault is a primary designated offence pursuant to s. 487.04 of the Criminal Code, making this Order mandatory. D.D. is ordered to provide a suitable sample of his DNA to the Peel Regional Police by noon on 08 May 2020 at 7750 Hurontario Street, Brampton, Ontario. The sample is to be provided in circumstances that are hygienic and that respect the privacy and health of D.D.

D.D. is ordered to register as a sex-offender pursuant to the provisions of the Sex Offender Information Registration Act, for 10 years.

[8] The applicant applied for bail pending appeal and other orders by Notice of Application that included under the Relief Sought:

1. An Order granting the application for bail pending appeal; and
2. An Order staying the Sentencing Judgment of the Trial Judge and all attending or ancillary orders, including the applicant reporting to a conditional sentence supervisor on May 4, 2020, reporting to a Peel Regional Police Services Headquarters to provide a DNA sample on May 8, 2020, and registering on the Sex Offender Registry.

[9] With the Crown’s consent, the following orders were issued:

On consent, the conditional sentence is stayed pending appeal, including the reporting provision

On consent, the DNA and SOIRA Orders are stayed pending the appeal.

[10] After the Orders were issued, the Peel Regional Police found the applicant was required to comply with the Christopher’s Law because the orders issued pending the appeal did not address the provincial legislation. The applicant sought an order staying his compliance with Christopher’s Law pending the appeal. The Crown opposed, contending there is no jurisdiction to stay the application of Christopher’s Law pending appeal. Mr. Galluzzo very fairly consented to an interim stay order pending the judgment on the application.

The Positions of Counsel

[11] The applicant advances three arguments:

1. The May 1, 2020 Order “in its present form and content stayed the reporting requirement under Christopher’s Law and relieved the applicant from reporting on the strength of the May 1, 2020 Order.”
2. The Superior Court of Justice is “imbued with the jurisdiction to issue/order a stay of compliance with the implementation of Christopher’s Law pending appeal against conviction and sentence.
3. The Superior Court of Justice has the inherent jurisdiction to grant a stay of compliance with Christopher’s Law pending the appeal against conviction and sentence.

[12] The applicant contends there is nothing in Christopher’s Law that proscribes, restricts or ousts the exercise of the court’s inherent jurisdiction to stay compliance pending appeal. Further, the jurisprudence is clear that any encroachment or restriction on the exercise of inherent jurisdiction must be in clear language with “exceptional clarity,” in “clear and unambiguous” language.

[13] Relying on the judgment in R. v. Gibson, [2011] B.C.J. 441 (B.C.S.C.), where the Court found inherent jurisdiction could be exercised to stay the provision of DNA samples pending appeal, the applicant stresses the importance of the longstanding division of constitutional powers between the legislature and the courts, necessitating a most careful analysis where the legislative branch moves to limit the courts’ ability to administer justice.

[14] In Gibson, it was noted that the Criminal Code required the DNA sample to be taken even when the DNA order itself was appealed. The Code was silent with regards to the authority to stay DNA orders pending appeals of conviction and sentence where the DNA order itself was not appealed. Williamson J. held the court had inherent jurisdiction to stay a DNA Order pending appeal of the conviction.

[15] A similar approach was adopted in R. v. Cooper, 2001 ABQB 250, affirmed 2002 ABCA 156, leave to appeal refused [2002] SCCA No. 28.

[16] The applicant submits the Court of Appeal for Ontario judgment in R. v. Briggs (2001) 2001 24042 (ON CA), 53 O.R. (3d) 124 further supports his position. There, the Court stayed an order for a DNA sample under s. 487.056(1) of the Criminal Code finding the section did not remove the court’s jurisdiction, as opposed to its inherent jurisdiction to regulate proceedings before it. The section simply means that filing a notice of appeal does not automatically stay the order.

[17] Further, the applicant submits that in R. v. Simon (1988), 11 M.V. R. (2d) 289 (B.C. Co.Ct.) as in Gibson, the British Columbia Supreme Court stayed driving prohibitions.

[18] Mr. Duncan also submits that an automatic driving prohibition imposed pursuant to the Highway Traffic Act as a result of a Criminal Code driving conviction, can be stayed by the Superior Court in the exercise of its inherent jurisdiction to stay such prohibition on application to the court.

[19] The applicant submits that the stay would be of short duration because his appeal must be perfected by June 26 and the bail pending appeal release order has an August 31 sunset clause.

[20] Finally, the applicant notes the “inextricable relationship” between SOIRA and Christopher's Law. He queries the paradox of the Crown consenting to the stay of the SOIRA Order but not the Christopher's Law Order. He contends that while the trial judge did not make on Order under OSOR, such an Order may be unwritten and implicit by operation of statute.”

[21] The Crown submits the court has no jurisdiction to grant the application. The issue can be resolved by applying the Supreme Court of Canada judgment in R. v. Laba, 1994 41 (SCC), [1994] 3 S.C.R. 965 where the Court found “appeals are against orders.” Here, the applicant does not seek to stay of an order imposed by the sentencing judge. What the appellant seeks is the interim stay of the operation of provincial legislation only as it applies to him. Further, the Crown submits “[i]mportantly he does so without challenging the constitutionality of the legislation.” The effect of the applicant’s request would be akin to a temporary declaration of invalidity of Christopher's Law as it applies to the applicant without challenging the law.

The Legislation: Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, s. 2

[22] Section 1 defines:

“offender” as a person:

(a) who has been convicted of a sex offence, or (b) who has been found not criminally responsible of a sex offence on account of mental disorder;

“sex offence” means,

(a) an offence under section 151 (sexual interference), 152 (invitation to sexual touching), subsection 153 (1) (sexual exploitation), 155 (1) (incest), 160 (1), (2) or (3) (bestiality), 163.1 (2), (3) or (4) (child pornography), section 170 (parent or guardian procuring sexual activity), subsection 173 (2) (exposure), section 271 (sexual assault), subsection 272 (1) (sexual assault with a weapon, threats to a third party or causing bodily harm) or section 273 (aggravated sexual assault) of the Criminal Code (Canada), (b) an offence under a predecessor or successor to a provision set out in clause (a), (b.1) an offence referred to in paragraph (b) or (f) of the definition of “designated offence” in subsection 490.011 (1) of the Criminal Code (Canada) in respect of which an order in Form 52 has been or is made under subsection 490.012 (2) of that Act, (b.2) an offence in respect of which a person is subject to an obligation under section 490.02901 of the Criminal Code (Canada) to comply with the Sex Offender Information Registration Act (Canada), (b.3) an offence in respect of which a person is subject to an obligation under section 36.1 of the International Transfer of Offenders Act (Canada) to comply with the Sex Offender Information Registration Act (Canada), or (c) an offence under a provision of the Criminal Code (Canada) that is prescribed;

… 3. (1) Every offender who is resident in Ontario shall present himself or herself at a designated bureau, police station or detachment of the police force that provides police services where he or she resides or at another place in the area where the police force provides police services designated by that police force,

(a) within the prescribed period after he or she is released from custody [^1] after serving the custodial portion of a sentence in respect of a sex offence; (a.0.1) within the prescribed period after he or she is released from custody on parole in respect of a sex offence; (a.1) within the prescribed period after he or she is convicted of a sex offence, if the offender is not given a custodial sentence; (a.2) within the prescribed period after he or she is ordered to serve the custodial portion of the sentence in respect of a sex offence intermittently; (a.3) within the prescribed period after he or she is released from custody pending the determination of an appeal in relation to a sex offence; [emphasis added] (b) within the prescribed period after he or she receives an absolute or conditional discharge in respect of a sex offence, if he or she was found not criminally responsible of the offence on account of mental disorder; (c) within the prescribed period after he or she changes his or her address; (c.1) within the prescribed period after he or she changes his or her name; (d) within the prescribed period after he or she becomes resident in Ontario; (e) within the prescribed period before he or she ceases to be resident in Ontario; (e.1) within the prescribed period after he or she becomes subject to an obligation under section 490.02901 of the Criminal Code (Canada) to comply with the Sex Offender Information Registration Act (Canada); (e.2) within the prescribed period after he or she becomes subject to an obligation under section 36.1 of the International Transfer of Offenders Act (Canada) to comply with the Sex Offender Information Registration Act (Canada); (f) on a day that is not later than one year after and not earlier than 11 months after he or she last presented himself or herself to a police force under any of clauses (a) to (d) or under subsection 7 (2); and (g) on a day that is not later than one year after and not earlier than 11 months after he or she last presented himself or herself to a police force under clause (f).

Analysis

[23] Before turning to the legislation, identifying the nature of this application and what the applicant seeks will place the further analysis in context.

[24] First, I am not persuaded the answer to the application is that appeals are against orders. This is not an appeal. In Laba, the Court found that appeals were against orders, not the lower court’s reasons. This is a stay application. Appellants can apply to stay corollary orders imposed when he or she was sentenced, without appealing those orders.

[25] I agree with R. v. Bichsel, 2013 BCCA 164, where the appellant sought a stay of the registration and reporting requirements under SOIRA pending appeal. The Court found the stay was not “ancillary or incidental to the hearing or determination of the appeal. Rather, it was an application to stay a part of a mandatory order for which no provision for a stay is provided:” at para. 22.

[26] Second, throughout his thorough submissions, Mr. Gravesande repeatedly mentioned staying the order pending the determination of the appeal. The problem with those submissions is that there is no order in relation to Christopher’s Law. The trial judge never mentioned the legislation nor was he required to do so. The combination of the definition and s. 3(1) mandates compliance with the legislation, not a Court order. There is no implied or unwritten order created by the legislation.

[27] Indeed, no one mentioned the provincial legislation in the course of the proceeding. That is so because no order is required. That is not to say that some notification of the provincial legislation might not be helpful either in the plea comprehension inquiry or upon arraignment as occurs when dealing with driving offences. In those cases, before taking the plea the clerk advices the accused that the HTA provides upon conviction of the offence with which you are charged in the circumstances indicated therein, your driver’s license shall be suspended for the period prescribed by statute.

[28] Further, there is a distinction between corollary orders imposed under the Criminal Code and collateral consequences from a conviction. Being required to comply with Christopher's Law is a collateral consequence of being convicted of a sex offence in Ontario. Compliance is not directed by the court.

[29] While this application does not include a constitutional challenge, in the Court of Appeal judgement in R. v. Dyck, 2008 ONCA 309 the Court provided a helpful analysis of the legislation. Dyck challenged the constitutionality of Christopher's Law contending it infringed Charter sections 7 (everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice), 11(g) (not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations), 11(h)( if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again) and 11(i) if found guilty of the offence and if the punishment for offence has been varied between the time of commission and the time of sentencing, to the benefit of the lower punishment). The provincial law was not in force when the offence was committed but was at the time of sentencing. [^2]

[30] In upholding the constitutionality of legislation, the Court found the legislation engaged the offender’s liberty interests (at para. 89) but the offender was not deprived of liberty in a manner that did not accord with the principles of fundamental justice. The reporting requirements also infringed the liberty interest both physically and informationally, but the restrictions were modest given the offender had been convicted: at para. 104. The requirements are limited in their informational scope, do not prohibit offenders from going anywhere or doing anything. They are no more intrusive than other state-imposed registration requirements and impose minimal stigma on the offender. The conviction is public information: at para. 106. Offenders have to tell police who they are, where they are and how they may be located or contacted as well as providing a current photograph: at para. 108.

[31] The provincial legislation contains no provision for a right of appeal, to seek an order terminating compliance or for an exemption from reporting based on gross disproportionality. Dyck argued it was unfair to deprive him of a hearing or resort to an appeal of the obligation to comply with the legislation. It breached his s. 7 rights to procedural fairness. Blair J.A. held:

[127] The second prong of the s. 7 attack made by the appellant and the intervenor is founded on notions of procedural fairness as a principle of fundamental justice. They submit that Christopher's Law is constitutionally flawed because it fails to afford the offenders affected by it an opportunity to make their case that they should be entitled to an exemption from registration, or to appeal or seek review of its automatic application, or to apply for an order terminating registration at any time prior to the statutory end-date for registration. …

[128] The appellant and the intervenor point to SOIRA as a piece of legislation that is properly tailored because it contains provisions for exemptions, appeals, reviews and applications for termination of registration in particular cases. They argue that the standard for exemption from registration under SOIRA, found in s. 490.012(4) of the Criminal Code, is whether the impact of registration on the offender would be "grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature". They point to numerous decisions of courts across the country concluding that gross disproportionality had been established in those cases.

[129] I do not accept these contentions.

[130] The appellant's primary submission is the natural justice argument that a person should be entitled to be heard when a judicial decision is made affecting that person's interests. Indeed, the appellant goes so far as to submit that "whenever there is an impairment of a liberty or security interest within the meaning of Section 7 the principles of fundamental justice require a hearing of some sort". The intervenor states that where a "law engages the s. 7 interests of the individual, he or she must be allowed some forum to challenge this imposition by the law". These propositions are themselves overly broad, however, in my view.

[134] In any event, a convicted sex offender has a reduced expectation of a hearing in these circumstances. An offender does not become subject to registration unless and until he or she has been convicted of a designated sex offence after a full and fair trial. Although it cannot be said to have been so in the appellant's case, it is now the reality that registration is a consequence of such a conviction -- the potential for which is well known to the accused from the moment the charge is laid. In Hendry, at para. 18, this court noted -- albeit in the DNA context -- that "[h]aving been convicted of a designated offence, the offender already has a reduced expectation of privacy". I would extend this to encompass a reduced expectation that he or she would be entitled to the full panoply of "natural justice" remedies when facing the non-penal consequences of such a conviction. [emphasis added]

[142] Here -- apart from the requirement to attend at the police station -- the information required in relation to registration on the Registry is information commonly called for and provided in relation to many regulated and non-regulated activities in modern society. The context of Christopher's Law simply does not mandate as a constitutional minimum that an offender convicted of a designated sex offence be afforded a hearing or a right of review before he or she may be required to register on the Registry.

[143] … The consequence of registration is not penal. For the same reasons as I have just articulated, a hearing or review procedure is not constitutionally mandated by the Christopher's Law context.

Do the May 2020 Orders relieve the applicant from compliance with Christopher's Law?

[32] I am not persuaded the May 2020 orders that accompanied the bail pending appeal order implicitly or in any other way relieved the applicant from compliance with Christopher's Law. I reach that conclusion for the following reasons.

[33] First, the applicant’s notice of application did not mention the provincial legislation. He sought the stay of “all attending and ancillary orders.” [emphasis added] There was no order in regards to compliance with Christopher’s Law.

[34] Second, the reference in the order to relief from reporting is clearly related to the conditional sentence.

[35] Third, there was no reference to the provincial legislation during the application.

Is the Superior Court of Justice “imbued with the jurisdiction to issue/order a stay of compliance with the implementation of Christopher's Law pending appeals of conviction and sentence?”

[36] There is federal and provincial legislation that authorizes an appellate court to stay corollary orders and automatic consequences where a conviction and sentence are pending.

[37] Section 685(5) of the Criminal Code provides an appellate court with the authority to suspend several corollary orders as follows:

If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:

(a) an obligation to pay a fine; (b) an order of forfeiture or disposition of forfeited property; (c) an order to make restitution under section 738 or 739; (d) an obligation to pay a victim surcharge under section 737; (e) a probation order under section 731; and (f) a conditional sentence order under section 742.1. [emphasis added]

[38] Section 685 applies to Summary Conviction Appeals by virtue of s. 822 of the Criminal Code.

[39] Whether s. 685(5) is exhaustive of an appellate court’s authority to stay orders pending appeal is the subject of conflicting decisions across Canada. Of note, the subsection makes no reference to SOIRA orders. British Columbia and Nova Scotia appellate courts have found there is no authority to stay a SOIRA order pending appeal: Re Bichsel, 2013 BCCA 164 and R. v. Doiron, 2011 81772 (NB CA), [2011] NBJ NO. 472 (C.A.) In R. v. Zurowski, 2003 ABCA 174, the Court found there was no authority to stay on order to provide a DNA sample while in R. v. Noftall, 2017 NLCA 70 the order was suspended. In R. v. Briggs, 2001 24042 (ON CA), [2001] O.J. No. 685 (C.A.), the Court of Appeal for Ontario stayed a DNA order pending appeal relying on the criteria in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311.

[40] I am not prepared to find that s. 685(5) provides any jurisdiction pursuant to which I could stay compliance with Christopher's Law. All of the cases that have stayed orders pending appeal for orders that were not listed in the section, were stays of court orders. Unlike SOIRA, DNA, s. 109 and s. 110 weapons prohibitions are corollary court and part of the sentencing. They all relate to mandatory or discretionary orders under the Criminal Code. For Christopher's Law, no order is required to activate the reporting and compliance requirements. It is automatic upon a conviction. The combination of sections 1, 2 and 3 of the legislation mandate compliance.

[41] Where the conviction is for driving offences there are two methods of suspending the driver’s license of the offender, one federal and one provincial. Section 320.24 of the Criminal Code provides authority for the stay of automatic and discretionary license suspensions upon a finding of guilt or conviction. The Criminal Code gives the appellate court the jurisdiction to stay the court-imposed orders upon application to the appellate court whether the Criminal Code based suspension was mandatory or discretionary: Criminal Code, s. 325.25.

[42] For some driving offences, the provincial Highway Traffic Act mandates automatic license suspensions upon a finding of guilt. The Province has enacted legislation that stays the automatic orders upon the filing of a notice of appeal and notification to the Ministry of Transportation: Highway Traffic Act, s. 55.

[43] Contrary to the applicant’s position at para.28 of his factum, the Superior Court plays no role in staying the mandatory provincial Highway Traffic Act suspensions. It occurs upon filing and notice of appeal and notifying the Ministry.

[44] Christopher's Law does not include a similar provision. That the Province has enacted a section in one act and not in another, does not result in the court being imbued with the authority to do so in both situations. Indeed, it may imply that the legislature determined that a similar provision was not required.

[45] It was contended that the Court of Appeal judgment in Briggs, where the Court stayed a DNA order applying the criteria for injunctions in RJR-MacDonald Inc., provided some assistance for the applicant. However, the Court was dealing with a court order, not a consequence of the conviction. The case does not assist the applicant.

[46] If I am wrong in that conclusion, applying the RJR-MacDonald criteria, with regards to the low threshold of whether there is a serious issue to be tried, unlike the DNA legislation the Court of Appeal was considering, Christopher’s Law is not new legislation. It predates SOIRA. Given the requirements of compliance with Christopher’s Law as noted by the Court of Appeal in Dyck, I am unable to see that there would be irreparable harm were the stay not granted. I reach that conclusion notwithstanding the unusually short turn-a-round from sentencing until the herign of the appeal. Whether the judgment will be reserved is unknown. Unlike Briggs, there is no risk of a “matching process which ought not to have been undertaken if the appeal is successful.” Finally, it cannot be said that the state interests are protected as they were in Briggs when that appellant was in jail.

[47] What remains is inherent jurisdiction.

Does the Court’s inherent jurisdiction provide authority for the Court to order relief from compliance?

[48] A Superior Court possesses inherent jurisdiction to ensure the court functions as a court of law and to fulfill its mandate to administer justice: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18. It includes the authority to control the court’s process, prevent abuses of process and ensure the court functions in an orderly and effective manner: Cunningham, at para. 18. While there are limits on the court’s inherent jurisdiction, displacing that jurisdiction requires clear and explicit language: R. v. Grant, 2016 ONCA 639, at para. 35.

[49] The Supreme Court of Canada outlined the scope of inherent jurisdiction in Ontario v. Criminal Lawyers’ Association, 2013 SCC 43, as follows:

19 In MacMillan Bloedel, a majority of this Court described the powers at the core of a superior court's jurisdiction as comprising "those powers which are essential to the administration of justice and the maintenance of the rule of law" (para. 38), which define the court's "essential character" or "immanent attribute" (para. 30). The core is "a very narrow one which includes only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system" (Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 259 (SCC), [1996] 1 S.C.R. 186, at para. 56, per Lamer C.J.).

21 As noted by this Court in R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24:

These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" (Jacob, at p. 27) to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner" (p. 28).

22 In spite of its amorphous nature, providing the foundation for powers as diverse as contempt of court, the stay of proceedings and judicial review, the doctrine of inherent jurisdiction does not operate without limits.

23 It has long been settled that the way in which superior courts exercise their powers may be structured by Parliament and the legislatures (see MacMillan Bloedel, at para. 78, per McLachlin J., dissenting on other grounds). As Jacob notes (at p. 24): "... the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision" (emphasis added) (see also Caron, at para. 32).

24 Further, even where there are no legislative limits, the inherent jurisdiction of the court is limited by the institutional roles and capacities that emerge out of our constitutional framework and values (see Provincial Judges Reference, at para. 108).

26 With the advent of the Charter, the superior courts' inherent jurisdiction must also support their independence in safeguarding the values and principles the Charter has entrenched in our constitutional order. Thus, the inherent jurisdiction of superior courts provides powers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution. It includes those residual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner - subject to any statutory provisions. I would add, however, that the powers recognized as part of the courts' inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation.

30 Accordingly, the limits of the court's inherent jurisdiction must be responsive to the proper function of the separate branches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governance over the course of centuries.

31 Indeed, even where courts have the jurisdiction to address matters that fall within the constitutional role of the other branches of government, they must give sufficient weight to the constitutional responsibilities of the legislative and executive branches, as in certain cases the other branch will be "better placed to make such decisions within a range of constitutional options" (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 37).

[50] Section 3(1)(a.3) of Christopher's Law requires offenders to present themselves at a specified location within the prescribed period “after he or she is released from custody pending the determination of an appeal in relation to a sex offence.” While an offender who appeals is not automatically excluded from complying, the legislation does not include any provision that addresses stays of compliance pending an appeal. I accept that there is no clear and express authority precluding stay application. However, none of the cases relied upon by the applicant involved the staying of the consequences of a conviction. They all dealt with stays of court orders. That is a critical distinction.

[51] A further hurdle for the applicant is that compliance with Christopher's Law is automatic. Many of the cases relied upon by the applicant and others that have dealt with inherent jurisdiction, draw a distinction between discretionary and automatic orders, usually driving suspensions. Where the suspension was automatic, inherent jurisdiction did not provide a basis to stay the suspension pending appeal. Where the suspension was discretionary, it did: Simon, Gibson. See also, Keil v. British Columbia (Superintendent of Motor Vehicles), 2000 BCSC 1818.

[52] I agree with the authorities that drew a distinction between discretionary and mandatory orders. Indeed, most of the cases upon which the applicant relies drew the distinction. In Gibson, the issue was a DNA order under s. 487.0151 of the Criminal Code. In Cooper, the application was to stay an order requiring the offender to provide a DNA sample after conviction for a primary designated offence. In Briggs, the application was to stay an order requiring the offender to provide a DNA sample under s. 487.051 of the Criminal Code. In 101051287 Saskatchewan Ltd. V. Saskatoon City), the Court dealt with an application to stay compliance with court-imposed orders to cease the operation of business after a finding of a Planning and Development Act violation. Finally, in R. v. Borger Industries Ltd. (1979), 49 O.R. (3d) 527 (Man. Co.Ct.), the application was to stay or suspend the operation of the conviction and compliance with the court order.

[53] I find that where an automatic corollary consequence of a conviction occurs, the court has no jurisdiction to stay that consequence pending appeal.

[54] As noted at the outset, this application did not challenge the omission of a stay pending appeal from the legislation on constitutional grounds. Whether that application would succeed is for another day. This is particularly so in light of the legislation having no mechanism for the deletion of the information provided when an appeal is allowed.

Conclusion

[55] The Superior Court has no jurisdiction to stay the mandatory application of Christopher’s Law pending Summary Conviction Appeal.

DURNO, J. Released: August 26, 2020

[^1]: Pursuant to Ontario Regulation 69/01 the offender must report within 7 days. [^2]: Given the retrospectivity issue does not arise on this application I have not included any references to this argument in the analysis.