



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(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 OF APPEAL FOR ONTARIO

CITATION: R. v. R.P., 2018 ONCA 473

DATE: 20180523

DOCKET: C63070

MacPherson, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.P.

Appellant

R.P., acting in person

Peter Copeland, appearing as duty counsel

Justin Reid, for the respondent

Heard: May 8, 2018

On appeal from the conviction entered by Justice Irving
    W. André of the Superior Court of Justice on July 25, 2016, and from the
    sentence imposed on November 15, 2016.

By the Court:

[1]

Following a trial before André J. of the Superior Court of Justice, the
    appellant was convicted of sexual interference and attempt to obstruct justice.
    He received a sentence of 27 months imprisonment less nine months and 24 days
    for pre-sentence custody. The trial judge imposed several ancillary orders on
    sentence, including a
Sex Offender Information Registration Act
, S.C.
    2004, c. 10 (SOIRA) order under s. 490.012 of the
Criminal

Code
for life.

[2]

At the appeal hearing, the appellant, with the assistance of duty
    counsel from the Pro Bono Inmate Appeal Program, abandoned his conviction
    appeal. On his sentence appeal, he challenged only the lifetime SOIRA order.
    His position is that the SOIRA order should have a duration of 20 years.

[3]

The respondent agrees with the appellants position on this issue. Both
    trial counsel indicated that a SOIRA order of 20 years was appropriate. In
    spite of this, the trial judge imposed a SOIRA order with a lifetime duration.

[4]

The SOIRA order in this case was imposed under s. 490.012(1) of the
Code
:

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)  , 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.

[5]

Section 490.013(2) of the
Code
deals with the duration of SOIRA
    orders:

An order made under subsection 490.012(1) or (2)

(a) ends 10 years after it was made if the offence in
    connection with which it was made was prosecuted summarily or if the maximum
    term of imprisonment for the offence is two to five years;

(b) ends 20 years after it was made if the maximum term of
    imprisonment for the offence is 10 or 14 years;

(c) applies for life if the maximum term of imprisonment for
    the offence is life.

[6]

Sexual interference is a designated offence with a maximum sentence of
    14 years if the charge was laid in an indictment. Hence the SOIRA order in this
    case should have had a duration of 20 years, not life.

[7]

In spite of the shared agreement between the appellant and respondent on
    this issue, the respondent raises a problem about how to fix it. The respondent
    says that this court does not have jurisdiction to hear an appeal relating to the
    SOIRA order. That is because there is no longer a right to appeal a SOIRA order
    imposed under s. 490.012(1) of the
Code
.

[8]

This problem was first identified by Drapeau C.J.N.B. in
R. v.
    Chisholm
, 2012 NBCA 79, at para. 2:

I reluctantly conclude there is no right of appeal, with or
    without leave, from [SOIRA] orders. It follows that the underlying appeal
    proceedings were initiated without lawful authority. In my view, the
    appropriate remedy is to quash the Notice of Appeal.

[9]

In reaching this conclusion, Drapeau C.J.N.B. considered whether a SOIRA
    order could be considered part of the sentence imposed by a trial court and, therefore,
    amenable to appeal under relevant sentence appeal provisions in the
Code
.
    His conclusion, at para. 10, was that a
SOIRA
order issued by virtue
    of s. 490.012(1) is not a sentence within the meaning of Part XXI (APPEALS 
    INDICTABLE OFFENCES). In support of this conclusion, Drapeau C.J.N.B. set
    out, at paras.11-20, ten factors, considerations and interpretations relating
    to the history and wording of the key SOIRA provisions. We do not repeat all of
    these factors in these reasons, but highlight the following as particularly
    persuasive:

·

Parliament eliminated the broad right of appeal from SOIRA orders
    in s. 490.014 of the
Code
;

·

The weight of authority prior to the amendments that eliminated
    the broad right of appeal was that a SOIRA order is not a sentence;

·

SOIRA orders do not fall within the definition of sentence in
    s. 673 of the
Code
; and

·

DNA orders are procedurally similar to SOIRA orders; courts have
    consistently held that DNA orders do not form part of a sentence.

[10]

Importantly,
    several provincial appeal and trial courts have adopted the analysis and
    conclusion in
Chisholm
: see, for example,
R. v. J.J.W.
, 2012
    NSCA 96;
R. v. Whiting
, 2013 SKCA 127;
R. v. Boucher
, 2013
    QCCA 345;
R. v. L.V.R.
, 2016 BCCA 86;
R. v. Alvarenga-Alas
,
    2014 ONSC 4725;
R. v. Colosie
, 2016 ONSC 1708;
R. v. Krause
,
    2015 ABQB 637; and
R. v. R.M.
, 2015 NLTD(G) 101.

[11]

There
    are two cases, both from this court, which might suggest a different result.

[12]

In
R. v. A.C.
, 2012 ONCA 608, the Attorney General sought an increase in
    the duration of a SOIRA order from ten to 20 years. The request was unopposed. It
    appears that no one raised the issue of jurisdiction. In granting the request,
    the court said, at para. 10:

In our view, in the circumstances of this case, the sentence
    imposed reflects no error in principle except that, as the parties agree, the
    period of the SOIRA order should be increased to 20 years to accord with s.
    490.013(2)(b) of the
Criminal Code
.

[13]

Similarly,
    in
R. v. Dimmick
, 2015 ONCA 402, Mr. Dimmick sought a reduction of a
    lifetime SOIRA order to 20 years. The Crown agreed. Again, it appears that no
    one raised the issue of jurisdiction. In reducing the order, the court said, at
    para. 11:

In addition to the seven year sentence, the trial judge imposed
    a lifetime SOIRA order. The maximum terms for the offences were 10 and 14
    years. The respondent Crown agrees with the appellant that the trial judge
    erred in this regard and that the order should be reduced to 20 years and we so
    order.

[14]

Because
    the jurisdictional issue was not raised or addressed in
A.C.
and
Dimmick
,
    we do not think they preclude this court from adopting
Chisholm
and
    its national progeny. This court can do so now that the issue has been properly
    advanced and argued.

[15]

We
    turn to the final issue. In
Chisholm
, the court quashed the Crown
    appeal for want of jurisdiction. The result was that a SOIRA order with an
    erroneous duration of 20 years continued in force instead of the lifetime order
    that should have been imposed.

[16]

In
    this appeal, the fact situation is the other way. A convicted person seeks to
    reduce an erroneous lifetime SOIRA order to an order with a correct duration of
    20 years. Obviously, his position is an attractive one. If we must quash the
    appeal, is there any other way for the appellant to obtain the just remedy he
    seeks?

[17]

The
    answer is Yes, as demonstrated convincingly in the excellent judgment by
    Goldstein J. of the Superior Court of Justice in
Alvarenga-Alas
.

[18]

In
Alvarenga-Alas
, a trial judge convicted Mr. Alvarenga-Alas of two
    counts of sexual assault. At the sentencing hearing, the Crown, without
    opposition from the defence, erroneously indicated that Mr. Alvarenga-Alas
    should be placed on the sex offender registry for ten years. The trial judge imposed
    a ten year SOIRA order. However, the order should have been for life. The Crown
    brought the error to the trial judges attention and asked her to correct it.
    She declined, saying she was
functus officio
.

[19]

The
    Crown brought an application for the prerogative writ of
mandamus
,
    arguing that the trial judge should have exercised her jurisdiction and
    corrected her original order. Goldstein J. determined that the trial judge was
    not
functus
and made the
mandamus
order.

[20]

The
    basis for the
mandamus
order, according to Goldstein J., was that the
    trial judge had an inherent jurisdiction to correct the erroneous SOIRA order.
    In reaching this conclusion, Goldstein J. carefully considered and applied 
    correctly in our view 
R. v. Burke
, [2002] 2 S.C.R. 857, and
R.
    v. Malicia
(2006), 82 O.R. (3d) 772 (C.A.). Citing
R. v. D.M.
,
    2013 ONSC 141, Goldstein J. relied on four factors that supported his
    conclusion that the trial judge had an inherent jurisdiction to correct an
    erroneous SOIRA order:

·

The correction or amendment is more clerical or administrative in
    nature since the error relates to a statutorily mandated ancillary order with a
    fixed duration, one for which there is no residual discretion lying with the
    court (paras. 55-58);

·

Indeed, the making of a SOIRA order does not require a judge to
    make any substantive decision - there is no judgment or discretion involved;
    nor is there any consideration of law or evidence (paras. 61-63);

·

No prejudice flows from the correction or amendment of the order
    since all it would do is bring it into conformity with legal requirements
    (para. 57); and

·

It would always be a judges manifest intention to make a SOIRA
    order compliant with the correct mandatory duration for such orders set out in
    s. 490.013 of the
Code
(paras. 57 and 68).

[21]

For
    these reasons, and under the jurisprudential umbrella of
Burke
and
Malicia
,
    we conclude that, although there is no right to appeal a SOIRA order imposed
    pursuant to s. 490.012(1) of the
Code
, such an order may be corrected
    by the judge who imposed it who, in these particular circumstances, retains
    inherent jurisdiction to do so.

[22]

The
    appeal is quashed for want of jurisdiction. The appellant, perhaps with the
    assistance of duty counsel, may return the matter to the trial judge for
    correction of the erroneous SOIRA order.

Released: CWH MAY 23 2018

J.C. MacPherson
    J.A.

C.W. Hourigan J.A.

B.W. Miller J.A.


