



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Avon, 2013
    ONCA 249

DATE: 20130422

DOCKET: C54455

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen in right of Ontario as represented
    by the Ministry of Community Safety and Correctional Services (The Ontario Sex
    Offender Registry)

Respondent

and

Pierre Avon

Appellant

Dominic Lamb and Solomon Friedman, for the appellant

Jinan Kubursi, for the respondent

Heard and released orally: April 11, 2013

On appeal against the dismissal of a certiorari application
    by Justice Robert Maranger of the Superior Court of Justice on June 30, 2011.

ENDORSEMENT

[1]

The
Criminal Proceedings Rules
invoked by the appellant were made
    by the Superior Court of Justice as a superior court of criminal jurisdiction
    under s. 482(1) of the
Criminal Code
. Those rules apply to
    proceedings in relation to any matter of a criminal nature or arising from or
    incidental to any such prosecution, proceeding, action or appeal.

[2]

Rule 1.02 of those rules describes the scope of their application in
    language that duplicates what appears in their enabling authority, s. 482(1) of
    the
Criminal Code
.

[3]

Rule 43.01 establishes that Rule 43, which governs applications for
certiorari
and other extraordinary remedies is confined to applications in criminal
    matters.

[4]

In
R. v. Dyck
, 2008 ONCA 309, this court held that
Christophers
    Law
was valid provincial law under heads 13 and 14 of s. 92 of the
Constitution
    Act
,

1867
, not a colourable
    attempt to legislate criminal law. The regulatory scheme enacted by the
    legislation requires automatic offence based registration and does not permit
    exemption or authorize termination on a temporal basis.

[5]

In our view, the
Criminal Proceedings Rules
have no application
    to the circumstances of this case. The remedy sought here is removal of the
    applicants name from a provincial sex offender registry, maintained by a
    provincial ministry, under a provincial law enacted under provincial
    legislative authority. The mere fact that the prohibition under s. 161 of the
Criminal
    Code
was imposed in criminal proceedings under Part XXVII of the
Criminal
    Code
,
where it is not
    expressly included in the expansive definition of sentence, does not convert
    this application to a criminal proceeding within s. 482(1) of the
Criminal
    Code
or bring it within the purview of the
Criminal Proceedings Rules
enacted pursuant to that authority.

[6]

In our view, this application should have been made to the Divisional
    Court under the
Judicial Review Procedure Act
. It follows that the
    judge below erred in taking jurisdiction under the
Criminal Proceedings Rules
.
    His decision was made without jurisdiction and must be quashed. This appeal is
    also quashed.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

David Watt
    J.A.


