New & Notable: An Illegal Order is No Order at All

Siebenmorgen was convicted of two counts of possession of child pornography. At the time of sentencing the Crown asked that the offender be placed on the Sex Offender Information Registry for a period of 10 years; Rady J so ordered.  As it happens the Crown had inadvertently requested that the Court make an illegal order. Because the offender had been convicted of two counts of a designated offence the period of time he was to remain on the Registry was prescribed by law as life.

Section 490.012(4) provides that:

Failure to make order - If the court does not consider the matter under subsection (1) or (3) [at the time of sentencing], the court

(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;

(b) retains jurisdiction over the matter;

(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

Crown and defence agreed that pursuant to section 490.012(4) the court had the authority to correct the order. However, defence argued that instead of amending the illegal order the Court should stay one of the two counts.

First, Rady J considered that “strictly speaking, it is not the case that "the court did not consider the matter under subsection (1) or (3)" at the time of the original sentencing because an order was in fact made” [para 7].

Second, the Court considered the defence pitch for a stay. Rady J noted that as a general rule “there is no power to amend a judgment which has been drawn and entered, except in two cases: (1) where there has been a slip in drawing it up, or (2) where there has been an error in expressing the manifest intention of the court: Paper Machinery Limited v. J.O. Ross Engineering Corporation, [1934] S.C.R. 186” [para 13].

In dismissing the defence request the Court held that:

Having rendered a verdict and sentenced Mr. Siebenmorgen, I am of the view that the court is functus. What is being requested by Mr. Crawford is not the correction of an error or slip. Rather, the request is for a reconsideration of the sentence, in accordance with new submissions not made at the time of the sentencing hearing [para 16].

The SOIRA order was amended to a period of life as prescribed by the Criminal Code.