When a sex offender is convicted of two or more sexual offences at the same time they are required by law to be registered is accordance with the Sex Offender Information Registration Act (SOIRA) for a period of life. Although this is clearly written in s490.013 of the Code and there is no discretion for the Court to do anything other than impose the order for less than the prescribed period, judges and counsel have been getting the duration of the orders just plain wrong. The question becomes what to do when someone notices the error. Is the sentencing judge functus? Does a correction to the order require an appeal? That was precisely the issue before Ontario Superior Court Justice Goldstein in Alvaranga-Alas, 2014 ONSC 4725 (SC).
Alvaranga-Alas was convicted of two counts of sexual assault. At the sentencing hearing the crown submitted that a 10 year SOIRA order was appropriate. The defence did not demur and Justice Rutherford imposed the 10 year order. Shortly thereafter the Crown discovered that an error had been made. In fact, by operation of s.490.013(2.1) the SOIRA order was, without any discretion, to be made for a period of life.
The Crown applied to the sentencing judge to correct the erroneous order. Justice Rutherford declined to correct the order and determined instead that she was functus. She held that the proper forum for the application to correct the order was to an appellate court.
Justice Goldstein sitting as a summary conviction appeal court first noted that:
There is conflicting authority on both points. One line of authority in this Court holds that a sentencing judge has the inherent authority to correct a SOIRA order after it is made: see R. v. D.M., 2014 ONSC 141 (SC). A line of authority in the Ontario Court of Justice holds that a sentencing judge does not: R. v. J.E. 2013 ONCJ 247 (CJ). The problem is that there is no clear route of appeal from the decision of the Ontario Court of Justice sitting as a summary conviction court in relation to a SOIRA order. [citations not original] @para 8.
Justice Goldstein however found it difficult to imagine that either the sentencing judge or an appellate court for a summary conviction matter lacked the power to correct an erroneous error. If that were the case it is not hard to see that:
[a]n obvious injustice could result: an offender might be erroneously subjected to a lifetime SOIRA order when, in fact, the offence called only for a 10-year order. No rule of statutory interpretation requires a court to find that Parliament created a regime where injustice could be done but not undone. @para 9
Section 490.012(4) of the Code permits a 90 day period following the imposition of sentence that would allow a court that does not “consider the matter” when it imposes sentence. Justice Goldstein rejected the argument that this provision would allow for the correction of an erroneous SOIRA order and that its application was limited to circumstances where the Court failed to consider the issue at all. It does not apply, according to Justice Goldstein where the Court considers the issue but gets it wrong.
Instead Justice Goldstein held that courts have an inherent jurisdiction to correct an erroneous SOIRA order because the order is automatic and not at all discretionary. Unlike the situation where a judge turns their mind to and crafts an illegal sentence having considered other sentencing options, (for example the illegal jail, fine and probation combination) in the case of a SOIRA order “only one outcome is possible” @para 69. Moreover, “no judge could possibly have a manifest intention to make an incorrect calculation” @para 69.
Justice Goldstein further found support for the inherent jurisdiction view in the fact that there is a lack of a clear route of appeal in summary conviction matters to correct a SOIRA order.
Justice Goldstein concluded that the ordering judge had the jurisdiction to correct the order and had erred by declining to do so. This failure of jurisdiction was best remedied by remitting the matter to the ordering judge with a writ of mandamus compelling Justice Rutherford to exercise her jurisdiction pursuant s.490.012 of the Code.