Court Order to Fix a Mistake

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.


Constitutional Jurisdiction

Joseph Lloyd was convicted of three counts of possession of drugs for the purpose, contrary to section 5(2) of the Controlled Drugs and Substances Act [CDSA].  Lloyd had a prior conviction under the same section; as a result, he faced a mandatory minimum of one year.

Lloyd argued that the one-year mandatory minimum violated section 12. The sentencing judge held that the minimum did not violate section 12 as it related to Lloyd but went on to consider whether the provision would violate section 12 in a reasonable hypothetical. The court found that it did. As a result, the court “declared” that the provision was invalid.

The Crown appealed: 2014 BCCA 224.

Two aspects of the appeal are quite interesting.

First, the court considered the jurisdiction of the provincial court to consider the constitutionality of provisions.

In this context, the court noted that while a provincial court has the jurisdiction to consider any constitutional impact of a provision on the offender before it, any ruling is limited in its application to the present case. The court has no jurisdiction to make a general declaration of invalidity: “the judge in this case did, indeed, intended to make a formal declaration that the impugned provision was of no force and effect. He had no jurisdiction to make such a declaration, and, assuming that he was right to have found the impugned provision to be unconstitutional, ought to have confined himself to refusing to apply it in the case before him. I would set aside the declaration” [para 38].

Second, the court considered the proper scope of constitutional consideration by a provincial court.

In this context the court noted two points. One, in light of the fact that a provincial court ruling on the constitutionality of a provision is limited to the case before it, any consideration of the constitutionality in the context of a reasonable hypothetical might be unnecessary and inappropriate. Two, based on the more general principle that courts should restrict their rulings to the case before them it was, in the present case, inappropriate for the court to strike down the provision on the basis of a reasonable hypothetical.

The fact that a party has standing to make a constitutional argument, however, does not compel a court to rule on that argument. There is a general (though not invariable) principle that courts avoid making constitutional pronouncements when cases can be decided on less esoteric bases. Professor Hogg puts it this way:
A case that is properly before a court may be capable of decision on a non-constitutional ground or a constitutional ground or both. The course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided. For the same reason, if a case can be decided on a narrow constitutional ground or a wide ground, the narrow ground is to be preferred. If a case can be decided on a rule of federalism or under the Charter, the federalism ground is the narrower one, because it leaves the other level of government free to act, whereas a Charter decision striking down a law does not. The general idea is that a proper deference to the other branches of government makes it wise for the courts, as far as possible, to frame their decisions in ways that do not intrude gratuitously on the powers of the other branches.
Peter W. Hogg, Constitutional Law of Canada (5th ed. supplemented) (looseleaf) Toronto: Thomson Carswell, 2007 (updated to 2013), §59.5, p. 59-22
In short, while Mr. Lloyd clearly had standing to challenge the validity of s. 5(3)(a)(i)(D) of the CDSA, the court was not obliged to determine that issue unless that section would have an impact on the appropriate sentence for Mr. Lloyd.
Mr. Lloyd contends that the court is required to determine the constitutionality of s. 5(3)(a)(i)(D), because "no one may be sentenced under an unconstitutional law". While there is some merit in that contention, I do not think that it can be said that Mr. Lloyd would be "sentenced under an unconstitutional law" unless that law in some way affects his sentence. Before embarking on the constitutional inquiry, therefore, the court should consider whether the impugned provision would have any effect on the sentence to be imposed. [Paras 42-44].

Lloyd is an interesting and helpful decision. Interesting in its consideration of reliance upon a reasonable hypothetical in the context of section 12. As per Lloyd, where a provision would have no possible impact on the present offender reliance on a reasonable hypothetical may be unnecessary. Helpful in that it reminds that provincial courts are limited in their constitutional powers to making a finding about the force and effect of a provision to the case before them; there is no power to make general declarations of constitutional invalidity. 


Criminal Chameleons

“Our criminal law has its chameleons. Take hybrid offences, for example. Sometimes, indictable. Other times, summary conviction. But capable of change.” [@para 1] In DME although the Crown was capable of changing its election, everyone forgot that one change often necessitates another, in this case the level of court. 

DME was charged with sexual assault and sexual exploitation.  While those charges were before the courts DME was further charged with breaching the undertaking he had been released on. Shortly after he was charged once more, this time with breaching the recognizance he had been released on following the second set of charges.  The Crown elected to proceed by indictment on all three informations and DME elected to have a trial by judge and jury. More than two after the first information was sworn, DME was committed to stand trial.

On the day of trial, following a judicial pre-trial, the Crown re-elected to proceed summarily and DME entered pleas of guilt. The Superior Court judge found DME guilty and sentenced him to a term of imprisonment and a period of probation. 

DME appealed: 2014 ONCA 496 arguing that the proceedings which followed the Crown’s re-election were vitiated by jurisdictional error. First, DME submitted that the Crown was not entitled to re-elect as they did and second, that the Superior Court of Justice had no jurisdiction to take the guilty pleas.

Dealing first with the Crown re-election to proceed by summary conviction Watt JA writing for a unanimous court , highlighted four points rejecting this ground of appeal:

First, the right to elect mode of proceeding for hybrid offences is that of the Crown.
Second, the common law equally permits the Crown, having once elected one mode of proceeding in connection with a hybrid offence, to re-elect later the other mode of proceeding. In some instances consent of the accused and approval of the presiding judge may be required.
Third, unlike an accused's right to elect or re-elect mode of trial, the Crown's right to elect or re-elect mode of proceeding need not be made at any specific place or before any particular judicial officer. Provided any consent and approval requirements are satisfied, it is of no jurisdictional moment where re-election is made.
Finally, that the re-election to proceed by summary conviction took place more than six months after the subject-matter of the proceedings arose is of no jurisdictional significance. The appellant, who was represented by counsel throughout, not only agreed with the change in the mode of proceeding, but also benefited substantially from it. Counsel for the appellant could advocate for a conditional sentence of imprisonment when Crown counsel proceeded summarily, a disposition statutorily unavailable to him when Crown counsel proceeded by indictment. And the maximum punishment to which the appellant would be subject on summary conviction was a term of imprisonment for 18 months rather than for ten years if the Crown proceeded by indictment. It may also be open to question whether re-election of mode of proceeding amounts to institution of proceedings within s. 786(2) of the Criminal Code: Linton, at pp. 536-537. [@paras 42-45]

DME’s second ground of appeal had more traction. Notwithstanding the fact that no one “involved in the case – Crown, defence or judge – query, let alone contest, the jurisdiction of the Superior Court of Justice to proceed as the prosecution played out.” [@para 49] the Court of Appeal held that the “presiding judge had no authority to arraign the appellant, to take his plea of guilty, or to impose what he considered to be a fit sentence.” [@para 67].

Watt JA explained as follows:

First, section 798 of the Criminal Code requires that summary conviction proceedings be adjudicated by a summary conviction court.  A summary conviction court is defined in section 785 of the Code.

Second, the Superior Court is the appellate court for summary conviction offences. “It would be somewhat undesirable to have judges of the same court try and review trials for error.” [@para 69]

Third, no other criminal code sections applied to give the Superior Court jurisdiction in the circumstances of this case.

Fourth, although there are provisions which allow a Superior Court judge to exercise jurisdiction as a justice of the peace and “as a matter of statutory construction a justice of the peace falls within the definition of a summary conviction court”, none of the parties asked the presiding judge to do so. [@para 74]

Fifth, prior decisions of the Court of Appeal make it clear that “superior court of criminal jurisdiction has no authority to try summary conviction offences.” [@para 75]

The Court remitted the matter to the Ontario Court of Justice for pleas of guilt (which the appellant made clear he intended to enter) and sentence.


Current & Curious: Practical - but perhaps not precise - Interpretation

Tassandra Whyte was charged with accessory after the fact to murder. She wanted to be released on bail pending her trial. She applied for bail and had a hearing in Superior Court; her application was denied and she was detained on the secondary grounds.

Whyte renewed her application for bail in Superior Court, alleging there had been a material change. The changes included her living arrangements and the fact that the trial was now likely to occur some significant distance in the future.

At that second bail hearing the court declined to consider the matter on the basis that it lacked jurisdiction; the court held that a renewed bail application based on change in circumstances could only be heard by the Court of Appeal. .

Whyte sought a review under section 680(1) to the Court of Appeal: 2014 ONCA 268.

The Court of Appeal considered the issue of whether the Superior Court could entertain a second bail hearing. It offered the following overview of the law on this issue:

The relevant practice in Ontario can be summed up as follows:  Where an applicant is detained pursuant to a charge for an offence listed in s. 469 of theCode, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant’s grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, the proper course is to seek review by a court of appeal under s. 680 of theCode: R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.), at p. 746. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309, at para. 5; R. v. Klymchuk (2007), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48; R. v. Saleh (2007), 252 C.C.C. (3d) 521 (Ont. S.C.). This second avenue reflects the “considerable common sense in returning to the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release”: R. v. Boyle, [2006] O.J. No. 5094 (C.A.), at para. 3.

The availability of this second procedure does not foreclose consideration of a change in circumstances on a s. 680 application, however: see Daniels, at p. 747; Boyle, at paras. 3-4. In other words, the Superior Court of Justice and the Court of Appeal have concurrent jurisdiction to decide whether there has been a material change of circumstances warranting judicial interim release [paras 21-22].

The court then turned to consider what amounts to a “change in circumstances” and noted:

In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material [para 26].

In the present case the court accepted that a change in the trial date, arising from severance of the accused, and other delays, such that the accused may spend more time in custody then they would even if convicted, is a material one. In so concluding the court cited the following comments of Hill J in R v White, 2010 ONSC 3164:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted [para 10].

Interpreting section 522 as permitting a second bail hearing where there is not a material change in circumstances is, with respect, not the most compelling work of statutory interpretation. Indeed, in the past there has been divide about the proper interpretation. The Court of Appeal has clearly endorsed, the “purposive” [read practical] interpretation which permits successive bail hearings in Superior Court (rather than reviews at the Court of Appeal) where there is a material change. Practical, indeed, but precisely interpreted?

At any rate, at least in Ontario, there is no ambiguity; section 522 permits successive bail hearings in Superior Court where there is a material change in circumstances.


Current & Curious: A technical failure to confirm the process does not end the prosecution

Benjamin Ladouceur was stopped by the police and charged with “care and control over 80”. He was released from the station on a promise to appear that required him to appear in court on December 28th, 2009. Unfortunately, in light of Christmas and Boxing Day falling on a Friday and Saturday that year, the 28th was a non-juridical day.


Well in advance of the scheduled first appearance, an information was sworn by a police officer before a justice of the peace. That same day, the justice issued a summons for the respondent to appear in court on December 21 instead of confirming the promise to appear for the original date.

As clearly set out by Justice Speyer “[w]here an accused is released on a promise to appear prior to the laying of the information, s. 508 of the Criminal Code provides for judicial screening of the promise to appear before the accused is required to attend at his or her first court appearance. Once the information is sworn, s. 508 provides the justice of the peace with the following statutory options:

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