R. v. C.D.B., 2013 BCSC 2440

Editor’s Note: Erratum released on January 30, 2014. Original judgment has been corrected with text of erratum appended. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. C.D.B., 2013 BCSC 2440 Date: 20131217 Docket: 157438-2 Registry: Victoria Regina v. C.D.B. Corrected Judgment: The text of the judgment was corrected at paragraph 55 on January 30, 2014. Restriction on Publication: Pursuant to 486.4(2) C.C.C.Restricted Access Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for JudgmentRe: Crown Application to Amend SOIRA Order Counsel for the Crown: M. MurrayCounsel for the Accused: R.

Dieno (August 2, 2013)C. Sutton (November 29, December 13 and 17, 2013)Place and Date of Trial/Hearing: Victoria, B.C. August 2, November 29,December 13, 2013Place and Date of Judgment: Victoria, B.C. December 17, 2013 [1] THE COURT: Following a five-day trial in January of this year, a jury found C.D.B. guilty of two counts of sexual assaultcontrary to s. 271 of the Criminal Code. [2] C.D.B.'s sentencing was adjourned so that the Crown and the defence could prepare their respective sentencing submissionsand materials.

So that I could better understand C.D.B.'s personal circumstances, including his Aboriginal heritage, I directed that a pre-sentence report, including a Gladue report be prepared (see: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688). [3] C.D.B.'s sentencing hearing took place on 9 and 10 April 2013. In addition to a custodial sentence for C.D.B., the Crownsought a number of ancillary orders, one of which was pursuant to ss. 490.012(1) and 490.013 of the Code, directing that C.D.B. complywith the provisions of the Sex Offender Information Registry Act, S.C. 2004, c. 10 (“SOIRA”), for a period of 20 years.

I will refer to thatorder as the “SOIRA Order”. [4] While the defence took issue with the Crown submissions on the length of the custodial sentence for C.D.B., it did not opposethe granting of the SOIRA Order. [5] On 23 April 2013, I sentenced C.D.B. to three years in prison on each count, with the sentences to be served concurrently. Inaddition, I made a number of ancillary orders, including the SOIRA Order sought by the Crown. In accordance with the usual practice,the court registry prepared the written orders that I had made.

The written SOIRA order accurately reflects the fact that it was to be ineffect for 20-years. C.D.B. signed the SOIRA Order and a clerk of the court signed it on my behalf. I did not see the SOIRA Order beforeit was signed. [6] On 1 May 2013, Crown counsel sent an email to the court registry with a copy to C.D.B.'s counsel indicating the following: The accused in the above-noted matter was just sentenced by Judge Gaul on April 23, 2013. Since then it has come to the Crown'sattention that the SOIRA order I asked for in the length of 20 years should actually be for life pursuant to s. 490.013(2.1).

It is statutorilymandated that the length of the order be for life - no judicial discretion. I have alerted defence counsel to this issue, and would like to know if we could have about 15-20 minutes of time before Judge Gaul tobring this issue to his attention over the next couple of weeks.

If I have convinced my friend with the case I have provided that there is no argument to make, it may just be a very brief appearance indeed. [ 7 ] On 27 May 2013, the Crown filed a notice of application seeking to have the SOIRA Order "changed to comply with s. 490.013(2.1) of the Criminal Code , and apply for life". [ 8 ] The application came on for hearing before me on 7 June 2013. Regrettably, an order securing C.D.B.'s attendance for the hearing had not been processed and consequently the hearing was adjourned. The hearing resumed on 2 August 2013, with C.D.B. present in court.

There was insufficient time for C.D.B.’s counsel to complete his submissions, so the hearing was again adjourned. [ 9 ] A continuation date was set for 29 November 2013, but for a second time the order securing C.D.B.'s attendance in court was late in being processed and C.D.B. was again not present for the hearing. This resulted in another adjournment. [ 10 ] Last Friday, with C.D.B. appearing by videoconference, I heard the balance of the defence submissions and adjourned the matter to today for my decision. [ 11 ] For the following reasons, I am denying the Crown's application.

Statutory Provisions [ 12 ] The relevant portions of s. 490.12 of the Code read as follows: 490.012

(1) When a court imposes a sentence on a person for an offence referred to in paragraph ( a ), ( c ), ( c.1 ), (

d) or (

e) of the definition “designated offence” in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, 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. … Failure to make order

(4) If the court does not consider the matter under subsection (1) or (3) at that time, 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; and (

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. [ 13 ] Also of relevance to the present application is s. 490.013 which reads in part: Date order begins 490.013

(1) An order made under

section 490.012 begins on the day on which it is made. Duration of order

(2) 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 or five years; (

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

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

(2.1) An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph ( a ), ( c ), ( c.1 ), (

d) or (

e) of the definition “designated offence” in subsection 490.011(1). [ 14 ]

Section 490.014 of the Code provides for appellate review of SOIRA Orders in certain circumstances. This

section reads: Appeal 490.014 The prosecutor, or a person who is subject to an order under subsection 490.012(2), may appeal from a decision of the court under that subsection on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the order or make an order that may be made under that subsection. [ 15 ] Under s. 490.015 of the Code , a person who is subject to a 20-year SOIRA order may apply to have it vacated after the expiry of 10 years, while a person subject to a life-time SOIRA order may seek a similar order after the expiry of 20 years.

Issue [ 16 ] The issue before me is whether I am functus officio and have no jurisdiction to vary the SOIRA Order . [ 17 ] As a result of the arguments and authorities considered on this application, the following three questions need to be answered:

a) Does the court have the statutory jurisdiction to vary the SOIRA Order ?

b) Does the court have the inherent jurisdiction to vary the SOIRA Order ?

c) Is there an avenue to appeal the SOIRA Order ? Position of the Crown [ 18 ] The Crown argues that I am not functus officio and have the ability to "correct" the SOIRA Order that I imposed on C.D.B. The Crown asserts that s. 490.012(4) of the Code specifically provides the court with the statutory jurisdiction to amend the order.

In the alternative, the Crown contends that the incorrect 20-year duration of the SOIRA Order was the result of a clerical slip or administrative oversight on the part of the court and therefore it can be rectified using the court’s inherent jurisdiction to correct errors of that nature. [ 19 ] The Crown further submits that there is no avenue to appeal the SOIRA Order as the Court of Appeal has no jurisdiction to hear such an appeal.

Position of the Defence [ 20 ] The defence acknowledges that an error was made at C.D.B.'s sentencing hearing and that the length of the SOIRA Order does not conform with the appropriate and applicable provisions of the Code . Nevertheless the defence submits that I am functus officio and have no jurisdiction, either statutory or inherent, to amend the order. [ 21 ] The defence maintains the appropriate remedy, if there is one, is to have the SOIRA Order varied on appeal to our Court of Appeal.

Discussion Does the court have the statutory jurisdiction to vary a SOIRA Order? [ 22 ] The Crown asserts that s. 490.012(4) provides me with the statutory authority to change the SOIRA Order that I made. In her written argument, Crown counsel notes: … it cannot be overlooked that for all the apparent simplicity of the purpose of SOIRA , the regime itself presents complexity in its application: the offences to which it applies are defined in one

section (designated offences, s. 490.011), but whether or not a SOIRA order necessarily applies depends upon which subsection of the definition the offence appears in (ss. 490.012(1), s. 490.012(2)). The duration of the reporting obligation appears in an altogether different section, s. 490.013, which itself has five (5) subsections with the marginal note “Duration of Order”. In light of this complexity, common sense indicates it is foreseeable that orders will be overlooked, or imposed for the wrong duration.

It was clearly this potential for oversight, and Parliament’s desire to create a readily accessible remedial measure, that underlies the purpose of s. 490.012(4). [ 23 ] In essence, the Crown argues that s. 490.012(4) provides a quick and efficient means of remedying obviously defective SOIRA orders. In advancing this argument, the Crown submits that the phrase "if the court does not consider the matter" in s. 490.012(4) must be given a large and liberal

interpretation so that the statutory purposes of the provision are met. [ 24 ] In the present case, the Crown argues that I did not “consider the matter”, as that term is used in s. 490.012(4), when I imposed the S OIRA Order on C.D.B. Simply put, the Crown contends that by making the incorrect order, I must not have considered the proper Code provisions and therefore I could not have considered “the matter”. In that light, says the Crown, the remedial provisions of s. 490.012(4) should apply.

This argument has been judicially considered on a number of occasions, often in circumstances very similar to those in the present case. All but one of the reported decisions have rejected the argument. [ 25 ] In R. v. D.M., 2013 ONSC 141 , the accused was convicted of three child pornography offences. On sentencing, the Crown sought a 20-year SOIRA order. The defence took no position on the imposition of such an order. Mistakenly the court granted the order sought, when in fact the duration of the order should have been for the accused's life, pursuant to s. 490.013(2.1) .

The Crown brought the matter back before the trial judge with a request that he amend the SOIRA order so that it complied with s. 490.013(2.1). The defence opposed the application arguing the court was functus officio and that the defective order could only be corrected on appeal.

In rejecting the Crown's argument on the scope and applicability of s. 490.012(4), Justice Daley of the Ontario Superior Court of Justice concluded at paras. 12-13: [12] I disagree with the Crown's submission that s. 490.012(4) can be relied on to allow me to retain jurisdiction over the Respondent and to entertain this application to amend the existing SOIRA Order. In my view, the record discloses that the statutory requirement of making the SOIRA Order was clearly, albeit incorrectly, considered at the time and before imposing, the Order.

As such, there is no remaining jurisdiction in the court under s. 490.012(4).

[13] In reaching this conclusion, I have considered the unreported July 13, 2012 decision of Otter J. of the Ontario Court of Justice inR. v. Ponniah, where the court found, in similar circumstances, that it continued to have statutory jurisdiction over the offender, under theprovisions outlined above, so as to be able to correct the duration of the SOIRA Order. [26] In R. v. J.E., 2013 ONCJ 247, the accused was convicted of two sexual offences. On sentencing, the court mistakenly imposed a10-year SOIRA order when the order should have been for life.

Approximately one month after the imposition of the sentence and theSOIRA order, the Crown brought the matter back before the trial judge with a request that he correct the order so that it complied withs. 490.013(2.1). Justice Nakatsuru of the Ontario Court of Justice dismissed the application with the proviso that the Crown couldreapply if it could present jurisprudence that addressed the issue. The matter returned to court two more times and on each occasion theCrown’s request to amend the SOIRA order was denied.

In rejecting the Crown's argument that s. 490.012(4) provided the court withjurisdiction to rectify the defective order, Justice Nakatsuru concluded at paras. 13-16: [13] I have not been persuaded by the Crown on this point. I cannot agree with the decision of Ponniah. The learned justice in thatcase decided he retained jurisdiction under s. 490.012(4) because he had not carefully or fully considered the SOIRA issue.

Although thejustice admitted he erred in making a ten year SOIRA order rather than one for life, as he characterized it, he had just "sort of glided overthe matter." Thus, he did not "consider" the matter as required by the section. In my opinion, such an

interpretation of "consider" is notwarranted. It is neither grammatical nor one normally used in every day parlance. It is further not in keeping with the scheme and objectof the amendment as intended by Parliament: see Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21. [14] The purpose of s. 490.012(4) was not to give carte blanche to judges in correcting any mistakes they may have made in making aSOIRA order. The purpose was to permit the court to consider the matter if the consideration of the issue was omitted at the originalhearing. This amendment came into effect in 2011.

Prior to that amendment, the previous version of s. 490.012 had no provision for thisextended jurisdiction to consider a SOIRA order after sentencing or a verdict. It was in light of the wording of the

section before it wasamended, that I concluded in the case of R. v. Luedecke (2010), 2010 ONCJ 59 , 252 C.C.C. (3d) 542 (Ont. C.J.) that the Crowncould not bring an application for a SOIRA order over six months from the date I found the offender not criminally responsible due to amental disorder. The Crown tardily sought the SOIRA order even after the Ontario Review Board reviewed Mr. Luedecke's case andgranted him an absolute discharge.

Section 490.012(4) would now deal with similar situations like Luedecke provided that the date forthe SOIRA application is set within 90 days of the sentence or verdict. No doubt, the legislation was amended to deal with situations aspresented in Luedecke. [15] That type of situation is different from this case. In Luedecke, the SOIRA order was never raised at the initial NCR hearing andnever considered by me. In the case at bar, I did consider the matter albeit erroneously.

I agree with defence counsel that had Parliamentintended such extended remedial jurisdiction, an additional word or term would have been used in s. 490.012(4) such as "properly"consider the matter. As a result, s. 490.012(4) provides no assistance to the Crown. [16] I note that Daley J. in D.M. came to the same conclusion (at para. 12). In my opinion, any other

interpretation is not reasonable. [27] In R. v. Alas, [2013] O.J. No. 3738 (Ont. C.J.), the accused was convicted of two sexual assaults. The trial judge suspended thepassing of sentence and placed the accused on probation for a period of two years. Additionally, the court made a number of ancillaryorders, including a 10-year SOIRA order. Pursuant to s. 490.013(2.1) of the Code, the SOIRA order should have been for life. Six monthsafter the sentencing hearing had concluded, the Crown applied to the trial judge for an order correcting the SOIRA order.

JusticeRutherford of the Ontario Court of Justice rejected the Crown's argument that s. 490.012(4) permitted him to make the variation sought.In doing so he observed at paras. 16-18: [16] I do not agree with the Crown's submission that I did not consider s. 490.012(1). Earlier in the sentencing proceedings, Ms.Heyens put the Court and the Crown on notice that the Respondent would oppose the imposition of a SOIRA order. It was apparent,therefore, that the imposition of an order pursuant to s. 490.012 was a live issue. After some reflection, the Respondent decided not tomake the argument.

Notice was given to both the Court and the Crown that the Respondent would not oppose the imposition of a SOIRAorder. [17] On the sentencing date, a 10-year SOIRA order was made on consent, albeit incorrectly. I am mindful of the Crown's argumentwith respect to the definition of "consider," but in my view, everything that occurred up to and during the sentencing hearingdemonstrates that the Court considered the statutory requirement of making a SOIRA order. I have reviewed the decision in R. v.Ponniah. I do not agree with the Court's

interpretation of "consider". I agree with Nakatsuru, J. in R. v. E.J., supra where he states at para.14: The purpose of S. 990.012(9) (sic) was not to give carte blanche to judges in correcting any mistakes they may have made in making aSOIRA order. The purpose was to permit the Court to consider the matter if the consideration of the issue was omitted in the originalhearing. [18] In my view the consideration of whether to impose a SOIRA order was not an issue that was omitted in this case.

As I stated, itwas a live issue and an issue that was dealt with, perhaps perfunctorily, but still dealt with at the sentencing hearing. I find, therefore, thats. 490.012(4) does not give me jurisdiction to revisit the error and make the proper amendment. [28] In R. v. Merrick, 2013 ONCJ 480, the accused was convicted of two counts of possessing child pornography.

On sentencing, thecourt acceded to the joint submission of the Crown and the defence that a 10-year SOIRA order was appropriate in the circumstances.The matter returned before the trial judge after counsel discovered the SOIRA order should have been for life pursuant to s. 490.013(2.1).The Crown submitted that s. 490.012(4) granted the court jurisdiction to amend the defective SOIRA order and Justice Pugsley of theOntario Court of Justice accepted that argument. In doing so, Justice Pugsley chose to follow the unreported decisions of Justice Otter inR. v. Ponniah (13 July 2012), (Eglington Ave.

East, Ontario Court of Justice) and Justice Sherwood in R. v. Tichrode (28 August 2013),(Simcoe, Ontario Court of Justice). [29] In reaching his decision, Justice Pugsley found Justice Nakatsuru’s analysis of s. 490.012(4) in J.E. was too restrictive andfailed to consider Parliament's desire to insert a remedial provision into the Code to address the situation where an incorrect SOIRA order

has been made. At paras. 11-13, Justice Pugsley explained: [11] In my view, there is really no controversy for me to resolve here at all. By either route suggested by the Crown, the amendmentought to be made. First, I do not with very great respect, approach the matter with the rigidity of the analysis of my brother in Regina v.J.E. because, in my view, his approach fails to appreciate the nature of the order made and the clear intent of the drafters of subsection490.012(4) of the Criminal Code. The order sought was an ancillary order made after the sentencing of the defendant to jail.

The orderwas a mandatory order stipulated as such, by Parliament. [12] Superbly experienced counsel agreed that the required order was for 10 years and I did not catch their mistake, which became mymistake. Subsection 490.012(4) of the Code specifically sets out circumstances where I do not lose jurisdiction over the SOIRA order.This, in my view, is a clear statement by Parliament that the common law regarding functus officio does not apply.

To read thesubsection as meaning it does not apply only when no one ever mentioned the SOIRA order at all, is in my view, an unnecessary strictand incorrect reading of the corrective section. [13] The word, 'consider,' as read in context, must necessarily include the facts of this case where counsel submitted a wrong term andI did not put my mind to whether counsel were correct.

The intent of subsection 490.012(4) of the Code is to allow such mistakes to becorrected at a time proximate to the sentencing, and without the necessity of a formal appeal on a legal point over which there could beno contest and which would be a foregone result. [30] I cannot accept the submission that I did not "consider the matter” when I decided and imposed the SOIRA Order in the presentcase. The fact of the matter is, I clearly did. The question of a SOIRA order was raised at C.D.B.’s sentencing hearing. Crown and thedefence addressed the question, albeit by means of very abbreviated submissions.

In light of the uncontested nature of the order, Iobviously did not give the matter sufficient consideration; but I did give it consideration. While in hindsight I regret the

summary mannerin which the issue was addressed, and for that I am solely responsible, this is not a situation where the provisions of the Code relating toSOIRA were completely overlooked and no order made. [31] In my opinion, s. 490.012(4) is not a provision that allows the court to correct any and all defective or incorrect SOIRA orders.This

section of the Code addresses the specific situation where a sentencing judge fails, for whatever reason, to make a SOIRA order incircumstances where one is required. In reaching this conclusion, I have considered the marginal note associated with s. 490.012(4),which reads "Failure to make order". While the general rule of statutory

interpretation dictates that a marginal note is not a part of astatutory provision and therefore cannot be a determinative factor when interpreting that provision, it may be of some limited assistancein identifying and understanding Parliament's intention in enacting the provision (See: R. v. Wigglesworth, (SCC),[1987] 2 S.C.R. 541 at pp. 556-58). In my opinion the marginal note to s. 490.012(4) provides some assistance in the present case andsupports the conclusion that the

section was enacted to address situations where the question of a SOIRA order has been overlooked onsentencing. That is not what occurred in the present case. [32] In

summary, I am not persuaded that I have the statutory jurisdiction to amend the SOIRA Order as the Crown seeks. Does the court have the inherent jurisdiction to amend a SOIRA Order? [33] In the alternative, the Crown contends the court is not functus officio because it retains the inherent jurisdiction to correctSOIRA orders that are clearly incorrect. [34] In Chandler v.

Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848 at p. 860, Justice Sopinkaexplained the doctrine of functus officio: Functus Officio The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St.Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellatedivision.

The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions: 1. where there had been a slip in drawing it up, and, 2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., (SCC), [1934] S.C.R. 186. [35] In R. v. Burke, 2002 SCC 55 , [2002] 2 S.C.R. 857, the Supreme Court of Canada considered whether a trial judge can,after the fact, correct an error in the recording of a jury's verdict.

In examining the doctrine of functus officio, the majority of the SupremeCourt of Canada concluded it was time for a more flexible

interpretation and application of the doctrine. More specifically, the courtopined that a judge who has presided at a jury trial has a very limited inherent jurisdiction to inquire if the jury's verdict has beenproperly recorded. The court was clear that the jurisdiction should not extend to reconsidering the underlying decision.

Writing for themajority, Justice Major explained at paras. 53-54: [53] The trial judge does not have the exceptional jurisdiction to inquire into the alleged error post-discharge when the alleged error isof the type such that its correction would involve the jury reconsidering its verdict or completing its deliberations: Head, supra, perLamer J., at pp. 702-3. This limited residual jurisdiction may only be exercised where the errors do not "challenge the 'validity' of theverdict or the deliberation or mental processes of the jurors": Martin v. State, 732 So.2d 847 (Miss. 1998), at p. 851.

The rationale is that,once the jury has delivered its verdict, it should not be permitted to change its mind. If the error requires the jury post-discharge toreconsider its earlier conclusion or continue its cogitations on the matter, the error cannot be corrected, because the trial process hasconcluded and the judge is functus officio. [54] It is only where the error does not engage the deliberations of the jury that the exceptional jurisdiction may be exercised. It is

unwise to characterize these types of errors as "clerical errors" or "accidental slips", given the vague meaning of these terms. "Clericalerrors" or "accidental slips", as those terms are commonly understood, are administrative and may be corrected by the judge withoutrecalling the jury: United States v. Dotson, 817 F.2d 1127 (5th Cir. 1987), modified upon rehearing 821 F.2d 1034 (5th Cir. 1987);Bricmont v. Mathieu (1987), 7 Q.A.C. 199, and Chandler v. Alberta Association of Architects, (SCC), [1989] 2 S.C.R.848. These slips would be minor, such as correcting dates and duties of a similar nature.

However, the error in the present appeal andsimilar cases necessitates a recall of the jury in order to confirm the true and unanimous verdict and the discrepancy with the announcedand recorded verdict.

Therefore, rather than use the label "clerical error", it is preferable to say that the exceptional post-dischargejurisdiction can only be exercised where the correction of the error, although it requires the presence of the jury, does not require the juryto reconsider its verdict or complete its deliberations with a view to handing down additional verdicts: Head, supra, per Lamer J., at pp.702-3. [36] This slight relaxation of the previously rigid approach to the doctrine of functus officio was imported into judge alone criminaltrials by the Ontario Court of Appeal in R. v.

Malicia, (ON CA), [2006] O.J. 3676 (C.A.). At paras. 25-26,MacPherson J.A. concluded: [25] … A crucial component, indeed the linchpin, of the new analysis is whether the potential correction of an error involvesreconsideration by the jury of its verdict; if it does, then the doctrine of functus officio prevents correction. [26] In my view, this is very close to the focus mandated by Paper Machinery, namely, ascertainment of the manifest intention of thecourt.

Both Burke and Paper Machinery permit an inquiry directed toward what a judge or jury intended to say, and in fact said, butwithout permitting the judge or jury to reconsider and possibly change the verdict. Against the backdrop of this expanded symmetry inthe case law, I cannot see any principled reason to prohibit a similar inquiry in a judge alone criminal case, including with respect tosentencing.

Retention of a bright line rule - no inquiry if the sentence has been endorsed on the indictment and/or warrant of committal -that would trump the principled inquiry set out in Burke and Paper Machinery makes no sense. [37] In concurring reasons, Cronk J.A. observed at paras. 60-61: [60] I agree with MacPherson J.A. that the law for permitting and refusing to permit error corrections should be the same in jury andjudge alone criminal trials, to the extent possible.

But I also share Simmons J.A.'s view that the jurisdiction to correct errors in a criminalcase is not unlimited and that different considerations governing its invocation may arise under both scenarios. [61] Given the applicable jurisprudence, I would describe the error correction jurisdiction in this fashion. The jurisdiction to effecterror corrections in jury and judge alone criminal cases should be animated by the same controlling principles, including the samelimitations.

In both situations, the exercise of the curative authority for error correction -- encompassed by the "more refined and flexibleanalysis" mandated by R. v.

Burke (2002), 2002 SCC 55 , 164 C.C.C. (3d) 385 (S.C.C.) and referenced by MacPherson J.A. inhis reasons -- will be precluded where the proposed correction, in reality, is tantamount to a reconsideration of the verdict (or sentence).Importantly, it will also be precluded where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise. [38] In D.M., Justice Daley concluded that a trial judge has the inherent jurisdiction to correct a SOIRA order that, uponreconsideration, is found to be non-compliant with the provisions of the Code.

At paras. 21-25 he explained: [21] In my view, several factors present in this case weigh in favour of exercising the inherent jurisdiction to correct the error that wasmade. [22] First, the error that occurred relates to a statutorily mandated ancillary Order on sentencing with a fixed term or duration, namelyfor life in this case. [23] Second, because the Order and its duration are fixed by statute, no express or residual discretion lies with the court.Consequently, the amendment being requested is more clerical or administrative in nature: Burke, at paras. 52, 54. [24] Third, the Respondent offered no evidence of any prejudice or perception of bias that would follow from granting the Crown'sapplication, given that the term of life is clearly provided for in s. 490.013(2.1).

I can also see no prejudice flowing from granting theamendment. The SOIRA Order that was made is unlawful and unenforceable, and the amendment sought by the Crown would bring theOrder into conformity with the legal requirements. [25] Finally, it was always my intention in making the SOIRA Order in this case to have it comply with the correct and mandatoryduration provided for in ss. 490.012 and 490.013 of the Code. [39] In J.E., Justice Nakatsuru reached the opposite conclusion to that of Justice Daley in D.M.

The principle point of disagreementlay in the suggestion that the court always intended to pronounce a valid SOIRA order. At paras. 25-27, Justice Nakatsuru explained: [25] The fundamental disagreement I have with the decision in D.M. is the invocation of the factor that it was always the intention ofthe Court to make a SOIRA order that conforms to the requirements of the Criminal Code in support of the exercise of the inherentjurisdiction.

I can only presume that this factor was cited in order to deal with limitation agreed to by all the justices in Malicia that thedoctrine of functus officio precludes reconsideration of the verdict or sentence and only permits correction of an error in expressing themanifest intention of the Court. [26] It is tempting to simply correct the manifest error made by me. By not doing so, nothing is gained but additional inconvenienceto the parties who must resort to an appeal.

At the hearing of the appeal, the order will be corrected and I will be suitably chastened.However, there is a broader principle at stake which has lead me to conclude that I am functus officio. [27] Our judicial system depends upon the finality of judgments and the integrity of the appellate process. To permit a judge tocorrect an error made in his or her decision on the basis that it was always the judge's intention to follow the law would be a slipperyslope with no end. No judge intends to err. Every judge diligently tries to do right in each case. On occasion, we endure sleepless nights

for our efforts. But we are all human. And therefore we fail sometimes. When a judge fails, his or her decision should speak for itself. 1 The parties and the appellate court should know the foundation upon which the appeal is being launched. To permit an overly liberal definition of the jurisdiction of a trial judge in terms of the doctrine of functus officio would gelatinize that which should be firm.

It would invite uncertainty and disorder in what should be a simple, straightforward, and hierarchical process of appellate correction. [ 40 ] Justice Rutherford in Alas chose to follow the reasoning of Justice Nakatsuru in J.E. instead of that of Justice Daley in D. M. At paras. 25-26, Justice Rutherford explained: [25] The facts in D.M. supra and E.J. supra are virtually identical to the facts before me. At the time of sentencing, perfunctory submissions were made regarding a SOIRA order. The Crown proposed 10 years, the Respondent did not object and the Court incorrectly made the order.

In applying the factors set out in D.M. , supra and E.J. , supra I find the following: 1. The error I made relates to an ancillary order on sentencing that has a fixed term. In this case the fixed term is life. 2. Because the order is statutorily mandated and is of a fixed duration, the Court has no discretion to order otherwise. 3. The Respondent has offered no evidence of prejudice or perception of bias.

Section 490.013(2.1) sets out the duration of the order, therefore, I can see no prejudice flowing from granting the amendment, Further, pursuant to s. 490.015 the Respondent may apply after 20 years to terminate the order. 4. It is never the Court's intention to make an illegal order and I agree in this case perfunctory submissions were made by counsel, however, it was still the Court's obligation to ensure that any order requested was legal and in compliance with the provisions of the Criminal Code . This is a fundamental responsibility of any Court. I cannot blame or fault anybody else for the Court's error.

I agree with Nakatsuru J. in E.J. , supra when he states at para. 27: ... That being said, I cannot see how in principle the doctrine of functus officio can be confined to correction when the trial judge is clearly wrong or when there is statutory provision that needs to be followed. This is not the first time that an appeal has to be brought when a trial judge has misconstrued a mandatory statutory provision. [26] I ordered the Respondent to be subject to the Sex Offender Information Registration Act for 10 years. This was my intention, albeit erroneous. This was not an administrative or clerical error.

It was my error because I did not properly apply the provisions of s. 490.012. The error will be corrected on appeal, which sadly will be done at great expense to the public and to the Respondent, Mr.

Alvarenga Alas, however, I find that I am functus officio and I decline to amend the order. [ 41 ] While Justice Pugsley in Merrick found that s. 490.012(4) authorizes a trial judge to correct a flawed SOIRA order after it has been made, he also expressed support for the opinion expressed in D.M. that a trial judge retains the inherent jurisdiction to correct such an order. [ 42 ] Another case on point, one not cited by counsel, is R. v. E.B. , 2013 QCCQ 8958 . In E.B . the accused pleaded guilty to two counts of sexual exploitation.

The offences were historical in nature, having been committed in the early 1990s. In June 2011, Justice Leduc of the Court of Quebec sentenced the offender to 60-days imprisonment to be served intermittently on weekends, followed by 8 months of supervised probation. At the same time, she imposed a number of ancillary orders, including a 10-year SOIRA order. The Crown appealed the offender’s sentence, but not the SOIRA order. That sentence appeal was dismissed (see: R. v.

E.B ., 2011 QCCA 2072 ). [ 43 ] In January 2013, the Crown filed an application to have Justice Leduc’s S OIRA order varied from 10 years to life, so that it complied with the appropriate Code provisions. The matter came before Justice Leduc in April 2013, approximately two years after the offender’s sentencing hearing had concluded. In her reasons for judgment, Justice Leduc explained that her imposition of the erroneous 10-year SOIRA order was not the product of an accidental slip on her part or an incorrect recording of what she intended to order.

Instead, she found the mistake resulted from an administrative act of the court that formed no part of the sentencing process and had no impact on the sentence imposed. Accordingly, Justice Leduc held she was not functus officio and could correct the faulty SOIRA order, irrespective of the passage of time. [ 44 ] The division of views in the jurisprudence is best illustrated in the cases of D.M. and E.B ., on the one hand, and J.E. and Alas on the other. I am not obliged to follow any of these decisions; however, I have taken note of the care with which each Justice has expressed his or her respective reasons.

While it is unexplained how the Justices of the Ontario Court of Justice in J.E. and Alas did not feel bound to follow the Ontario Superior Court of Justice’s decision in D.M. , that question does not impact upon my analysis or my deliberations. [ 45 ] Having considered all of the case authorities, in my respectful view Justice Nakatsuru in J.E. was correct when he observed at paras. 27-29: [27] Our judicial system depends upon the finality of judgments and the integrity of the appellate process.

To permit a judge to correct an error made in his or her decision on the basis that it was always the judge's intention to follow the law would be a slippery slope with no end. No judge intends to err. Every judge diligently tries to do right in each case. On occasion, we endure sleepless nights for our efforts. But we are all human. And therefore we fail sometimes. When a judge fails, his or her decision should speak for itself. The parties and the appellate court should know the foundation upon which the appeal is being launched.

To permit an overly liberal definition of the jurisdiction of a trial judge in terms of the doctrine of functus officio would gelatinize that which should be firm. It would invite uncertainty and disorder in what should be a simple, straightforward, and hierarchical process of appellate correction. [28] The history of this case has been an example. The matter has returned before me a number of times in order to correct the duration of the SOIRA order.

If the same is permitted each time a party is dissatisfied with an aspect of a judge's final decision, there would be no end to the trial litigation and no beginning to the appeal. Again, I fully appreciate that in this case, the statutory provision allows for no discretion on the part of the judge in terms of the order. There is no room for uncertainty in the duration of the order. That

being said, I cannot see how in principle the doctrine of functus officio can be confined to correction when the trial judge is clearlywrong or when there is a statutory provision that needs to be followed. This is not the first time that an appeal has to be brought when atrial judge has misconstrued a mandatory statutory provision. [29] In conclusion, it is open for a judge to correct an error in expressing his or her manifest intention. That is not the same as a trialjudge simply correcting a manifest error regardless of the true intention of the judge.

It was always my intention to impose a ten yearSOIRA order. It is what I ordered in court. It is inscribed on the information and on the order. It was always my intention until it waspointed out that I was wrong. Consequently, albeit with reluctance, the dismissal of the Crown application is the only appropriatedecision. [46] These observations are equally applicable to the case at bar. [47] I confess there is a certain allure to the submission that the mistake I committed was simply an administrate one and that I musthave the inherent jurisdiction to correct it.

After all, in C.D.B.’s case a lifetime SOIRA order is mandated by the Code. There is nojudicial discretion, nor did I intend to exercise such a discretion. I obviously did not want to make the wrong order. However, the errorwas not the result of an unintended slip on my part, nor was not a technical or a clerical error. The order accurately reflects what Iintended to order and did order. In my view what the Crown is asking me to do is to reconsider an order that has been made, signed andentered.

To vary that order at this point on the grounds that it was only an administrative act of the court and not one that was part of thesentencing process, fails to acknowledge that it was pronounced during the sentencing hearing and only after having heard submissionsfrom both the Crown and the defence. Moreover, while a SOIRA order does not have a penal objective and does not form part of theactual sentence imposed, it is an ancillary order that but for the sentence could not have been made.

In my view, the making of theSOIRA Order was an integral part of the sentencing process for C.D.B. and not merely an administrative act of the court. [48] The necessity of having to have what all parties agree is an incorrect SOIRA order addressed and corrected by the Court ofAppeal seems to me to be an inefficient and ineffective use of the parties’ and the court’s resources. While it is important to be practicaland efficient, it is equally important to recognize the overall need for certainty and finality in judicial matters.

Having considered thejurisprudence on this question, I am of the opinion that there is no inherent jurisdiction to correct a SOIRA order after it has been reducedto writing and signed by the court and the offender. In my view, after that has occurred, the court is functus officio. Is there an avenue to appeal a SOIRA Order? [49] In the cases where the court has declined to amend a defective SOIRA order on the basis of a lack of jurisdiction, the trial judgesappear to have relied upon the belief that an avenue of appeal exists to remedy the situation.

Crown counsel submits that belief may notbe well founded and in support of that argument counsel cites R. v. Chisholm, 2012 NBCA 79. In Chisholm the offender had pleadedguilty to a number of offences including two counts of sexual assault. The trial judge sentenced the offender to a global sentence of twoyears imprisonment. Moreover, the judge imposed a 20-year SOIRA order. The Crown launched an appeal from the SOIRA order,arguing the 20-year term was contrary to the provisions of the Code that mandated the order be for life.

In dismissing the appeal, theNew Brunswick Court of Appeal concluded that a SOIRA order made pursuant to s. 490.012(1) is not a “sentence” within the meaning ofthe Code and consequently there is no right of appeal from such an order. At paras. 22-23, the court explained: [22] The contested SOIRA order was made pursuant to s. 490.012(1). At all material times, there was no right of appeal, with orwithout leave, against such an order. Thus, the Notice of Appeal giving rise to the present proceedings was issued without lawfulauthority and, for that reason, I would order it quashed. [23] A few final thoughts.

First, I need not, and do not decide whether the SOIRA order in question can be corrected by means of aprerogative writ. Any debate on point would be expected to feature consideration of Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104 (QL), R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 and R. v.Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331. Second, it is only with great reluctance that I conclude the contested SOIRA order isnot appealable.

After all, the most efficient means of correcting errors in first instance is by way of appeal and, as the present casearguably illustrates, errors may occur despite the "automatic" nature of SOIRA orders when s. 490.012(1) is in play. That state of affairspoints to the advisability of an amendment to s. 490.014 which would reinstate the right of appeal it previously recognized in relation tothose orders. Of course, we are not in the business of amending statutes, our sworn duty being to do right according to the applicable law. [50] The Chisholm decision was applied in E.B. as well as R. v.

Boucher, 2013 QCCA 345. The latter case is the judgment of asingle Justice of the Quebec Court of Appeal denying a Crown application to extend the time to file a Notice of Appeal.

The Chisholmdecision does not appear to have been considered in any of the other cases that have I have reviewed on this application. [51] The Crown says that Chisholm is persuasive authority and that unless I find an avenue to correct the SOIRA Order in this court,the order will remain in force notwithstanding its non-compliance with the Code. [52] All parties accept that the SOIRA Order in this case is wrong, in that its duration is only for 20 years when it should be for life.The thought that an order of the court that clearly contains an error cannot be corrected, even on appeal, appears to me to be the antithesisof justice.

My opinion of the situation would be no different if the circumstances were reversed and the duration of the order wasimpermissibly too long. One can only imagine the justifiable complaint that would be raised by an offender who is mistakenly ordered tocomply with the provisions of a SOIRA order for the rest of his or her life when the order should have been for a shorter duration. Icannot conceive of a defensible argument that would justify allowing such an order to remain in force. [53] In R. v. Allen, 2012 BCCA 377, a situation similar to the present case was before the British Columbia Court of Appeal.

Theoffender had been convicted of one count of possession of child pornography and one count of sexual assault, and had been sentenced toa global sentence of 39 months imprisonment. Given the multiple convictions, the trial judge should have imposed a lifetime SOIRAorder on the offender. Instead the trial judge mistakenly imposed a 20-year SOIRA order. The Crown appealed the sentence and soughtto have the offender’s term of imprisonment increased. The Crown also appealed the 20-year term of the SOIRA order. The Crown’ssentence appeal was granted and the offender's custodial sentence was increased.

The Crown’s appeal from the SOIRA order, which wasunopposed by the respondent, was also allowed and the order varied accordingly.

[ 54 ] The Crown argues Chisholm is distinguishable from Allen and that I should follow Chisholm . In particular, the Crown notes that in Chisholm the sole issue before the court was the prosecution’s appeal from a SOIRA order that had been imposed; whereas in Allen the prosecution sought to appeal the sentence that had been pronounced. According to the Crown, the appeal from the defective SOIRA order in Allen was more of an aside or afterthought and accordingly the court’s decision on that issue is not binding on me. Respectfully, I do not agree with that submission.

It is correct to describe the appeal in Allen as a sentence appeal; however the Crown explicitly appealed from the SOIRA order as well (see: Allen , para. 5 ). The court addressed and allowed the Crown’s appeal from the defective order and in my opinion that indicates the court must have believed it had jurisdiction to do so. [ 55 ] I acknowledge that the situation is not as clear as one might want it to be. The New Brunswick Court of Appeal rendered its decision in Chisholm on 16 September 2012. The Allen appeal was heard on 13 June 2012.

Obviously our Court of Appeal did not have the reasons in Chisholm before it when it considered the Allen appeal. Moreover, it would seem that given the uncontested nature of the Crown’s appeal from the SOIRA order in Allen , the question of the court’s jurisdiction to hear the appeal was not argued or considered. Nevertheless, Allen is a decision of our Court of Appeal and in my view it is binding on me.

Consequently, I can only conclude that the current state of the law in British Columbia is that the Court of Appeal has jurisdiction to review and correct a defective SOIRA order that has been made pursuant to s. 490.012(1) of the Code .

Summary / Conclusion [ 56 ] An error was made during C.D.B.'s sentencing hearing, and for that I am responsible. My stated intention, mistaken as it turned out to be, was to make a 20-year SOIRA order. That is what I did and that is what was recorded in writing and signed by C.D.B. and the court. [ 57 ] With regret for the inconvenience and expense this situation is likely to cause all parties, I have reluctantly concluded that I am functus officio .

More specifically and to address the first two questions posed at the outset of these reasons, I am not convinced I have either the statutory or inherent jurisdiction to vary the SOIRA Order in this case. [ 58 ] I am advised by counsel for C.D.B. that an appeal from conviction has been filed, but no hearing date has been set. It may well be that the Crown can have the SOIRA Order addressed in the same forum. Based upon the Allen decision, it would appear there is an appellate route for correcting defective SOIRA orders.

If I am wrong in that belief, then as the court in Chisholm observed, the Crown may be able to rectify the situation by means of a prerogative writ. That last issue was not addressed before me and therefore I will say nothing more about it at this point. Order [ 59 ] The Crown's application is denied. “G.R.J. Gaul J.” IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. C.D.B., 2013 BCSC 2440 Date: 20131217 Docket: 157438-2 Registry: Victoria Regina v. C.D.B. Restriction on Publication: Pursuant to 486.4(2) C.C.C. Restricted Access Before: The Honourable Mr. Justice G.R.J.

Gaul Corrigendum to Oral Reasons for Judgment Re: Crown Application to Amend SOIRA Order Counsel for the Crown: M. Murray Counsel for the Accused: R. Dieno (August 2, 2013) C. Sutton (November 29, December 13 and 17, 2013) Place and Date of Trial/Hearing: Victoria, B.C. August 2, November 29, December 13, 2013

Place and Date of Judgment: Victoria, B.C. December 17, 2013 Date of Corrigendum: January 30, 2014 [ 60 ] Paragraph 55 was corrected by deleting a duplicated phrase. “G.R.J. Gaul J.”