R. v. Clancy, 2017 BCSC 576

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Clancy, 2017 BCSC 576 Date: 20170302 Docket: 40119-1; 39775-1 Registry: Campbell River Regina v. Liam Patrick Clancy Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. These Reasons comply with the ban. Before: The Honourable Mr.

Justice Baird Oral Reasons on Crown Petition re SOIRA Order In Chambers Counsel for the Crown: L. Ruzicka (via teleconference on March 2, 2017) Counsel for the Defence: A. McGarvey Place and Date of Hearing: Nanaimo, B.C. March 1, 2017 Place and Date of Judgment: Courtenay, B.C. March 2, 2017 [ 1 ] THE COURT: The Crown has brought this petition under

Part XXVI of the Criminal Code , R.S.C. 1985, c. C-46 seeking, firstly, an order in the nature of mandamus with certiorari in aid, quashing the Form 52 Sex Offender Information Registration Act , S.C. 2004, c. 10 (“ SOIRA ”) order made on December 8, 2015 by the Honourable Judge Flewelling in the Provincial Court of British Columbia at Campbell River, and, secondly, compelling the Provincial Court to exercise its jurisdiction under ss. 490.012(1) and 490.013(2.1) of the Criminal Code to impose a lifetime SOIRA order. [ 2 ] The background may be briefly stated.

On November 30, 2015, the respondent Liam Patrick Clancy entered guilty pleas to one count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code — Count 1 on Information 39775-1 — and two counts of indecent exposure contrary to s. 173.2 of the Criminal Code — Count 3 on Information 39775-1, and Count 2 on Information 40119-1. [ 3 ] At the sentencing hearing on December 8, 2015, counsel jointly sought and the sentencing judge imposed a SOIRA order for a period of 10 years under s. 490.013(2) (

a) of the Criminal Code . It is well established by now, however, that since Mr. Clancy was convicted of more than one designated offence within the meaning of that term in s. 490.011(1) of the Criminal Code , a mandatory lifetime order should have been imposed in accordance with s. 490.013(2.1) : see, for example, R. v. Cardinal , 2013 YKCA 14 , R. v. Burns , 2012 SKCA 52 . [ 4 ] Eventually the error was noticed. The matter was brought back before Judge Flewelling on April 4, 2016 for the Crown to make an application to correct the SOIRA order and bring it into conformity with law.

Both Crown and defence counsel acknowledged their mistake, and agreed that the corrective order was just and appropriate. Judge Flewelling herself acknowledged that her order was wrong and could not stand, but she declined to correct it based on this court's decision in R. v. C.D.B. , 2013 BCSC 2440 in which, in similar circumstances, the trial judge declared that he was functus officio and had no jurisdiction to cure his mistake. [ 5 ] Mr. McGarvey has appeared in this court and repeated his avowals of complicity in this unfortunate error. He and the trial prosecutor (not Ms.

Ruzicka) have once again donned hair shirts and acknowledged that they provided the sentencing judge with incorrect advice. These things happen sometimes and I, for one, am in no position to criticize anyone who has committed the odd blunder during a long day in a busy trial court. [ 6 ] Mr. McGarvey, by the way, is a senior and respected lawyer who enjoys the well-earned confidence of this court. On behalf of Mr.

Clancy, he agrees that in the circumstances the Crown is entitled to the relief sought, and that his client cannot claim to be prejudiced by the imposition of the SOIRA order intended by Parliament to apply to his situation.

[7] The petition is therefore allowed on the basis that the trial judge failed to impose the lifetime SOIRA order required by thecombination of ss. 490.012(1) and 490.013(2.1), and thereby committed jurisdictional error: see R. v. Flanders, 2015 BCCA 33, atpara. 22. The prerogative relief sought in this petition has been granted in similar circumstances in R. v. McIntyre, 2015 BCSC 1792, andR. v.

Batley, 2016 BCSC 2296. [8] I was specifically urged, furthermore, to depart from the principle of comity and not to follow C.D.B. because subsequent courtdecisions around the country have called its validity into question: see Hansard Spruce Mills Ltd. (Re), (BC SC),[1954] B.C.J. No. 136 at para. 4. [9] I agree that the forensic sands have shifted since C.D.B. to the point where it has become both necessary and desirable in theinterest of the orderly, effective and efficient administration of justice to reconsider the principal question considered in it.

This was, as Ihave mentioned, whether a trial judge who makes an incorrect SOIRA duration order is functus officio or retains jurisdiction to fix themistake and bring the order into compliance with the mandatory terms of the statute. [10] First of all, I would respectfully adopt the sentiments expressed by MacPherson J.A. in R. v. Malicia (2006), (ON CA), 211 C.C.C. (3d) 449 (Ont. C.A.), that there are strong policy reasons for recognizing a trial judge's jurisdiction tocorrect errors of this sort.

The justice system's reputation would suffer if trial courts were banned by the doctrine of functus officio fromfixing honest omissions or mistakes where there is no question of injustice to the accused, no reasonable apprehension of bias, and noreconsideration of a substantive discretionary decision consciously made. [11] Malicia involved a trial judge convening the reprisal of a criminal sentencing hearing that had concluded a couple of daysbefore. Her purpose in doing so was to specify that the sentence she imposed was to run consecutively to one that the offender wasalready serving.

This was not a reconsideration of a discretionary substantive ruling. The trial judge had always intended to impose aconsecutive sentence and the record supported this assertion. She had only omitted to say so in her final order.

The Court of Appealdecided that the trial judge's jurisdiction was not exhausted and she was entitled to cure her omission, in the absence of which, byoperation of s. 719(1) of the Criminal Code, the sentences would run concurrently. [12] The trial judge in C.D.B. distinguished Malicia on the basis that his error was not a failure to articulate an order that he intendedto make, but rather that he had consciously, intentionally, but mistakenly, made an order that was illegal. He emphasized the need forcertainty and finality in judicial matters, and cited R. v.

J.E., 2013 ONCJ 247, as authority for holding that such errors should not go backto trial judges, because then there would be "no end to the trial litigation and no beginning to the appeal". The trial judge in C.D.B.thought that an appeal was likely available to correct defective SOIRA orders or, referring to R. v. Chisholm, 2012 NBCA 79, thatprerogative remedies could be sought to achieve the same result. [13] Subsequent decisions in this province have made it clear that no statutory right of appeal is possible from an incorrects. 490.012(1) order: see R. v.

L.V.R., 2016 BCCA 86, at para. 13, and McIntyre at para. 15. Therefore, while C.D.B. correctlyapprehended the availability of prerogative remedies to fix such errors when committed by statutory decision makers, it has turned out tobe wrong that an appeal lies from an identical error committed by a superior court trial judge. It is for this reason principally that Iquestion the continued validity of C.D.B. and respectfully decline to follow it.

To do so would endorse a principle not intended by thecourt and that I do not accept, namely that incorrect SOIRA duration orders made in a superior court cannot be fixed. [14] As the law has evolved, in other words, I think it clear that more recent cases, such as R. v. Alvarenga-Alas, [2014] O.J.No. 3943, and R. v. R.M., [2015] N.J. No. 273, should be followed instead. These stand for the proposition that a statutory right of appealfrom s. 490.012(1) SOIRA orders does not exist for the likely reason that they are mandatory, automatic and non-discretionary. There isnothing to be argued on an appeal.

Such orders are fixed by statute. They must be imposed. There is no decision-making discretionwithin a range of legally acceptable outcomes. There is only one right answer in every case. Where an error is made, its correction doesnot amount to a reconsideration of the sentence, but serves merely to bring the SOIRA order into conformity with mandatory legalrequirements.

This is so in either level of trial court. [15] Accordingly, based on these post-C.D.B decisions, as well as others referred to me by counsel, I have concluded that a trialjudge must of necessity have the residual jurisdiction to correct such mandatory, non-discretionary orders where it is obvious that anerror was made. To hold otherwise, in my respectful view, would bring the administration of justice into disrepute. [16] The petition is granted in the terms sought.

The order below is quashed, and the matter is remitted to the Provincial Court ofBritish Columbia with an order directing the imposition of the mandatory lifetime SOIRA ban required by ss. 490.012(1) and490.031(2.1) of the Criminal Code. “Baird J.”