R. v. Bansil, 2020 BCPC 34

Citation: R. v. Bansil 2020 BCPC 34 Date: 20200303 File No: 100310-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN CLAUDEN BANSIL RULING ON APPLICATION OF SOIRA OF THE HONOURABLE JUDGE P. JANZEN Counsel for the Crown: J. Fogel Counsel for the Defendant: G. Prat Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 24, 2020 Date of Judgment: March 3, 2020 [ 1 ] John Clauden Bansil received a conditional discharge with a period of probation for committing the offence of sexual assault. The sole issue to be determined is whether Mr. Bansil must register in compliance with the Sex Offender Information Registration Act

(SOIRA). [ 2 ]

Section 490.012(1) of the Criminal Code mandates a court to make an order in Form 52 requiring the person to comply with the SOIRA . It reads as follows: When a court imposes a sentence on a person for an offence … it shall make an order in Form 52 requiring the person to comply with the SOIRA…. (emphasis added). [ 3 ] Under

section 720 of the Criminal Code a court is required to impose a sentence after an offender “has been found guilty”. [ 4 ]

Section 730 of the Criminal Code provides that where an offender pleads guilty or is found guilty, the court can discharge the offender, instead of convicting the offender. The first paragraph of the synopsis to

section 730 of Martin’s Criminal Code states: This

section provides the court with a sentencing option which results in the accused not having a criminal record in connection with the offence in question. (emphasis added) [ 5 ] Form 52 in the Criminal Code that sets out the formal order that is to be made by the court does not refer to the finding of guilt or the imposing of a sentence.

Instead, it states: You have been convicted of … a designated offence (emphasis added). [ 6 ] The SOIRA also consistently refers to the convictions of offenders for designated offences and utilizes the date when sentence is imposed as the date from which time is measured. [ 7 ] Form 52 that is included in the Criminal Code and the language of the SOIRA clearly contemplate that a conviction is required in order for registration to be mandatory. This supports the position of the defence that an offender who is found guilty but not convicted is not caught by the requirement of

section 490.012. [ 8 ] The only possible exception, and as I will explain below in my view it is not an exception, is the opening phrase of s. 490.012 that states: When a court imposes a sentence on a person. [ 9 ] The Crown’s position is that this phrase means that whenever a person is sentenced for committing one of the designated offences, the court must order the person to register in compliance with the SOIRA . If that is what had been intended, the

section could have said “whenever a court imposes a sentence”. The

section does not say that. [ 10 ] In my view the phrase is better understood to mean what it says. The purpose of this

section is not to describe the preconditions to an order for registration. It is simply to state when the court must make the order. The court must make the order when the convicted offender is sentenced. [ 11 ] I find support for my

interpretation in a large number of cases. The decision of R. v. Jayswal , 2011 ONCJ 33 is a comprehensive and persuasive review of not only the language of the statutory scheme and decisions interpreting it but a number of federal government publications respecting the Registration system that uniformly refer to convicted offenders. [ 12 ] Justice Lloyd Dean at para. 14 also contrasts the legislative provisions respecting the SOIRA with

section 161 that refers to an offender who is convicted or is discharged on the conditions prescribed in a probation order under

section 730. He concluded: …in my view it is made clear in several different types of publications, cases, etc., that s. 490.012 does not apply to absolute or conditional discharges (except in those cases where the offender is found not criminally responsible as a result of a mental disorder). [ 13 ] The decision of the Ontario Court of Appeal, G. v. Ontario (Attorney General) , 2019 ONCA 264 considered whether the equality rights of a person who was found to be not guilty by reason of a mental disorder and received an absolute discharge had been breached, contrary to

section 15 of the Canadian Charter of Rights and Freedoms . In deciding the case the Court contrasted such a person with a person who had been found guilty of a designated offence but who received a conditional or absolute discharge. In describing the statutory scheme the Ontario Court of Appeal wrote at para. 21: Persons who are found guilty of sexual offences but receive a conditional or absolute discharge under s. 730 of the Criminal Code at the time of sentencing are deemed by s. 730(3) not to have been convicted of the offence.

Those persons are not required to register under either the provincial or federal schemes. [ 14 ] The case of R. v. Henry, 2019 ONSC 4978 examined these legislative provisions in the context of an absolute discharge. After a discussion of the case of R. v. DK , 2009 QCCA 987 the court stated the following in its conclusion at para. 40: Finally, notwithstanding DK , the few Ontario cases which consider the issue suggest that the law in this province is that s. 490.012(1) does not apply to discharges: R. v. Jayswal , 2011 ONCJ 33 ,…; R. v. Rai , 2018 ONCJ 949 …; R. v. Senthamilselvan , 2018 ONCJ356 ,…; R. v.

Mwaba , 2006 ONCJ 374 ,…. Courts in British Columbia have also declined to follow DK : R. v. Reyes-Borgwardt , 2010 BCSC 1594 ,…; R. v. Hartman , 2018 BCPC 240 ,… R. v. T.J.H ., 2012 BCPC 115 ,…; R. v. J.L.B ., 2017 BCPC 24 . [ 15 ] I also decline to follow R. v. DK . [ 16 ] I note that some of these cases based their analysis on whether an absolute discharge is a sentence or not. On my reading of the statutory scheme, the conclusion does not depend on whether an absolute or conditional discharge is a sentence. Even if I assume that a discharge is a sentence, I find that

section 490.012 in the context of the whole of the statutory scheme, does not establish whether a court must make an order requiring the person to comply with the provisions of the SOIRA . If such an order must be made,

section 490.012

sets out when the order requiring a person to comply with the SOIRA must be made by the court. It must be made “ when the court imposes a sentence” on the convicted person. ____________________________ The Honourable Judge P.L. Janzen Provincial Court of British Columbia