R. v. Liam Patrick Clancy Date:, 2016 BCPC 437

Citation: R. v. Liam Patrick Clancy Date: 20161125 2016 BCPC 437 File Nos: 39775-1, 40119-1, 40119-2 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Section 486(4)

(1) Criminal Code - PUBLICATION BAN REGINA v. LIAM PATRICK CLANCY RULING ON APPLICATION OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: L. Ruzicka Counsel for the Defendant: A.W. McGarvey Place of Hearing: Campbell River , B.C. Date of Hearing: April 4, 2016

Date of Judgment: November 25, 2016 [ 1 ] Mr. Clancy was sentenced on December 8, 2015 to possession of child pornography and indecent exposure. These are offences for which the court must make, pursuant to

section 490.012, an order requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013. [ 2 ] At the sentencing hearing, Crown counsel sought, and I granted, a SOIRA Order for a period of 10 years pursuant to s. 490.013(2) (

a) of the Criminal Code . However, Mr. Clancy had, in fact, been convicted of more than one “designated offence”, and a lifetime mandatory SOIRA Order should have been imposed pursuant to s. 490.013(2.1). [ 3 ] The Crown applies to this court to correct this error before me, the sentencing judge. [ 4 ] Counsel for Mr. Clancy takes no position but acknowledges that the correct duration of the SOIRA Order is for life. [ 5 ] There are two conflicting lines of authority on whether I have jurisdiction to correct a SOIRA duration error such as was made here.

Crown counsel submits that although there is a decision from the Supreme Court of British Columbia that is binding upon me, and which if followed would not allow me to grant the order, courts of other jurisdictions across Canada have considered this issue and held that a sentencing judge does retain the jurisdiction to correct a SOIRA duration error. [ 6 ] Thus the sole issue before me is whether I have the jurisdiction to grant the order sought by Crown. [ 7 ] Crown counsel provided a number of authorities as well as a written brief.

From those materials, a number of general principles can be distilled: SOIRA Orders: It is mandatory that the judge who convicts an offender of certain designated offences make a SOIRA Order pursuant to s. 490.012(1): R. v. Alvarenga-Alas , 2014 ONSC 4725 , para.14; A SOIRA Order does not form the basis of a sentencing and therefore an erroneous s. 490.012(1) order cannot be reviewed and corrected pursuant to the sentence appeal provisions of the Code : R. v.

McIntyre 2015 BCSC 1792 ; Whereas at one time appeals from all s. 490.012 orders could be made, the April 14, 2011 amendments restricted the right to appeals from s. 490.012(2) orders. (The order against Mr. Clancy was made pursuant to s. 490.012(1).) Parliament clearly intended that no appeal would lie from a s. 490.012(1) order: McIntyre (supra); A SOIRA Order is not a final order or determination contemplated by s. 830 of the Code and no appeal lies under that section: R v.

Alvarenga-Alas , 2014 ONSC 4725 , cited in McIntyre (supra); The Supreme Court may grant prerogative relief of mandamus to correct a SOIRA duration error and direct the original judge to correct the SOIRA Order. Functus Officio : The authorities across Canada that are divided on whether a sentencing judge is functus officio or retains jurisdiction to correct a SOIRA duration order. [ 8 ] The leading case in British Columbia is the decision of Gaul, J. in R. v. C.D.B. 2013 BCSC 2440 . He was faced with a similar application following a jury trial.

He made a number of ancillary orders including a SOIRA Order for a duration of 20 years based upon counsel’s submission. It was later agreed that it should have been a lifetime order. Justice Gaul held that he did not have statutory jurisdiction to amend the SOIRA Order and, furthermore, he was functus officio . He relied on a decision that was subsequently overturned for the view that there was an avenue of appeal of the SOIRA Order. [ 9 ] Crown counsel urges this court to consider the jurisprudence across Canada subsequent to the C.D.B. decision.

She also submits that the facts in C.D.B. are distinguishable and provide a basis upon which I may be persuaded that it is not binding upon me. [ 10 ] Following a trial by jury, C.D.B. was sentenced by Justice Gaul. Crown sought a number of ancillary orders including a SOIRA Order.

Shortly after sentencing was concluded, Crown counsel advised the court that the submission had been in error and, in fact, a lifetime SOIRA Order was mandated by the Criminal Code . [ 11 ] The Crown brought an application before Justice Gaul requesting that the SOIRA Order be amended to comply with s. 490.013(2.1) of the Criminal Code and apply for life. [ 12 ] The basis on which Crown sought the amendment before the sentencing judge was that the error was a “clerical slip or administrative oversight” and the court, not being functus , had statutory and inherent jurisdiction to correct the oversight.

Defence counsel submitted that the court was functus and had no statutory or inherent jurisdiction to amend the order. [ 13 ] Crown counsel in the case before me agrees that there is no statutory jurisdiction to amend the order. In C.D.B. , the Crown submitted that s. 490.012(4) provided jurisdiction to amend the order. Justice Gaul reviewed a number of other cases in considering this issue. It is clear, and accepted by counsel in the case before me, that this

section does not apply when the court clearly considered the matter of the SOIRA Order but imposed an incorrect duration. [ 14 ] The major issue in C.D.B. was whether the court was functus officio . Functus officio means “having performed his or her

office” and therefore there is no further authority as the duties have been accomplished. In explaining the doctrine, Justice Gaul referredto a passage by Justice Sopinka in Chandler v. Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848 at p. 860: 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 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 EngineeringCorp., (SCC), [1934] S.C.R. 186. [15] A more flexible

interpretation and application of this doctrine has been utilized by the courts to correct certain errors but, as wasexplained by Justice Major in R. v. Burke, 2002 SCC 55 , [2002] 2 S.C.R. 857 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. [page 886] 1998), at p. 851. Therationale 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 to reconsider its earlier conclusion or continue its cogitations on the matter, the error cannot be corrected, because the trialprocess has concluded 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 isunwise 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. [16] R. v.

Malacia, (ON CA), [2006] O.J. No. 3676 (C.A.), extended this approach to judge alone trials and thecourt upheld the trial judge’s decision that she was not functus. The sentencing judge clarified that the sentence she intended wasconsecutive and this did not amount to a reconsideration or alteration of the original sentence.

At paragraphs 24 to 27, MacPherson J.A.states: [24] After Burke, the relevant question in this appeal is whether the exception to the functus officio doctrine enunciated in Burke -namely, correction of the error should be permitted if it does not require the jury to reconsider its verdict - should be imported into judgealone criminal trials, including the sentence components of those trials. In my view, there is no principled basis for refusing to make thislinkage.

I say this for two reasons. [25] First, one of the values of Burke, although not remarked upon in Major J.'s judgment, is that it creates a desirable symmetrybetween civil and criminal trials in this domain. In civil cases, Paper Machinery established an exception to the application of the functusofficio doctrine if there had been an error in expressing the manifest intention of the court. In criminal cases, pre-Burke, there was nosuch principled exception.

Rather, cases like Head enunciated bright line rules - was the jury discharged? was the indictment endorsed? -which conclusively triggered a finding of functus officio. Burke changes this and insists on a "more refined and flexible analysis". Acrucial component, indeed the linchpin, of the new analysis is whether the potential correction of an error involves reconsideration bythe 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. [27] Second, the policy rationale enunciated in Burke for permitting correction of errors in jury cases - namely, the administration ofjustice would be brought into disrepute if a court were barred from correcting a recorded verdict where there is no perceptible injustice tothe accused and no reasonable apprehension of bias - is precisely the same in judge alone criminal trials.

A jury can make an error inrecording a verdict; so can a judge. The law for permitting (and refusing to permit) corrections of errors should be, as much as possible,the same in both scenarios. [17] Justice Simmons generally concurred with MacPherson J.A., but with regard to the extent to which a court may be more flexiblein a criminal matter, concurred with Cronk J.A., stating: [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 flexible

analysis" 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. [18] In R. v. D.M., 2013 ONSC 141 , [2013] O.J. No. 83, Daley J. was asked to correct an error in the duration of a SOIRAOrder. Counsel had requested an order for 20 years instead of the mandatory lifetime order.

He cited the following reasons for reachingthe conclusion that he did have inherent jurisdiction: [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. [19] In R. v. J.E., 2013 ONCJ 247, Justice Nakatsuru agreed with Daley J. that a SOIRA Order is an ancillary order of sentencing butcharacterized it remains a final order and a part of sentencing.

He disagreed with the rationale that the judge’s intention was always toapply the correct duration for the SOIRA Order and a correction is simply expressing the intention of the Court. Nakatsuru J. was of theview that while it was tempting to simply grant the order to correct the error, the greater concern was that to do so would be to embarkon a slippery slope. At para. 27 he stated: [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 sleeplessnights for our efforts. But we are all human. And therefore we fail sometimes. When a judge fails, his or her decision should speak foritself. The parties and the appellate court should know the foundation upon which the appeal is being launched.

To permit an overlyliberal 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. [20] The analysis in C.D.B. has been followed in a number of other jurisdictions in Canada. Crown counsel has also referred me to anumber of decisions contrary to the analysis and result in C.D.B.: R. v. R.M. 2015 NLTD (G) 101; followed in R. v. Krause, 2015 ABQB637 and in R. v.

I.G.L. 2016 NSSC 28. [21] Stack J. in R.M. relying on C.D.B. for the proposition that the SOIRA Order is not part of the sentence imposed but an ancillaryrequirement on sentencing that is not discretionary stated at para. 16: The correction contemplated here does not amount to a reconsideration of the sentence. [22] Stack J. preferred the reasoning by Daley J. in D.M. because there was no discretion and only one result in imposing theduration of the SOIRA Order and at para. 22 states: …that then must be the judge’s manifest intention.

To require the parties to appeal from such errors would add a level of cost andcomplexity to a proceeding that is undesirable in the present climate of trying to “make every court appearance count. [23] I agree that the cost of correcting an error such as this is undesirable and it is extremely tempting to find an avenue to allow acorrection. The analysis in the D.M. and R.M. line of authorities is attractive from a practical perspective. However, D.M. was decidedbefore C.D.B.

In R.M. and the authorities that rely upon the analysis in D.M., there is no reference Gaul J.’s reasoning in C.D.B. at para.47 that: In my view, the SOIRA Order is an integral part of the sentencing process and not merely an administrative act of the court. [24] I find the reasoning and analysis by Gaul J. in C.D.B. and Nakatsuru J. in J.E. more compelling. While the duration of a SOIRAOrder is mandatory depending upon the nature and number of offences, imposing that order requires a judge to apply the SOIRAprovisions of the Criminal Code in the appropriate and correct manner.

It is clear that when I ordered the duration of the SOIRA Orderfor 10 years, I intended that result. Unfortunately, it was incorrect. It was not merely an administrative error, and the correction soughtis not merely clarification of my intended sentence. [25] C.D.B. is binding authority on this court. Crown counsel attempted to distinguish it because after C.D.B. was released, the lawchanged and it is now clear that there is no avenue of appeal from a SOIRA duration order made under s. 490.012(1).

However, theability to appeal the order does not play a role in my decision. [26] I adopt the words of Gaul J at para. 47: While it is important to be practical and efficient, it is equally important to recognize the overall need for certainty and finality in judicial

matters. Having considered the jurisprudence on this question, I am of the opinion that there is no inherent jurisdiction to correct a SOIRA Order after it has been reduced to writing and signed by the court and the offender. In my view, after that has occurred, the court is functus officio . [ 27 ] The only remedy is for a superior court to issue mandamus directing this court to make the appropriate correction. BY THE COURT: The Honourable Judge B. Flewelling Provincial Court of British Columbia