Her Majesty the Queen - v. -, 2012 SKPC 105

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 105 Date: July 17, 2012 Information: 24316594 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gregory Lee Ingram Appearing: Ms. L. O ’Connor For the Crown Ms. R. Newman , Q.C. For the Accused DECISION B. MORGAN , J INTRODUCTION: [ 1 ] Mr. Ingram has brought an application alleging his s. 7 Charter right to life, liberty, and security of the person has been infringed.

He seeks either a constitutional exemption from the requirement to have a lifetime Sex Offender Information Registration Act ( SOIRA ) order made, or he seeks a judicial stay of proceedings under s. 24(1) of the Charter . [ 2 ] As will be detailed later in this decision, the problem for Mr. Ingram is that, in September of 2010, he pled guilty to two

separate counts of sexual assault in British Columbia. At that time, he was sentenced to three years incarceration in a penitentiary, and a 20 year SOIRA order was imposed. [ 3 ] In April of 2012, in Saskatchewan, he entered a guilty plea to one count of sexual assault encompassing a time frame just after the British Columbia charges, respecting one of the two children who were the complainants in the British Columbia matter. As the legislation respecting the sex offender registration has changed in the interim, he will now be subject to a lifetime SOIRA order.

His argument is that, as the Saskatchewan authorities knew of these matters prior to him entering his guilty pleas in British Columbia, and did not lay a charge, their dilatory conduct has resulted in violation of his s. 7 Charter rights.

THE EVIDENCE: [ 4 ] Exhibit P-1 is an Agreed Statement of Facts, with an appended General Occurrence Report and Supplementary Report, the latter document being prepared by RCMP Officers in Porcupine Plain, Saskatchewan. [ 5 ] The Agreed Statement of Facts notes that on September 7, 2009, two females went to the RCMP Detachment in Westshore, British Columbia, and reported that they had been sexually assaulted by Mr. Ingram. [ 6 ] On September 18, 2009, Mr. Ingram initiated contact with Cpl. Matt Peggs, a member of the Royal Canadian Mounted Police then stationed in Porcupine Plain, Saskatchewan.

In a voluntary and warned audiotaped statement, Mr. Ingram admitted to committing sexual offences against the same two individuals, in both British Columbia and Saskatchewan, from 1994 to 2001. Prior to taking that statement, Cpl. Peggs had contacted the British Columbia RCMP Detachment, and Cpl. Braes of that detachment confirmed that there were two files recently opened respecting historical sexual assaults involving Mr. Ingram. [ 7 ] By September 19, 2009, Cpl. Peggs had spoken with a local Crown prosecutor, who agreed with the corporal’s decision to make no arrest of Mr. Ingram at that time. Cpl.

Peggs had also spoken again with the local British Columbia Detachment, and learned the name of the Crown prosecutor in British Columbia who would be handling the matter. [ 8 ] Within a few days, Cpl. Peggs forwarded a copy of Mr. Ingram’s Saskatchewan warned statement to the British Columbia Detachment, and by October 1, he had received a copy of the CD from the British Columbia Detachment containing the statements they had taken. By then, contact information respecting the BC prosecutor had been forwarded to a local prosecutor in Saskatchewan. [ 9 ] On November 14, 2009, Cpl.

Peggs received an e-mail from the BC RCMP Detachment, indicating that “the BC Crown was intending on laying the charges for both jurisdictions if possible”. He followed up with the Melfort Crown counsel on November 16, 2009, and was advised that the prosecutor had not yet looked at the file. [ 10 ] Mr. Ingram was arrested in Porcupine Plain, Saskatchewan on May 25, 2010, on the British Columbia charges. He appeared in Court in British Columbia on June 25, 2010, and was sentenced on September 29, 2010, at Vancouver.

The British Columbia charges referred to two counts, as follows: One count of sexual assault between January 1, 1994 and September 30, 2000, respecting F.N.; One count of sexual assault between January 1, 1995 and September 30, 2000, respecting Y.E. [ 11 ] Two other charges were stayed by the Crown. Mr. Ingram, who was representing himself, was sentenced to a three year penitentiary term concurrent on both counts, a lifetime firearm prohibition, and a 20 year SOIRA order.

[ 12 ] On that same date, in Saskatchewan, Cpl. Peggs received an update from the local prosecutor, indicating she was still needing to talk to the complainants in British Columbia. [ 13 ] On December 3, 2010, Cpl. Peggs sent another e-mail to the prosecutor requesting the Crown’s decision on the Saskatchewan allegations, as he had been doing fairly regularly. It is obvious that the children’s mother, in British Columbia, was calling quite often to follow-up the progress of the Saskatchewan matter. [ 14 ] On February 4, 2011, Cpl.

Peggs e-mailed a message to Crown counsel that one of the complainants wished to continue with the case, and the other one was not prepared to. [ 15 ] As of October 19, 2011, Cpl. Peggs’ occurrence reports noted that the Saskatchewan Crown was still deciding on appropriate charges on this matter. [ 16 ] On December 9, 2011, a one count Information, the subject of this application, was sworn in Saskatchewan, charging Mr.

Ingram with: Near Somme and Weekes, in the Province of Saskatchewan, did, between September 1, 2000 and December 31, 2004, commit sexual assault on F.N. (one of the two same British Columbia complainants), contrary to s. 271 of the Criminal Code . (This charge was amended on April 26, 2012 to change the dates to “between September 30, 2000 and May 15, 2001”, and to change the name of the complainant to Y.E., the other British Columbia complainant.) [ 17 ] At this time, Mr. Ingram was still serving his sentence in British Columbia.

It is noted on the endorsement to the Saskatchewan Information that his early release date was September 27, 2012. He was returned to Saskatchewan, and on April 26, 2012, while represented by counsel (not Ms. Newman) elected trial by a Provincial Court Judge, and entered a guilty plea to that amended count. At that time, sentencing was adjourned to May 22. At the time the guilty plea was entered, the Crown took the position that, had Mr. Ingram pled guilty to charges that encompassed the entire time frame of the abuse, in both Saskatchewan and British Columbia, he likely would have received the same sentence.

They were thus proposing a sentence that would be significantly less than would ordinarily be the case on a charge of this nature. The intent was that Mr. Ingram would not serve any additional time, based on the independent Saskatchewan charge, as it was seen as a continuation of the British Columbia offences. Thus, the view of the Crown, and defence, was that had Mr. Ingram dealt with both matters at the same time in British Columbia, he likely would have received the same sentence as he received in British Columbia for the British Columbia charges. [ 18 ] The problem for Mr.

Ingram, and what generated this application, was that an amendment had occurred to the Act , such that s. 490.013(2.1) reads, since April 15, 2011, as follows:

(2.1) Duration of order - 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). [ 19 ] Sexual assault is an offence referred to in s. 490.011(1)(a). Thus, in essence, the argument is that, had the Crown in Saskatchewan been more diligent in laying a criminal charge for the Saskatchewan offence, all matters could have been dealt with in British Columbia. Had that occurred, goes the argument, Mr. Ingram’s guilty plea would have been to all outstanding matters, and he would then have been subject to a 20 year SOIRA order.

Now, in light of the guilty plea to the Saskatchewan charge, and the intervening amendments to the legislation, this third offence will necessitate a lifetime ban. (The actual mechanics of the legislation is that the Protecting Victims from Sex Offenders Act , S.C. 2010, c. 17, was assented to December 15, 2010, and came into force on April 15, 2011.) [ 20 ]

Section 490.012 used to provide that a Court “ shall on application of the prosecutor , make an order ....”.

Section 490.012 was also amended to read “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” [which sexual assault is] ... it shall make an order” (emphasis added). Thus, even if the Crown were

inclined to refrain from requesting that a SOIRA order be made, with respect to the Saskatchewan charge, that option no longer exists. Once the guilty plea was entered, in Saskatchewan, the Court imposing a sentence is required to impose a lifetime SOIRA order. POSITION OF COUNSEL: [21] In brief, the defence argument is that the Saskatchewan charges were laid two years, and two and a half months after Mr.Ingram first talked to the RCMP in Saskatchewan, and one year and seven months after the charges were laid in British Columbia. Theargument is that Mr.

Ingram always wanted to deal with matters quickly, and the lack of progress by the Saskatchewan authorities inlaying a charge prevented him from doing that, to the point where he is now facing a lifetime SOIRA order. [22] The applicant is relying on the residual category of abuse of process, as set out in the case of R. v. Nixon, 2011 SCC 34,[2011] 2 S.C.R. 566. Based on Nixon and R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the argument is that if the Courtconcludes that there is an egregious breach of s. 7, a judicial stay of proceedings is both available and appropriate, and if the Courtdetermines otherwise, it is still appropriate for the Court to give a statutory exemption to the operation of s. 490.013(2.1). The entireargument is based on the suggestion that the Saskatchewan authorities took an inordinately long period of time to lay the charge. [23] The Crown position is that s. 7 of the Charter is not engaged as Mr.

Ingram does not face any jeopardy to his life, liberty orsecurity, as the SOIRA order is not any type of punishment. Further, by extension of the principles set out in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, that pre-charge delay is not relevant. Crown counsel further notes that it appears that Mr. Ingram madeno effort to find out what was transpiring respecting the Saskatchewan charges, and that the positions of the British Columbia Crownand Saskatchewan Crown were completely different, based on the evidence each had, and that the willingness of one of the complainantsto proceed was very much an issue.

ANALYSIS: [24] In R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128, the Court held that there is a “residual discretion” for a Court tostay proceedings as a remedy for an abuse of process. After reviewing a number of earlier cases, Chief Justice Dickson, writing for theCourt, affirmed a principle set out in an earlier Ontario Court of Appeal case of R. v.

Young (1984), (ON CA), 40 C.R.(3d) 289, stating that: ... there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate thosefundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a Court’sprocess through oppressive or vexatious proceedings. (Quoting directly from Young at para. 25 of Jewitt.) [25] That principle was reiterated in R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, by Madam Justice L’Heureux-Dubé, at paragraph 73: In addition, there is a residual category of conduct caught by s. 7 of the Charter.

This residual category does not relate to conductaffecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply ofdiverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness orvexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicialprocess. [26] The focus of the defence argument in this case is best explained by reference to the recent case of R. v.

Nixon, 2011 SCC 34,[2011] 2 S.C.R. 566, by Charron J., at paragraph 41: Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Of course, in mostcases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way tosuccessfully make out an abuse of process claim. But prejudice under the residual category of cases is conceptualized as

an act tending

to undermine society’s expectations of fairness in the administration of justice ... [27] Continuing further in that paragraph, and relying on the words of L’Heureux-Dubé J. in R. v.

Conway, (SCC),[1989] 1 S.C.R. 1659, Charron J. repeats the words from Conway and concludes: ... consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution ofcriminal cases, then the administration of justice is best served by staying the proceedings. [28] However, in either case, an abuse of process needs to be established, hence the reason for this brief review of the guidingprinciples. [29] In most, but not all cases, the abuse of process argument that is advanced is tied to an allegation of dilatory work by either theinvestigating authorities or the Crown prosecutor, and focuses on how that will affect the fairness of the trial. (As one recent example,see R. v.

Joudrey, [2010] N.S.J. No. 340, 2010 NSSC 340, and the cases cited therein.) [30] In R. v. Box, , [1994] S.J. No. 17, 118 Sask. R. 241 (Q.B.), Mr. Justice Gerein was dealing with a charge ofconspiracy to traffic in drugs, the charges being laid after the trial, and conviction, of the accused on a charge of trafficking in drugs;both sets of charges arose out of the same circumstances. Gerein J. found that there was no malice on the part of the police, although henoted that malice is not required to be proven (see R. v. Keyoski, (SCC), [1988] 1 S.C.R. 657).

Holding that proceedingwould “offend the community’s sense of fair play and decency,” he stayed the proceedings. [31] In this case, of course, there was no trial, as the accused entered a guilty plea. However, as the cases illustrate, the doctrine isnot confined to the notion of trial fairness. To be successful, the applicant must prove to the Court, on a balance of probabilities, that thecommunity’s sense of fair play and decency, to use the phrase of Gerein J., would be offended.

On the facts of this case, for the reasonsthat follow, I conclude that this test has not been met, and the application must be dismissed. [32] I note firstly that it was not until February 4, 2011 that it became known to Cpl. Peggs, and from he to the Crown, that one ofthe complainants in British Columbia wanted to proceed. As Ms. O’Connor argued on behalf of the Crown, the cases from BritishColumbia and Saskatchewan were not identical. Without a willing complainant, the case in Saskatchewan wasn’t as cut and dried asdefence counsel argued, despite Mr. Ingram’s inculpatory statement given to Cpl. Peggs.

I find it was reasonable for the Crown to wantto talk with the complainant and ensure her willingness to testify, before deciding whether or not to proceed. Whereas it is argued that ittook a lengthy period of time for the Saskatchewan Crown to do this, and it then took an additional ten months, until December 9, 2011,for the Information to be sworn, that is but one factor to consider. [33] As was pointed out in R. v. L. (W.K.), (SCC), [1991] 1 S.C.R. 1091, at page 5: “Delay in charging andprosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process at common law”.

The Court goeson to state that : “Staying proceedings based on the mere passage of time would be the equivalent of imposing a judicially createdlimitation period for a criminal offence”. [34] In my view, on these facts, it would be inappropriate for this Court to monitor the priorities and workload of a prosecutor orprosecutors. Even if I were to embark on such a course of action, I am mindful of a further cautionary note expressed in R. v. L. (W.K.),supra, referring to Mills v.

The Queen, , [1986] 1 S.C.R. 863, that “ Pre-charge delay is relevant under s. 7 and 11(d)because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial”. Although the lawdoes not restrict the delay argument to trial fairness, I find the general reasoning remains sound. [35] The point is, to be successful, the applicant needs to point to a real consequence to him, caused by the delay. The Crown hasalready taken the position that a sentence is being sought that will not increase Mr. Ingram’s actual time in jail.

Although a lifetimeSOIRA order is a consequence to Mr. Ingram, it is one that came about due to the decision of Parliament to amend the law. There is noevidence at all that anyone involved in this prosecution incurred any delay to take advantage, somehow, of that change.

[ 36 ] Further, Mr. Ingram, now fifty-two years old, is already subject to a twenty year SOIRA order, based on his guilty plea in British Columbia. He will now, based on his guilty plea in Saskatchewan, be subject to a lifetime SOIRA order. Had the amendments referred to earlier been in effect when he dealt with these charges in British Columbia, he would have been subject to a lifetime order, as he entered a guilty plea to two offences at that time. The Saskatchewan charge is his third offence (see R. v.

Burns, 2012 SKCA 52 ). [ 37 ] Finally on this point, although the need to register is a consequence of a conviction, it is not in itself a punishment (see R. v. B. (C.L.), 2007 ABQB 521 , affirmed 2010 ABCA 134 ). [ 38 ] On another point, I note that Mr. Ingram represented himself in British Columbia, and he was represented by experienced counsel in Saskatchewan. The argument being advanced in this application was first made when he came to be represented by Ms. Newman, after the entry of the guilty plea. There is no suggestion that, at any time, Mr.

Ingram made any inquiries about the status of the Saskatchewan charge, and it certainly cannot be said that he was in any way influenced by anything that the Crown did, or did not, do. As such, I cannot find that the particular consequence he now faces had any impact at all on how he dealt with his case. [ 39 ] I am not satisfied that the applicant has discharged the onus upon him to establish that there has been an abuse of process. Nothing in this case could lead me to conclude that the imposition of a lifetime SOIRA order under these circumstances would shock the community’s sense of decency and fair play.

That being the case, the application is dismissed. B. Morgan, J