Her Majesty the Queen - v. -, 2012 SKPC 051

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 051 Date: March 27, 2012 Information: 446611829 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leon Edward Unruh Appearing: M. Segu For the Crown L. Watson For the Accused REASONS FOR SENTENCING DECISION S. P. WHELAN , J Introduction [ 1 ] Mr. Unruh entered a guilty plea to a charge of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code . Counsel presented a joint submission for five months incarceration followed by three years probation.

Mr. Unruh plans to live with his parents following release. The Court had questions about two of the proposed probation conditions. After a short adjournment and discussion, the Court was advised that his parents would remove their computer from the home. This was revised to permit a very dated computer used to print labels, to remain in the home under lock with access by the parents only. Continued concern was expressed with respect to the proposed condition, set out below: Shall submit to a search of his person, residence, vehicle or computer or computer-related device found in his possession, without

Shall submit to a search of his person, residence, vehicle or computer or computer-related device found in his possession, withoutwarrant, by any peace officer checking to ensure compliance with the terms of this order. Mr. Unruh consents to the imposition of this condition. The Court was also advised that the parents agreed to random searches of theirhome; however, it was asked to address the parents on the record to confirm that they did indeed consent. This request also presented aconcern for the Court. Issues [2] As a result of the submissions, the Court specified a number of issues:

a) Does the Court have jurisdiction to impose a probationary condition calling for random searches?

b) Can the Court impose a random search condition if the accused consents?

c) How effective is a search condition that requires the consent of the homeowners and what if any role should the Court play inascertaining that consent? [3] The matter was adjourned to permit counsel to submit precedents, for further argument and decision. Analysis [4] I considered a number of cases, including: R. v. Shoker, 2006 SCC 44 , [2006] S.C.J. No. 44 R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 R. v. Borden, (SCC), [1994] 3 S.C.R. 145 R. v. Cooper, [2007] A.J. No. 262 (ABCA) R. v. D.J.P., [2006] B.C.J. No. 909 (BCCA) R. v. Woroby, 2003 MBCA 41 R. v. Erickson, 2005 YKCA 5 R. v.

Eichmuller, 2005 ABQB 90 R. v. Smith, [2008] O.J. No. 4558 (ONSC) R. v. Yau, [2011] O.J. No. 720, 2011 ONSC 1009 R. v. Morin, [2009] S.J. No. 413 (SKCA) R. v. Vessey, 2007 SKPC 94

a) Does the Court have jurisdiction to impose a probationary condition calling for random searches? [5] In R. v. Shoker, supra, the Supreme Court of Canada examined s. 732.1(3) of the Code with a view to ascertaining the scope ofthe Court’s jurisdiction when imposing optional conditions. It provides:

(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: (

a) report to a probation officer (

i) within two working days, or such longer period as the court directs, after the making of the probation order, and (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer; (

b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer; (

c) abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription; (

d) abstain from owning, possessing or carrying a weapon; (

e) provide for the support or care of dependants; (

f) perform up to 240 hours of community service over a period not exceeding eighteen months; (

g) if the offender agrees, and subject to the program director's acceptance of the offender, participate actively in a treatment program approved by the province; (g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program; (g.2) where the lieutenant governor in council of the province in which the probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community. [ 6 ] The Court discussed the purpose of probation and R. v. Proulx , supra , at paragraph 10 : 10 . . . Probation has traditionally been viewed as a rehabilitative sentencing tool: R. v. Proulx , [2000] 1 S.C.R. 61, 2000 SCC 5 , at paras. 31-33 .

The probationer remains free to live in the community but certain restraints on his freedom are imposed for the purpose of facilitating his rehabilitation and protecting society. An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an offence under s. 733.1 punishable by up to two years' imprisonment. [ 7 ] The Supreme Court made some preliminary remarks about the scope of s. 732.1(3)(

h) and the steps to be taken in its analysis. At paragraph 14 in Shoker, it remarked that the “residual power to craft individualized conditions is very broad,” but “not unlimited” and conditions cannot be imposed that would contravene federal or provincial legislation or the Charter. Continuing at paragraph 18, it determined that the first question is whether the sentencing judge acted within his statutory jurisdiction; should the sentence be found to be illegal because it is not authorized by the governing legislation, it must be struck down and the constitutional question does not arise. [ 8 ] The Shoker judgment considered whether the listed conditions, in that case s. 732.1(3)(

c) regarding abstention, could be used to support enforcement. It reasoned that the jurisdiction to impose enforcement terms cannot flow from the power to impose the condition. It writes that the effect of including an abstention condition in a probation order is to define it as a criminal offence, punishable under s. 733.1 and that enforcement powers are not implicit from the simple creation of an offence.

The Court made its point by way of example, at paragraph 20: 20 . . . it cannot reasonably be contended that the prohibition against impaired driving under s. 253 implicitly includes the enforcement scheme for demanding bodily samples contained in ss. 254 to 258. Yet, in essence, that is the argument here. The Crown submits that the enforcement scheme should be implied as necessary to give effect to a s. 732.1(3)(

c) abstention condition. I do not accept this argument. Breach of probation is a criminal offence under the Criminal Code and, as such, it is subject to the usual investigatory techniques and

manner of proof as any other offence. [9] The Supreme Court turned next to the residual clause, s. 732.1(3)(h), noting the wording: (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection738(2) [s. 738(2) relates to restitution orders], for protecting society and for facilitating the offender's successful reintegration into thecommunity. It interpreted the residual clause in the context of the listed optional conditions in s. 732.1(3). It noted that the fulfilment of the listedconditions have no incriminating consequence for the probationer (none of the listed conditions are aimed at facilitating the investigationof suspected breaches of probation).

It concluded with an illustration, very apropos to the proposed condition before this Court atparagraph 22: 22. . . conditions intended to facilitate the gathering of evidence for enforcement purposes do not simply monitor the probationer'sbehaviour and, as such, are of a different kind and, because of their potential effect, absent the probationer's consent to such conditions,raise constitutional concerns. For example, could Mr. Shoker be compelled, as a condition of his probation, to make his home availablefor inspection on demand to better monitor the prescription against the possession of alcohol or drugs?

Such a condition in effect wouldsubject him to a different standard than that provided by Parliament for the issuance of a search warrant. In my view, it could notreasonably be argued that the sentencing judge would have the jurisdiction to override this scheme under the authority of the open-endedlanguage of s. 732.1(3)(h). It would be up to Parliament, if it saw fit, to enact any such scheme. (Emphasis added) [10] The judgment continued to discuss the issue in the context of seizing bodily samples. It emphasized the importance of and theapplication of constitutional safeguards.

In this context it stated that consent is required in order to make a seizure lawful, beginning atparagraph 23: 23 The sentencing judge's jurisdiction can be no greater in respect of the seizure of bodily samples. The seizure of bodily samples ishighly intrusive and, as this Court has often reaffirmed, it is subject to stringent standards and safeguards to meet constitutionalrequirements. Significantly, in R. v. Borden, (SCC), [1994] 3 S.C.R. 145, this Court held that where there is no statutoryauthorization for the seizure of bodily samples, consent must be obtained if the seizure is to be lawful. In R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, Cory J., speaking for the majority, held that the seizure of bodily samples such as hair, buccal swabs anddental impressions, was not authorized by the common law power to search incident to arrest. The principle was again reaffirmed in R. v.Golden, [2001] 3 S.C.R. 679, 2001 SCC 83. Again here, it is my view that such statutory authorization cannot be read in the generallanguage of s. 732.1(3)(h).

In the various circumstances where Parliament has chosen to authorize the collection of bodily samples, it hasnot only used clear language; it has also included in the legislation, or through regulations, a number of standards and safeguards . . . (Emphasis added) The judgment continued, making clear that it is up to Parliament, not an individual sentencing judge to establish appropriateconstitutional safeguards concerning the seizure of bodily samples. 25 The establishment of these standards and safeguards cannot be left to the discretion of the sentencing judge in individual cases.There is no question that a probationer has a lowered expectation of privacy.

However, it is up to Parliament, not the courts, to balancethe probationers' Charter rights as against society's interest in effectively monitoring their conduct. Since the purpose of s. 8 ispreventative, the following principle in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 169, is particularlyapposite here: While the courts are guardians of the Constitution and of individuals' rights under it, it is the legislature's responsibility to enactlegislation that embodies appropriate safeguards to comply with the Constitution's requirements.

It should not fall to the courts to fill inthe details that will render legislative lacunae constitutional. [11] The majority decision concluded at paragraph 26 of Shoker, supra:

26 For these reasons, I would conclude that there is no statutory authority for requiring Mr. Shoker to submit bodily samples. In the absence of a legislative scheme authorizing the seizure of bodily samples, the enforcement of abstention conditions must be done in accordance with existing investigatory tools. [ 12 ] I have noted R. v. Cooper, supra, in which the Alberta Court of Appeal, following R. v. Shoker, supra, struck down a probationary term which called for random drug and alcohol testing. Similarly, in R. v.

D.J.P., supra, the British Columbia Court of Appeal, at the invitation of the Crown, following that Court’s decision in R. v. Shoker, 2004 BCCA 643 , struck down two clauses in a probation order, one requiring that the probationer “provide a sample appropriate for urinalysis testing upon demand of a Peace Officer or Probation Officer” and another obliging him to “permit a Peace Officer or Probation Officer to search [his] residence without notice not more than two times a month between 7:00 a.m. and 9:00 p.m.” In R. v. Erickson , supra , the Yukon Court of Appeal also followed R. v.

Shoker at the appellate level, noted above.

b) Can the Court impose a random search condition if the accused consents? [ 13 ] Counsel jointly submitted that this Court may impose a random search clause in the probation order because the accused “consents” to it. R. v. Shoker, supra, makes two references to “consent”, at paragraph 22 and with reference to R. v. Borden , supra, at paragraph 23 , both above noted . [ 14 ] Dealing first with the reference at paragraph 22, the Court wrote of consent being essential, having regard to the listed conditions, stating: . . .

It is noteworthy that the fulfilment of any of the listed conditions can have no incriminating consequence for the probationer. In addition, when the condition may pose a risk, such as participating in a treatment program, the consent of the offender is required before the condition can be imposed. The judgment continued that consent was essential with respect to the residual clause, because to proceed without consent would raise constitutional concerns.

The concern for consent is additional, as the Court’s judgment is based, not upon the constitutionality of random search clauses; rather it is based upon an absence of jurisdiction. At paragraph 18 the Court in Shoker wrote: 18 The impugned condition is challenged essentially on Charter grounds. In reviewing a sentencing judge's exercise of discretion on Charter grounds, an appellate court should first consider whether the sentencing judge acted within his statutory jurisdiction.

If a sentence is illegal on the basis that it is unauthorized under the governing legislation, it must be struck down and the constitutional issue does not arise. I will therefore consider whether the requirement to provide bodily samples as a condition of probation falls within the scope of s. 732.1. [ 15 ] The second reference to consent was with respect to R. v. Borden , supra , in which the Court was concerned with the validity of a consent to provide bodily samples given by an accused during the course of an investigation. It did not involve a court order requiring random demands for such samples.

The focus of the majority decision was upon the scope of the consent and the information provided to the accused before giving consent, including: the reason for detention, the nature of the charge, and the right to counsel. This reference serves to underscore the importance of Parliament establishing a scheme for such searches rather than a court endeavouring to establish a scheme which contemplates constitutional safeguards. It also points, in my view to the difficult notion of obtaining consent at the time the probation condition is imposed.

It is difficult to foresee all the circumstances under which searches might be carried out under the authority of such a condition, such that the accused’s constitutional entitlements would be fully and fairly respected or indeed contemplated. [ 16 ] Counsel referred to five decisions. R. v. Eichmuller , supra and R. v. Vessey , supra, concerned conditional sentences. R. v. Eichmuller is discussed below with respect to the issue of homeowner consent to a court ordered condition authorizing random search of a residence. R. v. Smith, supra and R. v. Morin, supra , are discussed below.

Subsequent to the last appearance, Crown counsel submitted that it would agree to putting limits on the time of day when searches could be carried out. Defence counsel filed R. v. Woroby , supra , which contains such limits; however it was decided prior to the Shoker decision and did not address the issue of jurisdiction and is of no

added assistance. [17] R. v. Vessey, 2007 SKPC 94, was a decision in which I imposed a random search clause in a conditional sentence ofimprisonment. With reference to R. v. Shoker, supra, at paragraphs 72, I wrote: [72] The Defendant has indicated that should I allow use of the computer and Internet, he will consent to searches of his home for thepurpose of ascertaining compliance with a provision prohibiting access or possession of child pornography. R. v. Shoker, supra, isimportant to probationary conditions for on-demand searches.

The Court held that 732.1(3)(h), concerning optional conditions, gavebroad, but not unlimited, powers to craft other reasonable conditions for the purpose of protecting society, and it had to be read incontext. In the absence of consent, seizure of bodily substances must be subject to stringent standards in order to meet constitutionalrequirements. Parliament had not provided a scheme under 732.1(3) for compelling the collection of bodily samples and such a schemecould not be judicially enacted and was not consistent with the Charter. In the 2003 decision of R. v.

Woroby, supra, the Manitoba Courtof Appeal discussed the constitutionality of a condition permitting random searches of the accused’s residence. Referring to Sywak,supra, a distinction was drawn between a conditional sentence and a probation order, holding that for the former there is a lowerexpectation of privacy. The Court held that notwithstanding consent, the search must still be reasonable in the circumstances and in themanner that it is carried out. While random searches were viewed as essential, they must be limited to the accused’s computers andduring the day. [18] In R. v.

Smith, supra, the Court declined to impose a condition in a probation order which would permit a search of the accused’spremises at random. Rather the accused was prohibited from using or possessing a computer outside of the workplace.

The Courtdiscussed the competing interests and expressed its doubts about the legitimacy of such a condition, stating, at paragraphs 43 and 44: 43 The first dispute concerns whether the accused should be permitted to have access to a computer and, if so, under what conditions.In an ever increasingly technological age, people typically employ the internet for a wide variety of purposes, such as banking, seekingemployment, and making travel arrangements to name but a few uses. Thus, the Crown is content to see the accused have a computer andindeed, access to the internet, but Ms.

D'Allendrea, on behalf of the Crown, contends that the order must embody some way, if theaccused is to have such access, of monitoring his use of this technology. She suggests a proviso that the accused be required to permit thepolice and/or his probation officer to make periodic random checks of his computer by actually entering his home for that purpose. 44

Section 732.1(3)(

h) of the Criminal Code gives broad power to the sentencing judge in crafting ancillary conditions in aprobation order, but, as the

section itself states, those conditions must be reasonable. I would be very reluctant to grant the authoritieswhat would amount to a licence to search the accused man's premises at any time. Moreover, while I have little doubt about the efficacyof the proposed term, I have considerable doubt about its constitutionality: See R. v. Shoker, 2006 SCC 44 , [2006] 2 S.C.R. 399.That said, without such a term, there can be no effective monitoring of the accused use of the internet.

Accordingly, in the absence of anyeffective way of monitoring his use of the internet, I am inclined to prohibit him from using a computer or, indeed, even possessing oneoutside of the workplace. If the accused requires the use of the internet in some particular setting for employment purposes, he may doso subject to the approval of his probation officer of which I will say more when I come to actually make the probation order. [19] In R. v. Morin, supra, the Saskatchewan Court of Appeal considered the application of R. v. Shoker, supra. Mr.

Morin, diagnosedwith Partial Fetal Alcohol Syndrome, represented himself on a sentence appeal in which he questioned the fitness of the sentence, whichincluded custody, and the imposition of two optional probationary conditions. These optional conditions required him to: provide upon demand, without warning, a sample of his breath and/or urine to a peace officer, probation officer or conditional sentencesupervisor; . . . and that he consent, upon demand by a peace officer, to a search of his person, clothing, vehicle and place of residence. The Court wrote at paragraph 4: . . .

A sentencing judge has no authority under ss. 732.1(3)(

c) and 732.1(3)(

h) of the Criminal Code to impose conditions of probationcompelling provision of bodily samples to facilitate the gathering of evidence for enforcement purposes. If fulfilment of a term orcondition of a probation order will have potentially incriminating consequences for the probationer, or create risk, such as participating intreatment programs, the consent of the probationer is required: see R. v. Shoker.

It further wrote at paragraph 5: . . . As the Crown has candidly conceded that the appellant did not consent to the imposition of conditions (

f) and (k), and, further, thatthe conditions cannot be justified in light of Shoker, both provisions will be deleted from the probation order without the necessity offurther comment from us. We note that conditions of probation related to provision of bodily samples, and searches of the person orproperty upon demand were deleted in R. v. Patterson where the Crown there made a similar concession. [20] In referring to “consent” the Court of Appeal paraphrased the reasoning of the Supreme Court of Canada in R. v. Shoker, which ispresented in greater detail, above.

In light of the Crown’s concessions, the Court deleted the impugned conditions without furtherreasoning. R. v. Morin did not add to the reasoning in Shoker. It did not find it necessary and did not address the constitutionality ofprobation conditions that call for random searches where the accused has consented to same. [21] An accused person cannot consent to this Court having jurisdiction. As desirable as it may be from the perspective of the Crownand the Defence, the consent of the accused cannot confer jurisdiction upon the Court. The Supreme Court of Canada in R. v.

Shoker,supra, very plainly directed that the provisions of the Code concerning the imposition of the optional probation conditions do notcontemplate the imposition of random searches. The Court did not find it necessary to address the constitutional validity of suchconditions where the accused consents, having ruled that the Court was simply without jurisdiction to impose such conditions.

c) How effective is a search condition that requires the consent of the homeowners and what if any role should the Court play inascertaining that consent? [22] In R. v. Eichmuller, supra, the Court referred to a Manitoba Court of Appeal decision, R. v. Demchuk, 2003 CarswellMan 508(C.A.) and the importance of obtaining consent of the person(

s) with proprietary rights to a home. The discussion, beginning atparagraph 6 of the Demchuk decision, was in the context of a conditional sentence: [para 6] To be effective, a consent to enter and search a person's home must be given by or on behalf of the person who has the right tocontrol access to the home. In the present case, the parents alone had the right to control access and they clearly did not consent to policeaccess without a warrant.

There is no evidence that the accused had authority to consent to a search of his parents' home, an authoritywhich must be established by the Crown if it is to rely on the son's consent: see R. v. Wills (1992), (ON CA), 70C.C.C. (3d) 529 at 546 (Ont. C.A.) per Doherty J.A. [para 8] That being the case, a condition of the son's sentence that requires him to consent to police searches of his residence (it beingknown that he resides with his parents) would be futile. A warning against the inclusion of such conditions was given by the SupremeCourt of Canada in R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, 2000 S.C.C. 5, where, at para. 117, Lamer C.J.C. quotedwith approval from a paper prepared by Rosenberg J.A. of the Ontario Court of Appeal in which the latter wrote: [T]he courts must be careful not to impose conditions that are purely cosmetic and are incapable of effective enforcement. For example, Iwould think that any condition that can only be effectively enforced through an intolerable intrusion into the privacy of innocent personswould be problematic . . .

If the conditions that the court imposes are impractical, the justice system will be brought into disrepute. [para 9] There will, of course, be cases in which an offender has authority to consent to random searches of a residence which he or sheshares with another.

That this is not such a case is evident from defence counsel's statement at the sentencing hearing that a conditionrequiring such consent would be a serious breach of the parents' rights. [para 10] The court's inability to compel periodic searches of an offender's residence where he resides with his parents should notnecessarily be regarded as a bar to a conditional sentence.

An offender with parents willing to share their residence with him or her andotherwise support the offender's attempts at rehabilitation is much more likely to succeed than an offender left to his or her own devices.The unwillingness of the parents in the present case to permit a search of their home must be balanced against the advantages of havingthe accused live with them. On that basis, the inability of the court to compel a search of the home is not a valid reason for denying the

accused the benefits of a conditional sentence, particularly as the Attorney General did not cross-appeal. [ 23 ] Neither Court commented upon the manner by which effective consent to such random searches may be obtained from a homeowner. The Court relied upon advice to that effect from counsel in R. v. Eichmuller , supra. I expressed reservations about the suitability of this Court interviewing the parents about their consent.

It is not necessary to discuss this further; however, it may be important to enumerate just some of the reasons for this hesitancy: - This Court has no authority over the parent homeowners. - These parents are placed in a difficult position, wishing to be supportive of their child. - They are being asked to forego constitutional safeguards without context and for an extended period of time. - Random searches represent a significant intrusion into the home. Decision [ 24 ] In the absence of a clearly mandated scheme, enacted by Parliament, as the Supreme Court envisaged in R. v.

Shoker, supra, this Court is not prepared to impose the random search clause, notwithstanding that it has been presented jointly by the Crown and Defence. The decision by the parents and the accused to forego the presence of an all but very dated computer in the home provides a significant measure of protection. The Crown expressed confidence in the plan that the accused reside with his parents following his release from custody. He will be residing in a home that is alert to his needs and the concern for safeguarding the community. _________________________ S. P. Whelan, J