R. v. E.(J.), 2013 ONCJ 247

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . COURT FILE No. Toronto Citation: R. v. E.(J.) , 2013 ONCJ 247 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. K. Simone ) for the Crown ) — AND — ) ) J.E. ) ) Mr. J. Weisz ) for the Accused ) ) Heard: September 27, October 18, November 30, 2012, March 5, May 6, 2013 ) )

NAKATSURU J.: [1] This case serves as a valuable reminder that unless due attention and care is paid to all aspects of sentencing, significantmistakes can occur. I made such a mistake. The accused, J.E., pleaded guilty to one count of sexual assault, one count of sexual touchingof a person under the age of 16, and one count of failing to comply with a recognizance. The main area of disagreement between theCrown and defence counsel on sentencing, unremarkably, was the length of incarceration. This was resolved by me and ancillary orderswere made.

One was an order under s. 490.012(1) of the Criminal Code that J.E. complies with the provisions of the Sex OffenderInformation Registration Act (SOIRA). Based upon representations made to me by counsel and, admittedly, without proper regard to thestatutory framework, I made the duration of the order to be ten years. This was in error. It should have been for life. [2] This error was subsequently brought to my attention by the Crown approximately a month later. I commend Ms.Simone for her diligence and sensitivity in providing me an opportunity to rectify this error.

After a number of attendances to re-arguethe matter, in brief oral reasons, I dismissed her application. I acknowledge that this is unfortunate since the only recourse left to theCrown is to appeal my order. This is troublesome and involves additional time and resources. Nevertheless, I felt compelled to concludein this fashion. As promised, this is the written decision outlining my reasons. In brief compass, I find that I no longer have thejurisdiction to grant the remedy requested by the Crown.

OVERVIEW [3] The offender pleaded guilty to historical sexual offences he committed on two occasions when he touched and lickedthe genital area of a very young relative whom he was baby-sitting. While he was released on bail on these charges, he attended a publiclibrary and accessed a computer looking at images he was not supposed to.

He further did not observe the house arrest condition on hisbail as he went to see a movie by himself. [4] While J.E. did not have a prior criminal record, he had been found guilty of making available and having the possessionof child pornography by Justice Bovard of the Ontario Court of Justice in 2007: see [2007] O.J. No. 1710. I am advised that some of theprobation conditions were varied on appeal. Importantly, Justice Bovard made a SOIRA order for ten years at the time.

In addition,before me, J.E. was convicted of more than one designated offence as defined in s. 490.011. [5] When I sentenced J.E. on October 18, 2012, in addition to a period of incarceration and other ancillary orders, I made aSOIRA order for ten years. The order should have been for life given s. 490.013(4) and s. 490.013(2.1) of the Criminal Code. [6] Upon notice to J.E., the Crown brought the matter back before me on November 30, 2012, to persuade me that I shouldcorrect this mistake. J.E. was represented by the same counsel who had appeared for him at his sentencing.

I dismissed the applicationat that point but made it clear that if counsel could come up with some authority providing further direction on the matter, I wouldentertain the issue again. On March 5, 2013, the Crown brought J.E. back to court. After hearing submissions from both counsel, Iagain dismissed the application. The case did not end there. On May 6, 2013, yet again, the Crown applied to have the SOIRA ordercorrected relying on the case of R. v. D.M., 2013 ONSC 141 , [2013] O.J. No. 83 (S.C.J.). Despite her able submissions, I havenot been persuaded to alter my decision.

THE ISSUES AND THE POSITIONS OF THE PARTIES [7] The Crown submitted that the ten year duration of the SOIRA order is plainly in error. Given J.E.’s circumstances, itshould have been for life. There can be no dispute in this regard. The Crown submitted that I retained the jurisdiction to amend myorder and that I was not functus officio: see R. v. Malicia (2006), (ON CA), 211 C.C.C. (3d) 449 (Ont. C.A.).

TheCrown submitted that anecdotally some courts have permitted this practice in relation to mistakes made by judges in SOIRA and DNAorders. [8] Upon permitting the Crown to raise the application again, she has relied on a judgment by Daley J. in R. v. D.M., supra. It is submitted that the facts of that case are nearly identical to the case at bar. Justice Daley mistakenly imposed a SOIRA order oftwenty years rather than the statutorily mandated lifetime order.

Relying upon Malicia, Daley J. exercised the court’s inherentjurisdiction to correct the order. [9] In addition, the Crown argued that s. 490.012(4) provided this court with the statutory jurisdiction to amend the order. That provision permits a court to make an order within 90 days of sentencing or verdict where it did not consider the matter originally. She submitted that by failing to properly consider the duration of the order as required by the Criminal Code, I had not “considered” theissue and thus, it was open for me to revisit the subject.

On this point, the Crown relied on the unreported judgment of R. v. Ponniah,unreported, July 13, 2012, (Ont. C. J.) [10] The defence submitted that I was indeed functus officio. The endorsement on the information was that the SOIRA orderbe for ten years. The formal order was signed. Therefore, the defence argued, there was no further jurisdiction to deal with the question.

The only way to correct the error was for the Crown to seek an appeal. [11] With respect to s. 490.012(4), the defence replied that this extended jurisdiction does not apply in this case. Counselmaintained that I had undeniably “considered” the issue. As a result, s. 490.012(4) had no application. The Crown’s position wouldonly make sense if the provision permitted a court to “re-consider” the order. Parliament did not intend a court to do so since the word“consider” is used. Thus, the Crown could not rely on this statutory provision. ANALYSIS A.

STATUTORY JURISDICTION UNDER S. 490.012(4) [12] Let me begin by addressing the argument that s. 490.012(4) applies and that I retain the jurisdiction to amend the orderunder that provision. That

section reads as follows:

(4) If the court does not consider the matter under subsection (1) or (3) at that time, the court (

a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so; (

b) retains jurisdiction over the matter; and (

c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage insimultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel ifthey are represented by counsel. [13] I have not been persuaded by the Crown on this point. I cannot agree with the decision of Ponniah. The learned justice inthat case decided he retained jurisdiction under s. 490.012(4) because he had not carefully or fully considered the SOIRA issue.

Althoughthe justice admitted he erred in making a ten year SOIRA order rather than one for life, as he characterized it, he had just “sort of glidedover the matter.” Thus, he did not “consider” the matter as required by the section. In my opinion, such an

interpretation of “consider” isnot warranted. It is neither grammatical nor one normally used in every day parlance. It is further not in keeping with the scheme andobject of the amendment as intended by Parliament: see Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 atpara. 21. [14] The purpose of s. 490.012(4) was not to give carte blanche to judges in correcting any mistakes they may have made inmaking a SOIRA order. The purpose was to permit the court to consider the matter if the consideration of the issue was omitted at theoriginal hearing. This amendment came into effect in 2011.

Prior to that amendment, the previous version of s. 490.012 had no provisionfor this extended jurisdiction to consider a SOIRA order after sentencing or a verdict. It was in light of the wording of the

section beforeit was amended, that I concluded in the case of R. v. Luedecke (2010), 2010 ONCJ 59 , 252 C.C.C. (3d) 542 (Ont. C.J.) that theCrown could not bring an application for a SOIRA order over six months from the date I found the offender not criminally responsibledue to a mental disorder. The Crown tardily sought the SOIRA order even after the Ontario Review Board reviewed Mr. Luedecke’s caseand granted him an absolute discharge.

Section 490.012(4) would now deal with similar situations like Luedecke provided that the datefor the SOIRA application is set within 90 days of the sentence or verdict. No doubt, the legislation was amended to deal with situationsas presented in Luedecke. [15] That type of situation is different from this case. In Luedecke, the SOIRA order was never raised at the initial NCRhearing and never considered by me. In the case at bar, I did consider the matter albeit erroneously.

I agree with defence counsel thathad Parliament intended such extended remedial jurisdiction, an additional word or term would have been used in s. 490.012(4) such as“properly” consider the matter. As a result, s. 490.012(4) provides no assistance to the Crown. [16] I note that Daley J. in D.M. came to the same conclusion (at para. 12). In my opinion, any other

interpretation is notreasonable. B. THE DOCTRINE OF FUNCTUS OFFICIO [17] Functus officio is Latin for “having performed his or her office”. When applied to a judge, it means that the judge has nofurther authority or legal competence because the duties of the office have been fully accomplished. The Supreme Court of Canada inDoucet-Boudreau v.

Nova Scotia (Minister of Education), 2003 SCC 62 , [2003] 3 S.C.R. 3 at para. 79 set out the rationale forthe doctrine of functus officio: It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see alsoReekie v. Messervey, (SCC), [1990] 1 S.C.R. 219, at pp. 222-23).

This makes sense: if the court could continually hearapplications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launchan appeal. [18] Pursuant to developments in the common law, there is no longer a bright line approach to when a criminal trial judge isfunctus. In R. v. Malicia, supra, the Ontario Court of Appeal affirmed that the traditional position was that "[i]n judge alone cases, the

point of no return is after the trial judge endorses the indictment (at para. 16)." However, MacPherson J.A. relied upon civil authoritiesand the decision of R. v. Burke, 2002 SCC 55 , [2002] 2 S.C.R. 857, a case dealing with criminal jury trials, to incorporate arefined and flexible approach into criminal trials by judge alone when it came to the application of the doctrine. It has never been reallydisputed that a court, criminal or civil, had the authority to correct an administrative error. The true flexibility was in permitting a court tocorrect an error in the manifest intention of the court.

The only limitation is whether this would involve a reconsideration of the verdictor sentence. If so, then the doctrine of functus officio would apply: see also R. v. Thompson (2010), 2010 ONCA 463 , 256 C.C.C. (3d) 51 (Ont. C.A.) at paras. 20 – 21; Chiang v. Chiang (2009), 2009 ONCA 3 , 305 D.L.R. (4th) 655 (Ont. C.A.) at paras. 123-125; R. v. Martel, [2011] O.J. No. 790 (C.J.) at para.13; R. v.Ermine (2010), 2010 SKCA 47 , 254 C.C.C. (3d) 192 (Sask. C.A.) at paras. 19-20. [19] I agree with the Crown that the facts in D.M. are virtually indistinguishable from that before me.

Justice Daley held thatthere were several factors present that supported the exercise of the inherent jurisdiction of the court to correct the error: (1) the errorrelated to a statutorily mandated ancillary order on sentencing; (2) given that the order and its duration are fixed and there is nodiscretion left with the court, the correction is more clerical or administrative in nature; (3) the offender offered no evidence of prejudiceor perception of bias if the Crown’s application was granted and; (4) it was always Daley J.’s intention to make a SOIRA order in thecase that complied with the correct and mandatory duration provided for in ss. 490.012 and 490.013 of the Criminal Code. [20] With the greatest of respect, I am unable to agree with Daley J.

The application of the refined and flexible approach inMalicia leads me to a different conclusion. [21] First of all, the facts of Malicia are distinguishable from D.M. and the case at bar. In Malicia, at the time of thesentencing, the appellant was already serving a three and a half year sentence on unrelated offences. The trial judge did not explicitlystate, or endorse on the indictment or the warrant of committal, whether the four and a half year sentence she imposed was to beconcurrent or consecutive to the time being served.

When she was informed of the omission, after the warrant of committal and theindictment had been signed, she rejected defence counsel's submission that she was functus officio. She stated that it was always herintention that the sentence be consecutive to time served. All the parties at the sentencing hearing proceeded on the basis the sentencewould be consecutive to the sentence being served. The correction came soon after the indictment and warrant was originally signed. Inmy view, the trial judge in Malicia simply omitted to say or endorse what was clearly intended not only by her but by the parties.

Thiscan be contrasted to the situation in the case at bar. Both counsel proceeded on the basis that the Crown was seeking a ten year SOIRAorder. I expressed my order on the record to be ten years. The information and order was for ten years. The error in this case, unlike inMalicia, was one of commission and not omission. [22] I should further point out that Simmons and Cronk JJ.A. wrote concurring judgments in Malicia.

While they agreed withtheir colleague, McPherson J.A., as to the disposition of the appeal, as I read their judgments, in the opinion of these two justices, thejurisdiction to correct errors in a judge alone criminal case may be more limited than in a jury trial. There may be different considerationsgoverning its application.

In addition to the limitation that the doctrine of functus officio would prohibit any reconsideration of the verdictor sentence, the exercise of the remedial jurisdiction would also be precluded where issues of unfairness or injustice to the accused or areasonable apprehension of bias or taint arises. Factors such as the passage of time from the decision to the identification of the error orthe fact that judges write decisions may be relevant.

Justices Simmons and Cronk left the issue open to be revisited in the appropriatecase. [23] Applying Malicia to this fact situation, I agree with some but not all of the factors relevant to this issue relied upon byDaley J. in D.M. I agree with Daley J. that a SOIRA order is an ancillary order of sentencing but it remains a final order and a part ofsentencing. There is an express appeal provision provided in s. 490.014. I further agree that there is no statutorily expressed discretionthat lies with the court in its imposition.

Yet, in my opinion, the error cannot be characterized as simply clerical or administrative. As inD.M., I too cannot see any prejudice or perception of bias that would follow from the granting of the Crown application in J.E.’s case. [24] The fundamental disagreement I have with the decision in D.M. is the invocation of the factor that it was always theintention of the Court to make a SOIRA order that conforms to the requirements of the Criminal Code in support of the exercise of theinherent jurisdiction.

I can only presume that this factor was cited in order to deal with limitation agreed to by all the justices in Maliciathat the doctrine of functus officio precludes reconsideration of the verdict or sentence and only permits correction of an error inexpressing the manifest intention of the Court. [25] It is tempting to simply correct the manifest error made by me. By not doing so, nothing is gained but additionalinconvenience to the parties who must resort to an appeal. At the hearing of the appeal, the order will be corrected and I will be suitablychastened.

However, there is a broader principle at stake which has lead me to conclude that I am functus officio. [26] 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 sleepless nightsfor our efforts. But we are all human. And therefore we fail sometimes.

When a judge fails, his or her decision should speak for itself.[1]The parties and the appellate court should know the foundation upon which the appeal is being launched. To permit an overly liberaldefinition of the jurisdiction of a trial judge in terms of the doctrine of functus officio would gelatinize that which should be firm. Itwould invite uncertainty and disorder in what should be a simple, straightforward, and hierarchical process of appellate correction. [27] The history of this case has been an example.

The matter has returned before me a number of times in order to correct theduration of the SOIRA order. If the same is permitted each time a party is dissatisfied with an aspect of a judge’s final decision, therewould be no end to the trial litigation and no beginning to the appeal. Again, I fully appreciate that in this case, the statutory provisionallows for no discretion on the part of the judge in terms of the order. There is no room for uncertainty in the duration of the order.

Thatbeing said, I cannot see how in principle the doctrine of functus officio can be confined to correction when the trial judge is clearly

wrong or when there is a statutory provision that needs to be followed. This is not the first time that an appeal has to be brought when a trial judge has misconstrued a mandatory statutory provision. [ 28 ] In conclusion, it is open for a judge to correct an error in expressing his or her manifest intention. That is not the same as a trial judge simply correcting a manifest error regardless of the true intention of the judge. It was always my intention to impose a ten year SOIRA order. It is what I ordered in court. It is inscribed on the information and on the order.

It was always my intention until it was pointed out that I was wrong. Consequently, albeit with reluctance, the dismissal of the Crown application is the only appropriate decision. Released: May 7, -2013. Signed: