Her Majesty the Queen - v. -, 2015 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 040 Date: March 18, 2015 Information: 24455895 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew Perkinson Appearing: V. L. A. Smith For the Crown J. C. Will For the Accused JUDGMENT Q.D. AGNEW , J [ 1 ] On December 2, 2014, I convicted the accused of two sexual offences, both of them a “designated offence” under s. 490.011(1). In subsequent sentencing submissions, the Crown requested a SOIRA order for 20 years, which I granted.

The Crown thereafter determined that, pursuant to s. 490.013(2.1) [1] , the order should have been for life. The Crown then brought the present application pursuant to s. 490.012(4) [2] of the Criminal Code , on the basis that the Court had not considered the matter of the duration of the SOIRA order. I heard the application on March 3, 2015, dismissed the application from the bench and advised that written reasons would follow. These are those reasons.

[ 2 ] I am satisfied that the order should properly have been made for life, rather than 20 years. The question is whether or not I have retained jurisdiction to change the duration of the order, or whether I am functus officio . [ 3 ] The Crown’s application under s. 490.012(4) turns on the

interpretation of the word “consider” in that subsection. If I did not “consider the matter under subsection (1) or (3)”, then I have jurisdiction to make the requested order. If I did “consider” the matter then subsection (4) does not give me the power to change the duration of the order. Other courts have concluded that there is also a common law power to correct this error, even if (4) does not apply.

I will review each of these positions below. [ 4 ] The Crown’s argument, that I “did not consider the matter”, is this: had I considered the matter, I would have concluded that the SOIRA order should be for life; I did not come to that conclusion; therefore I must not have considered the matter.

The unstated assumption underlying the Crown’s argument is, “if the judge considers an issue, the judge will come to the correct decision.” While I appreciate the confidence which the Crown places in me, it is unfortunately true that on occasion I have given a matter a great deal of consideration, only to be informed by appellate courts that I still erred. [ 5 ] The duration of SOIRA orders has been the subject of a number of court decisions, as have the curative provisions of s. 490.012(4) .

Unfortunately, it appears that I am not the only judge to have erred in calculating the proper duration of the SOIRA order. I have not been able to locate any reported decisions from Saskatchewan; however, there are decisions from other jurisdictions on the point, and while they are not binding on me, they have explored the issue in considerable detail. [ 6 ] One of the cases cited in favour of the proposition that the Court has the power to make the amendment requested is R v Merrick [3] . Pugsley J. analysed s. 490.012(4) in paras. 11 through 13 of the judgment.

The essence of the decision is found in para. 13, where the judge says “[t]he intent of s. 490.012(4) of the Code is to allow such mistakes to be corrected at a time approximate to the sentencing, and without the necessity of a formal appeal on a legal point over which there could be no contest and which would be a forgone result.” Courts have come to a similar conclusion in, for example, R v Ponniah [4] and R v Siebenmorgen [5] .

In the latter case, the Court took the view that (1) the erroneous order was illegal; (2) an illegal order is tantamount to no order at all; and (3) accordingly, jurisdiction existed under s. 490.012(4). [6] [ 7 ] The argument to the contrary can be found in R v C.D.B [7] . The essence of the decision is to be found in para. 30: I cannot accept the submission that I did not “consider the matter” when I decided and imposed the SOIRA Order [sic] in the present case. The fact of the matter is, I clearly did. The question of a SOIRA order was raised at C.D.B.’s sentencing hearing.

Crown and the defence addressed the question, albeit by means of very abbreviated submissions. In light of the uncontested nature of the order, I obviously did not give the matter sufficient consideration; but I did give it consideration. [ 8 ] Courts have concluded they lacked the power to make such amendments in cases including the following: R v Alas [8] ; R v R.R.D.G. [9] ; R v J.E. [10] ; and R v D.M [11] . [ 9 ] I am persuaded by the reasoning in C.D.B. , and adopt it: within the meaning of subsection (4), I considered the SOIRA order, and came to the incorrect result.

The position of counsel regarding the order, or the length of time I took to think about it, are irrelevant: it is the duty of the judge to get it right, even if counsel are urging him or her otherwise, and it is the duty of the judge to take the time necessary to do so.

In my view, s. 490.012(4) exists to address situations such as that in R v Luedecke [12] , in which a SOIRA order was not made, not a situation in which the wrong duration was ordered. [ 10 ] Some courts have concluded that even if they did not have the power to make the amendment under the Code , they could do so by means of an inherent ability to rectify an error. This reasoning is based on the Supreme Court of Canada’s decision in R v Burke [13] . In that case, a jury verdict was recorded as “not guilty”, but subsequently it seemed that the verdict had been misheard and the

jury had intended a verdict of “guilty”. Upon hearing “not guilty”, the trial judge discharged the jury and a verdict of “not guilty” was recorded.

The decision discusses the ability of a trial judge to recall a jury after discharge to correct seeming errors; specifically, a power in courts to amend decisions under some circumstances, in particular where the amendment does not amount to a reconsideration of the verdict, and where there is not a “reasonable apprehension of bias”. [14] [ 11 ] This reasoning has been expanded upon by some courts to be the basis for amendment of the SOIRA order in situations such as the present. This was done in, for example, R v Carroll [15] , Siebenmorgen and D.M .

In the latter, the Court found that rectification could be made on the basis of the following factors: (

i) the error related to a statutorily mandated fixed ancillary order; (ii) since it was fixed by statute and involved no express or residual discretion, it was more clerical or administrative in nature; (iii) there was no evidence of prejudice or perception of bias if rectification took place; and (iv) it was always the judge’s intention to comply with these provisions of the Criminal Code . [ 12 ] With the greatest of respect to those who hold the opposite view, I am unable to agree that Burke grants such a power with respect to a SOIRA order of the incorrect duration.

Burke specifically dealt with a trial verdict misheard and therefore entered in error; the situation in the present case, and the others like it, is of an order ancillary to sentence, made deliberately and recorded correctly. The situations are not analogous, and the reasoning does not apply. [ 13 ] The Saskatchewan Court of Appeal considered the inherent jurisdiction of the Court post-sentence in R v Ermine [16] , which also referred to Burke and which adopted the reasoning in the Ontario Court of Appeal’s decision in R v Malicia [17] .

The Saskatchewan Court of Appeal said: . . . after imposing sentence, the judge will become functus except where it is necessary and appropriate to correct an error that occurred when sentence was pronounced or to clarify the sentence.

The ability to correct the error or to clarify is circumscribed by the principle that the correction or clarification cannot amount to a reconsideration and alteration of the sentence. [18] [ 14 ] If the SOIRA order is not part of the sentence, then it is not clear what applicability Ermine would have; if it is part of sentence, then it is clear that changing its duration amounts to an “alteration of the sentence”, and is not permitted. [ 15 ] I can do no better than to quote Justice Nakatsuru in R v J.E. : Our judicial system depends upon the finality of judgments and the integrity of the appellate process.

To permit a judge to correct 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 slippery slope with no end. No judge intends to err. . . 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 was always my intention until it was pointed out that I was wrong. [19] ___________________ Q.D.

Agnew, J [1] s. 490.013(2.1) 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). [2] S. 490.012(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. [3] 2013 ONCJ 480. [4]Unreported, July 13, 2012, OCJ. [5]2014 ONSC 2456. [6]See para. 10. [7]2013 BCSC 2440. [8]2013 OJ 3738 (CJ). [9]2014 NSSC 384. [10]2013 ONCJ 247. [11]2013 ONSC 141. [12]2010 ONCJ 59. [13]2002 SCC 55. [14]See paras. 68 - 70. [15]2013 ONSC 7556. [16]2010 SKCA 47. [17] (ON CA), 82 OR (3d) 772. [18]Para. 18. [19]Paras. 27 - 29.