R. v. Chisholm, 2012 NBCA 79

COURT OF APPEAL OF NEW BRUNSWICK 130-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - COREY JAMES CHISHOLM RESPONDENT COREY JAMES CHISHOLM INTIMÉ R. v. Chisholm, 2012 NBCA 79 R. c.

Chisholm, 2012 NBCA 79 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Turnbull The Honourable Justice Larlee CORAM : L’honorable juge en chef Drapeau L’honorable juge Turnbull L’honorable juge Larlee Appeal from a decision of the Provincial Court: September 9, 2011 Appel d’une décision de la Cour provinciale : Le 9 septembre 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 14, 2012 and May 9, 2012 Appel entendu : Le 14 février 2012 et le 9 mai 2012 Judgment rendered: September 6, 2012 Jugement rendu : Le 6 septembre 2012

Counsel at hearing: For the appellant: Cameron H. Gunn No one appeared for Corey James Chisholm Avocats à l’audience : Pour l’appelante : Cameron H. Gunn Personne n’a comparu pour Corey James Chisholm THE COURT The Attorney General’s Notice of Appeal is quashed, there being no right of appeal, with or without leave, against an order of compliance with the Sex Offender Information Registration Act imposed pursuant to s. 490.012(1) of the Criminal Code .

LA COUR L’avis d’appel déposé par la procureure générale est cassé puisqu’il n’existe aucun droit d’appel, avec ou sans autorisation, d’une ordonnance enjoignant à un délinquant de se conformer aux dispositions de la Loi sur l’enregistrement de renseignements sur les délinquants sexuels , rendue conformément au par. 490.012(1) du Code criminel . The following is the judgment delivered by DRAPEAU C.J.N.B. [ 1 ] On July 11, 2011, the respondent pled guilty in Provincial Court to two charges of sexual assault ( s. 271(1) (

a) of the Criminal Code ) and two charges of communicating “by means of a computer system” with a person under the age of 16 to commit a sexual offence ( s. 172.1(1) (b)). On September 9, 2011, the respondent was sentenced to concurrent jail terms of two years for the sexual assaults and one year for the offences under s. 172.1(1)(b). The sentencing judge also issued a number of orders, including an order pursuant to s. 490.012(1) requiring compliance for 20 years with the Sex Offender Information Registration Act , S.C. 2004, c. 10.

The issue targeted by the Attorney General’s Notice of Appeal is whether the multiple convictions for sexual assault obligated the judge to make that SOIRA order applicable for the respondent’s lifetime. [ 2 ] At the initial hearing on appeal, the Court required the Attorney General provide submissions on a number of issues related to the

interpretation of the pertinent Criminal Code provisions. She did, but raised a further issue, namely the appealability of SOIRA orders that, like the one under challenge, result from the application of s. 490.012(1) . I reluctantly conclude there is no right of appeal, with or without leave, from such orders. It follows that the underlying appeal proceedings were initiated without lawful authority. In my view, the appropriate remedy is to quash the Notice of Appeal (see LeBlanc v. Atlantic Blue Cross Care , 2012 NBCA 55 , [2012] N.B.J. No. 204 (QL)). I. Analysis and Decision [ 3 ] Sexual assault under s. 271(1) (

a) is an offence referred to in paragraph (

a) of the definition of “designated offence” provided by s. 490.011(1). That being the case, s. 490.012(1) obligated the sentencing judge to make an order in Form 52 requiring the respondent comply with the Sex Offender Information Registration Act for the period specified in s. 490.013. [ 4 ] Paragraph 2.1 of s. 490.013 provides that a compliance order made pursuant to s. 490.012(1) applies for life if there are convictions for more than one offence referred to in paragraph (

a) of the definition of “designated offence” found in s. 490.011(1). As noted, sexual assault is such an offence.

[5] One of the issues raised by the Court is whether the respondent stood before the ProvincialCourt with convictions for more than one sexual assault having regard to the following circumstances: (1) prior to his guilty pleas, hehad not been convicted of sexual assault or any other offence specified in paragraph (

a) of the definition of “designated offence” in s.490.011(1); (2) those guilty pleas were entered at the same hearing; (3) all of the sentences were imposed and the contested SOIRA orderrendered in the course of the same hearing; and (4) while the sexual assault charges relate to distinct victims, they specify timeframesthat partially overlap. Correlatively, we invited submissions on the applicability, by analogical reasoning, of R. v.

Robertson, [1998] N.J.No. 83 (C.A.) (QL), where the Court held that two prior convictions for driving while under the influence, which had been entered at thesame time, were properly considered a single prior conviction for the purposes of punishment under s. 255(1)(a)(ii). Although theAttorney General’s responding submission makes a compelling case for distinguishing R. v.

Robertson, strictly speaking, the duration-related controversy cannot be resolved definitively in these proceedings as they were initiated without lawful authority, there being, asmentioned, no right of appeal from a SOIRA order issued pursuant to s. 490.012(1). [6] It is settled law that there is no inherent right of appeal. Appeals are creatures of statute andthere must be a statutory basis for appellate intervention (see R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764, [1989] S.C.J.No. 75 (QL); Kourtessis v. M.N.R., (SCC), [1993] 2 S.C.R. 53, [1989] S.C.J. No. 45 (QL); Belliveau v.

Royal Bank ofCanada (1998), (NB CA), 205 N.B.R. (2d) 184, [1998] N.B.J. No. 411 (C.A.) (QL); Maritime Natural Gas PipelineContractors Assn. v. Board of Commissioners of Public Utilities of New Brunswick et al. (2002), (NB CA), 251N.B.R. (2d) 1, [2002] N.B.J. No. 299 (C.A.) (QL); R. v. Hickey, 2003 NBCA 91, 266 N.B.R. (2d) 144; R. v. Fraser Papers (Canada) Inc.(2006), (NB CA), 301 N.B.R. (2d) 95, [2006] N.B.J. No. 92 (C.A.) (QL); and R. v. Waugh, 2009 NBCA 23, 344N.B.R. (2d) 1). The pertinent principles and authorities are referenced in Belliveau v. Royal Bank of Canada: Appeals were unknown at common law.

See Western Surety, at pp. 47-48, para. 8. Their purely statutory origin led courts to articulate anumber of principles which have particular relevance to the

interpretation of statutory dispositions that deal with appeals and rights ofappeal. One of these principles is that a right of appeal cannot be implied: it must be given by the competent legislative authority in explicitlanguage. This principle of statutory

interpretation is not limited in its application to legislative enactments dealing with rights of appealfrom decisions respecting criminal or quasi-criminal matters. Indeed, its application to civil appeals has never been doubted. One of the earliest expressions of this principle by Canadian courts is found in Chagnon v. Normand (1889), 1889 CanLII 31 (SCC), 16S.C.R. 661. In that case, the Supreme Court quashed an appeal from a decision of the Court of Queen's Bench (Appeal Side) for LowerCanada on the basis of want of jurisdiction.

The Court of Queen's Bench had affirmed a lower court judgment ordering a party to pay$400.00 as penalties for bribery in an election in the Province of Quebec. The Supreme Court decided that the appeal was not authorizedby the provisions of the Supreme Court Act, then in effect. The Court's reasoning was explained by Sir W.J. Ritchie C.J., who wrote at p.662: ... We think that an appeal, which is unknown to the common law, must be given by statute in such clear and explicit language that theright to appeal cannot be doubted.

The principle that explicit statutory language is required to create an appeal has been uniformly applied by the Supreme Court of Canadain both civil and criminal matters. See Langevin v. Les Commissaires d'École pour la Municipalité de St-Marc (1891), 1891 CanLII 58(SCC), 18 S.C.R. 599, Cully v. Ferdais (1900), (SCC), 30 S.C.R. 330, at p. 333, Scullion v. Canadian BreweriesTransport Limited, (SCC), [1956] S.C.R. 512, Hind v. The Queen, (SCC), [1968] S.C.R. 234, KnoxContracting Ltd. v. Canada, (SCC), [1990] 2 S.C.R. 338, and Kourtessis v. M.N.R., (SCC), [1993] 2S.C.R. 53 (per La Forest J.), at p. 69.

It also forms the basis for several of this Court's decisions. See R. v. Westmorland Fisheries Ltd. etal. (1996), (NB CA), 173 N.B.R. (2d) 138, R. v. Watson (R.A.) (1993), (NB CA), 142 N.B.R. (2d)327, and R. v. Landry (L.); R. v. Landry (M.) (1993), (NB CA), 143 N.B.R. (2d) 183. Another of these principles of statutory

interpretation is that once a disposition has been enacted, specifying the circumstances giving riseto a right of appeal, it is deemed to be exhaustive and exclusive on the issue. In Welch v. The King, (SCC), [1950] S.C.R.412, the Court went as far as to say that it is not necessary for a statutory provision granting a right of appeal to expressly state that it issubstantively and procedurally exhaustive and exclusive. Such exhaustiveness and exclusiveness result by implication from theextraordinary nature of the right. The Supreme Court reaffirmed this principle in Pollock v.

The Minister of Transport, (SCC), [1974] S.C.R. 749, at p. 754, and this Court has applied it on several occasions. See R. v. Watson (R.A.), and R. v. Landry (L.); R.v. Landry (M.). [paras. 10-14] [Emphasis added.]

See, as well, the general methodology adopted in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, [1998]S.C.J. No. 2 (QL) and applied in R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at para. 28. It is with those guidelines in mind that Iundertake the interpretative exercise required to dispose of the present appeal. [7] As mentioned, the SOIRA order under challenge was made pursuant to s. 490.012(1). It states: 490.012

(1) When a court imposes a sentenceon a person for an offence referred to inparagraph (a), (c), (c.1), (

d) or (

e) of thedefinition “designated offence” in subsection490.011(1) or renders a verdict of notcriminally responsible on account of mentaldisorder for such an offence, it shall make anorder in Form 52 requiring the person tocomply with the Sex Offender InformationRegistration Act for the applicable periodspecified in

section 490.013. 490.012

(1) Le tribunal doit, lors du prononcéde la peine ou du verdict de non-responsabilité à l’égard d’une infraction viséeaux alinéas a), c), c.1),

d) ou

e) de ladéfinition de « infraction désignée » auparagraphe 490.011(1), enjoindre à lapersonne en cause, par ordonnance rédigéeselon la formule 52, de se conformer à la Loisur l’enregistrement de renseignements surles délinquants sexuels pendant la périodeapplicable selon l’article 490.013. [8] At the time the Attorney General filed her Notice of Appeal, the Criminal Code did notprovide an appeal as of right from all SOIRA orders under s. 490.012. Such an appeal was available only in respect of a decision under s.490.012(2), which provides: 490.012

(2) When a court imposes a sentenceon a person for an offence referred to inparagraph (

b) or (

f) of the definition“designated offence” in subsection490.011(1), it shall, on application of theprosecutor, make an order in Form 52requiring the person to comply with the SexOffender Information Registration Act for theapplicable period specified in

section 490.013if the prosecutor establishes beyond areasonable doubt that the person committedthe offence with the intent to commit anoffence referred to in paragraph (a), (c), (c.1),(

d) or (

e) of that definition. 490.012

(2) Le tribunal doit, sur demande dupoursuivant, lors du prononcé de la peine,enjoindre à la personne déclarée coupable àl’égard d’une infraction visée aux alinéas b)ou

f) de la définition de « infraction désignée» au paragraphe 490.011(1), par ordonnancerédigée selon la formule 52, de se conformerà la

Loi sur l’enregistrement derenseignements sur les délinquants sexuelspendant la période applicable selon l’article490.013, dès lors que le poursuivant établithors de tout doute raisonnable que lapersonne a commis l’infraction avecl’intention de commettre une infraction viséeaux alinéas a), c), c.1),

d) ou

e) de cettedéfinition. As for the appeal-creating provision, s. 490.014, it reads as follows: 490.014 The prosecutor, or a person who is subject to an order under subsection490.012(2), may appeal from a decision ofthe court under that subsection on any groundof appeal that raises a question of law or ofmixed law and fact.

The appeal court maydismiss the appeal, or allow it and order anew hearing, quash the order or make anorder that may be made under thatsubsection. 490.014 Le poursuivant ou l’intéressé peutinterjeter appel de la décision rendue en vertudu paragraphe 490.012(2) pour tout motif dedroit ou mixte de droit et de fait; le tribunalsaisi peut soit rejeter l’appel, soit l’accueilliret ordonner une nouvelle audition, annulerl’ordonnance attaquée ou rendre uneordonnance en application de ce paragraphe. [9] That said, s. 676(1)(

d) allows the Attorney General to appeal, with leave, against the“sentence” passed by a trial court in proceedings by indictment. Following the first hearing on appeal, the Attorney General’s attentionwas apparently drawn to judicial assertions that a SOIRA order is not a “sentence”. At the second hearing, counsel for the AttorneyGeneral relied upon those pronouncements to recommend consideration be given to dismissing her appeal for want of jurisdiction.

Thepanel then called for input on the effect of amendments to s. 490.012, which changed the timing for the making of SOIRA complianceorders: as of April 15, 2011, those orders stand to be made “when a court imposes a sentence”, and not after, as was the case previously.The following table highlights the pertinent parts of the amendment to s. 490.012(1):

Section Pre Amendment Post Amendment 490.012 490.012

(1) As soon as possible after 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" in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013. 490.012

(1) 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" in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013. We queried whether the change in timing might have opened the door to appellate review of a SOIRA compliance order issued pursuant to s. 490.012(1), as part of the “sentence”. In that regard, it bears noting that at least one court concluded a SOIRA order was not a “sentence” because s. 490.012, as it read prior to the amendments mentioned hereinabove, provided such orders were to be made “after a court imposes a sentence” ( see R v. Turnbull , 2006 NLCA 66 , [2006] N.J. No. 328 (QL) , at para. 9 ). [ 10 ] Despite the timing-altering amendments mentioned above, I conclude a SOIRA order issued by virtue of s. 490.012(1) is not a “sentence” within the meaning of

Part XXI (“APPEALS – INDICTABLE OFFENCES”). In my view, the cumulative effect of the following considerations precludes any other conclusion. [ 11 ] First, in a number of decisions predating the timing-altering amendments, courts expressed the view that a SOIRA order was not a sentence, and they did so for reasons that were not anchored solely, if at all, to timing ( see R. v. Redhead , 2006 ABCA 84 , [2006] A.J. No. 273 (QL) , at para. 12 ; R. v. Berthelette , 2006 QCCA 928 , [2006] J.Q. No. 6771 (QL) ; R. v. Dompierre , 2008 QCCA 2522 , [2008] J.Q. No. 13997 (QL) ; and Morin v. R. , 2009 QCCA 187 , [2009] Q.J.

No. 510 (QL) , where Doyon J.A. provides a thorough review of the jurisprudence on that subject and the commonly associated question of whether SOIRA orders constitute “punishment” within the meaning of s. 11(

i) of the Canadian Charter of Rights and Freedoms ). The drafters of the timing- altering amendments could not have been oblivious of this jurisprudence and one would think it would have led them to formulate an explicit right of appeal from s. 490.012(1) orders, if that review option had truly been intended by Parliament. [ 12 ] Second, while Parliament has seen fit to include a variety of post-conviction orders in the definition of “sentence” under s. 673, it has not done so with respect to s. 490.012 orders.

Section 673 states that “sentence includes”:

(

a) a declaration made under subsection199(3), (

b) an order made under subsection 109(1) or110(1),

section 161, subsection 164.2(1) or194(1),

section 259, 261 or 462.37,subsection 491.1(2), 730(1) or 737(3) or (5)or

section 738, 739, 742.1, 742.3, 743.6,745.4 or 745.5, (

c) a disposition made under

section 731 or732 or subsection 732.2(3) or (5), 742.4(3) or742.6(9), and (

d) an order made under subsection 16(1) ofthe Controlled Drugs and Substances Act;

a) la déclaration faite en vertu du paragraphe199(3);

b) l’ordonnance rendue en vertu desparagraphes 109(1) ou 110(1), de l’article161, des paragraphes 164.2(1) ou 194(1), desarticles 259, 261 ou 462.37, des paragraphes491.1(2), 730(1) ou 737(3) ou (5) ou desarticles 738, 739, 742.1, 742.3, 743.6, 745.4ou 745.5;

c) la décision prise en vertu des articles 731ou 732 ou des paragraphes 732.2(3) ou (5),742.4(3) ou 742.6(9);

d) d’une ordonnance rendue en vertu duparagraphe 16(1) de la Loi réglementantcertaines drogues et autres substances. Of course, the omission to include s. 490.012 orders in that list does not necessarily close the door on the application of s. 676(1)(d).That is so because the list in question is not exhaustive, an inescapable conclusion in light of s. 673’s use of the term “includes” (see R. v.Chaisson, (SCC), [1995] 2 S.C.R. 1118, [1995] S.C.J. No. 53 (QL), at para. 9).

Nevertheless, in the overall context,which these reasons flesh out, the lack of any explicit reference in s. 673 to s. 490.012(1) SOIRA orders militates against their inclusion in“sentence” and, correlatively, argues in favor of their non-appealabiliy. [13] Third, s. 490.012 seeks to “enhance police investigation of crimes of a sexual nature and allowpolice services to use the national database proactively to prevent crimes” of that nature (see the

Summary to the Act in Bill S-2, An Actto amend the Criminal Code and other Acts, 3d Sess., 40th Parl., 2010). This somewhat unique purpose, which is unrelated topunishment, rehabilitation or forfeiture of property, distinguishes s. 490.012(1) orders from the orders explicitly covered by thedefinition of “sentence” found in s. 673 (see R. v. Chaisson, at paras. 9 and 12, and R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, atparas. 63-64). [14] Fourth,

Part XXIII, which is entitled “SENTENCING”, leaves untouched few, if any, facets ofthe subject, including the various types of sentences that may be lawfully imposed. There is no mention of SOIRA orders in

Part XXIII.The authority for the making of those orders is found under

Part XV (“SPECIAL PROCEDURE AND POWERS”). [15] Fifth, an order under 490.012(1) must be made when the court renders a verdict of notcriminally responsible on account of mental disorder. In those instances, no sentence is imposed. [16] Sixth, the timing for the making of both s. 490.012(1) and s. 490.012(2) orders changed as aresult of the amendments which became effective April 15, 2011.

Nonetheless, Parliament chose to preserve in s. 490.014 the pre-existing right of appeal against decisions under s. 490.012(2). [17] Seventh, nothing in the pertinent legislative materials suggests Parliament intended the changein timing would operate to bring s. 490.012(1) SOIRA orders under the “sentence” umbrella for appeal purposes. [18] Eighth, courts have consistently ruled that DNA orders do not form part of “sentence” (seeRedhead, at para. 12 and R. v. Briggs, (ON CA), [2001] O.J. No. 3339 (C.A.) (QL), at para. 71).

They have done soeven though DNA orders, like SOIRA orders, stand to be made “when [the court] imposes a sentence” (see s. 487.053(1)). Moreover,Parliament has provided in s. 487.054 an explicit right of appeal from DNA orders. This state of affairs militates strongly against theconclusion that the change in timing for the making of SOIRA orders was intended to bring them into the family of sentences for appealpurposes.

[19] Ninth, prior to April 15, 2011, s. 490.014 provided that an appeal could be taken against anydecision of the court under s. 490.012 on a question of law or mixed law and fact: 490.014 The prosecutor, or a person who issubject to an order under

section 490.012,may appeal from a decision of the court underthat

section on any ground of appeal thatraises a question of law or of mixed law andfact. The appeal court may dismiss theappeal, or allow it and order a new hearing,quash the order or make an order that may bemade under that section. [Emphasis added.] 490.014 Le poursuivant ou l’intéressé peutinterjeter appel de la décision rendue en vertude l’article 490.012 pour tout motif de droitou mixte de droit et de fait; le tribunal saisipeut soit rejeter l’appel, soit l’accueillir etordonner une nouvelle audition, annulerl’ordonnance attaquée ou rendre uneordonnance en application de cet article. [C'est moi qui souligne.] Thus, the current regime reflects:

(1) Parliament’s deliberate elimination of the right of appeal it had previously recognized, in explicitterms, in relation to s. 490.012(1) orders; and (2) its continuation of that right in respect of a decision made under the authority of s.490.012(2).

It is difficult, if not impossible to imagine that, despite the interpretative principles and the case-law referenced hereinabove,Parliament considered and intended that the change in timing for the making of s. 490.012(1) orders would entail a continuation of theirappellate review, albeit under a different regime, namely the one applicable to sentence appeals. [20] Finally, the conclusion that Parliament did not consider the term “sentence” sufficiently broad toencompass SOIRA orders is buttressed, to some extent, by s. 490.014’s explicit recognition of a right of appeal in respect of SOIRAorders issued under s. 490.012(2).

I realize that, unlike s. 676(1)(d), s. 490.014 creates an appeal as of right (admittedly limited toquestions of law or mixed law and fact), but I cannot bring myself to accept that Parliament intended to create two regimes for appellatereview of orders under s. 490.012: (1) an appeal, but only with leave, in respect of orders under s. 490.012(1); and (2) an appeal as ofright in respect of some questions against orders under s. 490.012(2).

There is simply no logical basis for any such distinction. [21] Why, then, did Parliament omit to provide an equivalent appeal as of right against SOIRA ordersissued pursuant to s. 490.012(1)? There is no obvious answer. The omission may have been inadvertent. Then again, it may be thatParliament did not see the need for appellate review of orders flowing from the application of s. 490.012(1) because it viewed thoseorders as “automatic” as a consequence of the April 15, 2011 amendments to that provision, which were introduced through Bill S-2.

Onthat score, suffice it to highlight the following statement, which appeared in the Bill’s Legislative

Summary under the heading Order forAutomatic Inclusion in the National Registry: Clause 5 of the bill amends the provisions of the Code to make offenders who are found guilty of offences designated underparagraph 490.011(1)(a), (c), (c.1), (

d) or (

e) of the Code or who are found not criminally responsible for such offences on account ofmental disorder subject to an order for automatic inclusion in the national registry. The Crown Attorney will no longer need to initiatethe process for inclusion in the national registry for one of these offences.

For example, a person found guilty of child pornography,sexual exploitation or sexual assault will automatically be entered in the national registry. [Emphasis added.] See, as well, Senator Runciman’s observations on topic (Senate, Proceedings of the Standing Committee on Legal and ConstitutionalAffairs, No. 6, 3d Sess., 40th Parl., May 6, 2010 at 31). II. Conclusion and Disposition [22] The contested SOIRA order was made pursuant to s. 490.012(1). At all material times, there wasno right of appeal, with or without leave, against such an order.

Thus, the Notice of Appeal giving rise to the present proceedings wasissued without lawful authority and, for that reason, I would order it quashed. [23] A few final thoughts. First, I need not, and do not decide whether the SOIRA order in questioncan be corrected by means of a prerogative writ. Any debate on point would be expected to feature consideration of Dagenais v.Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104 (QL), R. v. Russell, 2001 SCC 53,[2001] 2 S.C.R. 804 and R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331. Second, it is only with great reluctance that I conclude

the contested SOIRA order is not appealable. After all, the most efficient means of correcting errors in first instance is by way of appeal and, as the present case arguably illustrates, errors may occur despite the “automatic” nature of SOIRA orders when s. 490.012(1) is in play. That state of affairs points to the advisability of an amendment to s. 490.014 which would reinstate the right of appeal it previously recognized in relation to those orders.

Of course, we are not in the business of amending statutes, our sworn duty being to do right according to the applicable law. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: _____________________________________ WALLACE S. TURNBULL, J.A. _______________________________________ M.E.L. LARLEE, J.A.