R. v. Merrick, 2013 ONCJ 480

Citation: R. v. Merrick , 2013 ONCJ 480 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RONALD L. MERRICK R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on July 30, 2013, at ORANGEVILLE, Ontario IMPORTANT: INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE, BY ORDER OF JUSTICE OF THE PEACE T. MCKEOGH ON DECEMBER 7, 2012

APPEARANCES: M. Balogh Counsel for the Crown M. Gourlay Counsel for R. Merrick PUGSLEY, J. (Orally): On April 25 th , 2013, the defendant pled guilty to two separate counts of possession of child pornography, contrary to subsection 163.1(4) of the Criminal Code , stemming from two discreet events. I sentenced the defendant to a period of incarceration. At the time of sentencing, an order was made requiring that the defendant comply with the Sex Offender Information Registration Act for a period of 10 years. The Crown and defence joined in the submission that that order was proper. I made the order.

That order was for an incorrect period of time. By virtue of subsection 490.012(2.1), the order should have been for life, as the defendant was convicted of two separate offences under subsection 163.1(4) of the Code . The Crown makes application to amend my order accordingly. The Crown submits that there are two routes under which I may grant the amendment. Subsection 490.012(4) of the Code provides that, if a court does not consider the matter of the order at the time of sentencing, the court, nonetheless, retains jurisdiction to make the order at a hearing set within 90 days of the sentencing date.

Further, the Crown submits that at common law the court retains jurisdiction to correct a mistaken order. The defendant submits that subsection 490.012(4) of the Code cannot give me jurisdiction to grant the application because the court did, in fact, consider the matter of the SOIRA order, but made, in fact, the wrong order. Further, the defendant submits that I am functus officio and cannot gain jurisdiction by way of the common law as the clear, albeit incorrect intent of the court was to make a 10 year SOIRA order.

Everyone proceeded at the time of sentencing on the basis that 10 years was the correct length of order here by law. The defendant’s position is that only an appeal can correct this admitted error. Counsel point me to case law on this issue. With regard to subsection 490.012(4) of the Code , there are three decisions from the Ontario Court of Justice directly on point. The Crown relies upon Regina v. Kanna Ponniah decided at the Eglinton Avenue East Courthouse by Justice Otter of this court, on July 13 th , 2012, and Regina v. Dietrich N.

Tichrode , decided at the Courthouse in Simcoe, Ontario, by Justice Sherwood of this Court, on August 28 th , 2012. The defence cites the decision of Justice Nakatsuru of this Court, released on May 7 th , 2013, in Regina v. J.E. , reported at 2013 ONCJ 247 . Crown and defence both cite Regina v. Malicia , Ontario Court of Appeal, September 18 th , 2006, reported at 82 OR 3(d) 772, on the issue with respect to any common law jurisdiction to amend. The Crown also relies upon the decision of Justice Daley of the Superior Court of Justice in Regina v.

DM , released on January 10 th , 2013, and reported at 2013 ONSC 141 , as to the existence of such jurisdiction, while the defence prefers Justice Nakatsuru’s

analysis of and failure to follow the DM case. In my view, there is really no controversy for me to resolve here at all. By either route suggested by the Crown, the amendment ought to be made. First, I do not with very great respect, approach the matter with the rigidity of the analysis of my brother in Regina v. J.E. because, in my view, his approach fails to appreciate the nature of the order made and the clear intent of the drafters of subsection 490.012(4) of the Criminal Code . The order sought was an ancillary order made after the sentencing of the defendant to jail.

The order was a mandatory order stipulated as such, by Parliament. Superbly experienced counsel agreed that the required order was for 10 years and I did not catch their mistake, which became my mistake. Subsection 490.012(4) of the Code specifically sets out circumstances where I do not lose jurisdiction over the SOIRA order. This, in my view, is a clear statement by Parliament that the common law regarding functus officio does not apply.

To read the subsection as meaning it does not apply only when no one ever mentioned the SOIRA order at all, is in my view, an unnecessary strict and incorrect reading of the corrective section. The word, “consider,” as read in context, must necessarily include the facts of this case where counsel submitted a wrong term and I did not put my mind to whether counsel were correct.

The intent of subsection 490.012(4) of the Code is to allow such mistakes to be corrected at a time proximate 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 foregone result. Pursuant to subsection 490.012(4) of the Code , I retain jurisdiction here, and accordingly, I make the order requested. The SOIRA order made on April 25 th , 2013, is amended at paragraph 2 therein, by deleting the reference to 10 years and, instead, requiring the defendant to comply with the Act for a period of life.

In my view I can reach the same result by virtue of the common law, applying the reasoning of the Court of Appeal in Regina v. Malicia and Justice Daley, in Regina v. DM . Given my conclusion as to the scope of subsection 490.012(4), however, I need not continue with that analysis. I would like to thank both counsel. Thank you. ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S IMPORTANT: INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE, BY ORDER OF JUSTICE OF THE PEACE T. MCKEOGH ON DECEMBER 7, 2012 ​ENTERED ON PAGE Ruling 1

Transcript Ordered: July 30, 2013 Transcript Completed: September 2,2013 Ordering Party Notified: September 3,2013