2012 SKCA 52 Date:, 2012 SKCA 52

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 52 Date: 20120503 Between: Docket: CACR2117 Her Majesty the Queen Appellant - and - Leo Harris Burns Respondent Coram: Gerwing, Ottenbreit & Caldwell JJ.A. Counsel: B.L. Klatt, for the Crown Leo Harris Burns, on his own behalf Appeal:

From: Provincial Court Heard: May 3, 2012 Disposition: Allowed (Orally) Written Reasons: May 7, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Ottenbreit Caldwell J.A. : [ 1 ] The Crown’s appeal from the sentencing judge’s order under s. 490.012(1) of the Criminal Code , which directed Leo Harris Burns to comply with the Sex Offender Information Registration Act (“ SOIRA ”) for 20 years, is allowed. We unanimously find that the sentencing judge erred in law in his

interpretation of s. 490.013(2.1) of the Criminal Code and, in the result, his order must be set aside and replaced with a lifetime SOIRA compliance order. [ 2 ] Mr. Burns was convicted on each of four charges of sexual assault ( s. 271(1) of the Criminal Code ). As the Crown proceeded by way of indictment, he was subject to imprisonment for a term not exceeding ten years on each conviction.

He was sentenced to four concurrent terms of four years and eight months imprisonment (after four months credit for time served on remand) and he received a ten-year firearm prohibition order, a DNA order and a 20-year SOIRA compliance order. [ 3 ] A SOIRA compliance order is mandatory in these circumstances. Sexual assault is a “designated offence” under s. 490.011 (

a) of the Criminal Code . Where an offender is convicted of a designated offence, s. 490.012(1) requires the sentencing judge to order the offender to comply with SOIRA . The duration of a SOIRA compliance order is determined by reference to s. 490.013 of the Criminal Code , which provides, in part:

(2) Duration of Order. An order made under subsection 490.012(1) or (2) … (

b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and …

(2.1) Duration of Order - 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 of “designated offence” in subsection 490.011(1). [ 4 ] Albeit Mr. Burns had been convicted of more than one “designated offence”, the sentencing judge interpreted s. 490.013(2.1) as not applying in circumstances where sentence is concomitantly pronounced for multiple “designated offence” convictions and the offender’s criminal record discloses no prior convictions for a “designated offence”. The judge therefore declined to order Mr. Burns to comply with SOIRA for life (s. 490.013(2.1)) and instead ordered him to comply for 20 years (s. 490.013(2)(b)). [ 5 ] We do not agree with the sentencing judge’s

interpretation of s. 490.013(2.1). The meaning of the

section is plain: offenders who commit multiple designated offences will be subject to a lifetime SOIRA compliance order. Nothing in the Criminal Code suggests the lifetime duration of the order rests on the offender being sentenced separately for each offence. [ 6 ] In our view the clarity of the

section is such that there is no need to resort to other principles of statutory

interpretation; however, if it were necessary to do so, the plain meaning

interpretation of s. 490.013(2.1), and its application to the facts at hand, is supported by reference to s. 490.012(3). The latter

section speaks directly to the circumstances where an offender has been previously convicted of a designated offence:

(3) Order – if previous offence established – When a court imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) 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 if the prosecutor establishes that (

a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not criminally responsible on account of mental disorder 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 in paragraph (

a) or (

c) of the definition “designated offence” in

section 227 of the National Defence Act ; [Emphasis added.]

[ 7 ] Put simply, if Parliament had intended the narrow application of s. 490.013(2.1) rendered by the sentencing judge’s

interpretation of it, Parliament would have used the same language in s. 490.013(2.1) as it did in s. 490.012(3). Therefore, in our view, Parliament clearly intended s. 490.013(2.1) to apply more broadly to any offender who commits multiple designated offences regardless of whether the sentences for those offences are imposed separately or all together.