Docket: CACR2149 Her Majesty the Queen Appellant - v. -, 2012 SKCA 72

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 72 Date: 20120712 Between: Docket: CACR2149 Her Majesty the Queen Appellant - and - Leon Edward Unruh Respondent Coram: Klebuc C.J.S., Ottenbreit & Herauf JJ.A. Counsel: W. Dean Sinclair for the Appellant Leon Edward Unruh on his own behalf

Appeal: From: 2012 SKPC 51 Heard: July 12, 2012 Disposition: Allowed (orally) Written Reasons: July 30, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Ottenbreit HERAUF J.A. [ 1 ] This is a Crown appeal from the refusal of the sentencing judge to include a random search clause in a probation order. See 2012 SKPC 51 . The appeal was allowed orally with reasons to follow. [ 2 ] Leon Edward Unruh pled guilty to one count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code .

A joint submission was presented to the sentencing judge. The joint submission suggested a sentence of five months incarceration and three years probation. For the most part, the sentencing judge endorsed the joint submission. She refused however, to include a term in the probation order whereby Mr.

Unruh “shall submit to a search of his person, residence, vehicle or computer or computer-related device found in his possession, without warrant, by any police officer checking to ensure compliance with the terms of this order.” The condition would limit any search to be done between the hours of 8:00 a.m. and 8:00 p.m. [ 3 ] Counsel relied upon the residual clause in s. 732.1(3) (

h) of the Criminal Code as the authority for the sentencing judge to impose such a term as part of the probation order. [ 4 ] The probation order required Mr. Unruh to live with his parents during the term of the order. Mr. Unruh and his parents unequivocally and “wholeheartedly” consented to the inclusion of the search clause in the probation order. Notwithstanding the voluntary consent of Mr. Unruh and his parents, the sentencing judge declined to include the term on the premise that the Court did not have jurisdiction. She relied upon the Supreme Court of Canada decision in R.

Shoker , 2006 SCC 44 , [2006] 2 S.C.R. 399, to support her conclusion. [ 5 ] At para. 21 of her written decision the sentencing judge stated: . . . The Supreme Court of Canada in R. v. Shoker , supra , very plainly directed that the provisions of the Code concerning the imposition of the optional probation conditions do not contemplate the imposition of random searches. [ 6 ] In our view, the Supreme Court made it abundantly clear that the decision in R. v.

Shoker applied only to the “compelled seizure of bodily samples as an enforcement mechanism.” (see: para. 21) The decision does not state that all conditions under s. 732.1(3) (

h) of the Criminal Code that have a monitoring or enforcement aspect are without jurisdiction. For this reason we cannot agree with the broad

interpretation placed on the Shoker decision by the sentencing judge. [ 7 ] Our

interpretation of a more narrow reading of the Supreme Court decision in R. v. Shoker is reinforced by the pending amendments to s. 732 of the Criminal Code which were assented to on March 23, 2011. Although the amendments have not been proclaimed as yet, it is apparent that they relate to the authority of a court to order, as a condition of probation, that the probationer provide a sample of a bodily substance . In fact, the alternative title to the amendment is: This Act may be cited as a response to the Supreme Court of Canada decision in R. v. Shoker Act .

[ 8 ] In addition, we are of the view that the sentencing judge also erred in her

interpretation of the residual clause in s. 732.1(3) (

h) of the Criminal Code . The unequivocal consent of the probationer and his parents to the proposed clause had to be considered as part of the circumstances in that provision. The provision permits the Court to order that the probationer “comply with such other reasonable conditions as the court considers desirable … for protecting society and for facilitating the offender’s successful reintegration into the community.” [ 9 ] The Supreme Court in Shoker acknowledged that the consent of a probationer can be considered by a court when exercising its discretion under s. 732.1(3) (

h) to impose “other reasonable conditions.” (see: para. 22) This Court came to the same conclusion in R. v. Morin , 2009 SKCA 74 , 337 Sask. R. 144 at para. 4 as did the Alberta Court of Appeal in R. v. Koma , 2008 ABCA 206 at para. 11 . [ 10 ] For these reasons the appeal was allowed. The impugned term will be included as part of the probation order with the proviso that any search must take place between the hours of 8:00 a.m. and 8:00 p.m.