Docket: CACR2275 Her Majesty the Queen Appellant - v. -, 2013 SKCA 127

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 127 Date: 2013-12-03 Between: Docket: CACR2275 Her Majesty the Queen Appellant - and - Shawn Curtis Whiting Respondent Restriction on Publication: In accordance with s. 486 of the Criminal Code , an order has been made prohibiting publication of any information that could disclose the identity of the complainant. Coram: Richards C.J.S., Ottenbreit and Whitmore JJ.A. Counsel: Jerome Tholl for the appellant Morris P. Bodnar, Q.C. for the respondent Appeal: From: QBNJ 36/11, J.C. of Saskatoon Heard: August 8, 2013 Disposition: Allowed Written Reasons: December 3, 2013

By: The Honourable Mr. Justice Whitmore In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit Whitmore J.A. I. Introduction [ 1 ] On December 12, 2012 Shawn Curtis Whiting pleaded guilty to a sexual assault contrary to s. 271 of the Criminal Code . [ 2 ] On February 27, 2013, Mr. Whiting was sentenced to six months imprisonment. The sentencing judge declined to make an order under the Sex Offender Information Registration Act , S.C. 2004, c. 10 (“ SOIRA ”). [ 3 ] The appeal of sentence was dealt with by this Court at 2013 SKCA 101 .

This judgment deals solely with the Crown’s appeal of the sentencing judge’s decision not to impose an order under SOIRA . [ 4 ] The appeal is purportedly brought under s. 676(1) (

b) of the Criminal Code . [ 5 ] The background facts leading to the charge are set out in 2013 SKCA 101 . II. Decision of the Sentencing Judge [ 6 ] The decision of the sentencing judge with respect to the SOIRA order is as follows: THE COURT: Thank you for that. One of the other decisions that was quoted to me -- that was R.J.B. , at paragraph 42, His Honour Judge Semenuk, a Judge of the Provincial Court of Alberta, in the decision which was provided to me, made the following comments. And that was a 2007 decision. At paragraph 42, he says -- His Honour says: (as read) “Pursuant to

Section 490.012(4) of the Criminal Code , I do not make an order under

Section 490.012(1) of the Criminal Code . I am satisfied that the impact of making a 20 year order under the Sexual Offender Information Registration Act would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature to be achieved by such registration, considering the exceptional circumstances of the accused, already stated above in this case.” I’ve concluded that in this instance, there are exceptional circumstances here. Mr. Whiting is not the stereotypical sexual offender.

He is a sexual offender, as his guilty plea admits, but he is not the stereotypical one. I have no doubt he will not be back in front of this court or any other court dealing with a sexual matter. I have a feeling he won’t be back before this court or any other court for any matter in that particular regard. [ R. v. R.J.B. , 2007 ABPC 61 ] III. Issues 1. Did the Sentencing Judge err in declining to make a SOIRA order pursuant to s. 490.012 of the Code ? 2. Is there a right of appeal from the sentencing judge’s decision declining to make an order under the SOIRA ? IV.

Standard of Review [ 7 ] As stated above, this is an appeal under s. 676(1) (

b) of the Criminal Code which states: 676.

(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal . . . (

b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment; [ 8 ] A question of the jurisdiction of the sentencing judge is a question of law. [ 9 ] In R. v. T.C. , 2009 SKCA 124 , 249 C.C.C. (3d) 1 this Court held at para. 28: As to the standard of appellate review, I observe that some appellate decisions, for example, R. v. Redhead , 2006 ABCA 84 , (2006), 206 C.C.C. (3rd) 315 (Alta.

C.A.) (leave to appeal to S.C.C. refused, [2006] 2 S.C.R. x), have held that the standard is the same for both SOIRA and DNA decisions. I note, however, that the right of appeal with respect to decisions made in relation to SOIRA orders (s. 490.014) is different than that for matters in relation to DNA orders (s. 487.054). Be that as it may, the impact of this difference need not be explored on this appeal as Crown counsel has not called into question the reasonableness of the decision. He has raised questions of law only, which attract the standard of review of correctness.

[ 10 ] Thus, in this case whether the judge erred in declining to make an order under SOIRA and whether there is a right of appeal from his decision are questions of law reviewable on the standard of correctness. VI. Analysis 1. Did the Sentencing Judge err in in declining to make a SOIRA order pursuant to s. 490.012 of the Code ? (

a) The Amendments to the Criminal Code [ 11 ]

Section 490.012 of the Criminal Code confers authority upon a sentencing judge to impose a SOIRA order on a person convicted of a designated offence. [ 12 ] In the case before this Court, the sentencing judge referred to R.J.B. a 2007 case, and appeared to rely on it as seeming authority to exercise discretion in imposing an order under SOIRA . At the time that R. v. R.J.B. 2007 ABPC 61 , 423 A.R. 131, was decided s. 490.012(4) of the Code read as follows: The court is not required to make an order under this

section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex offender Information Registration Act . [ 13 ] However, with the coming into force of the Protecting Victims From Sex Offenders Act , S.C. 2010, c. 17, on April 15, 2011, s. 490.012 was amended to read as follows: 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. [emphasis added] [ 14 ] As s. 271 of the Criminal Code is a “designated” offence as defined under s. 490.011(1) (a), the sentencing judge is required to make an order under SOIRA under the amended provisions of the Code . (

b) Is SOIRA Prospective or Retrospective? [ 15 ] It is then necessary to determine whether the SOIRA amendments are prospective or retrospective in their application. [ 16 ] If the SOIRA amendments to s. 490.012 are prospective, they can only apply to alter the future consequences of future events. As the amendments came into force after the accused committed the offence with which he was charged, the amendments would not affect the accused. [ 17 ] If, however, the SOIRA amendments are retrospective, they alter the future consequences of past events.

Thus, they would take effect immediately upon their coming into force and the future consequences of events that occurred before the amendments came into effect would be altered. Accordingly, in the case before this Court, despite the fact that the accused committed the offence prior to the amendments making a SOIRA order mandatory came into effect, the amendments will apply and a SOIRA order would be mandatory for this accused because he was not sentenced until after the amendments came into effect. [ 18 ] In R. v.

Morin , 2009 QCCA 187 , the Quebec Court of Appeal held that the SOIRA amendments are retrospective not retroactive because they do not modify the past consequences of a conviction. Doyon J.A. said at para. 38: The appellants claim that the SOIRA has retroactive effect and is therefore contrary to the principles of fundamental justice. In reality, however, its effect is retrospective, which is quite different. Retroactivity must be distinguished from retrospectivity and, even more, from prospectivity. Retroactivity modifies the past legal consequences of situations that are themselves in the past.

Retrospectivity, for its part, modifies the future legal consequences of past situations, while respecting past consequences. Prospectivity modifies the future legal consequences of current or future situations. The SOIRA , therefore, is in no way retroactive, since it does not modify the past consequences of the conviction (there were no consequences before December 15, 2004, with respect to registration, and the new Act did not create consequences applicable prior to its coming into force).

Rather, the SOIRA changes the future consequences of a past conviction as of the date of its coming into force, pursuant to ss. 490.019 to 490.023 Cr. C. (retrospective effect) and the future consequences of a present or future conviction, pursuant to s. 490.012 Cr. C. (prospective effect). Consequently, the effects of the Act are applicable only to the future, contrary to what a retroactive act would do. [ 19 ] The retrospective application of ss. 490.019 to 490.029 was upheld as constitutional in R. v.

Morin , based on the fact that there is no principle of fundamental justice against retrospective legislation and that in any case, because registration under SOIRA does not constitute a sentence, the argument is misplaced. A similar analysis was undertaken by the Court of Appeal for Alberta in R. v. Warren in the context of a s. 7 Charter application based on the retrospective application of SOIRA . [ 20 ] I conclude that Parliament intended that the April 15, 2011 amendments have immediate effect. Therefore the sentencing judge had no discretion as to whether or not to make a SOIRA order. It is mandatory.

The sentencing judge therefore erred in failing to make such an order. 2. Is there a right of appeal under the former version of s. 490.014 from the sentencing judge’s decision declining to make an order under the SOIRA ? [ 21 ] Prior to the coming into force of the Protecting Victims From Sex Offenders Act on April 15, 2011, the appeal provisions of s. 490 read as follows:

490.014 The prosecutor, or a person who is subject to an order under

section 490.012, may appeal from a decision of the courtunder that

section on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss theappeal, or allow it and order a new hearing, quash the order or make an order that may be made under that section. [22] With those amendments, however, the appeal provisions were also amended such that s. 490.014 now reads as follows: The prosecutor, or a person who is subject to an order under subsection 490.012(2), may appeal from a decision of the courtunder that subsection on any ground of appeal that raises a question of law or of mixed law and fact.

The appeal court may dismiss theappeal, or allow it and order a new hearing, quash the order or make an order that may be made under that subsection. [23] The accused committed the offence in March 2009, prior to the coming into force of the Protecting Victims from Sex OffendersAct, but was not charged until July 1, 2011, after that Act came into effect, amending the SOIRA provisions of the Code. [24] The April 15, 2011 amendments to the SOIRA provisions of the Code changed the appeal provision in s. 490.014 from the one thatincluded a right to appeal from orders made under both subsections (1) and (2) of s. 490.012 to one that only provided for a right ofappeal from orders made under subsection (2) of s. 490.012.

By expressly providing for the appeal from subsection (2) orders it can besaid that the legislature impliedly excluded any others. [25] As the order that the sentencing judge declined to make ought to have been made under s. 490.012(1), s. 490.014 does not providean appeal. [26] During argument before this Court, the question was raised whether s. 11(

i) of the Charter might have any application to theamendments to the Criminal Code removing the accused’s right to appeal the SOIRA order.

Section 11(

i) directs that an accused foundguilty of an offence is entitled to the benefit of the lesser punishment where punishment for the offence has been varied between the timeof commission and the time of sentencing. [27]

Section 11(

i) of the Charter only applies to punishments. It is well established that an order such as an order under SOIRA, is not apunishment. See: R. v. Cross, 2006 NSCA 30, 205 C.C.C. (3d) 289. [28] Therefore even assuming that s. 11(

i) of the Charter might apply to a change in a right of appeal from a punishment as opposed to achange in the substance of the punishment, it has no application to the removal of the right to appeal an order under SOIRA. [29] The question then becomes does the right of appeal provided by the earlier version of s. 490.014 survive the amendments? [30] The extinguishment of the right to appeal from s. 490.012(1) orders is a significant and substantive amendment to the Code.

The existence of a right to bring an appeal is considered substantive (see: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed.(Markham: LexisNexis Inc., 2008) at p. 699). [31] Further, the extinguishment of the right to appeal from SOIRA orders modified the Court’s jurisdiction with regard to such ordersand jurisdiction is not a procedural matter. “A statute which modifies a right of appeal cannot be applied to cases pending when it comes into force” (Pierre-Andre Cote, The

Interpretation of Legislation in Canada (4th ed.) (Toronto: Thomson Reuters Canada Ltd., 2011) atp. 194. [32] Therefore, it is necessary to determine when a case is “pending”. [33] The Supreme Court has held that a right of appeal accrues on the day proceedings are instituted in the lower courts such thatpending cases do not lose or gain a right of appeal by way of statutory amendments that occur while their case is pending. (See: Williamsv. Irvine (1893), 1893 CanLII 37 (SCC), 22 S.C.R. 108; Hyde v. Lindsay (1898), 1898 CanLII 12 (SCC), 29 S.C.R. 99; Doran v.

Jewell(1913-14), (SCC), 49 S.C.R. 88.) [34] However, this position was brought into question in R. v. Puskas, (SCC), [1998] 1 S.C.R. 1207, where theSupreme Court ruled that a modification which changed the right of appeal to the Supreme Court to an appeal only with leave wasapplicable to proceedings before the Court of Appeal of Ontario at the commencement of the legislative amendment. The Courtconsidered the federal

Interpretation Act, R.S.C. 1985, c. I-21 in its analysis, in particular, s. 43 which states: 43. Where an enactment is repealed in whole or in part, the repeal does not . . . (

c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed, [35] For a right to be “accruing”, the Court held at para. 14, its eventual accrual must be certain, and not conditional on future events.Thus, a right to appeal a decision can only be acquired, accrued, or be accruing, when all of the conditions precedent to the exercise ofthe right have been fulfilled. [36] That said, the Supreme Court specifically distinguished the facts in Puskas from its own previous line of cases, including Williams,Hyde, etc.

At para. 10 of Puskas, Lamer C.J., for the Court, stated that the previous cases did not apply because they were almost allabout the creation of new appeal rights. The concern in such cases, he stated, is that cases that had appeared to be finally decided wouldbe “revived” by the new rights of appeal. [37] Also, at para. 12, he noted that when appeals from Canadian cases to the Judicial Committee of the Privy Council were abolishedin 1949, appeals were still permitted for all cases which were in process at the time of the amendment.

Lamer C.J. distinguished the factsin Puskas by noting that in Puskas what was being changed was the mechanism whereby appeals reached the Supreme Court, whereas inthe previous line of cases and in the Privy Council appeals, the legal question was the jurisdiction of the Court to hear the appeal.

[38] In the case presently before this Court, at issue is the Court’s jurisdiction to hear the appeal. By the reasoning in Puskas, therefore,it might appear that the applicable line of cases is the previous Supreme Court line of cases, (Williams v. Irvine, supra; Cowen v. Evans(1893), 1893 CanLII 44 (SCC), 22 S.C.R. 331; Mitchell v. Trenholme (1893), 22 S.C.R. 333; Doran v. Jewell, supra and Hyde v.Lindsay, supra, and taken up again in Singer v. The King, (SCC), [1932] S.C.R. 70, Boyer v. The King, (SCC), [1949] S.C.R. 89, and Marcotte v.

The King, (SCC), [1950] S.C.R. 352). [39] However, the Court’s analysis at para. 14 in Puskas is difficult to ignore: Since the usefulness of the jurisprudence is limited, it falls to the Court to determine the matter on the basis of statutoryinterpretation and principle. In our view, there are numerous reasons for deciding that the ability to appeal as of right to this Court is only"acquired," "accrued" or "accruing" when the court of appeal renders its judgment. The first is a common-sense understanding of what itmeans to "acquire" a right or have it "accrue" to you.

A right can only be said to have been "acquired" when the right-holder can actuallyexercise it. The term "accrue" is simply a passive way of stating the same concept (a person "acquires" a right; a right "accrues" to aperson). Similarly, something can only be said to be "accruing" if its eventual accrual is certain, and not conditional on future events(Scott v. College of Physicians and Surgeons of Saskatchewan (1992), (SK CA), 95 D.L.R. (4th) 706 (Sask. C.A.), atp. 719).

In other words, a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right havebeen fulfilled. [40] In Scott v. College of Physicians & Surgeons of Saskatchewan (1992), (SK CA), 95 D.L.R. (4th) 706, JusticeCameron of this Court concluded at p. 719 that “before a right…may be said to be ‘accruing’, the events giving rise to it or theconditions upon which it depends for its existence, must have been so set in train or engaged as inevitably to give rise in due course to theright”. This

interpretation was cited with approval by the Supreme Court in Puskas. [41] In Scott, the right in question was the right of a physician previously struck from the register of the College of Physicians &Surgeons of Saskatchewan to be re-entered on the register upon payment of a fee. That right was affected by a change in the legislationwhich occurred during Scott’s application process for readmission. The interest affected in Scott is therefore similar to the present case asthey both remove a right, in the present case, being a right of appeal. Further, the same provisions of the

Interpretation Act wereconsidered by this Court in Scott, albeit their equivalent in the provincial

Interpretation Act. [42] Thus, this Court, and the Supreme Court, have held that a right does not vest until all of the conditions precedent for its existenceare in place. Following that reasoning in relation to the facts of this case, the right to appeal from a SOIRA order would not have vesteduntil after sentencing at Queen’s Bench, which occurred on February 27, 2013, long after the Protecting Victims from Sex Offenders Actcame into force. [43] This analysis is bolstered by taking a purposive approach to interpreting the legislation.

Sullivan, supra, said at p. 725 “when aprimary purpose of legislation is to abolish a right of which the legislature disapproves, a court may readily conclude that the legislatureintended to target existing as well as future examples of that right.” Hansard debates indicate that Parliament disapproved of the numberof sex offenders not being registered under SOIRA. [44] Under the amended legislation judges are required to make SOIRA orders for offenders under s. 490.012(1) and there is no right toappeal from such an order.

A purposive analysis would suggest that this intended to include all orders existing at the time of coming intoforce of the amendments as well as future s. 490.012(1) orders. (

a) Is There a Right to Appeal by Virtue of s. 676(1)(

b) of the Criminal Code? [45] Section 676(1)(

b) of the Code states: 676(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal . . . (

b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails toexercise jurisdiction on an indictment; [46] Section 676(1)(

b) does not appear to have been used to appeal in this type of situation, to my knowledge but it has been used in anumber of cases to appeal from the quashing of an indictment. See: R. v. Czarnecki (2000), (MB CA), 143 C.C.C.(3d) 179 (Man. C.A.). It has also been successfully used to appeal from a judge’s refusal to permit the Crown to argue that the accusedwas not criminally responsible on account of mental disorder (R. v. Wells, 2004 ABCA 371, 193 C.C.C. (3d) 43). [47] In R. v.

Taylor (1996), (SK CA), 132 D.L.R. (4th) 323, the Crown appealed an adjournment of one year whichwas granted on the recommendation of members of a sentencing circle in order to facilitate the carrying out of their recommendedsentence of banishment to a private island for one year. This Court held that the adjournment was not for a purpose contemplated by lawand, having convicted the accused, the trial judge was bound to proceed in accordance with s. 570(1) of the Code and sentence theaccused. Section 676(1)(

b) was accepted as grounds for appeal of the judge’s adjournment. [48] Although the use of s. 676(1)(

b) was successful in R. v. Wells, the Court of Appeal of Alberta cautioned that this route to a Crownappeal is rarely appropriate, but it was in Wells because the trial judge was required to exercise his jurisdiction, but failed to do so. Thatjurisdiction was to hear the Crown’s submissions on the accused being not criminally responsible due to mental disorder despite thedefendant’s failure to bring his sanity into issue. [49] Although the use of s. 676(1)(

b) to allow an appeal of the sentencing judge’s failure to make a SOIRA order appears on the surfaceto ignore the clear legislative intent to abolish a right to appeal from a s. 490.012(1) order, it is in line with the deeper underlying purposeof the April 15, 2011 amendments. These amendments were made in order to ensure all sex offenders are put on the registry. The orderbecame mandatory and the right to appeal from the order was extinguished. In this case the sentencing judge erred in not making the

order which he was required to make and which Parliament clearly intended for him to make. Therefore, an appeal through s. 676(1)(

b) simply gives effect to the intention of Parliament. In these circumstances I am of the view that it is an appropriate use of s. 676(1)(

b) and find that an appeal does lie through s. 676(1)(

b) of the Code in circumstances such as this. (

b) Is There a Right to Appeal by Virtue of s. 676(1)(

d) of the Criminal Code ? [ 50 ] Section 676(1)(

d) states: 676.

(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal . . . (

d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law. [ 51 ] Section 676(1)(

d) is available to the Attorney General to appeal with leave of the Court of Appeal or a judge thereof against the sentence passed by a trial court in proceedings by indictment, unless the sentence is one fixed by law. The New Brunswick Court of Appeal in R. v. Chisholm , 2012 NBCA 79 , 292 C.C.C. (3d) 132, held that a SOIRA order issued pursuant to s. 490.012(1) is not a sentence within the meaning of the section. [ 52 ] In R. v. J.J.W., 2012 NSCA 96 , 292 C.C.C. (3d) 292, the Nova Scotia Court of Appeal held that R. v. Chisholm is applicable where a sentencing judge declines to make an order under SOIRA , and therefore there is no right of appeal pursuant to s. 676(1)(

d) where a sentencing judge declines or fails to make said order pursuant to s. 490.012(1). [ 53 ] I am in agreement with the Chisholm and J.J.W. decisions and the reasons expressed therein. Accordingly, there is no right to appeal the sentencing judge’s order by virtue of s. 676(1)(

d) of the Code . VII. Conclusion [ 54 ] I conclude that an appeal does lie through s. 676(1)(

b) and that the appeal should be allowed with respect to the SOIRA order. The sentencing judge’s order must be set aside. As a conviction under s. 271 has a maximum term of imprisonment of ten years by virtue of s. 490.013(2)(b), an appropriate order is a 20 year order. Therefore, the sentencing judge’s order is set aside and is replaced with a 20 year SOIRA compliance order. DATED at the City of Regina, in the Province of Saskatchewan, this 3 rd day of December, A.D. 2013. Whitmore J.A. ________________________ Whitmore J.A. I concur. Richards C.J.S. Richards C.J.S. I concur. Ottenbreit J.A. Ottenbreit J.A.