Supreme Court

Judge:

The Honourable Justice Peter Rosinski

Heard:

[By written submissions]

Final Written Submissions:

September 22, 2014

Decision:

October 28, 2014

Subject:

The proper duration of mandatory s. 490.012(1) SOIRA [Sex Offender Information Registration Act] orders pursuant to s. 490.013(2.1) Criminal Code; and when a sentencing judge becomes functus officio and unable to vary the duration of such orders.

Summary:

The offender was convicted of sexual offenses involving the same complainant and time periods [January 30, 2005 – January 30, 2008]:  s. 153 and 271(1)(a) Criminal Code.  The s. 153 offenses [one count covering many incidents] were particularized as sexual touching of the child complainant “with his penis”; the s. 271 offense was not particularized beyond alleging a “sexual assault” against the child complainant, but on the evidence also included an incident of simulated sexual intercourse, and several incidents of rubbing the child complainant’s vagina.  At sentencing a 20 year duration SOIRA order was imposed pursuant to section 490.013(2)(b).  Thereafter, counsel contacted the court to advise that it appeared that pursuant to section 490.013(2.1) a lifetime duration SOIRA order should have been imposed.

Issues:

(1)           Was a 20 year or lifetime duration SOIRA order appropriate in this case??

(2)           If a lifetime duration SOIRA order was appropriate, can the sentencing judge vary the order pursuant to section 490.012(4) or the court’s inherent/common-law jurisdiction??

Result:

(1)           Arguably the proper application of statutory interpretation principles to s. 490.013 (2.1) suggest that a lifetime duration SOIRA order was mandatory

(2)           A judge of the Supreme Court of Nova Scotia does not have jurisdiction pursuant to s. 490.012(4) or the court’s inherent/common-law jurisdiction to vary the order in the case at Bar.  The case incidentally raises the issue of whether an appeal to the Nova Scotia Court of Appeal is possible, not under s. 490.014, but rather s. 676(1)(b) Criminal Code