R. v. Aberdeen (E.B.), (2005) 387 A.R. 269 (PC)

• Judge: LeGrandeur, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 23, 2005
• Citations: (2005), 387 A.R. 269 (PC);2005 ABPC 203

R. v. Aberdeen (E.B.) (2005), 387 A.R. 269 (PC)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. AU.101

Her Majesty the Queen v. Eugene Bradley Aberdeen

(041434457P; 2005 ABPC 203)

Indexed As: R. v. Aberdeen (E.B.)

Alberta Provincial Court

LeGrandeur, P.C.J.

July 27, 2005.

Summary:

On December 4, 2004, the accused committed a sexual assault. The Sex Offender Information Registration Act (SOIRA) came into force on December 15, 2004. On December 16, 2004, the accused was convicted for the sexual assault. The Crown applied for an order requiring the accused to comply with the SOIRA.

The Alberta Provincial Court dismissed the application.

Civil Rights - Topic 3765

Punishment - General - Variation of punishment after offence - Benefit of lesser punishment - An accused committed a sexual assault before the Sex Offender Information Registration Act came into force, but was convicted and sentenced after it was in force - The Crown applied for a registration order - At issue was whether a registration order was a punishment within the meaning of the Charter s. 11(i) - The Alberta Provincial Court held that it was and dismissed the Crown's application - Being compelled to report to state officials, perhaps for life under pain of criminal sanction, was a coercive act and clearly an infringement of liberty - The significant ongoing consequences of the order's application were tantamount to continuing community supervision even after the primary sentence had been served - The order's punitive nature was further defined by the deterrent effect it might have on members of the public who would know that such an order was possible if a designated offence were committed - Because the legislation authorizing the imposition of the punishment (the order) was proclaimed after the accused had committed the offence, the making of the order would have violated s. 11(i) - See paragraphs 20 to 24 and 46 to 91.

Civil Rights - Topic 3766

Punishment - General - Punishment defined - [See Civil Rights - Topic 3765 ].

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - Application - Section 11 - An accused committed a sexual assault before the Sex Offender Information Registration Act (SOIRA) came into force, but was convicted and sentenced after it was in force -The Crown applied for a registration order - At issue was whether the Charter s. 11(i) applied to an order made under the SOIRA - The Alberta Provincial Court held that s. 11(i) applied and dismissed the Crown's application - Section 11(i) embodied the principle that it would be unfair to punish an individual in a manner that exceeded the punishment available when the offence was committed - The term "punishment" was not confined to the narrow legal definition that corresponded to a formal sentence of the court - If the consequences being considered by the court arose from a criminal offence, s. 11 applied prima facie - A registration order could only be imposed where an accused had been convicted of a designated criminal offence - As a direct consequence of a criminal offence, the imposition of a registration order was caught by s. 11(i) - See paragraphs 25 to 47.

Criminal Law - Topic 3090.2

Special powers - Sex offender registration legislation - Interpretation and validity of - [See Civil Rights - Topic 3765 ].

Criminal Law - Topic 3090.2

Special powers - Sex offender registration legislation - Interpretation and validity of - An accused committed a sexual assault before the Sex Offender Information Registration Act (the Act) came into force, but was convicted and sentenced after the Act was in force - At issue was the Act's retrospective effect - The Alberta Provincial Court held that the Act was intended to have retrospective application to the designated offences back to 1970 where the accused was sentenced for the offence after the Act came into force or where the accused was still serving a sentence imposed for an offence that had occurred before the Act came into force - The court noted that s. 490.012 of the Criminal Code directed that an order under the Act was to be made at the time of sentencing for a designated offence or as soon as was reasonable afterward, rather than limiting the Act's application to offences committed after the Act came into force - See paragraphs 4 to 19.

Criminal Law - Topic 3090.4

Special powers - Sex offender registration legislation - Registration - When available - [See Civil Rights - Topic 3765 ].

Criminal Law - Topic 5602

Punishments (sentence) - General principles - Punishment defined - [See Civil Rights - Topic 3765 ].

Criminal Law - Topic 5609

Punishments (sentence) - General principles - Right to benefit of lesser punishment - [See Civil Rights - Topic 3765 ].

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - [See second Criminal Law - Topic 3090.2 ].

Statutes - Topic 6705

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity or retroactivity rebutted - [See second Criminal Law - Topic 3090.2 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See second Criminal Law - Topic 3090.2 ].

Words and Phrases

Punishment - The Alberta Provincial Court held that a registration order made pursuant to the Sex Offender Information Registration Act was a "punishment" within the meaning of s. 11(i) of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 20 to 24 and 46 to 91.

Cases Noticed:

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 5].

Upper Canada College v. Smith (1920), 61 S.C.R. 413, refd to. [para. 9].

R. v. Rouschop, [2005] O.J. No. 1336 (C.J.), refd to. [para. 17].

R. v. Cross (J.E.) (2005), 235 N.S.R.(2d) 93; 747 A.P.R. 93 (Prov. Ct.), refd to. [para. 22].

R. v. Big M Drug Mart Ltd. (1985), 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321 (S.C.C.), refd to. [para. 26].

R. v. Wigglesworth (1987), 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 60 C.R.(3d) 193 (S.C.C.), refd to. [para. 37].

R. v. Lambert (G.) (1994), 123 Nfld. & P.E.I.R. 347; 382 A.P.R. 347; 93 C.C.C.(3d) 88 (Nfld. C.A.), refd to. [para. 46].

R. v. G.J.M. (1993), 135 A.R. 204; 33 W.A.C. 204 (C.A.), refd to. [para. 49].

R. v. K.D.O. - see R. v. G.J.M.

R. v. Ferris (W.) (1994), 153 N.B.R.(2d) 241; 392 A.P.R. 241; 35 C.R.(4th) 52 (C.A.), refd to. [para. 53].

McCutcheon v. Toronto (City) (1983), 147 D.L.R.(3d) 193 (Ont. H.C.), refd to. [para. 54].

R. v. Morrissette et al. (1970), 12 C.R.N.S. 392 (Sask. C.A.), refd to. [para. 56].

R. v. Herman (1985), 1 C.N.L.R. 72 (Sask. Prov. Ct.), refd to. [para. 56].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 62].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 63].

R. v. Have, [2005] O.J. No. 388 (C.J.), refd to. [para. 68].

R. v. Budreo (W.) (2000), 128 O.A.C. 105; 142 C.C.C.(3d) 225 (C.A.), refd to. [para. 76].

R. v. Lamouche (K.W.) et al. (2000), 267 A.R. 347; 2000 CarswellAlta 707 (Q.B.), not folld. [para. 79].

Bulmer v. Alberta (Solicitor General) and Registrar of Motor Vehicles (Alta.) (1987), 76 A.R. 194 (Q.B.), not folld. [para. 80].

Barry and Brosseau v. Alberta Securities Commission (1986), 67 A.R. 222; 25 D.L.R.(4th) 730; 1986 CarswellAlta 490 (C.A.), not folld. [para. 80].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(i) [para. 3].

Criminal Code, R.S.C. 1985, c. C-46, sect. 490.012(1)(a) [para. 10].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), paras. 922 [para. 6]; 923 [para. 8].

Hart, H.L.A., Punishment and Responsibility: Essays in the Philosophy of Law (1968), pp. 4, 5 [para. 57].

Hogg, Peter W., Constitutional Law of Canada, pp. 33-17 [para. 25]; 33-34 [para. 28].

Sharpe, Robert J., Swinton, Katherine E., and Roach, Kent, The Charter of Rights and Freedoms (2nd Ed. 2002), p. 50 [para. 86].

Stuart, Donald, Canadian Criminal Law (2nd Ed. 1987), p. 27 [para. 7].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 547 to 553 [para. 4]; 562 [para. 9].

Williams, Glanville, Criminal Law - The General Part (2nd Ed. 1961), generally [para. 29]; pp. 575 to 576, para. 184 [para. 55].

Counsel:

E. Olson, for the Crown;

C. Connolly, for the accused.

This application was heard on May 23, 2005, by LeGrandeur, P.C.J., of the Alberta Provincial Court, who delivered the following judgment orally on July 27, 2005, and in writing on August 3, 2005.