R. v. B.R.K., 2011 ABQB 746

• Judge: Strekaf, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 08, 2011
• Citations: 2011 ABQB 746;(2011), 530 A.R. 238 (QB)

R. v. B.R.K. (2011), 530 A.R. 238 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.083

Her Majesty the Queen (appellant) v. B.R.K. (respondent)

(090874066S1; 2011 ABQB 746)

Indexed As: R. v. B.R.K.

Alberta Court of Queen's Bench

Judicial District of Calgary

Strekaf, J.

December 6, 2011.

Summary:

A young offender (K.) was sentenced to an 18 month probation order. One condition stated that he "... follow the curfew that will be imposed by your Probation Officer in consultation with your Child and Family Services Caseworker. ..." K. was charged under s. 137 of the Youth Criminal Justice Act (YCJA) with willfully failing and refusing to comply with a term of a sentence imposed under the YCJA. At trial, K. argued that the curfew term in the probation order was unenforceable as it was an improper delegation to the probation officer of a judicial function. The Crown argued that the delegation was proper and K. was attempting a collateral attack on the condition. The trial judge dismissed the charge. The Crown appealed.

The Alberta Court of Queen's Bench allowed the appeal on the basis that the trial judge erred in holding that the collateral attack doctrine did not apply. However, the Crown had advised at the outset of the hearing that the charges would be stayed if the appeal was successful. Thus, there was no need to order a new trial. The court held that the trial judge made no legal error in concluding that delegating the setting of a curfew was an improper delegation of a judicial function.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5612

Punishments - Prohibition against delegation by trial judge of sentencing power - The Alberta Court of Queen's Bench held that delegating the setting of a curfew to a probation officer was an improper delegation of a judicial function - The setting of a curfew was punitive and therefore a judicial, not an administrative function - The court held that it was a judicial function to determine the maximum amount of curfew that could be imposed on a young person, pursuant to s. 55(2)(h) of the Youth Criminal Justice Act, but it would be permissible for the court to grant a probation officer the flexibility to permit exceptions to that curfew as part of their supervisory role, pursuant to s. 55(2)(a) - See paragraphs 13 to 22.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The Alberta Court of Queen's Bench stated that "The standard of review on a summary conviction appeal brought by the Crown is correctness for errors of law, and palpable and overriding error for errors of fact or of mixed fact and law." - See paragraph 7.

Criminal Law - Topic 8809.3

Young offenders - Decisions (incl. punishments) - Probation - Conditions - House arrest or curfew - [See Criminal Law - Topic 5612 ].

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - A young offender (K.) was sentenced to an 18 month probation order - One condition stated that he "... follow the curfew that will be imposed by your Probation Officer in consultation with your Child and Family Services Caseworker. ..." - K. was charged under s. 137 of the Youth Criminal Justice Act (YCJA) with willfully failing and refusing to comply with a term of a sentence imposed under the YCJA - At trial, K. argued that the curfew term in the probation order was unenforceable as it was an improper delegation to the probation officer of a judicial function - The Crown argued that the delegation was proper and K. was attempting a collateral attack on the condition - The trial judge dismissed the charge - On appeal, the Alberta Court of Queen's Bench held, inter alia, that the trial judge erred in holding that the collateral attack doctrine did not apply - K. could have appealed the probation order or sought a review under s. 59 of the YCJA - An arguably impermissible delegation of authority by a sentencing judge was not the type of jurisdictional error that allowed a party to legally challenge a probation clause after violating the order - See paragraphs 9 to 12.

Cases Noticed:

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 9].

R. v. D.C. (2010), 361 Sask.R. 163; 2010 SKPC 132, refd to. [para. 11].

R. v. Coppola, 2007 ONCJ 184, refd to. [para. 11].

R. v. Desjarlais, 2005 NWTTC 13, refd to. [para. 11].

R. v. D.A.H., [2005] A.R. Uned. 745; 2005 ABQB 404, refd to. [para. 11].

R. v. Reed (J.) (1994), 49 B.C.A.C. 180; 80 W.A.C. 180; 24 C.R.R.(2d) 163 (C.A.), refd to. [para. 11].

R. v. Traverse (B.R.) (2006), 201 Man.R.(2d) 212; 366 W.A.C. 212; 205 C.C.C.(3d) 33; 2006 MBCA 7, refd to. [para. 17].

Counsel:

Ian McNich (Youth Criminal Defence Office), for the respondent;

Kyra Kondo (Crown Prosecutor's Office), for the Crown.

This appeal was heard on September 8, 2011, by Strekaf, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on December 6, 2011.