R. v. C.L.B., (2010) 477 A.R. 365 (CA)

• Judge: Berger, Costigan and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 26, 2009
• Citations: (2010), 477 A.R. 365 (CA);2010 ABCA 134

R. v. C.L.B. (2010), 477 A.R. 365 (CA);

      483 W.A.C. 365

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.149

Her Majesty the Queen (respondent) v. C.L.B. (appellant)

(0803-0097-A; 2010 ABCA 134)

Indexed As: R. v. C.L.B.

Alberta Court of Appeal

Berger, Costigan and Rowbotham, JJ.A.

April 26, 2010.

Summary:

The accused was convicted of touching for a sexual purpose (Criminal Code, s. 151). On July 2, 2002, he was sentenced to a 23 month conditional sentence order and probation and was ordered to provide a DNA sample. On December 15, 2004, the Sex Offender Information Registration Act (SOIRA) was proclaimed into law. On October 20, 2005, the applicant was served with a notice to comply with SOIRA pursuant to s. 490.019 of the Code. The accused argued that SOIRA and the related Code provisions imposed penal consequences that could not be applied as against a person who had already been convicted and sentenced, because this would infringe his Charter rights under ss. 11(h) and (i) not to be subjected to additional or retrospective punishment and were therefore of no force and effect.

The Alberta Court of Queen's Bench, in a decision reported at 428 A.R. 295, dismissed the application. SOIRA and the related Code provisions did not impose a punishment and therefore did not violate ss. 11(h) or (i) of the Charter. The accused appealed.

The Alberta Court of Appeal dismissed the appeal.

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.

Civil Rights - Topic 3131.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to benefit of lesser punishment (Charter, s. 11(i)) - [See Civil Rights - Topic 3766 ].

Civil Rights - Topic 3764

Punishment - General - Double punishment prohibited (Charter, s. 11(h)) - [See Civil Rights - Topic 3766 ].

Civil Rights - Topic 3765

Punishment - General - Variation of punishment after offence - Benefit of lesser punishment - [See Civil Rights - Topic 3766 ].

Civil Rights - Topic 3766

Punishment - General - Punishment defined - The accused was convicted of touching for a sexual purpose - In 2002, he was sentenced to a 23 month conditional sentence order and probation and was ordered to provide a DNA sample - On December 15, 2004, the Sex Offender Information Registration Act (SOIRA) was proclaimed into law - On October 20, 2005, the applicant was served with a notice to comply with SOIRA pursuant to s. 490.019 of the Criminal Code - The accused argued that SOIRA and the related Code provisions imposed penal consequences that could not be applied as against a person who had already been convicted and sentenced, because this would infringe his Charter rights under ss. 11(h) and (i) not to be subjected to additional or retrospective punishment and were therefore of no force and effect - The trial judge rejected the argument - Section 11(h) and (i) applied only where the real object of the legislation was to punish or where the legislation imposed a true penal consequence - SOIRA and the related Code provisions did not impose a punishment and therefore did not violate ss. 11(h) or (i) of the Charter - SOIRA orders were not punishments - They were not imposed in furtherance of the purpose and principles of sentencing - The Alberta Court of Appeal dismissed the accused's appeal - As the registration of an offender under the SOIRA did not constitute punishment, it could not offend either ss. 11(h) or (i) of the Charter.

Civil Rights - Topic 8416

Canadian Charter of Rights and Freedoms - Criminal proceedings - Right to lesser punishment where punishment varied - [See Civil Rights - Topic 3766 ].

Courts - Topic 77

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Reconsideration - The Alberta Court of Appeal dismissed an appellant application for leave to reconsider a relatively recent decision of the court - The court stated that it was slow to exercise its power to reconsider previous cases - The fact that the decision was a Memorandum of Judgment delivered from the Bench did not by itself warrant reconsideration - The decision was in agreement with the appellate decisions in every other jurisdiction that had addressed the issue - There was no obvious flaw in the reasoning of the decision or any of the other cases cited in support of the proposition it stood for - No binding authority had been overlooked - See paragraphs 5 to 8 and 12 to 16.

Criminal Law - Topic 3090.2

Special powers - Sex offender registration legislation - Interpretation and validity of - [See Civil Rights - Topic 3766 ].

Criminal Law - Topic 5609

Punishment (sentence) - General principles - Right to benefit of lesser punishment - [See Civil Rights - Topic 3766 ].

Cases Noticed:

Veale v. Law Society of Alberta (2001), 304 A.R. 314; 2001 ABQB 923, refd to. [para. 1, footnote 1].

R. v. Warren (D.R.) (2010), 477 A.R. 370; 483 W.A.C. 370; 2010 ABCA 133, refd to. [para. 3].

R. v. L.S.Y. (2009), 457 A.R. 15; 457 W.A.C. 15; 2009 ABCA 89, refd to. [paras. 4, 12].

Barrett et al. v. Krebs et al. (1995), 174 A.R. 59; 102 W.A.C. 59 (C.A.), refd to. [paras. 5, 13].

McAteer v. Billes et al. (2006), 397 A.R. 365; 384 W.A.C. 365; 2006 ABCA 312, refd to. [paras. 5, 14].

R. v. Cross (J.E.) (2006), 241 N.S.R.(2d) 349; 767 A.P.R. 349; 2006 NSCA 30, refd to. [para. 6].

R. v. S.S.C. (2008), 257 B.C.A.C. 57; 432 W.A.C. 57; 234 C.C.C.(3d) 365; 2008 BCCA 262, refd to. [para. 6].

R. v. Thériault, 2009 QCCA 185, refd to. [para. 6].

R. v. Morin, 2009 QCCA 187, refd to. [para. 6].

R. v. Asselin, 2009 QCCA 188, refd to. [para. 6].

R. v. Turgeon, 2009 QCCA 186, refd to. [para. 6].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 24 O.A.C. 321; 61 Sask.R. 105, refd to. [para. 9].

R. v. Dyck (A.) (2008), 236 O.A.C. 26; 90 O.R.(3d) 409; 2008 ONCA 309, refd to. [para. 9].

R. v. Hartfeil, [1920] 3 W.W.R. 1051 (Alta. C.A.), refd to. [para. 13].

R. v. Beaudry (M.J.) (2000), 271 A.R. 219; 234 W.A.C. 219; 2000 ABCA 243, refd to. [para. 14].

Counsel:

D.C. Marriott, Q.C., for the respondent;

G.M. Johnson, for the appellant.

This appeal was heard on November 26, 2009, before Berger, Costigan and Rowbotham, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was delivered on April 26, 2010, and the following opinions were filed:

Costigan, J.A. and Rowbotham, J.A. - see paragraphs 1 to 11;

Berger, J.A. (concurring in the result) - see paragraphs 12 to 16.