R. v. Cross (J.E.), 2006 NSCA 30

• Jurisdiction: Nova Scotia
• Judge: MacDonald, C.J.N.S., Roscoe and Bateman, JJ.A.
• Neutral Citation: 2006 NSCA 30
• Citation: 2006 NSCA 30,(2006), 241 N.S.R.(2d) 349 (CA),263 DLR (4th) 259,205 CCC (3d) 289,37 CR (6th) 81,AZ-50469533,[2006] NSJ No 87 (QL),138 CRR (2d) 163,241 NSR (2d) 349,241 NSR(2d) 349,(2006), 241 NSR(2d) 349 (CA),[2006] NS.J. No 87 (QL),263 D.L.R. (4th) 259,241 N.S.R.(2d) 349
• Date: 13 February 2006
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Cross (J.E.) (2006), 241 N.S.R.(2d) 349 (CA);

    767 A.P.R. 349

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MR.024

Her Majesty the Queen (appellant) v. James Everett Cross (respondent)

(CAC 251898; 2006 NSCA 30)

Indexed As: R. v. Cross (J.E.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Roscoe and Bateman, JJ.A.

March 9, 2006.

Summary:

The accused was sentenced for the offences of assault, sexual assault and unlawful confinement. The Sex Offender Information Registration Act (SOIRA) came into force after the offences were committed, but before the accused was sentenced. The Crown sought a registration order under the SOIRA.

The Nova Scotia Provincial Court, in a decision reported at 235 N.S.R.(2d) 93; 747 A.P.R. 93, dismissed the application. The court held that a SOIRA registration order was a "punishment" within the meaning of s. 11(i) of the Charter and since it was a punishment that was proclaimed after the commission of the accused's offences, it would violate the accused's right to the benefit of the lesser punishment in s. 11(i) to impose it in this case. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal. The court held that a SOIRA registration order was not a "punishment" within s. 11(i) of the Charter and that the trial judge erred in not making the order on the record before him.

Civil Rights - Topic 3765

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

Civil Rights - Topic 3766

Punishment - General - Punishment defined - Section 11(i) of the Charter stated that a person charged with an offence had the right "if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment" - The Nova Scotia Court of Appeal considered the meaning of "punishment" in s. 11(i) - The court stated "I draw the following guidance from the authorities: punishment in s. 11(i) encompasses more than the official sentence of the court; in interpreting s. 11(i) one must be alive to practical consideration and not overshoot the purpose of the right; the characteristics of punishment generally include some deprivation of liberty, unpleasant consequences and public condemnation; all ex post facto treatments of an offender, consequent on conviction, are not viewed as punishment; a true penal consequence is one which, by its magnitude, would appear to be imposed for the purpose of redressing the wrong done to society; the Charter does not protect against insignificant or trivial limitations of rights" - See paragraph 46.

Civil Rights - Topic 3766

Punishment - General - Punishment defined - The accused was sentenced for the offences of assault, sexual assault and unlawful confinement - The Sex Offender Information Registration Act (SOIRA) came into force after the offences were committed, but before the accused was sentenced - The Crown sought a registration order under the SOIRA - The trial judge dismissed the application - The trial judge held that a SOIRA registration order was a "punishment" within the meaning of s. 11(i) of the Charter and since it was a punishment that was proclaimed after the commission of the accused's offences, it would violate the accused's right to the benefit of the lesser punishment in s. 11(i) to impose it in this case - The Crown appealed - The Nova Scotia Court of Appeal allowed the appeal -The court held that a SOIRA registration order was not a "punishment" within s. 11(i) of the Charter and that the trial judge erred in not making the order on the record before him.

Civil Rights - Topic 3766

Punishment - General - Punishment defined - The Nova Scotia Court of Appeal held that a registration order under the Sex Offender Information Registration Act was not a "punishment" within s. 11(i) of the Charter - The court further stated that while there might be an unusual case where the impact of the order could constitute "severe handling" or "harsh treatment" that was characteristic of punishment, the exemption provision in s. 490.012(4) of the Criminal Code would provide adequate protection in such a situation - See paragraphs 84 to 86.

Criminal Law - Topic 3090.4

Special powers - Sex offender registration legislation - Registration - When available - [See second Civil Rights - Topic 3766 ].

Criminal Law - Topic 3090.5

Special powers - Sex offender registration legislation - Registration - Exceptions - [See third Civil Rights - Topic 3766 ].

Criminal Law - Topic 5602

Punishments (sentence) - General principles - Punishment defined - [See all Civil Rights - Topic 3766 ].

Criminal Law - Topic 5609

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

Words and Phrases

Punishment - The Nova Scotia Court of Appeal considered the meaning of the word "punishment" in s. 11(i) of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 23 to 84.

Cases Noticed:

R. v. Aberdeen (E.B.) (2005), 387 A.R. 269 (Prov. Ct.), consd. [para. 8].

R. v. Rouschop, [2005] O.J. No. 1336 (C.J.), consd. [para. 8].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 21].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 22].

R. v. S.B. (1983), 146 D.L.R.(3d) 69 (B.C.C.A.), consd. [para. 23].

R. v. T.R. (1984), 51 A.R. 63; 7 D.L.R.(4th) 263 (Q.B.), consd. [para. 24].

R. v. T.R. (1983), 50 A.R. 56 (Q.B.), refd to. [para. 24].

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.), consd. [para. 25].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 24 O.A.C. 321; 61 Sask.R. 105, consd. [para. 26].

R. v. Shubley, [1990] 1 S.C.R. 3; 104 N.R. 81; 37 O.A.C. 63, consd. [para. 32].

Johnston v. Superintendent of Motor Vehicles (B.C.) et al. (1987), 46 M.V.R. 59 (B.C.S.C.), consd. [para. 35].

Prince Edward Island (Provincial Secretary) v. Egan, [1941] S.C.R. 396, refd to. [para. 35].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, consd. [para. 36].

R. v. Budreo (W.) (2000), 128 O.A.C. 105; 142 C.C.C.(3d) 225 (C.A.), consd. [para. 38].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, consd. [para. 41].

R. v. Murrins (D.) (2002), 201 N.S.R.(2d) 288; 629 A.P.R. 288 (C.A.), refd to. [para. 48].

R. v. Jackpine (R.) (2004), 184 O.A.C. 354; 70 O.R.(3d) 97 (C.A.), refd to. [para. 48].

R. v. Have (2005), 194 C.C.C.(3d) 151 (Ont. C.J.), refd to. [para. 49].

R. v. Dyck (A.), [2005] O.T.C. 1119 (Sup. Ct.), consd. [para. 49].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1, refd to. [para. 50].

R. v. R.C. (2005), 340 N.R. 53; 237 N.S.R.(2d) 204; 754 A.P.R. 204 (S.C.C.), refd to. [para. 50].

R. v. P.R.F. (2001), 153 O.A.C. 167; 161 C.C.C.(3d) 275 (C.A.), refd to. [para. 50].

R. v. Dyck (2004), 187 C.C.C.(3d) 73 (Ont. C.J.), consd. [para. 62].

R. v. Briggs (W.) (2001), 149 O.A.C. 244; 157 C.C.C.(3d) 38 (C.A.), refd to. [para. 64].

Ibbotson v. United Kingdom (1998), 27 E.H.R.R. C.D. 332, consd. [para. 70].

Adamson v. United Kingdom (1999), 28 E.H.R.R. C.D. 209, consd. [para. 74].

Smith v. Doe (2003), 538 U.S. 84, consd. [para. 75].

Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144; 9 L. Ed.2d 644; 83 S. Ct. 554, refd to. [para. 77].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257, refd to. [para. 86].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 86].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

Statutes Noticed:

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

Authors and Works Noticed:

McInnes, John, Section 487.055 The Retroactive DNA Data Bank Provisions: A Survey of Constitutional Issues (2003), Paper presented to the Fifth Annual Canadian Symposium on Forensic DNA Evidence: Pushing the Limits, QL, PDNA/RP-012, para. 25 [para. 34].

Counsel:

Daniel A. MacRury, Q.C., for the appellant;

Roger Burrill, for the respondent.

This appeal was heard on February 13, 2006, at Halifax, Nova Scotia, before MacDonald, C.J.N.S., Roscoe and Bateman, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bateman, J.A., on March 9, 2006.