R. v. Obey (M.F.), (2015) 478 Sask.R. 82 (PC)

• Judge: Tomkins, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: July 15, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 478 Sask.R. 82 (PC);2015 SKPC 99

R. v. Obey (M.F.) (2015), 478 Sask.R. 82 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.047

Her Majesty the Queen v. Marvin Obey

(Information: 24484253; 2015 SKPC 99)

Indexed As: R. v. Obey (M.F.)

Saskatchewan Provincial Court

Tomkins, P.C.J.

July 15, 2015.

Summary:

The accused was convicted of assault with a weapon. The Crown applied pursuant to s. 752.1 of the Criminal Code for an order remanding the accused for assessment by experts to be used in an application to declare him a long-term or dangerous offender.

The Saskatchewan Provincial Court, in a decision reported at (2014), 437 Sask.R. 36, granted the order. The accused filed a Charter application, alleging that the combined effect of two Criminal Code provisions respecting dangerous offenders (ss. 753 and 753.01) were contrary to ss. 7 and 12 of the Charter.

The Saskatchewan Provincial Court refused to consider the accused's application on the basis that the potential consequences of s. 753.01 were wholly hypothetical at this point in the proceedings. Accordingly, the accused was essentially applying for a declaratory judgment as to the validity of s. 753.01, and the provincial court did not have jurisdiction to make a declaratory order.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - [See Courts - Topic 8128 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Courts - Topic 8128 ].

Civil Rights - Topic 8582

Canadian Charter of Rights and Freedoms - Practice - Charter application - Grounds for precluding - Section 753 of the Criminal Code stated that a court "shall" designate an offender as a dangerous offender once the Crown had proven certain prerequisites - Section 753.01 applied when a dangerous offender was subsequently convicted of a serious personal injury offence or a breach of a long-term supervision order - It provided that the offender could be sentenced to an indeterminate period of detention or a new period of long-term supervision, but it did not require a re-determination of dangerousness - Obey was the subject of a s. 753 application - He argued that the combined effect of ss. 753 and 753.01 were contrary to ss. 7 and 12 of the Charter, as a designation under s. 753 would potentially expose him to the consequences of s. 753.01, and this potential would hang over him for life - The Saskatchewan Provincial Court declined to consider Obey's Charter application on the basis that it was wholly hypothetical - Section 753.01 did not currently and might never apply to Obey - The fact that the court's decision on the s. 753 application might bring into play other provisions that might be susceptible to a Charter challenge did not bring those provisions within the purview of the court in advance of their arising in fact - Without a factual foundation as to the circumstances which might bring Obey within the ambit of s. 753.01, an assessment of the effects of the impugned provisions could not be thorough or precise - See paragraphs 49 to 67.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 8582 ].

Courts - Topic 5688

Provincial courts - Jurisdiction or powers - Federal legislation - Declaratory relief - [See Courts - Topic 8128 ].

Courts - Topic 8128

Provincial courts - Saskatchewan - Provincial Court - Jurisdiction - Charter remedies - The Crown applied to have Obey declared to be a dangerous offender under s. 753 of the Criminal Code - If the Crown succeeded in its application, and if Obey was subsequently convicted of a serious personal injury offence or a breach of a long-term supervision order, s. 753.01 could apply and Obey could be sentenced to an indeterminate period of detention or a new period of long-term supervision without a re-determination of dangerousness - Obey filed a Charter application, arguing that the combined effect of ss. 753 and 753.01 were contrary to ss. 7 and 12 of the Charter - The Saskatchewan Provincial Court declined to consider Obey's application on the basis that it was wholly hypothetical at this point in the proceedings - Accordingly, Obey was essentially applying for a declaratory judgment as to the validity of s. 753.01, and the provincial court did not have jurisdiction to make a declaratory order - See paragraphs 68 to 70.

Counsel:

Theodore Litowski, for the Crown;

Andrew Hitchcock, for the accused.

This application was heard at Regina, Saskatchewan, before Tomkins, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on July 15, 2015.