R. v. Unruh (L.E.), (2012) 399 Sask.R. 66 (CA)

• Judge: Klebuc, C.J.S., Ottenbreit and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 12, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 399 Sask.R. 66 (CA);2012 SKCA 72

R. v. Unruh (L.E.) (2012), 399 Sask.R. 66 (CA);

    552 W.A.C. 66

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. JL.056

Her Majesty the Queen (appellant) v. Leon Edward Unruh (respondent)

(CACR2149; 2012 SKCA 72)

Indexed As: R. v. Unruh (L.E.)

Saskatchewan Court of Appeal

Klebuc, C.J.S., Ottenbreit and Herauf, JJ.A.

July 12, 2012.

Summary:

Unruh pled guilty to possession of child pornography. Counsel presented a joint sentencing submission for five months' incarceration followed by three years' probation. Unruh was to live with his parents on his release. A proposed probation condition was that Unruh was to submit to random searches of his "person, residence, vehicle or computer...". Both Unruh and his parents consented to the searches.

The Saskatchewan Provincial Court, in a decision reported at (2012), 394 Sask.R. 271, refused to impose the condition. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal. The impugned condition was to be included as part of the probation order with the proviso that any search had to take place between 8:00 a.m. and 8:00 p.m.

Criminal Law - Topic 5722

Punishments (sentence) - Probation or probation order - Jurisdiction - [See Criminal Law - Topic 5724 ].

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - [See Criminal Law - Topic 5724 ].

Criminal Law - Topic 5724

Punishments (sentence) - Probation or probation order - Unreasonable conditions - Unruh pled guilty to possession of child pornography - Counsel presented a joint sentencing submission for five months' incarceration followed by three years' probation - Unruh was to live with his parents on his release - A proposed probation condition was that Unruh was to submit to random searches of his "person, residence, vehicle or computer..." - Both Unruh and his parents consented to the searches - The sentencing judge refused to impose the condition, stating that R. v. Shoker (H.S.) (2006 S.C.C.) "very plainly directed that the provisions of the [Criminal] Code concerning the imposition of the optional probation conditions do not contemplate the imposition of random searches." - The Saskatchewan Court of Appeal allowed the Crown's appeal - Shoker applied only to the compelled seizure of bodily samples - Shoker did not state that all conditions imposed under s. 732.1(3)(h) of the Criminal Code that had a monitoring or enforcement aspect were without jurisdiction - Section 732.1(3)(h) permitted the court to impose "such other reasonable conditions as the court considers desirable..." - The unequivocal consent of a probationer to a proposed condition could be considered by the court when exercising its discretion under s. 732.1(3)(h) to impose "other reasonable conditions" - The impugned condition was to be included as part of the probation order with the proviso that any search had to take place between 8:00 a.m. and 8:00 p.m.

Cases Noticed:

R. v. Shoker (H.S.), [2006] 2 S.C.R. 399; 353 N.R. 160; 230 B.C.A.C. 1; 380 W.A.C. 1; 2006 SCC 44, consd. [para. 4].

R. v. Morin (2009), 337 Sask.R. 144; 464 W.A.C. 144; 2009 SKCA 74, refd to. [para. 9].

R. v. Koma (C.D.), [2008] A.R. Uned. 133; 2008 ABCA 206, refd to. [para. 9].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 732.1(3)(h) [para. 3].

Counsel:

W. Dean Sinclair, for the appellant;

Leon Edward Unruh, on his own behalf.

This appeal was heard and decided orally on July 12, 2012, by Klebuc, C.J.S., Ottenbreit and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On July 30, 2012, Herauf, J.A., delivered the following written reasons for judgment for the court.