R. v. Unruh (L.E.), (2012) 394 Sask.R. 271 (PC)

• Judge: Whelan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 27, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 394 Sask.R. 271 (PC);2012 SKPC 51

R. v. Unruh (L.E.) (2012), 394 Sask.R. 271 (PC)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AP.018

Her Majesty the Queen v. Leon Edward Unruh

(Information No. 446611829; 2012 SKPC 51)

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

Saskatchewan Provincial Court

Whelan, P.C.J.

March 27, 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 refused to impose the condition.

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 Saskatchewan Provincial Court stated that the Supreme Court of Canada, in R. v. Shoker (H.S.) (2006), "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 Court did not find it necessary to address the constitutional validity of such conditions where the accused consents, having ruled that the Court was simply without jurisdiction to impose such conditions." - An accused could not consent to the court having jurisdiction - In the absence of a clearly mandated scheme enacted by Parliament, as envisaged in Shoker, the court was not prepared to impose the random search clause.

Cases Noticed:

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

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 4].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 4].

R. v. Cooper (S.S.), [2007] A.R. Uned. 139 (C.A.), refd to. [para. 4].

R. v. D.J.P., [2006] B.C.J. No. 909 (C.A.), refd to. [para. 4].

R. v. Woroby (T.W.) (2003), 173 Man.R.(2d) 178; 293 W.A.C. 178; 2003 MBCA 41, refd to. [para. 4].

R. v. Eriksen (J.A.) (2005), 216 B.C.A.C. 158; 356 W.A.C. 158; 2005 YKCA 5, refd to. [para. 4].

R. v. Eichmuller (N.C.) (2005), 370 A.R. 231; 2005 ABQB 90, refd to. [para. 4].

R. v. Smith, [2008] O.J. No. 4558 (Sup. Ct.), refd to. [para. 4].

R. v. Morin (2009), 337 Sask.R. 144; 464 W.A.C. 144 (C.A.), refd to. [para. 4].

R. v. Vessey (D.) (2007), 298 Sask.R. 205; 2007 SKPC 94, refd to. [para. 14].

R. v. Shoker (H.S.) (2004), 206 B.C.A.C. 266; 338 W.A.C. 266; 192 C.C.C.(3d) 176; 2004 BCCA 643, refd to. [para. 12].

R. v. Demchuk (R.M.) (2003), 180 Man.R.(2d) 130; 310 W.A.C. 130; 2003 CarswellMan 508 (C.A.), refd to. [para. 22].

Counsel:

M. Segu, for the Crown;

L. Watson, for the accused.

This matter was heard at Saskatoon, Saskatchewan, by Whelan, P.C.J., of the Saskatchewan Provincial Court, who delivered the following reasons for sentencing decision on March 27, 2012.