Friday, July 26, 2013

A search condition imposed on sentence without notice or consent is improper

R v Atadjuat, 2013 NUCA 06 holds a sentencing condition allowing a search of a convict's premises imposed by the Court without notice or consent is improper:

[1] Following a guilty plea, the appellant received a global sentence of 6 months custody and 18 months probation for one count of assault, one count of assault with a weapon, and nine counts of failing to comply with release conditions. The latter relate to breaches of court orders as a result of the consumption of alcohol.
[2] The appellant is a 40-year old Inuk with a grade 7 education. He began sniffing solvents at the age of eight and started drinking at 15. He has a lengthy criminal record dating back to 1987.
[3] While in pre-trial detention, he participated in the Alcoholics Anonymous Program.
[4] During sentencing, there was much discussion about conditions relating to the appellant's alcohol abuse. As a result, the probation order prohibited him from drinking alcohol.
[5] To ensure compliance, the sentencing judge also included the following term in the probation order: "[t]he RCMP has the right to search your home at any time for the presence of alcohol".
[6] The Crown did not propose this condition. Defence counsel attempted to object to it:
MS SALEH: Your Honour, with all due respect, ... I just take issue with the search condition --
THE COURT: Well, appeal it. You can appeal it. Let's go. We're done. Thank you.
[Transcript at 47/8-12]
[7] The appellant submits that the RCMP search condition violates section 732.1(3) of the Canadian Criminal Code, RSC 1985, c C-46, and R v Shoker, 2006 SCC 44, [2006] 2 SCR 399 [Shoker].
[8] The appellant appeals his sentence and submits that the sentencing judge erred in imposing the search condition. Regretfully, I agree. But I do so only on the basis that there was no notice to him that the condition might be imposed and no consent to the condition which, on the authority of Shoker, makes the condition problematic.
[9] I allow this appeal with regret because, although the impugned condition appears to have been imposed to assist the appellant in complying with the abstention order, and not as a means of enforcement as it was in Shoker, both the appellant and the respondent Crown have urged me to set it aside and therefore I do so.

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