The Court of Appeal of Alberta recently heard a matter which dealt with a repealed section of the Criminal Code. In R v Lepki, 2024 ABCA 257, the court grappled with an appeal application regarding section 490.012, which was no longer in force by the time the application was heard. The appellant’s application was ultimately denied.
Legal Context of Section 490.012
Between April 15, 2011, and October 25, 2023, section 490.012 of the Criminal Code was in force. This section required sentencing judges to order offenders convicted of certain designated criminal offences to comply with the Sex Offender Information Registration Act (the “SOIRA”).
On October 28, 2022, the Supreme Court held in R v Ndhlovu, 2022 SCC 38 that section 490.012 violated section 7 of the Charter. The court declared it with no force or effect but suspended the declaration of invalidity for one year.
On October 26, 2023, Bill S-12, which amended section 490.012, came into effect. Bill S-12 enacted section 490.04, a new provision which grants superior courts of criminal jurisdiction the statutory authority to exempt some offenders from the SOIRA.
Factual Context
In the spring of 2023, the appellants were convicted of designated sexual offences and sentenced while the declaration of invalidity was suspended. In January and February 2023, the appellants were sentenced in two sentencing hearings and applied for a constitutional exemption from the SOIRA. The sentencing judge disagreed that he had the authority to grant the exemption and issued a 20-year SOIRA order. The appellants appealed the decision to the Court of Appeal of Alberta.
Appeal Decision
On October 17, 2023, the appeal was heard and dismissed. The court held that the appellants sought relief that it could not grant. Section 490.012 no longer had the force of law, and the court was unable to exempt a provision that no longer applied. The appellant’s matter was now governed by section 490.04, and an application for an exemption must instead be brought to the Court of King’s Bench.
R v Lepki represents the importance of following legislative updates and changes. Applications that regard repealed sections cannot be granted by the courts. It is important to bring applications under the correct provisions to secure client interests and prevent unnecessary delays. For a more in-depth analysis of this decision, read the court’s complete reasoning here.
