Court of Appeal for Ontario
Judges: Doherty, Simmons and LaForme JJ.A.
Between:
Her Majesty the Queen Respondent
and
Thomas Shewchuk Appellant
Counsel: James Foord, for the appellant Emile Carrington, for the respondent
Heard: May 8, 2012
On appeal from the sentence imposed on May 11, 2010 by Justice C. Kehoe of the Ontario Court of Justice.
APPEAL BOOK ENDORSEMENT
1Assuming that an accused can waive the notice requirement in s. 727, and assuming that notice can be inferred from the conduct of the proceedings, as for example where counsel advance a joint submission calling for a penalty that could only be imposed if s. 727 notice was given, this is not a case where the record permits of a finding of waiver or an inference of notice.
2This record is not clear on those issues. In the absence of proof of notice, a lifetime prohibition was not available. In the absence of proof of notice, the maximum prohibition was that provided for in s. 259(1)(a), i.e. 3 years imprisonment: see R. v. Bursey, [2002] O.J. No. 115; R. v. Tabor, 2004 BCCA 191, [2004] B.C.J. No. 766.
3The appeal must be allowed. The lifetime prohibition is varied to 3 years, 9 months commencing on March 5, 2010, the date of conviction.