DATE: 20010409
DOCKET: C34564
COURT OF APPEAL FOR ONTARIO
ABELLA, ROSENBERG and GOUDGE JJ.A.
B E T W E E N :
Michael Ellis,
HER MAJESTY THE QUEEN
the appellant, in person
Respondent
Leslie Maunder,
- and -
duty counsel
MICHAEL ELLIS
Graeme Cameron,
for the respondent
Appellant
Heard: February 20, 2001
On appeal from his conviction by Justice Peter D. Griffiths on May 26, 2000 and from the sentence imposed on June 16, 2000.
ROSENBERG J.A.:
[1] This appeal from conviction and sentence was heard in Kingston. The appellant was assisted by duty counsel, who made submissions on his behalf. The appellant pleaded guilty to charges of criminal harassment, fail to comply with a recognizance, impaired driving and uttering a death threat. The total sentence imposed was two years’ imprisonment, three years’ probation, a three-year driving prohibition and a lifetime firearms prohibition. An important issue raised on this appeal is whether the trial judge erred in imposing the lifetime firearms prohibition.
THE FACTS
[2] The facts may be summarized as follows. On August 28, 1999, the appellant went to the complainant’s residence. The appellant and the complainant had previously been in a relationship. The appellant was intoxicated and an argument ensued because the complainant did not want the appellant in her home in that condition. Eventually, she agreed to let him in so that he could remove his furniture. The appellant again lost his temper and began smashing his furniture. He then threatened that if the complainant locked her door he would return and burn her house down. The appellant was arrested as a result of this conduct and placed on a recognizance requiring that he not consume alcohol.
[3] At about 3:30 a.m. on May 12, 2000, the appellant kicked in the door of the complainant’s residence. The complainant ordered the appellant to leave but he refused. Rather, he grabbed her by the hair and slammed her head against the wall. The appellant knew that the complainant had previously suffered a head injury and that further injuries could seriously affect her health. The appellant left when the complainant’s fifteen-year-old daughter said she was calling the police. About ten minutes later, the appellant telephoned the complainant and threatened her life if she called the police. About an hour later, while the police were in attendance at the complainant’s residence, the appellant drove by in his truck and honked his horn. The police gave chase and eventually apprehended him. The appellant displayed signs of impairment and he agreed to a breathalyzer demand. His blood alcohol level was found to be .209 and .190.
[4] At trial, the position of counsel for the appellant was that the appellant wanted a penitentiary term of two years’ imprisonment. The trial judge imposed a sentence of two years’ imprisonment and three years’ probation. The trial judge also imposed a lifetime firearms prohibition and a three-year driving prohibition.
THE APPEAL
[5] There is no merit to the conviction appeal. The appellant was represented by counsel and counsel placed on the record that he had written instructions concerning the plea and sentence submissions. The appellant has provided no basis for setting aside the plea.
[6] We are also of the view that the sentence of imprisonment and probation was appropriate, if at the high end of the range. The appellant has a lengthy record that includes convictions for criminal harassment, assault, failing to comply with a recognizance and various property offences.
THE FIREARMS PROHIBITION
[7] At trial, Crown counsel sought a ten-year firearms prohibition. The trial judge indicated in the course of submissions that he was considering a lifetime firearms prohibition. He said the following to defence counsel:
The Code says a minimum of ten years. Subsection (2) [of s. 109] indicates … it is a minimum of ten years. Given Mr. Ellis’ obvious temper, the fact that there is a prior conviction for criminal harassment, the nature of these charges combining alcohol and visits to the home when he was prohibited by the court from doing so, I propose to prohibit him for life, and I would like to, if you have any submissions in that regard, I don’t want to take you by surprise.
[8] In response, defence counsel indicated that the appellant is a hunter and although he did not have possession of any weapons, he had a valid firearms acquisition certificate. Defence counsel therefore sought the minimum mandatory ten-year prohibition.
[9] In the course of delivering his reasons for sentence, the trial judge stated that s. 109 mandated that there be a lifetime prohibition because the appellant had previously been convicted of criminal harassment. The trial judge stated:
Accordingly, I see this as a subsequent conviction and pursuant to s. 109(3) I prohibit him from having in his possession any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life.
[10] In her submissions to assist the appellant, Ms. Maunder argued that the trial judge had erred in sentencing the appellant on the basis that the lifetime firearms prohibition was mandatory. She submitted that the mandatory lifetime prohibition did not apply because the Crown had not served notice in accordance with s. 727 of the Criminal Code. The Court reserved its decision to consider this submission and invited counsel to provide written submissions on this issue. Mr. Cameron and Ms. Maunder have both provided written submissions on the issue. Counsel agree that since no notice was served, the mandatory lifetime prohibition did not apply. They also agree, however, that it was open to the trial judge, in the exercise of his discretion, to impose a prohibition in excess of the minimum ten years.
ANALYSIS
[11] Section 109 of the Criminal Code requires the sentencing court to impose an order prohibiting the offender from possessing certain weapons. The section contemplates two types of orders. The first, described in s. 109(2)(a), deals with firearms, cross-bows, restricted weapons, ammunition and explosive substances. For convenience, I will describe this as a firearms prohibition order.[^1] The judge is required to make the order where the offender was convicted of certain offences, such as criminal harassment. The second type of order is described in s. 109(2)(b) and refers to prohibited and restricted firearms, and prohibited weapons, devices and ammunition. That order is not an issue in this appeal.
[12] The wording of s. 109 is somewhat convoluted and so below I have reproduced the section, eliminating words that are not necessary to understand the issue as it arises in this case.
- (1) Where a person is convicted … of
(b) … section 264 (criminal harassment),
the court that sentences the person … shall, in addition to any other punishment that may be imposed for that offence … make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.
(2) An order made under subsection (1) shall, in the case of a first conviction for … the offence to which the order relates, prohibit the person from possessing
(a) any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance during the period that
(i) begins on the day on which the order is made, and
(ii) ends not earlier than ten years after the person's release from imprisonment after conviction for the offence … and
(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
(3) An order made under subsection (1) shall, in any case other than a case described in subsection (2), prohibit the person from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. [Emphasis added.]
[13] The effect of the section is this. By virtue of s-s. (2), “in the case of a first conviction”, the firearms prohibition must be for at least ten years. It was common ground, however, that the judge may impose a longer prohibition up to life. By virtue of s-s. (3), “in any [other] case”, the firearms prohibition must be for life. This was not the appellant’s first conviction for an offence set out in s. 109(1). He had previously been convicted of criminal harassment. The issue raised by this appeal is whether the lifetime prohibition was mandatory in the absence of notice that the Crown was seeking such an order. That depends upon whether s. 727(1) of the Criminal Code applies. Again, eliminating unnecessary words, the provision is as follows:
- (1) … where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.
[14] It is conceded in this case that the prosecution did not give the appellant notice prior to his plea that “a greater punishment would be sought by reason” of previous convictions. I agree with the submissions of counsel that s. 727(1) applied in the circumstances of this case. Although the judge still has a discretion to impose a lifetime firearms prohibition for a first offence, the fact that such a prohibition is mandatory for a subsequent offence is, in my view, a greater punishment by reason of the previous conviction within the meaning of s. 727(1).
[15] The situation is little different from the more familiar applications of s. 727, as in the drinking and driving context. For example, under s. 255(1) of the Criminal Code, the maximum penalty where the Crown proceeds by indictment for impaired operation simpliciter is five years’ imprisonment. There is no minimum term of imprisonment for a first offence. The minimum term for a second offence is fourteen days. The judge can impose a term of imprisonment, including a term of fourteen days, although the prosecution has not served the s. 727 notice: R. v. Norris (1988), 41 C.C.C. (3d) 441 (N.W.T.C.A.) and R. v. Kumar (1993), 85 C.C.C. (3d) 417 (B.C.C.A.). The minimum fourteen-day sentence is mandatory, however, only where the prosecution has given notice in accordance with s. 727, proved service of the notice, and proved the prior conviction for the purpose of seeking the greater punishment.
[16] I can see no basis for not applying s. 727(1) in the context of the s. 109 firearms prohibition order. Such an order is “punishment”, even if the primary objective of the order is preventative. The other appellate courts that have considered this issue under predecessor legislative provisions, which were worded similarly to s. 109, have held that s. 727 (or the predecessor provision, s. 665) applies: R. v. King (1996), 107 C.C.C. (3d) 542 (P.E.I.C.A.); R. v. Ferguson (1995), 105 W.A.C. 211 (B.C.C.A.); R. v. Jobb (1988), 43 C.C.C. (3d) 476 (Sask. C.A.). Finally, in a short endorsement this court varied a lifetime prohibition order to ten years because “no notice had been given by the Crown to seek an order for life by reason of a prior conviction”: R. v. Saunders, [1995] O.J. No. 2152.
[17] Accordingly, I conclude that the trial judge erred in imposing a lifetime firearms prohibition on the basis that such an order was mandatory. The question nevertheless remains whether this court should vary the lifetime firearms prohibition. It will be seen from the excerpts of the trial record set out above that, at least before he heard submissions on the issue, the trial judge was considering a lifetime order even on the assumption that the minimum was only ten years. Counsel for the respondent Crown submits that, notwithstanding the trial judge’s error, having regard to the nature of the offence, the appellant’s problems with controlling his anger when intoxicated and his prior record, the lifetime prohibition was proper. Ms. Maunder submits that it is apparent that the trial judge imposed the lifetime ban solely because he felt obliged to do so under s. 109(3) and that this court should substitute a ten-year prohibition.
[18] I agree with counsel for the respondent that an order in excess of the statutory minimum was required in this case. The appellant’s record for assault dating back to 1988 and the prior conviction for criminal harassment suggest that as things now stand the appellant is not a person who should be lawfully entitled to have possession of firearms and the other things mentioned in s. 109. However, because this offence did not involve use of a firearm or any weapon I am satisfied that a fifteen-year rather than a lifetime prohibition is appropriate.
[19] Accordingly, I would grant leave to appeal sentence and allow the appeal to the extent of varying the firearms prohibition order so that the appellant is prohibited from possessing the things mentioned in s. 109(2)(a) for the period ending fifteen years after the appellant’s release from imprisonment. There will also be an order prohibiting the appellant from possessing the things mentioned in s. 109(2)(b) for life. This latter order is mandatory and does not depend on whether there has been a first conviction. In accordance with s. 114 of the Criminal Code, the appellant shall surrender any firearms acquisition certificate in his possession within thirty days of his release from imprisonment. In all other respects, the appeal from conviction and sentence is dismissed. I wish to thank counsel for their very helpful written submissions and particularly wish to thank Ms. Maunder who was acting as pro bono duty counsel for the appellant.
RELEASED: APR 09 2001 Signed: “M. Rosenberg J.A.”
RSA “I agree R.S. Abella J.A.”
“I agree S.T. Goudge J.A.”
[^1]: Section 110 allows a judge to impose a firearms prohibition where the offender is convicted of certain other offences not described in s. 109. The maximum length of that order is ten years.