Court of Appeal for Ontario

Citation: R. v. Shewchuk, 2012 ONCA 304

Date: 20120509

Docket: C52235

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

[1] Assuming 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.

[2] This 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.

[3] The appeal must be allowed. The lifetime prohibition is varied to 3 years, 9 months commencing on March 5, 2010, the date of conviction.