COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shia, 2015 ONCA 190

DATE: 20150320

DOCKET: C58902

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Shia

Appellant

Marcus Bornfreund, for the appellant

Aaron Shachter, for the respondent

Heard: January 20, 2015

On appeal from the finding of guilt and absolute discharge entered on October 2, 2013 by Justice Peter Tetley of the Ontario Court of Justice.

Watt J.A.:

[1] Andrew Shia is an avid hunter. He kept his guns at home, as he was authorized to do. He also had a closet full of marijuana plants at home, as he was not authorized to do.

[2] One day, some police officers came to Andrew Shia’s home. They were responding to a complaint of domestic violence. They looked around the home. They found the marijuana. And the guns. They seized both. They charged Andrew Shia with production of marijuana.

[3] Andrew Shia hired a lawyer to defend him on the charge of production of marijuana. The lawyer thought that if Andrew Shia were to get an absolute discharge, the judge could not make a firearms prohibition order.

[4] So Andrew Shia pleaded guilty to production of marijuana. The judge found him guilty, acceded to a joint submission for an absolute discharge and made no firearms prohibition order under s. 109(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46.[^1]

[5] Andrew Shia thought his troubles were over. But, like his lawyer, he was mistaken. The police refused to return his guns. They said he could not get them back because, as a person found guilty of production of marijuana, he was prohibited from possessing firearms under s. 109(1)(c).

[6] Andrew Shia wants his guns back. He asks us to help him by setting aside his plea of guilty and ordering a new trial. He argues that his plea of guilty was uninformed because he did not know that a firearms prohibition order was mandatory even where a marijuana producer is discharged absolutely under s. 730 of the Criminal Code.

[7] This prosecution got off to a bad start. Then things got worse. Everybody made mistakes along the way. Our attempt to return the parties to where it began follows.

THE BACKGROUND FACTS

[8] The circumstances surrounding the offence charged are unremarkable. But the procedural history of the prosecution is littered with errors and omissions. An election of a mode of procedure that was unavailable. Faulty legal advice about the consequences of an absolute discharge on a charge of production of marijuana. Failure to make a mandatory firearms prohibition order. And insistence that such an order was in place.

The Complaint

[9] On September 28, 2012 police received a domestic violence complaint from a residence in Richmond Hill. They responded to the call.

The Investigation

[10] During their investigation of the complaint, police discovered about two or three dozen marijuana plants in a basement closet. Andrew Shia said the plants were his and grown for his own use.

The Seizures

[11] Police seized the marijuana plants. They charged Andrew Shia and another person with production of marijuana under s. 7(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended (“CDSA”).

[12] Police also seized some firearms, ammunition and valid licences for the guns. Andrew Shia was not charged with any firearms offence.

The Plea Proceedings

[13] Andrew Shia was arraigned before a judge of the Ontario Court of Justice. The Crown was an Assistant Crown Attorney who said he was designated by the Public Prosecution Service of Canada to conduct the proceedings. Before Andrew Shia entered a plea, the court clerk asked the Crown:

Is there an election on this?

The Crown responded “summarily”.

[14] Andrew Shia pleaded guilty to the offence charged. His counsel, who also appears on the appeal, advised the presiding judge that he had conducted a plea comprehension inquiry with Andrew Shia.

[15] The Crown read a summary of the circumstances surrounding the offence. Counsel for Andrew Shia acknowledged the correctness of the allegations. The presiding judge entered a finding of guilt on the charge of production of marijuana.

The Sentencing Submissions

[16] Counsel made a joint submission on sentence. They advocated for an absolute discharge. Neither reminded the presiding judge about the mandatory firearms prohibition under s. 109(1)(c) of the Criminal Code for anyone convicted or discharged of a production offence under s. 7(1) of the CDSA.

The Sentence Imposed

[17] The presiding judge acceded to the joint submission on sentence. He imposed an absolute discharge and made no order under s. 109(1)(c).

The Firearms Request

[18] Sometime after sentence had been imposed, but before he filed a notice of appeal to this court, Andrew Shia asked the investigating police force to return his guns. After all, he had the required licences. The police refused. Andrew Shia had been found guilty of an offence for which a firearms prohibition was mandatory.

[19] Andrew Shia did not get his guns, ammunition or licences back.

The Notice of Appeal

[20] Despite the Crown’s election to proceed summarily, counsel filed a notice of appeal in this court. He sought an order “overturning the conviction and granting the appellant a trial” and advanced in his notice of appeal the following grounds:

• following pre-trial discussion between Defence and Crown counsel, the appellant waived his right to trial and entered a plea on the explicit understanding that a firearms prohibition order would not apply;
• sometime after sentence was imposed, Defence and Crown counsel were made aware of the mandatory imposition of a section 109 order;
• Defence counsel for the appellant failed to advise the appellant of the mandatory imposition of a section 109 order if discharged under section 7 of the Controlled Drugs and Substances Act;
• this error cannot be addressed before the sentencing Court as it is now functus officio; and
• Crown counsel is not opposed to this appeal.

[21] Without regard to the requirements to obtain leave to file fresh evidence on the hearing of the appeal, counsel filed an affidavit from the appellant and a copy of an email exchange between himself and the trial Crown about a future resolution of the charges in the event that the finding of guilt were quashed on appeal. Among other things, the appellant swears he received erroneous legal advice from his trial counsel, who is his appeal counsel and who commissioned the affidavit.

ANALYSIS

[22] It is not necessary to decide whether Andrew Shia’s plea of guilty was uninformed. This appeal can be resolved by considering four issues:

i. the jurisdiction of this court to hear an appeal from an exclusively indictable offence that erroneously proceeded summarily; ii. the impact of the failure to put the appellant to an election when he was charged with an exclusively indictable offence; iii. whether the failure to put the appellant to such an election can be cured on appeal; and iv. the effect of the mandatory nature of a firearms prohibition under s. 109(1)(c) in the absence of a judicial order.

[23] The first three issues are determinative and require that a new trial be ordered. The fourth issue, which deals with the mandatory firearms prohibition order under s. 109(1)(c) of the Criminal Code, would usually not require discussion, much less, decision. However, in the peculiar circumstances of this case, the issue requires treatment.

Issue #1: The Election to Proceed Summarily and the Jurisdiction of this Court

[24] Cannabis (marijuana) is a controlled substance listed in Schedule II of the CDSA. Production of a Schedule II substance, like cannabis (marijuana), is prohibited under s. 7(1) of the CDSA and punished exclusively as an indictable offence under s. 7(2)(b). The trial Crown had no right to elect to proceed by summary conviction. Consequently, that election was a nullity and of no force or effect. The offence remained an indictable offence despite this flawed election. It follows that the appeal from the finding of guilt is properly before this court under ss. 675(1)(a) and 730(3)(a) of the Criminal Code.

Issue #2: The Effect of Failing to Afford the Appellant an Election of Mode of Trial

[25] When he appeared to enter his plea before a provincial court judge in the Ontario Court of Justice, the appellant was a person charged with an indictable offence. Production of marijuana is not an indictable offence within the exclusive jurisdiction of a judge of the superior court of criminal jurisdiction under s. 469 of the Criminal Code or an indictable offence within the absolute jurisdiction of a provincial court judge under s. 553 of the Criminal Code.

[26] As a person charged with an indictable offence not listed in either s. 469 or s. 553 of the Criminal Code, the appellant was entitled to elect his mode of trial under s. 536(2) of the Criminal Code. He was never afforded this statutory requirement.

[27] The presiding judge had no inherent jurisdiction to try the appellant or receive his plea of guilty. The judge’s authority to do either depended entirely on the appellant’s election “to be tried by a provincial court judge without a jury and without having had a preliminary inquiry” as s. 536(2) requires. The absence of an election meant that the provincial court judge had no authority to try the appellant or to receive his plea of guilty: R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397, at paras. 15 and 22; R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 121 C.C.C. (3d) 139 (Ont. C.A.), at paras. 28-30.

Issue #3: Can the Election Failure be Cured on Appeal?

[28] Not every error or procedural misstep that occurs in criminal proceedings requires appellate intervention.

[29] Section 686(1)(b)(iii) examines the relationship between legal errors and the verdict rendered at trial and holds harmless those errors that do not result in a substantial wrong or miscarriage of justice: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716.

[30] Section 686(1)(b)(iv) forgives serious irregularities not covered by s. 686(1)(b)(iii), ending the jurisprudence that procedural errors, which cause a loss of jurisdiction in the trial court, could not be cured on appeal: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823.

[31] An appellate court may invoke the proviso in s. 686(1)(b)(iv) where:

i. a procedural irregularity occurred at trial; ii. the trial court had jurisdiction over the class of offence of which the appellant was convicted; and

the court of appeal is satisfied that

iii. the appellant suffered no prejudice as a result of the procedural irregularity.

See R. v. E. (F.E.), 2011 ONCA 783, 91 C.R. (6th) 200, at para. 30.

[32] In Varcoe, this court considered whether s. 686(1)(b)(iv) could save a harmless failure to put an accused to his election under s. 536(2) of the Criminal Code. There, as here, the accused was charged with an indictable offence that required an election. There, as here, the jurisdiction of the trial court over the offence depended entirely on the election of the accused to be tried by that court. This court held that, in the absence of an election, or valid waiver of it, the trial court lacked jurisdiction over the offence and the proviso in s. 686(1)(b)(iv) could not be applied: Varcoe, at para. 22; Mitchell, at para. 29.

[33] The decisions in Varcoe and Mitchell require us to conclude that s. 686(1)(b)(iv) cannot be applied to preserve the finding of guilt recorded at first instance.

Issue #4: The s. 109(1)(c) Order

[34] Although, as I have said, it is not strictly necessary to consider the effect of the absence of a s. 109(1)(c) order to resolve this appeal, there appears to be some confusion over whether a s. 109(1)(c) order that is mandatory under the Criminal Code takes effect even if a judicial order is not made. The short answer is that no judicial order means no order. In other words, “no” means “no”.

[35] Sometime after proceedings had concluded in the Ontario Court of Justice, the appellant sought the return of his guns and ammunition from the police force that had seized them. Although the appellant apparently has licences or permits that allow him to have the seized firearms and ammunition, the police refused to return them to him.

[36] The additional materials filed by the appellant, albeit not in accordance with the requirements for seeking leave to introduce fresh evidence on appeal, are not entirely clear about the reason for the police refusal to return the seized items. What does appear, however, is a suggestion that because a firearms prohibition is mandatory on a finding of guilt of production of marijuana under s. 109(1)(c), such an order is in place and bars return.

[37] The court record is the only authentic source from which to determine whether a s. 109(1)(c) firearms prohibition exists and can be enforced. An examination of the court record in this case would have disclosed that the presiding judge made no order under s. 109(1)(c). The fact that the order is supposed to be mandatory does not mean it applies even where there has been judicial default in ordering it. The existence of such an order depends on a judicial act, not an investigative assumption.

[38] In the absence of such a judicial act, refusing to return Andrew Shia’s guns, ammunition and licenses could not be justified on the basis of a s. 109(1)(c) order that, while mandatory, was never actually made.

CONCLUSION

[39] For these reasons, I would allow the appeal, set aside the finding of guilt recorded and the plea of guilty entered at trial, and order a new trial on the information.

Released: March 20, 2015 (DW)

“David Watt J.A.”

“I agree K.M. Weiler J.A.”

“I agree Gloria Epstein J.A.”

[^1]: The prosecution in the case preceded amendments to s. 7(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended, that increased the maximum punishment for production and imposed minimum sentences of imprisonment on a graduated scale according to the number of plants involved.