Court of Appeal for Ontario

Date: 2017-09-05 Docket: C55272

Justices: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Yafet Tadesse Appellant

Counsel

Heather Pringle, for the appellant Jennifer Epstein, for the respondent

Heard and released orally: August 30, 2017

On appeal from: the conviction entered and the sentence imposed on December 9, 2010 by Justice Alphonse T. Lacavera of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from a conviction recorded after he pleaded guilty to a single count of carrying a concealed weapon contrary to s. 90(2) of the Criminal Code. He was represented by counsel at the time he entered his plea of guilty.

[2] Carrying a concealed weapon is an offence upon which the Crown has the right to elect the mode of procedure. In this case, the Crown elected to proceed by indictment.

[3] The indictable offence of carrying a concealed weapon is not an offence listed or otherwise described in s. 469 of the Criminal Code, thus is not an indictable offence that falls within the exclusive trial jurisdiction of the Superior Court of Justice sitting as the superior court of criminal jurisdiction. Nor, when prosecuted by indictment, is it an offence listed or otherwise described in s. 553 that falls within the absolute jurisdiction of a judge of the Ontario Court of Justice sitting as a provincial court judge.

[4] As an accused charged with an indictable offence other than an offence listed or described in 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 when he appeared in the Ontario Court of Justice to enter his plea of guilty.

[5] It is common ground as between the parties that the appellant was never put to his election about the mode of trial. The jurisdiction of a judge of the Ontario Court of Justice to try the appellant or, as it happened here, to receive and act upon his plea of guilty, depended entirely upon his choice of that court as his mode of trial. Absent such an election, the judge had no jurisdiction to receive and to act upon the plea of guilty the appellant entered.

[6] It is well settled that this procedural failure, the failure to comply with the election requirements in s. 536(2), goes to the jurisdiction of the trial court and, at least in the absence of waiver, is beyond the reach of the curative procedural proviso in s. 686(1)(b)(iv) of the Criminal Code: see R. v. Vuong, 2010 ONCA 798, at paras. 17-18. The parties share common ground that the record reveals no evidence of waiver, either express or implied.

[7] In the result, the plea of guilty and conviction are set aside as having been entered before a court that lacked jurisdiction to determine the matter, and a new trial ordered should the Crown wish to pursue it.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."