Court of Appeal for Ontario

Date: 2019-02-08 Docket: C63563

Judges: Strathy C.J.O., Nordheimer J.A. and McKinnon J. (ad hoc)[^1]

Between

Her Majesty the Queen Respondent

and

Belal Sabir Appellant

Counsel

Boris Bytensky, for the appellant Caitlin Sharawy, for the respondent

Heard: October 16, 2018

On appeal from: the conviction entered on September 22, 2016 and the sentence imposed on March 27, 2017 by Justice Johanne Morissette of the Superior Court of Justice, sitting without a jury.

Addendum

Decision on Appeal

[1] On November 14, 2018, this court allowed Mr. Sabir's appeal in part. We set aside convictions on counts 2, 3 and 4 and ordered a new trial on those counts. We granted leave to appeal sentence and allowed the sentence appeal, in part, by reducing the sentence of imprisonment imposed by the trial judge from 18 months to 6 months. We also set aside the lifetime s. 109 weapons prohibition order.

[2] Counsel have since written to us to draw to our attention that the remaining conviction for criminal harassment is a designated offence under s. 109(1)(b) and therefore automatically attracts a weapons prohibition order. However, it is agreed that the order would only be for 10 years, not a lifetime ban.

[3] The respondent asks that we make the s. 109 order that flows from the result of our decision on the appeal. The appellant submits that this court does not have jurisdiction to now address this issue. The appellant, while acknowledging that the existing case law is not entirely consistent on the point, says that this court's jurisdiction to correct any error arising from a decision is very narrow and that this issue does not fall within it.

[4] We do not agree with the appellant. In our view, we have jurisdiction to correct the error by which the s. 109 prohibition order was set aside in its entirety instead of being reduced from a lifetime ban to a 10 year ban. We reach that conclusion for the following reasons.

Jurisdiction to Correct the Error

[5] First, the s. 109 prohibition order is mandatory in these circumstances. It is not a matter of discretion for the court. The Criminal Code makes it clear that the court "shall" make the prohibition order once a conviction is entered for one of the designated offences.

[6] Second, in our view, the authority given to this court under s. 683(3) provides the necessary authority to correct what is obviously an error or omission. Section 683(3) reads:

A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto.

[7] One of the powers that a court enjoys in a civil proceeding is the power granted by r. 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which reads:

An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

[8] On that point, we do not view the reservation expressed in R. v. Codina, 2009 ONCA 907, 266 C.C.C. (3d) 1, regarding reliance on r. 59.06(1) in a criminal appeal, as having any application in this context. On that point, we would note that the appeal in Codina did not involve any suggestion of an accidental error. Rather, it involved a direct challenge on the merits of the appeal. In our view, resort to this rule, in the context of an error or omission, is entirely consistent with the language of s. 683(3). There does not appear to be any reason why the power of this court to correct accidental slips or omissions should be any less on a criminal appeal than it is on a civil appeal. Indeed, that would appear to be the very rational underlying s. 683(3). It was precisely this authority upon which this court relied in R. v. Kohl, 2009 ONCA 254, 244 C.C.C. (3d) 124 to subsequently strike out an ancillary order (i.e. a probation order) that had initially been imposed as part of the decision in the appeal.

[9] Third, we would also observe in the context of this case that the appellant appealed his sentence along with the appeal of his convictions. The issue of the weapons prohibition order is, of course, part of the sentence imposed. The authority of this court on a sentence appeal is dealt with in s. 687(1) of the Criminal Code, which reads:

Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b) dismiss the appeal

[10] There is no doubt that had the issue been addressed at the time of the appeal, this court had the authority to vary the length of the weapons prohibition order. However, that precise issue was, understandably, not addressed by counsel during the course of their submissions as it only came to the forefront once the conviction appeal was allowed, in part.

Conclusion

[11] In our view, this court has jurisdiction to address the omission that arises regarding the weapons prohibition order. We would impose such an order under s. 109 for a period of 10 years.

Released: February 8, 2019

"G.R. Strathy C.J.O."

"I.V.B. Nordheimer J.A."

[^1] McKinnon J. did not participate in this aspect of the appeal.