Court of Appeal for Ontario

Date: 2025-09-11

Docket: M56271 (COA-25-CR-0080)

Motion Judge: Monahan J.A.

Between

His Majesty the King Respondent (Responding Party)

and

Jermaine Haughton Appellant (Applicant)

Counsel

Jermaine Haughton, acting in person

Dan Stein, appearing as duty counsel

Étienne Lacombe, for the respondent

Heard: September 9, 2025

Reasons for Decision

Background

[1] Mr. Haughton (the "Applicant") is appealing the lifetime weapons prohibition imposed on May 31, 2024, pursuant to s. 109(3) of the Criminal Code, R.S.C., 1985, c. C-46 (the "Code"). He seeks an order under s. 684 of the Code appointing counsel to represent him on his appeal.

[2] On January 26, 2023, the Canadian Border Services Agency intercepted a parcel destined for the appellant's residence. The parcel contained a Polymer 80 Sig Sauer Grip Module ("Polymer 80").

[3] At the time, the Applicant was subject to a discretionary weapons prohibition under s. 110 of the Code, resulting from an April 21, 2022 conviction for the possession of firearms in an unauthorized place.

[4] While Polymer 80 is not a restricted firearm, nor is possession of this item prohibited itself, the frequent purpose for Polymer 80 is to create a firearm. Since the Applicant was prohibited from the possession of firearms, the parcel was held by Border Services and a referral was made to the Ontario Provincial Police (the "OPP"). The OPP arranged delivery of the Polymer 80 to the Applicant's residence, and the Applicant identified himself as the intended recipient.

[5] The OPP and York Regional Police executed a search warrant at the Applicant's residence, where they found, inter alia, 500 grams of sodium nitrate, one pound of ammonium nitrate, 454 grams of rifle powder, nitroglycerin, 5 meters of safety fuse, 200 rounds of ammunition, a Sig Sauer 9-millimetre 10 round magazine, a handgun carrying case, a black balaclava, and a duffle bag. The police then sought judicial authorization to search the Applicant's computer, where they found searches related to converting and using weapons.

[6] The Applicant pleaded guilty to possessing ammunition while subject to a s. 110 prohibition order and possessing explosive substances, contrary to s. 117.01(1) and s. 82(1) of the Code, respectively. He was given a one-year sentence for the s. 117 offence and two years' probation for the s. 82 offence, accounting for presentence custody. The trial judge also imposed a lifetime weapons ban pursuant to s. 109(3).

[7] The sole ground of appeal advanced by the Applicant is in respect of the lifetime weapons prohibition. The Applicant applied to legal aid, but appeal coverage was refused. The Applicant appealed this refusal, but the Eligibility Review Office ("ERO") upheld the decision. The Applicant therefore seeks appointment of counsel pursuant to s. 684, on the basis that he is not capable of representing himself on the appeal and he lacks the funds necessary to retain counsel himself.

Principles Governing S. 684 Applications

[8] Section 684(1) of the Criminal Code provides that this court may assign counsel to act on an applicant's behalf if, in its opinion:

(i) it appears desirable in the interests of justice that the applicant should have legal assistance; and

(ii) the applicant does not have sufficient means to obtain that assistance.

[9] As part of the "interests of justice" component of the test, the applicant must satisfy the court, on a balance of probabilities, that the proposed grounds of appeal are arguable: R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.). Given that the record is often incomplete at the time of the application, this is not a probing examination of the merits: R. v. Adams, 2016 ONCA 413, 350 O.A.C. 110. Nevertheless, while modest, the requirement of arguable grounds is a real and meaningful standard.

[10] Where the applicant advances arguable grounds, the next step of the interests of justice analysis is whether the applicant can effectively advance the grounds of appeal without the assistance of counsel. As part of this inquiry, the court examines the complexities of the arguments to be advanced and the applicant's ability to make legal argument in support of the grounds of appeal: Bernardo, at para. 24.

[11] Finally, the court must be satisfied that the applicant lacks the financial means necessary to retain counsel: R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at paras. 34, 40.

Positions of the Parties

[12] As noted above, the Applicant argues that the trial judge erred in imposing a mandatory lifetime weapons prohibition under s. 109(3). The Applicant, through duty counsel, advances two arguments in this regard. These arguments mirror an opinion letter by Maija Martin provided in support of the Applicant's application.

[13] First, he argues that the Crown failed to provide the necessary notice of the lifetime ban, an enhanced penalty, prior to his guilty plea, contrary to s. 727(1) of the Code. Section 727(1) provides as follows:

…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] He further argues that because the lifetime weapons prohibition was imposed without satisfying this notice requirement, it must be set aside.

[15] Second, the Applicant argues that his previous weapons prohibition was under s. 110 and did not fit any of the criteria listed under s. 109(1) for a mandatory lifetime prohibition for a first offence. The prohibition order attached to the instant conviction should therefore have been considered a "first conviction" for the purposes of s. 109. Thus, while a prohibition order was mandatory, a lifetime prohibition was not, with the result that it was an error for the trial judge to find the lifetime prohibition to be mandatory.

[16] While the Crown concedes that the Applicant lacks the financial means to retain counsel, they argue that it is possible that notice was given in accordance with s. 727(1). The Crown's position is that this is a factual issue that can be settled in advance of the appeal being argued, perhaps through adducing fresh evidence from the trial Crown. The Crown opposes the s. 684 application on the grounds that the appeal is not legally complex, and it is therefore not in the interests of justice to assign counsel to act on the Applicant's behalf.

Analysis

[17] In my view, the issues raised on this appeal are arguable and involve questions of mixed fact and law beyond the capacity of the Applicant to advance without the assistance of counsel.

[18] First, I note that in their sentencing submissions, the Crown sought a lifetime weapons prohibition "given the earlier [s. 110] prohibition". Because the Crown did not expressly refer to s. 109(3), it is not clear whether the Crown's position was that the lifetime prohibition was mandatory or a matter for the discretion of the trial judge. In his reasons for sentence, the trial judge made no reference to the basis upon which the lifetime weapons prohibition was imposed. As such, the existing record does not clearly indicate whether the Crown was relying on s. 109(3), and whether notice would have been provided in accordance with s. 727(1).

[19] Second, whether a violation of a discretionary s. 110 prohibition constitutes a first offence sufficient to engage s. 109(3) involves the proper interpretation of ss. 109(1) and (2). These are matters of statutory interpretation that can only properly be advanced by persons with legal training.

[20] As such, I am satisfied that the Applicant has met his burden of establishing that it is in the interests of justice that counsel be appointed to act on his behalf in respect of his appeal of the lifetime weapons prohibition.

[21] Since the Crown concedes that the Applicant lacks the means necessary to retain counsel, the application is granted. An order shall issue assigning counsel to act on the Applicant's behalf, in accordance with s. 684(1).

P.J. Monahan J.A.