R. v. Keays, (1983) 2 O.A.C. 51 (CA)

• Judge: Dubin, Goodman and Cory, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 21, 1983
• Jurisdiction: Ontario
• Citations: (1983), 2 O.A.C. 51 (CA)

R. v. Keays (1983), 2 O.A.C. 51 (CA)

MLB headnote and full text

R. v. Keays

Indexed As: R. v. Keays

Ontario Court of Appeal

Dubin, Goodman and Cory, JJ.A.

December 21, 1983.

Summary:

An accused was convicted on two counts of armed robbery. Subsequently, s. 98 (1) of the Criminal Code was enacted, which provided that when a person was convicted of certain indictable offences where violence was used, the court should in addition to any other punishment make an order prohibiting the accused from possessing firearms for five years in the case of a first conviction and for ten years in other cases. After s. 98(1) was enacted, the accused was convicted of possession of a weapon for a purpose dangerous to the public and it was found that violence was used during the commission of the offence. The Crown argued that the accused should be restricted from possessing firearms for ten years considering his two armed robbery offences and his possession of a weapon offence. The trial judge held that since his robbery convictions preceded the effective date of s. 98(1), that the robbery convictions were irrelevant and therefore the judge treated the possession of a weapon offence as a first offence and limited the prohibition period for possession of firearms to five years. The Crown appealed.

The Ontario Court of Appeal allowed the appeal, held that the two robbery convictions were relevant, set aside the five year prohibition order, and remitted the matter back to the trial judge to allow the Crown to adduce further evidence as to whether the armed robbery offences involved violence.

Criminal Law - Topic 5799

Punishments - Prohibition orders - Respecting firearms - Section 98(1) of the Criminal Code provided for mandatory prohibitions on the use of firearms after convictions for certain indictable offences involving violence - The Ontario Court of Appeal stated that once it has been shown that a person was convicted of an indictable offence where violence was used, threatened or attempted, and for which the offender may be sentenced to imprisonment for ten years or more, s. 98(1) becomes applicable notwithstanding that the offence for which the accused was convicted could have been committed without violence - See paragraph 6.

Criminal Law - Topic 5799

Punishments - Prohibition orders - Respecting firearms - Section 98(1) of the Criminal Code provided, inter alia, that where a person is convicted of certain indictable offences where violence is used, the court shall order that they be prohibited from possessing firearms for a certain period of time - The Ontario Court of Appeal stated that where the Crown seeks such a prohibition order, mere proof of a conviction for armed robbery is not enough, and it is up to the Crown to prove that the accused committed acts of violence during the course of the robbery - See paragraphs 7 to 10.

Statutes - Topic 6701

Operation and effect - Retrospective enactment - General - The Ontario Court of Appeal discussed the meaning of the concept of retrospectivity in relation to the interpretation of statutes - See paragraph 5.

Statutes - Topic 6703

Retrospective enactments - What constitutes - Prohibition re use of firearms - Section 98(1) of the Criminal Code provided, inter alia, that where a person is convicted of certain indictable offences where violence is used, the court shall order that they be prohibited from possessing firearms in the case of more than one offence, for ten years - The Ontario Court of Appeal held that in ordering such a ten year prohibition the court may consider offences which occurred before s. 98(1) was enacted - The court stated that such an interpretation could not be said to be giving the section retrospective effect - See paragraphs 1 to 10.

Cases Noticed:

R. v. Johnston (1977), 34 C.C.C.(2d) 325, refd to. [para. 5].

R. v. Broome (1981), 63 C.C.C.(2d) 426, folld. [para. 6].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 98(1) [para. 1]; sect. 302(d) [para. 7].

Counsel:

Damien R. Frost, for the Crown;

J.R. Lewis, for Keays.

This appeal was heard before Dubin, Goodman and Cory, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was given orally by Dubin, J.A., on December 21, 1983: