R. v. Shia (A.), (2015) 331 O.A.C. 1 (CA)

JudgeWeiler, Watt and Epstein, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJanuary 20, 2015
JurisdictionOntario
Citations(2015), 331 O.A.C. 1 (CA);2015 ONCA 190

R. v. Shia (A.) (2015), 331 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.029

Her Majesty the Queen (respondent) v. Andrew Shia (appellant)

(C58902; 2015 ONCA 190)

Indexed As: R. v. Shia (A.)

Ontario Court of Appeal

Weiler, Watt and Epstein, JJ.A.

March 20, 2015.

Summary:

Police charged Shia with production of marijuana. Although the police had also seized his firearms, Shia was not charged with any firearms offence. 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. The police refused to return Shia's guns. Shia appealed, seeking to set aside his plea of guilty. He argued that his plea was uninformed because he did not know that a firearms prohibition order was mandatory even where a marijuana producer was discharged absolutely.

The Ontario Court of Appeal allowed the appeal, set aside the finding of guilt and the plea of guilty entered at trial, and ordered a new trial. "[T]he 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."

Courts - Topic 2106

Jurisdiction - Appellate jurisdiction - Court of Appeal - Criminal appeals - The Ontario Court of Appeal considered the jurisdiction of the Court to hear an appeal from an exclusively indictable offence (production of marijuana under s. 7(2) of the Controlled Drugs and Substances Act (CDSA)) that erroneously proceeded summarily - "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." - See paragraph 24.

Courts - Topic 7402

Provincial courts - Ontario - General Division/Superior Court - Jurisdiction - General - [See Criminal Law - Topic 2846 ].

Criminal Law - Topic 2817

Jurisdiction - General principles - Procedural errors - Effect of - [See Courts - Topic 2106 and Criminal Law - Topic 2846 ].

Criminal Law - Topic 2846

Jurisdiction - Consent jurisdiction - Elections and re-elections - Election by accused - Necessity of - The appellant sought to set aside his plea of guilty on the charge of production of marijuana - The Ontario Court of Appeal considered the impact of the failure to put the appellant to an election - "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. 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" - The proviso in s. 686(1)(b)(iv) could not be applied to preserve the finding of guilt recorded at first instance - See paragraphs 25 to 33.

Criminal Law - Topic 3904

Indictable offences - General principles - Choice of procedures - Election by Crown - [See Courts - Topic 2106 ].

Criminal Law - Topic 4804

Appeals - Indictable offences - General principles - Jurisdiction or review of trial jurisdiction - [See Courts - Topic 2106 ].

Criminal Law - Topic 4967

Appeals - Indictable offences - Powers of Court of Appeal - Conviction appeal following guilty plea - [See Courts - Topic 2106 ].

Criminal Law - Topic 5038

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Procedural error - [See Criminal Law - Topic 2846 ].

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - The Ontario Court of Appeal considered the effect of the mandatory nature of a firearms prohibition under s. 109(1)(c) of the Criminal Code, in the absence of a judicial order - "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. In the absence of such a judicial act, refusing to return [the appellant'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." - See paragraphs 34 to 38.

Cases Noticed:

R. v. Varcoe - see R. v. J.V.

R. v. J.V. (2007), 222 O.A.C. 197; 219 C.C.C.(3d) 397; 2007 ONCA 194 (C.A.), appld. [para. 27].

R. v. Mitchell (J.) (1997), 105 O.A.C. 381; 121 C.C.C.(3d) 139 (C.A.), appld. [para. 27].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 29].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 30].

R. v. F.E.E. (2011), 286 O.A.C. 109; 2011 ONCA 783, refd to. [para. 31].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 7(2) [para. 11].

Criminal Code, R.S.C. 1985, c. C-46, sect. 109(1)(c) [para. 16]; sect. 536(2) [para. 26].

Counsel:

Marcus Bornfreund, for the appellant;

Aaron Shachter, for the respondent.

This appeal was heard on January 20, 2015, before Weiler, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. In reasons written by Watt, J.A., the Court delivered the following judgment, released on March 20, 2015.

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7 practice notes
  • R. v. Sciascia (J.), (2016) 350 O.A.C. 86 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • January 14, 2016
    ..., 2007 ONCA 194, 219 C.C.C. (3d) 397, at paras. 14-22; R. v. Mitchell (1997), 36 O.R. (3d) 643 (C.A.), at pp. 651-52; and R. v. Shia , 2015 ONCA 190, 320 C.C.C. (3d) 111, at paras. 26-27 and 33. [83] These authorities and others make it clear that procedural irregularities that compromise t......
  • Monday’s Mix
    • Canada
    • Slaw Canada’s Online Legal Magazine
    • April 6, 2015
    ...Canada Business Litigation Blog 5. Lee Akazaki The Court A Prosecution “Littered With Errors”: Drugs and Guns in R v Shia In R v Shia, 2015 ONCA 190 [Shia], the Court of Appeal for Ontario considered an appeal from a finding of guilt and an absolute discharge from a drug-related offence. I......
  • R v Branscombe, 2017 SKCA 71
    • Canada
    • Court of Appeal (Saskatchewan)
    • September 1, 2017
    ...of process. [16] Without delving into the respondent’s argument, the trial judge indicated that she preferred the reasoning in R v Shia, 2015 ONCA 190, 320 CCC (3d) 111 [Shia]. There, an indictable (electable) offence of production of marijuana erroneously proceeded by way of summary convic......
  • BRANSCOMBE v. R., 2016 SKQB 394
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • December 6, 2016
    ...a decision on August 13, 2015, reported at 2015 SKPC 138. She held, relying on a decision of the Ontario Court of Appeal, R v Shia, 2015 ONCA 190, 320 CCC (3d) 111 [Shia], that since she had not yet made a final determination of the matters before her she was not “functus”, but continued to......
  • Request a trial to view additional results
6 cases
  • R. v. Sciascia (J.), (2016) 350 O.A.C. 86 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • January 14, 2016
    ..., 2007 ONCA 194, 219 C.C.C. (3d) 397, at paras. 14-22; R. v. Mitchell (1997), 36 O.R. (3d) 643 (C.A.), at pp. 651-52; and R. v. Shia , 2015 ONCA 190, 320 C.C.C. (3d) 111, at paras. 26-27 and 33. [83] These authorities and others make it clear that procedural irregularities that compromise t......
  • BRANSCOMBE v. R., 2016 SKQB 394
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • December 6, 2016
    ...a decision on August 13, 2015, reported at 2015 SKPC 138. She held, relying on a decision of the Ontario Court of Appeal, R v Shia, 2015 ONCA 190, 320 CCC (3d) 111 [Shia], that since she had not yet made a final determination of the matters before her she was not “functus”, but continued to......
  • R v Branscombe, 2017 SKCA 71
    • Canada
    • Court of Appeal (Saskatchewan)
    • September 1, 2017
    ...of process. [16] Without delving into the respondent’s argument, the trial judge indicated that she preferred the reasoning in R v Shia, 2015 ONCA 190, 320 CCC (3d) 111 [Shia]. There, an indictable (electable) offence of production of marijuana erroneously proceeded by way of summary convic......
  • R. v. Branscombe (B.), 2015 SKPC 138
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • August 13, 2015
    ...labelled an exceptional circumstance which supported the decision to stay the proceedings as an abuse of process. [10] In R. v. Shia , 2015 ONCA 190, the accused was charged with the unlawful production of marijuana, and the Crown elected to proceed by way of summary conviction even though ......
  • Request a trial to view additional results

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