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. Interestingly, the prosecution included a number of errors, with some attributable to every party involved, including the presiding justice. In a short and incisive decision, the Court of Appeal resolved the matter, setting aside the conviction and ordering a new trial.

The Facts and Errors at First Instance 

The facts leading to Mr. Shia’s prosecution are straightforward. On September 28, 2012, police responded to a domestic violence complaint made from a Richmond Hill home. In the course of its investigation, the police discovered and seized two or three dozen marijuana plants in the appellant’s basement. Mr. Shia was charged with the production of marijuana under section 7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. The police also found and seized some firearms, ammunition, and valid licences for the weapons. Mr. Shia was not charged with any firearm offences (Shia, paras 9-12).

These unremarkable pre-trial facts give way to what the Court of Appeal called a prosecution “riddled with errors and omissions,” with mistakes being made by all sides (Shia, para 8).

The first mistake was made by Mr. Shia’s counsel, who believed that if his client received an absolute discharge from the marijuana charge, the court could not make a firearms prohibition order. Mr. Shia’s counsel instructed his client to this effect. Mr. Shia wanted his guns back, and so, on the basis of his counsel’s advice, he gave counsel instructions to plead guilty in order to seek an absolute discharge. Counsel’s advice was faulty. The relevant section of the Code makes a firearms prohibition order mandatory for those convicted or discharged under section 7(1) of the CDSA. Section 109(1)(c) of the Criminal Code, RSC 1985, c C-46 [Code] provides:

109(1) Where a person is convicted, or discharged under section 730, of

…

(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act,

…

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order [emphasis added].

The second error was made by the prosecuting Crown attorney, who elected a mode of procedure that was not available on the charge laid. Cannabis is a Schedule II controlled substance, and its production is punished exclusively as an indictable offence under section 7(2)(b) of the CDSA. However, when asked by the court clerk how he wished to proceed, Crown counsel replied “summarily” (Shia, para 13). A third error followed as a corollary to the second. Because the offence was not recognized as being exclusively indictable, Mr. Shia was also not offered the election of mode of trial offered to those accused of such offences required by section 536(2) of the Code. 

These two mistakes continued to go unnoticed into the sentencing stage. After Mr. Shia had entered his guilty plea, Crown and defence counsel made a joint submission on sentencing, advocating for absolute discharge (Shia, para 16). The presiding judge accepted the joint submission, omitting to make the section 109(1)(c) mandatory firearm prohibition order following sentencing (Shia, para 17). This was the fourth error in Mr. Shia’s prosecution.

After sentencing, Mr. Shia asked the police to return his guns. The police refused, citing the fact that he had been found guilty of an offence for which a firearms prohibition was mandatory. Upon hearing this, the appellant’s counsel filed a notice of appeal, seeking an order that the Court of Appeal overturn the conviction and grant Mr. Shia a trial because his initial plea was misinformed.

Issues at the Court of Appeal 

Interestingly, the Court of Appeal did not consider whether or not Mr. Shia’s guilty plea was misinformed. Rather, it resolved the appeal by considering four separate procedural concerns. Three of these concerns – those resulting from the errors made by Crown and defence counsel – were determinative and necessitated a new trial. The fourth concern, the omission of a prohibition order, was addressed in obiter (Shia, para 23).

Reasons of the Court of Appeal 

The First Issue: The Election to Proceed Summarily 

Here, the Court of Appeal recognizes that the error of law made by the Crown allows for the consideration of the appeal. Watt JA notes that the relevant charge is punished exclusively as an indictable offence and, as such, that the Crown had no right to elect to proceed summarily. The election was therefore of no force or effect, the offence remained an indictable offence, and the appeal from the finding of guilt lay properly before the Court of Appeal in light of sections 675(1)(a) and 730(3)(a) of the Code (Shia, para 24).

The Second Issue: Failing to Afford the Appellant an Election of Mode of Trial 

Mr. Shia appeared before the Ontario Court of Justice, where he was a person charged with an indictable offence not under the absolute jurisdiction of that court. As such, he was entitled to elect his mode of trial under section 536(2) of the Code. He was not afforded this statutory requirement, and made no such election.

The Court of Appeal notes, with some finality that, absent an election of mode of trial – in particular, an election to be tried by a provincial court judge without a jury and without a preliminary inquiry – the provincial court judge had no authority to try the appellant or to receive his plea of guilty (Shia, para 27).

The Third Issue: Can the Election Failure Be Cured on Appeal? 

As Watt JA notes, not all procedural missteps that occur in criminal proceedings mandate appellate intervention. The “Powers of the Court of Appeal” section of the Code specifies the permissible reasons for which a court may grant or dismiss an appeal from conviction, despite errors made at trial. One of the enumerated justifications for dismissal despite first-instance errors, set out in section 686(1)(b)(iv), is particularly apposite. It allows for the Court of Appeal to dismiss the appeal in an instance of “any procedural irregularity” where (i) the trial court had jurisdiction over the offence and (ii) the Court of Appeal is of the opinion that the irregularity led to the appellant suffering no prejudice:

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

…

(b) may dismiss the appeal where

…

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby… .

Careful readers will have noticed that the appellant’s failure to elect – the procedural error in question – operates to preclude the curative proviso in section 686(1)(b)(iv) from operating. The failure of the appellant to explicitly elect the provincial court as his mode of trial divested the court of jurisdiction to hear the class of offence. As made clear in section 686(1)(b)(iv), appellate dismissal despite trial irregularity can only occur if the trial court had jurisdiction.

Previous case law has settled the question of whether a failure to provide the accused with her section 536(2) election entails a loss of jurisdiction. In an earlier Ontario Court of Appeal decision, R v Mitchell, [1997] 36 OR (3d) 643, Doherty JA clearly states that jurisdiction is indeed lost when such an election is not sufficiently put to the accused: “Absent waiver of the procedural requirements of that section, a failure to put the accused to his or her election, in terms which at least substantially comply with the section is a procedural error resulting in a loss of jurisdiction to conduct either a trial or a preliminary inquiry.”

In light of R v Mitchell, the Court of Appeal finds that the appeal cannot be dismissed using section 686(1)(b)(iv) and, as such, that the finding of guilt at first instance cannot be preserved (Shia, para 33). At this point, it is clear that Mr. Shia’s appeal will be successful. The Court of Appeal does go on, however, to consider the final error in obiter. 

The Fourth Issue: The Efficacy of an Unmade Mandatory Order 

Presumably in reference to the police department’s refusal to return Mr. Shia’s seized weapons and ammunition, the Court of Appeal notes that there seems to have been some “confusion” as to whether a mandatory section 109(1)(c) order takes effect even if a judicial order is not made.

Watt JA dispels this confusion rather quickly: “[t]he short answer is that no judicial order means no order. In other words, “no” means “no” (Shia, para 34). Put simply, the fact that an order is mandatory does not mean that it has any force in the absence of a court actually making the order: “the existence of such an order depends on a judicial act, not an investigative assumption.” As such, Watt JA notes that the only way to determine whether the relevant prohibition exists and is enforceable is an examination of the court record: in this case, no such order was made (Shia, para 37). Mr. Shia’s guns should have been returned after sentencing.

The Court concludes by allowing Mr. Shia’s appeal, setting aside his finding of guilt, and ordering a new trial.

Concluding Thoughts 

It is probably fair to characterize the Court of Appeal’s analysis in  R v Shia as straightforward. Statutes were consulted, relevant precedents applied, and a dash of what we might call common sense (recall Watt JA’s tautological statement that “no” means “no”) was relied upon to round out the Court of Appeal’s decision. The court made short work of a series of ostensibly worrisome procedural errors, avoiding a direct evaluation of the adequacy of defence counsel’s advice, the Crown’s mistaken election, or the provincial judge’s omission of the mode. In this sense, the decision is a model of clarity, concision, and careful attention to procedural integrity.