WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.M.E., 2014 ONCA 496

DATE: 20140626

DOCKET: C57252 & M42947

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. M. E.

Appellant

James R. Smith, Alexandrina Valova and Peter M.
    Callahan, for the appellant

Grace Choi, for the respondent

Heard: February, 24, 2014

On appeal from the sentence imposed on June 19, 2013 by
    Justice Dale F. Fitzpatrick of the Superior Court of Justice, sitting without a
    jury and on motion brought by the Crown to quash the appeal.

Watt J.A.:

[1]

Our criminal law has its chameleons. Take hybrid offences, for example. Sometimes,
    indictable. Other times, summary conviction. But capable of change.

[2]

Sexual assault, sexual exploitation, failure to comply with undertakings
    and recognizances are hybrid offences. In this case, as is their wont, each
    began as an indictable offence. Each remained that way until the trial date
    when the Crown asked and was permitted to re-elect to proceed by summary
    conviction.

[3]

The re-election was followed by an arraignment. And the arraignment, by
    pleas of guilty. And the pleas of guilty, by convictions. And the convictions,
    by sentences that included a term of imprisonment, a period of probation and
    several ancillary orders.

[4]

D. M. E. says that the proceedings that followed the trial Crowns
    re-election of summary conviction as the mode of proceeding were vitiated by
    jurisdictional error.  He submits that the sentences imposed should be quashed
    and the case remitted to the Ontario Court of Justice for plea and sentence.

[5]

These reasons explain why I would allow the appeal, quash the sentences
    imposed in the proceedings below, and remit the case to the Ontario Court of
    Justice at Milton to be dealt with according to law.

THE BACKGROUND

[6]

The circumstances of the offences D. M. E. is alleged to have committed
    are beside the point for the purposes of this appeal against sentence only. Our
    concern is with the procedural course the proceedings followed to arrive at
    their final destination.

The Charges

[7]

In an information sworn on August 6, 2009, D. M. E. was charged with one
    count of each of sexual assault and sexual exploitation. While this information
    was before the Ontario Court of Justice, D. M. E. was charged in another
    information, sworn on August 29, 2009, with two counts of breaching the
    undertaking on which he had been released on the earlier charges.

[8]

About six months later, D. M. E. was charged in a third information with
    a single count of failure to comply with the recognizance on which he had been
    released on the second set of charges.

The Original Election of the Crown

[9]

On February 7, 2011 all three informations were before a judge of the
    Ontario Court of Justice. The Crown (not Ms. Choi) elected to proceed by
    indictment on all charges. D. M. E. elected trial by a court composed of a
    judge and jury and requested a preliminary inquiry.

The Committal for Trial

[10]

On
    September 16, 2011, more than two years after the first information was sworn,
    a judge of the Ontario Court of Justice ordered that D. M. E. stand trial on
    all the charges contained in the three separate informations.

The Indictment

[11]

On
    October 5, 2011 an indictment was filed in the Superior Court of Justice at
    Milton charging D. M. E. with each offence on which he had been ordered to
    stand trial.

The Appearances in the Superior
    Court of Justice

[12]

D.
    M. E. made several appearances before various judges of the Superior Court of
    Justice commencing on November 7, 2011. Pre-trial motions were scheduled to
    begin on October 22, 2012 with a six to eight day jury trial fixed to commence
    on December 3, 2012.

The Trial Date: Re-election and
    Plea

[13]

On
    the trial date, counsel sought a further pre-trial with a judge of the Superior
    Court of Justice. When counsel returned to the courtroom after the pre-trial,
    Crown counsel announced:

We actually have
    come to a resolution in this matter.

Crown counsel then asked the presiding judge if he
    would allow the Crown to re-elect summarily. The judge agreed. Defence
    counsel expressed his thanks.

[14]

D.
    M. E. was arraigned on two counts in the indictment: sexual assault and
failure to comply with a non-communication term of
    his original undertaking.
D. M. E. pleaded guilty to both counts. Both
    defence counsel and D. M. E. confirmed the accuracy of the statement of facts
    read by Crown counsel. The presiding judge entered convictions on both counts,
    ordered a pre-sentence report, and set a date for submissions on sentence.

[15]

The
    proceedings that occurred on the trial date attracted no objection at the time from
    anyone who participated. Not to the authority of the Crown to re-elect in the
    superior court of criminal jurisdiction to proceed with the counts in the
    indictment by summary conviction. And not to the authority of the judge of the
    Superior Court of Justice to permit the re-election, to receive the pleas of
    guilty, and to proceed with sentencing.

The Sentencing Proceedings

[16]

On
    June 19, 2013 the trial judge sentenced D. M. E. to a term of imprisonment for
    12 months to be followed by a period of probation of equivalent length. The
    judge also made several ancillary orders including a non-communication order
    under s. 743.21(1) of the
Criminal Code,
R.S.C. 1985, c. C-46
.

The Appellate Proceedings

[17]

On
    June 24, 2013 D. M. E. filed a Notice of Appeal or Application for Leave to
    Appeal against the sentence imposed upon him. About two weeks later, he filed
    an
Amended
Notice of Appeal or Application for
    Leave to Appeal against his sentence in which he contended, for the first
    time, that the sentencing judge lacked jurisdiction to preside over the
    Sentencing Hearing of the Applicant.

[18]

In
    both the original and the amended Notice of Appeal of Appeal or Application
    for Leave to Appeal, D. M. E. described the relief sought as:

1. Leave to appeal against the sentence of the Honourable
    Sentencing Judge; and

2.  Such further and other Order as to this Honourable Court
    may seem just.

D. M. E. has not filed or sought an extension of time
    within which to file an appeal against conviction.

[19]

For
    the respondent, Ms. Choi filed a Motion to Quash the appeal against sentence
    for lack of jurisdiction. The motion was returnable and heard together with D.
    M. E.s appeal against sentence.

THE GROUNDS OF APPEAL

[20]

On
    appeals against sentences passed by trial courts in proceedings on indictment,
    courts of appeal hear submissions from the parties about the fitness of the
    sentence imposed at trial. Section 687(1) of the
Criminal Code
requires a court of appeal to consider the fitness of the sentence against which
    the appeal is taken and permits the court to dismiss the appeal or to vary the
    sentence within the limits prescribed by law for the offence of which the
    accused has been convicted.

[21]

This
    appeal followed a different course. The only ground advanced was that the
    sentencing judge had no jurisdiction to continue the proceedings after the
    trial Crown had re-elected, with the approval of the judge and the consent of
    defence counsel, to proceed by summary conviction. Although not seeking any
    specific relief in either the original or amended Notice of Appeal or
    Application for Leave to Appeal, in oral argument the appellant sought an
    order quashing the sentence imposed and remanding the matter back to the
    provincial court.

[22]

For
    discussion purposes, I will consider the claim of lack of jurisdiction first in
    connection with the Crowns authority to re-elect mode of proceeding, then in
    relation to the authority of the judge of the superior court of criminal
    jurisdiction to take a plea and impose sentence. Finally, if there is a
    jurisdictional failure, I will consider the nature of the remedy available on
    an appeal from sentence.

Ground #1:
    Jurisdiction to Permit the Crown to Re-elect Mode of Proceeding

[23]

No
    additional background need be summoned to enlarge the setting essential to an
    understanding and determination of this specific jurisdictional failure. Yet
    some features of the procedural milieu warrant brief repetition.

The Re-election Proceedings

[24]

In
    accordance with the Crowns original election to proceed by indictment and his
    election to be tried by a court composed of a judge and jury, the appellant
    appeared with counsel on the date fixed for trial. He did not seek to re-elect
    trial by provincial court judge in accordance with s. 561(1)(a) of the
Criminal Code
prior to the trial Crown re-electing to proceed by summary
    conviction.

[25]

Once
    the trial Crown announced her intention to re-elect mode of proceeding, she
    sought from, and was granted permission by, the presiding judge to do so. The
    appellant was then arraigned, and entered pleas of guilty before the presiding
    judge. No one raised any objection to the presiding judge, a judge of the
    superior court of criminal jurisdiction, accepting D. M. E.s guilty pleas and
    proceeding with sentencing. In particular, no one suggested that, as a summary
    conviction proceeding, the case should be remitted to a judge of the Ontario
    Court of Justice for disposition.

The Positions of the Parties

[26]

For
    the appellant, Mr. Smith submits that the superior court of criminal
    jurisdiction has jurisdiction to try any
indictable
offence but only a
    summary conviction court as defined in s. 785 of the
Criminal Code
has the authority to try, determine and adjudge summary conviction proceedings
    under s. 798 of the
Criminal Code
. Neither the superior court of
    criminal jurisdiction nor a judge of that court is a summary conviction court
    within s. 785 of the
Criminal Code
. It follows, according to Mr.
    Smith, that once Crown counsel had validly re-elected to proceed by summary
    conviction, only a judge of the summary conviction court had authority to
    arraign the appellant, to take his plea and to proceed to trial or other
    disposition thereafter. The presiding judge should have remitted the case to
    the Ontario Court of Justice for plea and disposition.

[27]

For
    the respondent, Ms. Choi says that the appellant was properly before a judge of
    the Superior Court of Justice in accordance with the Crowns original election
    of mode of proceeding (by indictment) and the appellants election of mode of
    trial (by a court composed of judge and jury). There, the Crown could exercise
    its common law right to re-elect the mode of proceeding. The re-election was
    accompanied by the approval of the presiding judge and the consent of defence
    counsel, and thus was valid unless vitiated by what occurred later. Besides,
    the appellant benefitted by the re-election procedure because his trial counsel
    could seek a conditional sentence of imprisonment that was legally unavailable
    to him if the Crown proceeded by indictment.

The Governing Principles

[28]

Several
    principles have a say in a determination of whether Crown counsel at trial had
    the authority to re-elect mode of proceeding in the superior court of criminal
    jurisdiction.

The Categories of Offences

[29]

It
    is well-known that the
Criminal Code
contains offences that are

i. indictable;

ii. summary conviction;

iii. indictable or summary conviction.

Some offences are indictable only. Others are summary
    conviction only. The third category, with which we are concerned here, consists
    of hybrid offences that may be prosecuted by indictment or on summary
    conviction depending upon the Crowns election of mode of proceeding.

[30]

An
    offence is indictable if the enactment that creates it provides that an alleged
    offender may be prosecuted for it by indictment:
Interpretation Act
,
    R.S.C. 1985, c. I-21, as amended, s. 34(1)(a). As a result, offences in
    category iii  hybrid offences  are indictable offences unless and until Crown
    counsel elects or chooses to proceed by summary conviction:
R. v. Dudley
,
    2009 SCC 58, [2009] 3 S.C.R. 570, at para. 21. Conversely, once Crown counsel
    elects to proceed by summary conviction, what was an indictable offence is no
    longer deemed to be so:
Dudley
, at para. 21.

[31]

In
    the end, depending on Crown counsels election of mode of proceeding, or in
    some cases, Crown counsels failure to elect mode of proceeding, every hybrid
    offence will be tried as either an indictable offence, or as a summary
    conviction offence, but not as both.

The Right of the Crown to Elect
    Mode of Proceeding

[32]

The
    terms proceeding by indictment and proceeding by summary conviction
    designate modes of proceeding and have resonance for hybrid offences. The right
    to choose, said differently, to elect mode of proceeding for hybrid offences
    resides with the Crown. This authority is grounded in the common law, not
    created by statute:
R. v. Smythe
, [1971] S.C.R. 680, at pp. 686-687;
R.
    v. Linton
(1994), 18 O.R. (3d) 647, 90 C.C.C. (3d) 528 (Gen. Div.), at p.
    532. As part of the criminal law of England in force immediately before the
    proclamation of the
Criminal Code
revision on April 1, 1955, the
    Crowns right to choose carries forward. Nothing in the
Code
alters,
    varies, modifies or affects this authority, and thus it retains its full
    vigour.

[33]

No
    common law or statutory authority prescribes or limits the place or
    circumstances in which Crown counsel may elect the mode of proceeding for
    hybrid offences. As a matter of practice, however, the election is made on an
    appearance before a provincial court judge and recorded on the information on
    which the accused appears before that court.

[34]

The
    election
[1]
and re-election
[2]
provisions in the
Criminal Code
apply only to proceedings on
    indictment and relate to mode of trial (for example, by a court composed of a
    judge and jury). The party who elects or re-elects mode of trial is the accused,
    who sometimes requires prosecutorial consent for a re-election.

The Right of the Crown to Re-elect
    Mode of Proceeding

[35]

The
    authorities also recognize the right of the Crown to re-elect mode of
    proceeding, in other words, to change its original election to the other mode
    of proceeding. Unlike the right of election of mode of trial, however, the
    right of the Crown to re-elect mode of proceeding is not unqualified. In some
    cases, a re-election may require the consent of the accused and approval of the
    presiding judge:
Linton
, at p. 540;
R. v. Hancock
(1992), 60
    O.A.C. 322 (C.A.), at p. 323;
R. v. Kalkhorany
(1994), 17 O.R. (3d)
    783, 89 C.C.C. (3d) 184 at pp.191-192; and
Re. Abarca and The Queen
(1980),
    57 C.C.C. (2d) 410 (Ont. C.A.), at pp. 516-517;

[36]

Despite
    the authority of the Crown to re-elect mode of proceeding in connection with
    hybrid offences, it is critical to keep in mind that the two modes of
    proceeding and types of trials are jurisdictionally different. The court that
    tries or otherwise disposes of the case must be properly constituted.

[37]

The
    decision of this court in
Kalkhorany
well illustrates some of the
    problems that may follow from decisions by Crown counsel to change modes of
    proceedings midstream.

[38]

In
Kalkhorany
, Crown counsel elected to proceed by summary conviction on
    a charge of fraud under. As the first witness was testifying, defence counsel
    interrupted the proceedings to point out that the Crown could not proceed by
    summary conviction because the offence was alleged to have been committed more
    than six months before the information was laid. Responding to a query from the
    trial judge, Crown counsel re-elected to proceed by indictment. Defence counsel
    indicated he was content to proceed. The appellant was not re-arraigned and
    entered no plea after Crown counsel had re-elected. The court was not
    reconstituted under Part XIX of the
Criminal Code
, nor was the
    evidence adduced prior to the re-election incorporated by reference into the
    indictable trial.

[39]

On
    appeal, Kalkhorany contended that the Crowns original election to proceed by
    summary conviction was a nullity because the information had been laid more
    than six months after the subject-matter of the proceedings arose. The Crown
    conceded on appeal that the original election was a nullity.
[3]
The court appears to acknowledge the Crowns right to re-elect mode of
    proceedings, but quashed the conviction because the court that entered it was
    never properly constituted. The court began the trial as a summary conviction
    court, but purported to continue it under Part XIX of the
Criminal Code
as the trial of an indictable offence within the absolute jurisdiction of a
    provincial court judge. The two types of trials are jurisdictionally
    different:
Kalkhorany
, at p. 191. The court did not suggest that
    Crown counsel had no right to re-elect mode of proceeding. What vitiated the
    proceedings was the failure to reconstitute the court  by arraignment, plea
    and referential incorporation of the evidence already given:
Kalkhorany
,
    at pp. 191-192.

[40]

Under
    s. 786(2) of the
Criminal Code
, summary conviction proceedings must
    generally be instituted not more than six months after the subject-matter of
    the proceedings arose. This general rule is not unyielding. The parties may
    consent to institution of summary conviction proceedings beyond the six month
    limitation period. There would seem no reason to assign a lesser role to mutual
    consent where what occurs outside the limitation period is a re-election rather
    than an election. It may also be open to question whether re-election of mode
    of proceeding amounts to an institution of proceedings:
Linton
, at pp.
    536-537.

The Principles Applied

[41]

As
    I will explain, several reasons persuade me not to give effect to this claim of
    error or jurisdictional deficit.

[42]

First,
    the right to elect mode of proceeding for hybrid offences is that of the Crown.

[43]

Second,
    the common law equally permits the Crown, having once elected one mode of
    proceeding in connection with a hybrid offence, to re-elect later the other
    mode of proceeding. In some instances consent of the accused and approval of
    the presiding judge may be required.

[44]

Third,
    unlike an accuseds right to elect or re-elect mode of trial, the Crowns right
    to elect or re-elect mode of proceeding need not be made at any specific place
    or before any particular judicial officer. Provided any consent and approval
    requirements are satisfied, it is of no jurisdictional moment where re-election
    is made.

[45]

Finally,
    that the re-election to proceed by summary conviction took place more than six
    months after the subject-matter of the proceedings arose is of no jurisdictional
    significance. The appellant, who was represented by counsel throughout, not
    only agreed with the change in the mode of proceeding, but also benefited
    substantially from it. Counsel for the appellant could advocate for a
    conditional sentence of imprisonment when Crown counsel proceeded summarily, a
    disposition statutorily unavailable to him when Crown counsel proceeded by
    indictment. And the maximum punishment to which the appellant would be subject on
    summary conviction was a term of imprisonment for 18 months rather than for ten
    years if the Crown proceeded by indictment. It may also be open to question
    whether re-election of mode of proceeding amounts to institution of proceedings
    within s. 786(2) of the
Criminal Code
:
Linton
, at pp. 536-537.

Ground #2: The Jurisdiction to
    Take Pleas of Guilty

[46]

The
    second issue has to do with the authority or jurisdiction of a judge of the
    superior court of criminal jurisdiction to take a plea of guilty in summary
    conviction proceedings. Some aspects of the proceedings in the Superior Court
    of Justice warrant brief repetition before a canvass of the positions of the
    parties and a reference to the governing principles.

The Plea Proceedings

[47]

After
    a further pre-trial conference with a judge of the Superior Court of Justice,
    counsel and the appellant returned to the courtroom where the trial Crown
    advised the presiding judge that we have actually come to a resolution in this
    matter. The Crown asked the presiding judge if he (the judge) would allow her
    (the Crown) to re-elect summarily. The judge approved. Defence counsel (who
    is also counsel on appeal) expressed his thanks.

[48]

The
    appellant was arraigned and entered pleas of guilty to two of the five counts
    in the indictment. The Crown read a statement of facts that supported findings
    of guilt on those two counts. Defence counsel acknowledged the substantial
    correctness of the summary read by the Crown, and clarified several points. The
    appellant agreed that the summary of facts, as clarified by defence counsel,
    was correct. The presiding judge entered convictions on the two counts to which
    the appellant had pleaded guilty. The other counts were withdrawn by the Crown.

[49]

At
    no point in the proceedings in the Superior Court of Justice did anyone
    involved in the case  Crown, defence or judge  query, let alone contest, the
    jurisdiction of the judge of the Superior Court of Justice to proceed as the
    prosecution played out.

The Arguments on Appeal

[50]

For
    the appellant, Mr. Smith contends that after the Crown had re-elected to proceed
    by summary conviction, the presiding the judge had no authority to continue the
    proceedings. Rather, he should have remitted them to the Ontario Court of
    Justice for determination. A summary conviction court was the only court with
    jurisdiction over the proceedings once the Crown had re-elected to proceed by
    summary conviction. The Superior Court of Justice is
not
a summary
    conviction court as defined in s. 785 of the
Criminal Code
.

[51]

Mr.
    Smith acknowledges that a judge of the Superior Court of Justice is
ex
    officio
a justice of the peace under s. 5 of the
Justices of the Peace
    Act
, R.S.O. 1990, c. J.4 and has jurisdiction throughout Ontario under s.
    17(1) of that Act. Although a justice of the peace may qualify as a summary
    conviction court under paragraph (b) of the definition in s. 785 of the
Criminal
    Code
, no one in the proceedings below suggested, much less invoked this
    provision to ground the authority of the presiding judge. It should not be
    summoned here as an after-the-fact justification for proceedings that were a
    nullity.

[52]

For
    the respondent, Ms. Choi offers two alternatives to sustain the convictions
    entered in the Superior Court of Justice.

[53]

First,
    Ms. Choi says, the pleas of guilty were entered on charges that were properly
    before the Superior Court of Justice according to the Crowns original election
    to proceed by indictment. These were offences over which the Superior Court of
    Justice has jurisdiction in much the same way that a judge of that court can
    take a plea to a summary conviction offence under s. 606(4) of the
Criminal
    Code
, or convict an accused of a lesser and included summary conviction
    offence under s. 662(1) of the
Criminal Code
.

[54]

Second,
    and alternatively, Ms. Choi submits that a judge of the Superior Court of
    Justice is
ex officio
a justice of the peace with province-wide
    jurisdiction under s. 5 and 17(1) of the
Justices of the Peace Act
. As
    a result, she says, the presiding judge was a summary conviction court within
    paragraph (b) of the definition of summary conviction court in s. 785 of the
Criminal
    Code
. As a summary conviction court, the presiding judge had authority
    to receive the guilty pleas and conduct sentencing proceedings. In these
    circumstances, a member of the Court of Appeal for Ontario,
ex officio
a judge of the Superior Court of Justice, can determine the sentence appeal
    under ss. 813(a)(ii) and 822(1) of the
Criminal Code
.

The Governing Principles

[55]

Several
    statutory provisions and related principles have their say in the resolution of
    this issue.

The Jurisdiction of the Superior
    Court of Justice

[56]

The
    Superior Court of Justice is a superior court of criminal jurisdiction as
    that term is exhaustively defined in s. 2 of the
Criminal Code
.
[4]
The superior court of criminal jurisdiction has jurisdiction to try any
indictable
offence under s. 468 and the exclusive jurisdiction to try the
indictable
offences listed or otherwise described in s. 469 of the
Criminal Code
.
    Part XIX
Indictable Offences  Trial without a Jury
, and Part XX
Procedure
    in Jury Trials and General Provisions
, govern the procedure in the trial
    of indictable offences in the superior court of criminal jurisdiction.

[57]

Three
    specific provisions in Part XX warrant particular reference in connection with
    the authority of the superior court of criminal jurisdiction to deal with
    summary conviction offences.

[58]

Section
    591(1) of the
Criminal Code
is a rule of pleading that does not, in
    express terms, authorize joinder of summary conviction and indictable offences
    together in the same indictment. Equally, s. 591(1) does not prohibit such
    joinder; it uses the undifferentiated or generic term offences:
R. v.
    Clunas
, [1992] 1 S.C.R. 595, at pp. 611-612. In the result, indictable and
    summary conviction offences may be joined together in the same indictment or
    information:
Clunas
, at pp. 611-612. But where the mode of trial for
    the indictable offences is trial by a court composed of a judge and jury, the
    indictable and summary conviction counts may not be tried together:
Clunas
,
    at p. 612.

[59]

Under
    s. 606(4) of the
Criminal Code
, an accused or defendant may plead not
    guilty of the offence charged, but guilty of any other offence arising out of
    the same transaction, whether the offence to which the guilty plea is entered
    is an included offence in the offence charged or not. Once again, the use of
    the generic any other offence would permit entry of the plea of guilty to a
    summary conviction offence even if the proceedings were in the superior court
    of criminal jurisdiction. The plea of guilty in this context is only effectual
    with prosecutorial consent and judicial acceptance.

[60]

Where the principal offence charged is an
    indictable offence, entry of a
s. 606(4) plea of guilty to a summary
    conviction offence does not change the nature of the proceedings in which the
    plea was entered. As they began in connection with the principal offence, these
    are proceedings by indictment, and it is the nature of the proceedings, not
    the nature of the conviction, that determines appellate rights:
R. v.
    Yaworski
(1959), 124 C.C.C. 151 (Man. C.A.), at p. 154;
R. v.
    Lévesque,
[2002] J.Q. No. 1359 (C.A.), at para. 13. See also, ss.
    675(1)(b) and 676(1)(d) of the
Criminal Code
.

[61]

One
    further statutory provision warrants mention for it too permits a superior
    court of criminal jurisdiction to deal with a summary conviction offence.

[62]

Section
    662(1) of the
Criminal Code
permits conviction of an accused of an
    offence included in the indictable offence charged where the evidence fails to
    prove the principal offence, but does prove the included offence. The included
    offence of which the accused may be convicted may be punishable on summary
    conviction. Once again, however, it is the nature of the proceedings, not the
    nature of the conviction that determines appellate rights.

The Jurisdiction of the Summary
    Conviction Court

[63]

Part
    XXVII of the
Criminal Code
governs summary conviction proceedings
    except where some other law provides otherwise:
Criminal Code
, s.
    786(1). Among other things, the term proceedings means proceedings in respect
    of offences that Parliament has declared to be punishable on summary
    conviction:
Criminal Code
, s. 785.

[64]

Every
    summary conviction court has jurisdiction to try, determine and adjudge summary
    conviction proceedings in the territorial division in which the summary conviction
    court has jurisdiction:
Criminal Code
, s. 798. In Part XXVII, the term
    summary conviction court means a person who has jurisdiction in the
    territorial division where the subject-matter of the proceedings is alleged to
    have arisen and is either given jurisdiction over the proceedings by the
Criminal
    Code
or is a justice or provincial court judge:
Criminal Code
, s.
    785. The term justice is exhaustively defined in s. 2 of the
Criminal
    Code
as a justice of the peace or a provincial court judge.

[65]

Some
    authorities have held that enabling legislation such as s. 5 of the
Justices
    of the Peace Act
permits a judge of a superior court of criminal
    jurisdiction to exercise the powers of a justice of the peace:
R. v.
    Vincent
, 2008 ONCA 76, at paras. 12-13; and
R. v. Sharma
, [1995]
    B.C.J. No. 2680 (C.A.), at para. 24. But circumstances may make in unwise for a
    judge of the superior court of criminal jurisdiction to exercise jurisdiction
    as an
ex officio
justice of the peace, as for example where the effect
    would be to have members of the same court exercise both first instance and
    review jurisdiction:
R. v. LaFontaine
(1973), 13 C.C.C. (2d) 316 (Ont.
    H.C.), at pp. 317-318.

[66]

This
    court has also held that the superior court of criminal jurisdiction has no
    authority to try summary conviction offences charged in the same indictment as
    indictable offences. The jurisdiction of the superior court of criminal
    jurisdiction is to try indictable offences, not to try summary conviction
    offences:
R. v. Allen
, [2000] O.J. No. 4150 (C.A.), at para. 5; and
R.
    v. Woolcock
, [2002] O.J. No. 4927 (C.A.), at para. 18.

The Principles Applied

[67]

For
    several reasons, I would give effect to this ground of appeal. It follows, in
    my respectful view, that the presiding judge had no authority to arraign the
    appellant, to take his plea of guilty, or to impose what he considered to be a
    fit sentence.

[68]

First,
    the offences to which the appellant pleaded guilty after the Crowns
    re-election to proceed summarily were summary conviction offences. Section 798
    of the
Criminal Code
requires that summary conviction proceedings be
    tried, determined and adjudged by a summary conviction court. Section 785
    exhaustively defines summary conviction court. Neither the superior court of
    criminal jurisdiction, as defined in s. 2, nor a judge of that court is
    included in the definition of summary conviction court in s. 785 of the
Criminal
    Code
.

[69]

Second,
    the Superior Court of Justice, either by name or as the superior court of
    criminal jurisdiction, is the appeal court for the purposes of appeals in
    summary conviction proceedings under ss. 813-828 and 830-838 of the
Criminal
    Code
. It would be somewhat undesirable to have judges of the same court
    try and review trials for error.

[70]

Third,
    the proceedings in this case do not come within any of the circumstances to
    which ss. 606(4) and 662(1) apply directly or by analogy.

[71]

Section
    606(4) applies where an accused pleads not guilty to the offence charged (the
    principal offence), but guilty to some other offence arising out of the same
    transaction (the other offence). The court has the discretion to accept the
    plea to the other offence provided the Crown has consented to entry of that
    plea. The other offence could be a summary conviction
[5]
offence.

[72]

Section
    606(4) has no application here. Here, the pleas of guilty were to the principal
    offences. Further, although s. 606(4) would permit an accused in proceedings by
    indictment to plead not guilty to the principal indictable offence charged, but
    guilty to a summary conviction offence arising out of the same transaction, the
    subsection cannot provide general authorization for what occurred here  the
    conduct of summary conviction proceedings by a court other than a summary
    conviction court.

[73]

Section
    662(1) is also limited in scope. It permits a court in proceedings by
    indictment to find an accused not guilty of the principal indictable offence
    charged, but guilty of an included summary conviction offence where the
    evidence fails to prove the principal offence, but does prove the included
    offence. But like s. 606(4), this provision does not furnish general authority
    to a superior court of criminal jurisdiction to try summary conviction
    offences.

[74]

Fourth,
    although there may be circumstances in which a judge of the Superior Court of
    Justice may exercise jurisdiction as a justice of the peace as a result of s. 5
    of the
Justices of the Peace Act
, the parties never asked the
    presiding judge to do so here, nor did he purport to do so. Although as a
    matter of statutory construction a
justice of
    the peace falls within the definition of summary conviction court in
s.
    785 of the
Criminal Code
, in this province justices of the peace do not
    in practice exercise jurisdiction as a summary conviction court for the trial
    of summary conviction offences under the
Criminal Code
. Further, the
    two types of proceedings  proceedings by indictment and proceedings by summary
    conviction  are jurisdictionally different. At the very least, the steps
    required to reconstitute the presiding judge as a summary conviction court
    were not taken, thus summary conviction jurisdiction was not engaged.

[75]

Finally,
    prior decisions of this court make it clear that the superior court of criminal
    jurisdiction has no authority to try summary conviction offences:
Allen
,
    at para. 5; and
Woolcock
, at para. 18.

The Appropriate Remedy

[76]

The
    more difficult issue in this case has to do with the disposition that we should
    make in light of the determination that the presiding judge had no authority to
    conduct proceedings once Crown counsel had re-elected to proceed by summary
    conviction. The available remedies are circumscribed by the nature of the
    appeal  an appeal against sentence only  and the dispositive authority
    conferred on this court by s. 687 of the
Criminal Code
 to dismiss
    the appeal or vary the sentence within the limits prescribed by law for the
    offences of which the appellant has been convicted.

The Positions of the Parties

[77]

For
    the appellant, Mr. Smith submits that the respondents motion to quash the
    appeal should be dismissed. The proceedings taken against the appellant in the
    Superior Court of Justice were proceedings by indictment. The appellants
    appearance there was a direct result of Crown counsels election of mode of
    proceeding and the appellants own election of mode of trial. Crown counsel
    elected to proceed by indictment. The appellant elected to be tried by a court
    composed of a judge and jury. Although the appellant was convicted of summary
    conviction offences, it is the nature of the proceedings not the nature of the
    conviction that determines rights of appeal. A sentence imposed by a trial
    court
in proceedings by indictment falls
    within the authority of this court under
s. 675(1)(b) of the
Criminal
    Code
.

[78]

According
    to Mr. Smith, the appropriate remedy is to allow the appeal, quash the sentence
    imposed in the Superior Court of Justice and remit the case to the Ontario
    Court of Justice sitting as a summary conviction court, to take the pleas of
    guilty and conduct sentencing proceedings. Mr. Smith emphasizes that the
    appellant does not intend to resile from the pleas of guilty he entered in the
    Superior Court of Justice.

[79]

For
    the respondent, Ms. Choi did not specifically address the issue of remedy if
    the re-election were found valid but the subsequent proceedings conducted
    without jurisdiction. Her approach was to characterize the proceedings as a
    whole as being conducted with or without jurisdiction based on the validity of
    Crown counsels re-election. If the Crowns re-election to proceed by summary
    conviction was invalid, the offences remain indictable and this court should
    determine the fitness of the sentence. If the Crown election to proceed by
    summary conviction was valid, this court has no authority to consider the
    fitness of the sentence, although a single member of the court could do so as a
    member of the appeal court in s. 812(1)(a) of the
Criminal Code
and
    should do so.

The Governing Principles

[80]

Several
    principles contribute to a determination of the remedy that is legally
    available and just in this case.

[81]

First,
    as I pointed out earlier, rights of appeal are determined by the nature of
    proceedings in which the convictions are entered and sentences imposed, not by
    the nature of the offence of which an accused is convicted:
Yaworski,
at p. 134;
and
Lévesque
, at para.
    13. It follows that if an accused is convicted in proceedings by indictment of
    an offence that is exclusively summary conviction, his or her rights of appeal
    are those included in Part XXI,
Appeals  Indictable Offences
, in particular,
    in s. 675.

[82]

Second,
    rights of appeal, as well as the remedies available on appeal, are entirely
    statutory. Unlike superior courts of criminal jurisdiction, appellate courts
    have no inherent jurisdiction. And that is so, at least where the appellate
    court is exercising its host jurisdiction, even if the court might be included
    in a statutory definition of superior court of criminal jurisdiction.

[83]

Third,
    on appeals against sentence only, whether the proceedings in the trial court
    are by indictment or by summary conviction, the authority of the reviewing
    court is to dismiss the appeal or to vary the sentence within the limits
    prescribed by law for the offence of which the accused was convicted. The
    dispositive authority on sentence appeals, s. 687 of the
Criminal Code
,
    made
applicable to sentence appeals in summary
    conviction proceedings by
s. 822(1), contains no provision comparable to
    the supplementary authority found in s. 686(8) to make any additional order
    that justice requires.

[84]

Fourth,
    persons charged with summary conviction offences have proceedings against them
    tried, determined and adjudged by a summary conviction court, not by a judge of
    the superior court of criminal jurisdiction.

[85]

What
    the parties sought to achieve here seems clear enough. The appellant was
    prepared to plead guilty to counts of sexual assault and breach of an
    undertaking, but wanted to be able to seek a conditional sentence on the sexual
    assault count. A conditional sentence was not legally available if the Crown
    proceeded by indictment. To permit the appellant to seek a conditional
    sentence, Crown counsel re-elected to proceed by summary conviction. But the
    proceedings never made their way to a summary conviction court.

[86]

The
    result the parties sought could have been accomplished in a few brief steps.
    When the parties appeared for trial in the Superior Court of Justice, the
    appellant could have re-elected trial by a provincial court judge with the
    written consent of the prosecutor under s. 566(1)(a) of the
Criminal Code
.
    The proceedings would have retained their indictable character when they
    returned before a judge of the Ontario Court of Justice. When the parties
    appeared before a provincial court judge in the Ontario Court of Justice, Crown
    counsel could then have re-elected to proceed by summary conviction.
    Reconstituted as a summary conviction court, the presiding judge could then
    proceed with the arraignment, pleas of guilty and sentencing proceedings. The
    parties could appeal the sentence imposed to the Superior Court of Justice
    under s. 812 of the
Criminal Code
. In the circumstances of this
    appeal, once the Crown re-elected, one would think the presiding judge could
    have remitted the matter to the Ontario Court of Justice.

The Principles Applied

[87]

For
    the reasons that follow, I am satisfied that the initial election of the Crown
    to proceed by indictment, together with the appellants appearance before a
    judge of the superior court of criminal jurisdiction on the date scheduled for
    a jury trial, establishes a sufficient jurisdictional predicate for this court
    to hear and determine this appeal from sentence. In addition, I am satisfied
    that in these circumstances we have the authority to quash a sentence imposed
    by a court that was without jurisdiction to impose it. In the result, I would
    grant leave to appeal sentence, allow the appeal, quash the sentence imposed at
    trial and, along with it, the pleas of guilty entered there.
[6]
I would also dismiss the Motion to Quash the Appeal.

[88]

Once
    the Crown had re-elected to proceed by summary conviction, the case should have
    been remitted to the Ontario Court of Justice in the jurisdiction in which the
    proceedings arose. It was there, not in the superior court of criminal
    jurisdiction, that, to borrow the language of s. 798 of the
Criminal Code
,
    the summary conviction proceedings should have been tried, adjudged and
    determined.

[89]

The
    appellant is now a person charged with several summary conviction offences.
    Arrangements should be made, as soon as practicable, to have him appear before
    a judge of the Ontario Court of Justice at Milton so that the prosecution can
    proceed, as it failed to do earlier, in a court with jurisdiction to do so. In
    light of the position taken by counsel for the appellant during argument, that
    the appellant does not resile from his pleas of guilty, I expect that the
    summary conviction proceedings can be completed shortly.

Released: June 26, 2014 (J.L)

David Watt
    J.A.

I agree John Laskin J.A.

I agree
    R.G. Juriansz J.A.

[1]
For example, ss. 536 and 536.2.

[2]
For example, ss. 561-563.

[3]
The decision precedes the 1997 amendment to s. 786(2) which permits summary
    conviction proceedings to be instituted more than six months after the
    subject-matter of the proceedings arose provided both parties consent.

[4]
This court is also included in the definition.

[5]
If the other offence is a hybrid offence, it would be indictable because of
    s. 34(1)(a) of the
Interpretation Act.

[6]
If necessary I would extend the time within which the appellant could serve and
    file a Notice of Appeal against conviction to achieve this result on the basis
    that the plea of guilty was entered in a court that had no jurisdiction to
    receive it.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Delchev, 2014 ONCA 448

DATE: 20140609

DOCKET: C56467

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Nikolai Delchev

Respondent

Susan Magotiaux, for the appellant

P. Andras Schreck, for the respondent

Heard: February 18, 2014

On appeal from the sentence imposed on December 11, 2012 by
    Justice Wailan Low of the Superior Court of Justice, following conviction by a jury.

Feldman J.A.:

[1]

The respondent, Nikolai Delchev, was convicted by a jury of 16 counts of
    weapons and drug offences and received a global sentence of 42 months. The
    respondent appealed his convictions and the Crown sought leave to cross-appeal
    the sentence. The Crown was able to perfect the cross-appeal within the
    prescribed time limit, but the transcripts needed for the conviction appeal
    were not available to perfect that appeal at the same time. The case management
    judge allowed the Crown to proceed with the sentence appeal before the
    conviction appeal was perfected. The sentence appeal proceeded separately
    before this panel. The conviction appeal has yet to be perfected.

[2]

The Crown submits that the sentence is
    demonstrably unfit and asks this court to impose a sentence in the range of
    seven years. As the respondent was released on day parole in December 2013, the
    Crown submits that he must be re-incarcerated.

Facts of the Offence

[3]

The respondent was 36 years old on the date of the offence, June 17,
    2008. He lived alone in a house he owned in Scarborough. He had a job as a
    fibre optics technician. Based on information from a confidential informant,
    the police obtained a search warrant to enter and search his home where they
    found him with what the trial judge referred to as a veritable arsenal of
    weaponry plus ammunition as well some drugs and related paraphernalia.
    Following a three-week trial, he was convicted of the following offences:
    possession of cocaine for the purpose of trafficking (10.5 grams); possession
    of oxycodone for the purpose of trafficking; simple possession of marijuana and
    hashish; possession of a restricted firearm (an assault rifle) without
    authorization or registration; possession of a prohibited firearm (a pistol)
    with readily accessible ammunition capable of being discharged in the firearm,
    without authorization or registration; possession of a restricted firearm (a
    carbine rifle) without authorization or registration; two counts of possession
    of a firearm (two rifles) without authorization or registration; storing
    ammunition in a careless manner; possession of a prohibited device (a
    high-capacity magazine for the assault rifle); five counts of possession of a
    prohibited weapon (a switch blade knife, a push dagger, a butterfly knife, a
    three-point shuriken, and a Yaqua blowgun).

Reasons for Sentence

[4]

The trial judge began her reasons for sentence by noting that guns are
    a blight on civil society and that the combination of guns and drugs is a toxic
    one, and that in that context, denunciation and deterrence were the most
    significant principles of sentencing.

[5]

On the date of sentencing, this courts decisions in
R. v. Nur
, 2013 ONCA 677, 117 O.R. (3d) 401,
and
R.
    v. Smickle
, 2013 ONCA 678, 311 O.A.C. 288, striking down the three-year
    mandatory minimum sentence for certain gun possession offences had not yet been
    released. The trial judge accepted counsels request that she determine the
    appropriate sentence without reference to the mandatory minimum, and only
    consider the constitutionality of the mandatory minimum if the appropriate
    sentence was lower than that minimum.

[6]

The trial judge began by considering the respondents history. He was
    born in Bulgaria and immigrated to Canada in 1980 with his parents as refugees.
    They settled in Scarborough, where he completed high school as well as one and
    a half years of a college business programme. At the time of sentencing, he was
    41 years old and had worked as a fibre optics technician for 12 years. He had
    the support of his employer as well as family and friends. He had a dated
    criminal record consisting of two convictions in 1991: one for possession of a
    narcotic, for which he received a conditional discharge, and the other for
    possession of property obtained by crime under $1000, for which he received a
    $250 fine and 12 months probation.

[7]

The respondent testified at trial that he became a cocaine addict
    following his mothers death in 2000 and his subsequent break-up with his
    girlfriend. He further testified that the cocaine found was for his own use.
    While accepting that the respondent was a drug user, the trial judge did not
    believe he was an addict, observing that the jury rejected his contention that
    the cocaine was for his own use and convicted him of possession for the purpose
    of trafficking.

[8]

The trial judge found the respondents evidence to be disingenuous. In
    particular, the trial judge found that the reason he went every night to
    Sunnys Bar, a known drug marketplace, was because he was carrying on a small
    trafficking business for financial gain. Further evidence included the decks
    of cocaine, the supply of gloves, weighing and packaging material, and the
    significant quantities of cash found by the police in his home.

[9]

The trial judge also rejected the respondents attempt to blame a person
    named Jason Ramsay for his drug use, as well as for his possession of all of
    the weaponry found in his home, which he claimed was based on threats of harm.
    She found that his evidence on these issues had no air of reality or ring of
    truth. The evidence found by the police, including two weapons by the
    respondents bed, the spent shell casings on the floor in the basement from a
    gun not found in the house, together with a paper target, military literature,
    and a silencer and body armour, were all consistent with the firearms and
    ammunition belonging in fact to the respondent.

[10]

After
    reviewing the case law that defined the range of sentence, the trial judge
    considered the particular circumstances of the respondent for the purpose of
    weighing the relevant factors in order to determine the appropriate sentence.

[11]

Although
    the respondents father had left him alone as a child to work abroad, and he
    had suffered the trauma of losing his mother and the break-up of his
    relationship, he was an adult when he committed the offences and therefore
    responsible for his choices. The trial judge noted that although the
    combination of guns and drugs was an aggravating factor, there was no evidence that
    the respondent ever used the firearms in connection with his drug business.
    Another aggravating factor was the quantity of firearms, ammunition and other
    lethal weapons.

[12]

On
    the mitigating side, the trial judge referred to the support the respondent had
    from his father, his good employment record and the positive opinion of him
    held by his neighbours and friends. The trial judge accepted the respondents
    statement that he had stopped using cocaine. The respondent expressed some
    remorse and responsibility for his actions. The trial judge found that he had
    good potential for rehabilitation, and concluded:

[A]nd in imposing the sentence which follows, I am imposing
    concurrent sentences for the weapons and drugs offences, rather than
    consecutive sentences which would otherwise be warranted in light of the
    unrelatedness of the offences.

[13]

Taking
    into account: a) the offenders age; b) his criminal record; c) his
    circumstances; d) the nature and quantity of the guns; e) the nature and
    quantity of the ammunition; f) the nature and quantity of the other prohibited
    weapons, the trial judge found that a fit and appropriate global sentence was
    42 months plus one year concurrent for the drug offences.

Issues

[14]

The
    Crown raises two issues in the cross-appeal against sentence:

(1)     Was the sentence imposed by the trial judge so      low
    as to be demonstrably unfit?

(2)     Did the trial judge err by making the drug      sentence
    concurrent rather than consecutive to         the sentence on the weapons
    charges?

Analysis

(1)

Was the sentence imposed by the trial judge demonstrably
    unfit?

[15]

In
R. v. L.M.,
2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15, the
    Supreme Court confirmed the applicable principles from its case law that are to
    be applied on an appeal against sentence:

In its past decisions, this Court has established that
    appellate courts must show great deference in reviewing decisions of trial
    judges where appeals against sentence are concerned. An appellate court may not
    vary a sentence simply because it would have ordered a different one. The court
    must be "convinced it is not fit", that is, "that ... the
    sentence [is] clearly unreasonable" (
R. v. Shropshire
, [1995] 4
    S.C.R. 227, at para. 46, quoted in
R. v. McDonnell
, [1997] 1 S.C.R.
    948, at para. 15). This Court also made the following comment in
R. v. M.
    (C.A.)
, [1996] 1 S.C.R. 500, at para. 90:

...absent an error in principle, failure to consider a
    relevant factor, or an overemphasis of the appropriate factors, a court of
    appeal should only intervene to vary a sentence imposed at trial if the
    sentence is demonstrably unfit.

(See also
R. v. W. (G.)
, [1999] 3 S.C.R. 597, at para.
19; A. Manson,
The Law of
    Sentencing
(2001), at p. 359; and F. Dadour,
De la détermination de la peine: principes et applications
(2007), at p. 298.)

Owing to the profoundly contextual nature of the sentencing
    process, in which the trier of fact has broad discretion, the standard of
    review to be applied by an appellate court is one based on deference. The
    sentencing judge has "served on the front lines of our criminal justice
    system" and possesses unique qualifications in terms of experience and the
    ability to assess the submissions of the Crown and the offender (
M. (C.A.)
,
    at para. 91). In sum, in the case at bar, the Court of Appeal was required  for
    practical reasons, since the trier of fact was in the best position to
    determine the appropriate sentence for L.M.  to show deference to the sentence
    imposed by the trial judge.

[16]

Therefore,
    when considering a Crown appeal against sentence, a court of appeal must
    approach its task on the basis that it is to accord deference to the sentencing
    decision of the trial judge, and only consider interfering where that judge
    made an error in principle, failed to consider a relevant factor,
    overemphasized a factor or imposed a sentence that was demonstrably unfit.

[17]

The
    Crown submits that the trial judge erred by according diminished weight to a
    number of Ontario cases decided within the previous five years when statutory
    mandatory minimums were in place. The Crown argues that, regardless of
    statutory floors, those cases have established an increased range of sentence
    for gun and drug offences, reflecting the need for sentences to be significant
    in order to emphasize the goals of denunciation and general deterrence. The
    Crown points to the increase in violent crime in Toronto involving guns, and
    guns with drugs, and submits that the range of sentence has increased to meet
    this problem, regardless of new mandatory minimums.

[18]

I
    do not agree with the Crowns submission that one can ignore the effect of the
    (now-invalidated) three-year mandatory minimum sentence requirements when
    considering the range of sentence that is derived from sentences imposed based
    on those minimums. Several decisions  including many of the decisions which
    the Crown put before the trial judge  have explicitly recognized that
    mandatory minimums have the effect of creating an inflationary floor that set
    a new minimum punishment applicable to the best offender:
R. v. Morrissey
,
    [2000] 2 S.C.R. 90, at para. 75, per Arbour J., concurring;
R. v. Harutyunyan
,
    2012 ONSC 58, at para. 18, affd 2012 ONCA 637;
R. v. Gobire
, 2013
    ONSC 2073, at paras. 19-20;
R. v. Brown
, 2010 ONCA 745, 277 O.A.C.
    233, at para. 13;
R. v. Andall
, [2011] O.J. No. 3523 (S.C.), at paras.
    23-24;
R. v. Scarlett
, 2013 ONSC 562, at para. 32; and
R. v. Whyte
,
    2011 ONSC 181, at para. 18.

[19]

The
    effect of the inflationary floor is that because the best offender must
    receive the minimum sentence, which may be a higher sentence higher than the
    one that would have been given without the minimum, the sentences for more
    culpable offenders are increased as well, so that the whole range increases.
    The cases referred to above all reflect that effect. Given that the mandatory
    minimums have been ruled unconstitutional by this court, the trial judge did
    not err if she gave diminished weight to sentences imposed following the
    imposition of the mandatory minimum when determining what would be a fit
    sentence.

[20]

Having
    said that, the increase in gun violence and in gun violence associated with
    drug dealing in Toronto, requires the imposition of significant sentences in
    order to address the goals of denunciation and deterrence and to express
    societys abhorrence of this increasing, extremely serious phenomenon.

[21]

In
    my view, the trial judge fully appreciated both the effect of mandatory
    minimums on the inflationary floor in reviewing recent sentences and the
    special need for sentences that address denunciation and deterrence for guns
    and drugs offences when she considered all of the applicable case law and
    applied it in imposing the sentence she considered appropriate for the
    respondent.

[22]

The
    trial judge referred to and considered all of the cases relied on by the Crown.
    The first was
R. v. Velez-Lau
, 2011 ONSC 4805. There, a four-year
    sentence less credit for pre-sentence custody was imposed on a 24 year old
    first-time offender who was convicted of possession of a loaded revolver and a
    semi-automatic pistol with readily accessible ammunition. In that case, the guns
    were found in a storage locker.

[23]

In
R. v. Mohamed
, [2008] O.J. No. 5492 (S.C.), the two accused were
    convicted for possessing three unloaded handguns in an automobile. One accused
    had a significant record and was sentenced to nine years less credit for
    pre-sentence custody. The other accused received a sentence of two years. He
    was a 22 year old first-time offender who was employed and supporting two young
    children.

[24]

In
R. v. Nur
, 2011 ONSC 4874, 275 C.C.C. (3d) 330, a case decided while
    the mandatory minimum was still in place, the accused pled guilty to possession
    of a loaded semi-automatic handgun. He was 19 years old, had no record and had
    good rehabilitative prospects. The trial judge described the sentence as 40
    months minus 20 months for presentence custody. A more accurate description is
    a one-day sentence plus credit of 40 months for presentence custody. The trial
    judge did not have the benefit of the Court of Appeal decision in
Nur
,
    where this court struck down the mandatory minimum sentence of three years, but
    stated that without the minimum, the offence was serious enough to warrant a
    sentence of three years.

[25]

The
    next sentence referred to by the Crown was
R. v. Harutyunyan
, where
    the accused was convicted of possession of a loaded semi-automatic handgun
    which fell out of his trousers when he was being apprehended by the police for
    driving a suspected stolen car. He was also convicted of obstruction of
    justice. The 25 year old first-time offender was sentenced to four years. The
    sentence was upheld by the Court of Appeal.

[26]

The
    Crown referred the trial judge to three cases involving guns and drugs. The
    first was
R. v. Dehaney
, 2012 ONSC 3014. The accused was convicted of
    possession of three and a half grams of crack cocaine for the purpose of trafficking,
    possession of proceeds of crime of $100, possession of a loaded, prohibited
    firearm and attempting to possess a firearm knowing he was not licensed. He had
    a minor record and an unfavourable pre-sentence report. He was sentenced to
    seven years imprisonment.

[27]

The
    second case was
R. v. Andall
. The accused was 18 years old at the time
    of the offences and was a first-time adult offender. Seven firearms were seized
    from an apartment while he was present. He was convicted of: possession of
    three loaded handguns, two sawed-off shotguns, one stun gun, possession of
    ammunition for the purpose of trafficking, trafficking in crack cocaine, and a
    number of ancillary firearms offences. He received a sentence of four and a
    half years for possession of the firearms, six months consecutive for the
    ammunition for the purpose of trafficking, and one year consecutive for
    trafficking in cocaine, as well as a four and a half year concurrent sentence
    for the ancillary firearms offences, resulting in a global sentence of six
    years, less time served on a two-to-one basis.

[28]

The
    third case was a decision of this court, which the trial judge stated was of
    the greatest assistance to her. In
R. v. Wong
, 2012 ONCA 767, the
    accused was convicted of possession of a loaded firearm without authorization,
    possession of a firearm without a license, trafficking in ketamine, possession
    of ketamine, three counts of possession of a narcotic for the purpose of
    trafficking (ketamine, marijuana and cocaine), careless storage of a firearm,
    and possession of a firearm knowing that its possession was unauthorized. He
    also pled guilty to failure to comply with recognizance of bail. The defendant
    was 24 years old and a first-time offender. He received a global sentence of
    three years on the weapons and drugs offences, plus 30 days concurrent for the
    breach of recognizance. On appeal, the conviction under s. 95(1) for possession
    of a loaded firearm without authorization was set aside. The sentence was
    upheld. This court observed again, at para. 13, that:

The combination of drugs and guns is particularly concerning.
    This combination is a serious aggravating factor on sentencing.

[29]

After
    describing all of these cases, the trial judge then turned to her analysis of
    the circumstances of the respondent and the application of the case law. She
    referred specifically to the Court of Appeals statement that the combination
    of guns and drugs is a serious aggravating factor on sentencing. Another
    aggravating factor was the quantity of weaponry that the accused possessed.

[30]

She
    reviewed the respondents circumstances and their significance in detail. For
    example, the trial judge considered that the respondent had a difficult
    childhood without a mother and with a father working abroad for months at a
    time, but concluded that at his age, he was responsible for his choices. She
    rejected his evidence that he did not like guns, but observed that there was no
    evidence he used the guns in connection with his drug activities. He had
    stopped using cocaine and had the support of his father, neighbours, friends
    and employer. She concluded that he had good potential for rehabilitation.

[31]

Finally,
    she listed in short form all of the factors that she considered in coming to a
    fit and appropriate sentence on the weapons charges: the respondents age,
    criminal record and his circumstances as well as the nature and quantity of the
    guns, the ammunition and the other prohibited weapons  and imposed a global
    sentence of 42 months, together with one year for the drug offences, to be
    served concurrently.

[32]

A
    review of the reasons for sentence demonstrates that the trial judge considered
    and weighed all of the evidence, relevant factors and case-law. She was alive
    to all of the issues, including the quantity of weapons and the drug
    trafficking, as well as the applicable sentencing factors. Her sentence of 42
    months plus one year concurrent is at the low end of the range. However, it is
    a significant penitentiary sentence that addresses denunciation and general and
    specific deterrence principles. The respondent had never served a prison
    sentence before. The sentence is not manifestly unfit.

(2)

Did the trial judge err in making the drug sentences and
    weapons sentences concurrent?

[33]

The
    Crown also submits that the trial judge erred in law by making the drug
    sentences concurrent rather than consecutive to the sentences on the weapons
    charges.

[34]

The
    decision whether a sentence should be made consecutive or concurrent is a
    discretionary one. In
R. v. McDonnell
, [1997] 1 S.C.R. 948, at para.
    46, the Supreme Court confirmed that the decision whether to make sentences
    consecutive or concurrent is to be accorded the same deference as the decision
    regarding the length of sentence: see also
R. v. Gillis,
2009 ONCA
    312, 248 O.A.C. 1, at para. 9;
R. v. Houle,
2008 ONCA 287, at para. 4.
    Nor is there an absolute rule that drugs and weapons convictions must attract
    consecutive sentences in all cases:
R. v. Borecky
, 2013 BCCA 163,

298
    C.C.C. (3d) 180, at para. 25.

[35]

The
    trial judge considered this issue carefully. She concluded that the guns in
    this case were not a tool of the trade for the respondent in his drug
    trafficking business, as they were in the
Wong
case. However, in
    formulating the global sentence, she took into account the fact that guns and
    drugs are a toxic combination:
R. v. Wong
, at para. 11. Accordingly,
    she did not commit a reversible error by making the sentences concurrent rather
    than consecutive.

Conclusion

[36]

It
    is in circumstances such as these, where a higher sentence could have been
    imposed, that appellate courts must heed the strong direction of the Supreme
    Court of Canada to accord deference to trial judges sentencing decisions.

[37]

In
    my view, the sentence imposed by the trial judge was not demonstrably unfit and
    should be accorded the deference of this court. I would grant leave to appeal
    sentence but dismiss the appeal.

Released: MT June 9, 2014

K. Feldman J.A.

I agree. M. Tulloch J.A.

I agree. P. Lauwers J.A.