



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tadesse, 2017 ONCA 682

DATE: 20170905

DOCKET: C55272

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Yafet Tadesse

Appellant

Heather Pringle, for the appellant

Jennifer Epstein, for the respondent

Heard and released orally: August 30, 2017

On appeal from the conviction entered and the sentence
    imposed on December 9, 2010 by Justice Alphonse T. Lacavera of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from a conviction recorded after he pleaded guilty
    to a single count of carrying a concealed weapon contrary to s. 90(2) of the
Criminal
    Code
. He was represented by counsel at the time he entered his plea of
    guilty.

[2]

Carrying a concealed weapon is an offence upon which the Crown has the
    right to elect the mode of procedure. In this case, the Crown elected to
    proceed by indictment.

[3]

The indictable offence of carrying a concealed weapon is not an offence
    listed or otherwise described in s. 469 of the
Criminal Code
, thus is
    not an indictable offence that falls within the exclusive trial jurisdiction of
    the Superior Court of Justice sitting as the superior court of criminal
    jurisdiction. Nor, when prosecuted by indictment, is it an offence listed or
    otherwise described in s. 553 that falls within the absolute jurisdiction of a
    judge of the Ontario Court of Justice sitting as a provincial court judge.

[4]

As an accused charged with an indictable offence other than an offence
    listed or described in 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
when he appeared in
    the Ontario Court of Justice to enter his plea of guilty.

[5]

It is common ground as between the parties that the appellant was never
    put to his election about the mode of trial. The jurisdiction of a judge of the
    Ontario Court of Justice to try the appellant or, as it happened here, to
    receive and act upon his plea of guilty, depended entirely upon his choice of
    that court as his mode of trial. Absent such an election, the judge had no
    jurisdiction to receive and to act upon the plea of guilty the appellant
    entered.

[6]

It is well settled that this procedural failure, the failure to comply
    with the election requirements in s. 536(2), goes to the jurisdiction of the
    trial court and, at least in the absence of waiver, is beyond the reach of the
    curative procedural proviso in s. 686(1)(b)(iv) of the
Criminal Code
:
    see
R. v. Vuong
, 2010 ONCA 798, at paras. 17-18. The parties share
    common ground that the record reveals no evidence of waiver, either express or
    implied.

[7]

In the result, the plea of guilty and conviction are set aside as having
    been entered before a court that lacked jurisdiction to determine the matter,
    and a new trial ordered should the Crown wish to pursue it.

"David Watt
    J.A."

"Grant
    Huscroft J.A."

"G.T. Trotter J.A."


