



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sabir,
2019 ONCA
    92

DATE: 20190208

DOCKET: C63563

Strathy C.J.O., Nordheimer J.A. and McKinnon J. (
ad hoc
)
[1]

BETWEEN

Her Majesty the Queen

Respondent

and

Belal Sabir

Appellant

Boris Bytensky,
    for the appellant

Caitlin Sharawy,
    for the respondent

Heard: October
    16, 2018

On appeal from
    the conviction entered on September 22, 2016 and the sentence imposed on March
    27, 2017 by Justice Johanne Morissette of the Superior Court of Justice,
    sitting without a jury.

ADDENDUM

[1]

On November 14, 2018, this court allowed Mr. Sabirs appeal in part.  We
    set aside convictions on counts 2, 3 and 4 and ordered a new trial on those
    counts. We granted leave to appeal sentence and allowed the sentence appeal, in
    part, by reducing the sentence of imprisonment imposed by the trial judge from
    18 months to 6 months. We also set aside the lifetime s. 109 weapons
    prohibition order.

[2]

Counsel have since written to us to draw to our attention that the
    remaining conviction for criminal harassment is a designated offence under s. 109(1)(b)
    and therefore automatically attracts a weapons prohibition order.  However, it
    is agreed that the order would only be for 10 years, not a lifetime ban.

[3]

The respondent asks that we make the s. 109 order that flows from the
    result of our decision on the appeal. The appellant submits that this court
    does not have jurisdiction to now address this issue.  The appellant, while
    acknowledging that the existing case law is not entirely consistent on the
    point, says that this courts jurisdiction to correct any error arising from a
    decision is very narrow and that this issue does not fall within it.

[4]

We do not agree with the appellant.  In our view, we have jurisdiction
    to correct the error by which the s. 109 prohibition order was set aside in its
    entirety instead of being reduced from a lifetime ban to a 10 year ban.  We
    reach that conclusion for the following reasons.

[5]

First, the s. 109 prohibition order is mandatory in these
    circumstances.  It is not a matter of discretion for the court. The
Criminal
    Code
makes it clear that the court shall make the prohibition order once
    a conviction is entered for one of the designated offences.

[6]

Second, in our view, the authority given to this court under s. 683(3)
    provides the necessary authority to correct what is obviously an error or
    omission. Section 683(3) reads:

A court of appeal may exercise, in
    relation to proceedings in the court, any powers not mentioned in subsection
    (1) that may be exercised by the court on appeals in civil matters, and may
    issue any process that is necessary to enforce the orders or sentences of the
    court, but no costs shall be allowed to the appellant or respondent on the hearing
    and determination of an appeal or on any proceedings preliminary or incidental
    thereto.

[7]

One of the powers that a court enjoys in a civil proceeding is the power
    granted by r. 59.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, which reads:

An order that contains an error
    arising from an accidental slip or omission or requires amendment in any
    particular on which the court did not adjudicate may be amended on a motion in
    the proceeding.

[8]

On that point, we do not view the reservation expressed in
R. v.
    Codina
, 2009 ONCA 907, 266 C.C.C. (3d) 1, regarding reliance on r.
    59.06(1) in a criminal appeal, as having any application in this context.  On
    that point, we would note that the appeal in
Codina
did not involve
    any suggestion of an accidental error.  Rather, it involved a direct challenge
    on the merits of the appeal. In our view, resort to this rule, in the context
    of an error or omission, is entirely consistent with the language of s. 683(3).
    There does not appear to be any reason why the power of this court to correct
    accidental slips or omissions should be any less on a criminal appeal than it
    is on a civil appeal.  Indeed, that would appear to be the very rational
    underlying s. 683(3). It was precisely this authority upon which this court
    relied in
R. v. Kohl
, 2009 ONCA 254, 244 C.C.C. (3d) 124 to subsequently
    strike out an ancillary order (i.e. a probation order) that had initially been imposed
    as part of the decision in the appeal.

[9]

Third, we would also observe in the context of this case that the
    appellant appealed his sentence along with the appeal of his convictions.  The
    issue of the weapons prohibition order is, of course, part of the sentence
    imposed.  The authority of this court on a sentence appeal is dealt with in s. 687(1)
    of the
Criminal Code
,
which reads:

Where an appeal is taken against sentence, the court of appeal
    shall, unless the sentence is one fixed by law, consider the fitness of the
    sentence appealed against, and may on such evidence, if any, as it thinks fit
    to require or to receive,

(a) vary the sentence within the limits prescribed by law for
    the offence of which the accused was convicted; or

(b) dismiss the appeal

[10]

There
    is no doubt that had the issue been addressed at the time of the appeal, this
    court had the authority to vary the length of the weapons prohibition order. 
    However, that precise issue was, understandably, not addressed by counsel
    during the course of their submissions as it only came to the forefront once
    the conviction appeal was allowed, in part.

Conclusion

[11]

In
    our view, this court has jurisdiction to address the omission that arises
    regarding the weapons prohibition order.  We would impose such an order under
    s. 109 for a period of 10 years.

Released: February 8, 2019 I.N.

G.R.
    Strathy C.J.O.

I.V.B.
    Nordheimer J.A.





[1]

McKinnon J. did not participate in this aspect of the appeal.


