R v Moar, 2021 ABQB 984

Court of Queen’s Bench of Alberta Citation: R v Moar, 2021 ABQB 984 Date: 20211210 Docket: 210170262S1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Dalton Wayne Moar Accused/Appellant Corrected judgment: A corrigendum was issued on December 22, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________

Appeal from the Decision of The Honourable Judge D.M. Groves Issued on the 6 th day of May, 2021 ( 2021 ABPC 144 , Docket: 210170262P1) Background [ 1 ] Mr. Moar had been released on bail pursuant to s. 515 (4.1) of the Criminal Code (the Code ). One of the conditions of his Release Order prohibited Mr. Moar from possessing a firearm. Mr. Moar was subsequently arrested and charged with breaching the condition. [ 2 ] Mr. Moar attended before Judge Groves on March 12, 2021, at which time he wished to plead guilty to an offence under s. 117.01 of the Code . The matter was adjourned for sentencing, as Mr.

Moar’s counsel requested the preparation of a Gladue report. [ 3 ] When the parties appeared on May 6 th , Judge Groves provided them with a written decision in which she indicated that she disagreed with Mr. Moar having been charged under s. 117. She had come to the conclusion that Mr. Moar ought to have been charged with an offence under s. 145(5), breaching a condition of his recognizance, rather than being in possession of a firearm when prohibited from doing so. [ 4 ] Judge Groves had concluded that the facts admitted by Mr. Moar at the time of his plea did not support a conviction under s. 117.01 .

She therefore vacated his guilty plea under that

section and entered a guilty plea under s. 145(5), pursuant to s. 606(4) of the Code . [ 5 ] At the time Judge Groves did so, the Crown indicated its disagreement with Judge Groves’ decision. However, it indicated that, in light of the decision, it would seek a conviction under 145(5). Such a conviction was then entered. Judge Groves then proceeded to sentence Mr. Moar for that offence. [ 6 ] The Crown filed a Notice of Appeal in relation to Judge Groves’ decision to substitute Mr. Moar’s guilty plea under s. 117.01 for one under s. 145(5).

Issues [ 7 ] There are two main issues to be determined on this appeal: 1) Is the Crown barred from appealing Judge Groves’ substituted conviction, pursuant to s. 813 (

b) of the Code ?; and 2) Is breaching an Order made pursuant to s. 515(4.1) an offence under s. 117.01(1)? Position of the Parties 1) Is the Crown barred from appealing Judge Groves’ substituted conviction, pursuant to s. 813(

b) of the Code ? The Crown’s position [ 8 ] The Crown submits that this Court has jurisdiction to hear this Appeal because the Crown had objected to the ruling of Judge Groves at the time she substituted a conviction under s. 117.01 for one under s. 145(5). [ 9 ] Section 606(4) provides that, if a Court accepts a guilty plea to a lesser offence, the Court shall find the accused not guilty of the offence charged. However, the Crown submits that in this case it is the not the guilty verdict under s. 145(5) that the Crown is appealing.

It submits that the situation before this Court is substantively kin to a dismissal of the s. 117.01 charge and a conviction pursuant to s. 145(5). The only reason the Crown accepted the guilty plea to the lesser offence is because Judge Groves refused to record a conviction on the offence charged. [ 10 ] The Crown submits that when Judge Groves refused to accept the guilty plea under s. 117.01 , it had three options. The first would have required a setting of a trial on the s. 117.01 charge. This would have resulted in an acquittal, which the Crown could then have appealed.

However, this would have had a negative impact on Mr. Moar, prolonging release conditions that were then in place, which would have been unfair to Mr. Moar considering his willingness to accept responsibility for the offence. In addition, this would have wasted Court time, unnecessarily requiring the Crown to continue calling evidence even though doing so would have been futile. [ 11 ] The Crown’s second option would have been to not accept the plea on the s. 145(5) offence and instead to withdraw or stay the charge.

This would have left the Crown without of remedy because s. 813 does not permit the Crown to appeal counts which it has withdrawn or stayed.

[ 12 ] By accepting the plea to the lesser offence (the Crown’s third option), the Crown preserved its right to appeal by virtue of s. 606(4) , which requires a Judge who accepts such a plea to find the accused not guilty of the original charge. It is that acquittal that the Crown is appealing. Mr. Moar’s position [ 13 ] Mr. Moar took no position on this issue. 2) Is breaching an Order made pursuant to s. 515(4.1) an offence under s. 117.01(1)?

Position of the parties Position of the Crown [ 14 ] The Crown submits that a breach of a condition imposed pursuant to s. 515(4.1) supports a conviction under s. 117.01(1) of the Code . It points to the wording of s. 117.01(1) , which stipulates that it is an offence to possess a firearm “while the person is prohibited from doing so by any order made under this act or any other act of parliament”.

This, the Crown submits, is a clear indication of the broad net cast by s. 117.01(1) . [ 15 ] The Crown submits that the four central arguments set out in Judge Groves’ decision are each fundamentally flawed and run counter to the unambiguous wording of s. 117.01(1) . [ 16 ] The Crown submits that R v Nur , 2015 SCC 15 , “clears up any doubts about whether a section 515(4.1) bail order is a prohibition order for the purpose of proving a s. 117.01(1) offence”.

In Nur the Supreme Court discussed the implications of a s. 117.01(1) conviction and, in outlining the purpose of a prohibition order, included s. 515(4.1) as an example of one type of s. 117.01(1) conviction. At para 100, the Supreme Court stated; Prohibition Orders seek to protect the public by prohibiting a person from possessing certain weapons, firearms, ammunition or explosive substances.

They are made by the courts in a number of situations, including as part of the conditions of bail (s. 515(4.1)); they can be obtained preventively (s. 111); they can be made following a conviction of an offender for certain offences (ss. 119 and 110); and they can also be made as part of the conditions of probation (s.732.1), of a conditional sentence (s. 742.3), or of a peace bond (s. 810(3.1)). Some are mandatory and others discretionary. [ 17 ] The Crown also relies on R v Pye , 2011 NSPC 104 , which was rejected by Judge Groves.

Although Judge Groves held that it supported the Crown’s position, she concluded that it did not resolve the issue. [ 18 ] The Crown also relies on R v Weldekidan , 2021 MBQB 164 . This decision was issued after Judge Groves’ decision in this case. In Weldekidan , the Manitoba Queen’s Bench concluded that the offender, who had been prohibited from possessing a firearm pursuant to s. 515(4.1) , was guilty of an offence under s. 117.01 . Position of Mr. Moar [ 19 ] Although Mr. Moar had not responded to the Appeal prior to the date of its hearing, at the hearing, Mr.

Moar’s counsel took the position that the Crown’s position was correct. Analysis 1. Is the Crown barred from appealing Judge Groves’ substituted conviction, pursuant to s. 813(

b) of the Code ? [ 20 ] Given what occurred at the trial, as disclosed in the transcripts, I conclude that the Crown’s position on this issue is correct. That is, this appeal is not an appeal of the guilty plea under s. 145(5) or the resulting guilty verdict. It is, in context, properly construed as the Crown’s appeal of Judge Groves’ refusal to accept Mr. Moar’s guilty plea under s. 117.01 . [ 21 ] Accordingly, I conclude that the Crown is not barred from appealing the substituted conviction in this case. [ 22 ] Section 830(1) of the Code permits the Attorney General to appeal on the basis of an error on a point of law. For the following reasons, I conclude that this

section applies in this case and permit this appeal by the Crown. 2. Is breaching an Order made pursuant to s. 515(4.1) an offence under s. 117.01(1)? [ 23 ] The Supreme Court of Canada decision in Nur is dispositive of this issue. Paragraph 16 above sets out para 100 of the Judgement, which clearly indicates that a s. 117.01(1) conviction can arise in connection with a breach of the conditions of bail pursuant to s. 515(4.1) of the Code . This is the precise situation in Mr. Moar’s case. I conclude that Judge Groves erred when she concluded that the facts did not support a conviction under s. 117.01 .

Conclusion [ 24 ] Having concluded that Judge Groves erred in law and that a conviction was available under s. 117.01 of the Code , Mr. Moar’s original guilty plea ought to have been accepted. Accordingly, the guilty plea and conviction under s. 145(5) are vacated and a conviction under s. 117.01(1) is substituted therefore. [ 25 ] At the hearing of the appeal, the Crown confirmed that it was not seeking any additional sentence should the appeal be allowed.

Accordingly, the conviction will be substituted, but the sentence for the substituted conviction under s. 117.01(1) will be the same as originally set by Judge Groves. Mr. Moar’s guilty pleas and resulting convictions on counts 1, 3 and 4 of the Indictment were not appealed and remain unaffected by the appeal and this Decision. Heard on the 30 th day of September, 2021. Dated at the City of Edmonton, Alberta this 10 th day of December, 2021. D.L. Shelley J.C.Q.B.A. Appearances: M. Dunn for the Crown/Appellant T. Tober for Mr.

Moar _______________________________________________________ Corrigendum to the Reasons for Decision of The Honourable Madam Justice D.L. Shelley _______________________________________________________ Paragraph 25 of the Reasons for Decision are amended by inserting, at the end of that paragraph, the following: Mr. Moar’s guilty pleas and resulting convictions on counts 1, 3 and 4 of the Indictment were not appealed and remain unaffected by the appeal and this Decision.