2020 QCCA 1762, 2020 QCCA 1762

Passucci c. R. 2020 QCCA 1762 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006950-198 ( 500-01-095605-132 ) MINUTES OF HEARING DATE: December 18, 2020 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A.

APPELLANT COUNSEL ANTONIO PASSUCCI Unrepresented Absent RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre JEAN-PHILIPPE MACKAY ( Director of Criminal and Penal Prosecutions ) Absent Continuation of a hearing on appeal from judgments rendered on October 10 2018 and December 7, 2010 by the Honourable Serge D elisle of the Court of Québec , District of Montréal . NATURE OF THE APPEAL: Guilty plea and sentence – firearms Clerk at the hearing : Carla Dionsio Courtroom: Pierre-Basile-Mignault HEARING 9 h 30 Continuation of a hearing for the purpose of rendering judgment. The parties have been dispensed from being present.

BY THE COURT : Judgment (see below). End of the hearing. Carla Dionsio, Clerk at the hearing JUDGMENT [ 1 ] On September 20, 2013, the Montreal police conducted a search of the appellant’s residence in the context of an investigation into drug-related offences for which a third party was subsequently declared guilty. During this search, the police found and seized numerous shotguns and rifles belonging to the appellant and which were lawfully registered in his name, with all appropriate licences and authorizations.

The firearms were held under the custody of the Montreal police for the duration of the subsequent proceedings. [ 2 ] The next day, on September 21, 2013, the appellant was charged with various criminal offences, including an offence of failing to store three of the seized firearms in conformity with the regulations adopted under s. 117 (

h) of the Firearms Act , S.C. 1995, c. 39 , thereby committing an offence under ss. 86(2) and (3) (

a) Cr.C . After unsuccessfully challenging the validity of the search warrant, on

May 28, 2018, the appellant pleaded guilty to the firearms storage offence and was acquitted of all the other charges. [ 3 ] On October 10, 2018, the appellant was sentenced to 2 years’ probation and 240 hours of community work. The trial judge also issued a 10-year weapons prohibition order pursuant to

section s. 109 Cr.C . under the mistaken belief that such an order was compulsory in this case. The issue of the return of the seized firearms and other related material was raised and the trial judge expressed the view that the weapons prohibition order impeded the appellant from retrieving these items.

After some discussion, the trial judge issued an order allowing a third party to retrieve the firearms by December 22, 2018, failing which these would be forfeited to the Crown for purposes of destruction. [ 4 ] On November 22, 2018, the Crown requested that the trial judge vary his previous firearms retrieval order so as to provide for the mandatory forfeiture of the three offence-related firearms pursuant to s. 491 Cr.C . [ 5 ] On December 7, 2018, the judge granted the Crown’s request.

He also extended to December 31, 2018 the deadline for a third party to retrieve the remaining firearms; no firearms were, in fact, so retrieved. [ 6 ] On January 3, 2019, the appellant filed a notice of appeal with the Court seeking to quash his conviction notwithstanding his guilty plea. [ 7 ] In his written appeal argument dated May 10, 2020, and as confirmed at the hearing, the appellant no longer seeks the withdrawal of his guilty plea. He is primarily asking the Court to set aside the 10-year weapons prohibition order and to have the firearms returned to him.

In response, on June 22, 2020, the Crown provided notice that it would be seeking an order from this Court for the forfeiture of the three offence-related firearms. THE ISSUES IN APPEAL [ 8 ] The procedural history of this appeal is complex due to the nature of the errors of law committed by the trial judge, which the Crown readily concedes. [ 9 ] Though the appellant originally sought to have his conviction quashed, it is readily apparent from the material he submitted that this is not the real purpose of his appeal.

The real issues in appeal pertain to the weapons prohibition order under s. 109(1) Cr.C . and the return of the seized firearms. [ 10 ] In the case of the weapons prohibition order, it may be appealed as a “sentence” since, pursuant to the definition set out in s. 673 Cr.C . , this term includes an order made pursuant to s. 109(1) Cr.C . Moreover, though a mandatory forfeiture order under s. 491(1) Cr.C . is not one of the enumerated orders listed in the definition of “sentence” found in s. 673 Cr.C . , it is nevertheless deemed to be part of the “sentence” under the meaning of that section: R. c.

Poirier , 2018 QCCA 1657 , paras. 1 and 21 ; R. v. Montague , 2014 ONCA 439 , paras. 13-17 and 27 , leave to appeal to the SCC dismissed Nov. 20, 2014, file 36022; R. v. Saunders , 2014 NLCA 39 , paras. 3-4 . [ 11 ] Consequently, while both the weapons prohibition order and the mandatory forfeiture order of the three offence-related firearms may be appealed with leave of this Court or one of its judges pursuant to s. 675(1) (

b) Cr.C . , no such leave was originally requested. Nevertheless, the time to submit such an application may be extended by the Court or one of its judges pursuant to s. 678(2) Cr.C .. Under the circumstances and given the Crown’s concession that the firearms orders rendered at trial are problematic, the Court will extend the time to seek leave to appeal and grant leave with respect to these issues. [ 12 ] With regard to the order for the forfeiture and destruction of the remaining 11 firearms, it may be appealed as of right by the appellant pursuant to s. 490(17) Cr.C .

However, since that order was issued by a judge of the Court of Québec, the appeal normally lies to the Superior Court of Quebec and not to this Court: s. 490(17) (

b) and s. 812(1) (

b) Cr.C . THE WEAPONS PROHIBITION ORDER [ 13 ] Pursuant to s. 109(1) Cr.C . , when a person is convicted of certain indictable offences, the court that sentences the person must, in addition to any other punishment, make an order prohibiting the person from possessing certain weapons, including firearms, for the period specified in ss. 109(2) and (3) Cr.C . [ 14 ] However, the offence under ss. 86(2) and (3) Cr.C . for which the appellant was convicted following his guilty plea is not contemplated by s. 109(1) . The Crown concedes this point.

As a result, the weapons prohibition order was wrongly issued by the trial judge and must therefore be quashed. THE OFFENCE-RELATED FIREARMS [ 15 ] As previously noted, the trial judge was erroneously of the view that the appellant had to be subjected to a weapons prohibition order. The judge consequently further concluded that he could not order the return of the firearms to the appellant.

The judge rather issued an order allowing a third party to retrieve the 14 firearms by December 28, 2018, failing which these would be forfeited to the Crown for the purposes of destruction. [ 16 ] The order was subsequently modified by the trial judge on December 7, 2018 so as to exclude the three offence-related firearms from its ambit and to substitute instead a compulsory forfeiture order pursuant to s. 491(1) (

b) Cr.C . with respect to those three firearms. [ 17 ] It is settled law that a conviction under s. 86(2) Cr.C . attracts the mandatory forfeiture of the firearms that served as the basis for the conviction, except if s. 491(2) applies in that the owner of the firearms is not involved in the offence: R. v. Poirier , supra ; R. v. Montague , supra . The trial judge thus erred in law in his October 10, 2018 order allowing a third party to retrieve the three offence related firearms. [ 18 ] This being said, that order was nevertheless a final disposition of the matter with respect to the firearms. The trial judge was thus

without jurisdiction to subsequently vary or modify his order as he did on December 7, 2020. The Crown also concedes this point.Indeed, the doctrine or rule of functus officio generally prevents a judge from varying or changing his decision after a final judgment hasbeen reached: Chandler v. Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848, at p. 860-861. This ruleapplies to sentencing judgments: Lemaire c. R., 2010 QCCA 1109; R. c. Pépin, 2016 QCCA 1834. [19] There are exceptions to this rule, such as where the law allows the order to be varied (see for example s. 732(2)(3) and s.732.2(3)

(4) Cr.C.), when there has been a slip in drawing up the order or where there has been an error in expressing the manifestintention of the court: Chandler v. Alberta Association of Architects, supra, p. 860; R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857; R. v.Malicia (2006), 270 D.L.R. (4th) 280, (ON CA); R. v. Krouglov, 2017 ONCA 197.

However, as the Crown furtherconcedes, none of these exceptions apply in this case. [20] As a result, the trial judge was acting without jurisdiction on December 7, 2018 when he modified his prior order of October 10,2018 so as to provide for the forfeiture of the three offence-related firearms. The Crown should have appealed the October 10, 2018order rather than request that the judge subsequently modify it. [21] Does this impede this Court from issuing such an order in appeal, as the Crown now invites us to do?

Insofar as the Crown’sinvitation can be deemed an application for leave to appeal the order under s. 676(1)(

d) Cr.C. and for an extension of the time to so applyunder s. 678(2) Cr.C., we see no reason not to issue the compulsory forfeiture order. Indeed, the Court is empowered to vary a sentencewhich is appealed within the limits prescribed by law: s. 687(1)(

a) Cr.C.; R c. Hill, (SCC), [1977] 1 R.C.S. 827. THE RETURN OF THE REMAINING FIREARMS [22] In his October 10, 2018 order, the trial judge refused to return the firearms to the appellant on the mistaken belief that he wassubject to a compulsory firearms prohibition order. As noted above, the judge erred in this matter.

The Crown concedes this error andinvites the Court to order the restitution to the appellant of the remaining firearms that are not offence-related. [23] As previously noted, though the order for the forfeiture and destruction of the firearms may be appealed as of right by theappellant pursuant to s. 490(17) Cr.C., that appeal would normally lie to the Superior Court: s. 490(17)(

b) and s. 812(1)(

b) Cr.C. [24] We are nevertheless of the view that the Court has jurisdiction to quash the October 10, 2018 firearms order and the December 7,2018 order in the peculiar circumstances of this case since that order was rendered in a manner contrary to the compulsory forfeitureprovision set out under s. 491(1)(

b) Cr.C. with respect to the three infraction-related firearms, a matter over which the Court does holdjurisdiction. Consequently, we will grant an extension of time to appeal that order as well as grant leave to appeal. We are further of theview that the October 10, 2018 and the December 7, 2018 orders must thus be quashed in their entirety. [25] Since the firearms related order will be quashed, the Crown proposes that we remand the matter of the return of the remainingfirearms to the Court of Québec.

The Crown further undertakes to take the required measures so as to seek and obtain a consent orderfrom the Court of Québec so as to ensure that the appellant may recuperate the remaining firearms within a reasonable time frame. At thehearing of this appeal, the appellant agreed to the Crown’s proposal.

FOR THESE REASONS, THE COURT: [26] TAKES NOTE that the appellant no longer seeks the withdrawal of his guilty plea; [27] GRANTS to the appellant an extension to appeal the weapons prohibition order issued on October 10, 2018; [28] GRANTS to both the appellant and the Crown an extension to appeal the firearms related orders issued on both October 10,2018 and December 7, 2018; [29] GRANTS to both the appellant and the Crown leave to appeal those orders; [30] ALLOWS both the appellant’s and the Crown’s appeals of those orders; [31] QUASHES the weapons prohibition order issued on October 10, 2018; [32] QUASHES the firearms-related orders issued on October 10, 2018 and December 7, 2018; [33] ORDERS the forfeiture and destruction of the three offence-related firearms, specifically the firearms identified as items # 009,# 026 and # 027 in the list entitled ʺContrôle des pièces à conviction – Numéro d’événement 45-130917-017ʺ; [34] REMANDS the issue of the return of the other seized firearms to Court of Québec for a consent order providing for their returnto the appellant within a reasonable time; [35] ACKNOWLEDGES and RENDERS ENFORCEABLE the Crown’s undertaking to seek and obtain before the Court ofQuébec such a consent order within 45 days of the present judgment.

GENEVIÈVE MARCOTTE, J.A.

ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A.