New & Notable: A good, valid and sufficient Order

Winston Ellis was found guilty of following a trial before a judge and jury of three firearms offences. The firearm in question, a .25 calibre semi-automatic handgun, was subject of a Charter motion (see New & Notable: Dude Where’s My Car).


A separate trial was held before the same judge who presided over the jury trial on a single count indictment which alleged that at the time of the offences which proceeded before the jury, Ellis was prohibited by a firearms prohibition under section 109 of the Code.

The trial proceeded in a somewhat unusual fashion. All of the evidence led before the jury applied to the trial on the sole count of the prohibition breach. Furthermore, it was agreed that the jury’s verdicts in relation to the Ellis’ possession of the firearm was binding. Lastly a number of documents were filed including the prohibition. 

The only issues to be decided by Campbell J were whether the Crown established beyond a reasonable doubt:

  1. that the accused was bound by the s.109 weapons prohibition
  2. that the accused knew of the existence and scope of the prohibition 

Campbell J concluded that Ellis was guilty of the offence: 2013 ONSC 2942.

The weapons prohibition was imposed by Hogg J in November of 2002 for life. Ellis argued that it was not clear whether the prohibition was imposed under section 109 (the mandatory provision) or section 110 (the discretionary provision). As such, the defence claimed that it was possible that the order was issued under section 110 and that since such an order can be individualized by the sentencing judge, it was not clear what weapons were captured by the order.

The defence also argued that the order itself was not in compliance with section 849 of the Code, which requires the order to be “good, valid and sufficient”.

Furthermore, Ellis argued that there was no evidence that the order was ever conveyed or provided to him.

Campbell J rejected both of these arguments.

First, Campbell J held:

The weapons prohibition Order itself establishes the existence and substantive content of the Order. It expressly recites in its title that it is the Criminal Code "Prohibition Order" that was "Imposed at Sentencing" in relation to the accused. The Order also indicates that it is in relation to this accused, Winston Ellis. No issue has been taken with respect to the identity of the accused. The Order displays the signature of the trial judge, D.T. Hogg and is certified by the Clerk of the Ontario Court of Justice as a "true and correct copy of the original." Moreover, as I have indicated, this Order expressly states, in both official languages, that the "court orders, pursuant to s. 109 of the Criminal Code of Canada, that the accused is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life" [para 14].

Campbell J then reviewed sections 570(4) and 849(1), which set out that the order is sufficient evidence to prove the order, and the sufficiency of the forms set out in the Code.

Second, Campbell J held that in accordance with s.570(4) and 849(1):

I have no doubt that the weapons prohibition Order filed in this case can accurately be described as an order in Form 36 as varied to suit the case, or as an order in a form to "like effect" as the substance was not affected and it was not calculated to mislead. The Order signed by Hogg J. named the accused, specified his date of birth, recited that he had been found guilty and convicted of the offences outlined in the attached Information, and that the court had ordered, pursuant to s. 109 of the Criminal Code, that the accused be "prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life."

In these circumstances, the weapons prohibition Order signed by Hogg J. is deemed, by s. 849(1) of the Criminal Code, to be "good, valid and sufficient" for the circumstances for which it was provided and is, according to s. 570(4) of the Criminal Code, "sufficient evidence" in these proceedings to prove the making of the prohibition Order against the accused [paras 18-19].

Lastly dealing with Ellis’ knowledge of the order Campbell J noted:

The weapons prohibition Order itself proves not only that it was made pursuant to s. 109 of the Criminal Code, but that it was "Imposed at Sentencing." The accused would, of course, have been personally present at his sentencing, as required by s. 650(1) of the Criminal Code. Indeed, this fact was admitted by Mr. Adler during the course of his submissions. Accordingly, the accused must have been aware of the imposition of the weapons prohibition Order made pursuant to s. 109 of the Code [para 22].

Additional documents were filed on the trial. These included a handwritten note on the Information, the probation order and a ‘working’ draft of the sentencing and probationary terms and a CPIC report which indicated that the prohibition order was made under s.110.

Campbell J paid no heed to any of these documents and instead found that to do so would be to allow an impressible collateral attack on the court order.

The validity and lawful operation of the weapons prohibition order cannot be impeached by means of a collateral attack. See: R. v. Wilson, [1983] 2 S.C.R. 594; R. v. Avery (1986), 30 C.C.C. (3d) 16 (N.W.T.C.A.); R. v. Kyriakoulias (2004), 185 C.C.C. (3d) 553 (Ont.C.A.); Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 60. As stated by McIntyre J., speaking for the majority of the Supreme Court of Canada in R. v. Wilson, at p. 599:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally - and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment [para 28].

Campbell J found that the defence reliance on these other documents to undermine the validity of the order was precisely the type prohibited collateral attack raised in the jurisprudence. He then concluded:

[I am] satisfied that the weapons prohibition order under s. 109 of the Criminal Code was made by Hogg J., and that the accused was fully aware that this Order absolutely prohibited him from the possession of any firearm for the rest of his life.

I am also satisfied beyond a reasonable doubt that, by his possession of a .25 calibre semi-automatic firearm on May 24, 2010, the accused knowingly breached this lifetime weapons prohibition Order, and thereby committed the offence created by s. 117.01(3)(a) of the Code [paras 36-37].