Mandatory does not mean automatic

Andrew Shia had some guns. He had some marijuana too. He kept them both in a closet. The police came to his home as a result of a domestic violence complaint. The police found the guns and the marijuana. The guns were lawfully possessed and properly stored. The marijuana was not. Shia was charged with production of marijuana and his firearms were seized. Shia pleaded guilty. He did so on the understanding that he would receive a discharge and that a section 109 firearms prohibition could not be made by the court. When he pleaded guilty no order was made. When he sought the return of his guns, however, the police refused. They did so on the basis that he was prohibited pursuant to section 109(1)(c) from possessing them. Shia appealed seeking to set aside his guilty plea: 2015 ONCA 190.

The appeal was allowed and the guilty plea was set aside. The basis for doing so was that the Crown had elected summarily and the matter was dealt with in the Ontario Court of Justice (provincial court). As Watt JA pointed out:

Production of marijuana is not an indictable offence within the exclusive jurisdiction of a judge of the superior court of criminal jurisdiction under s. 469 of the Criminal Code or an indictable offence within the absolute jurisdiction of a provincial court judge under s. 553 of the Criminal Code.
As a person charged with an indictable offence not listed in either 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. He was never afforded this statutory requirement.
The presiding judge had no inherent jurisdiction to try the appellant or receive his plea of guilty. The judge’s authority to do either depended entirely on the appellant’s election “to be tried by a provincial court judge without a jury and without having had a preliminary inquiry” as s. 536(2) requires. The absence of an election meant that the provincial court judge had no authority to try the appellant or to receive his plea of guilty. [Citations omitted]; [@25-27].

While not necessary, Watt JA also made some comments on the issue of the section 109(1)(c) order. Noting that the order was mandatory, Watt JA pointed out that the presiding judge did not in fact make the order. Notwithstanding the mandatory nature of the order, the failure to make the order means that the order was not in fact in place:

Although, as I have said, it is not strictly necessary to consider the effect of the absence of a s. 109(1)(c) order to resolve this appeal, there appears to be some confusion over whether a s. 109(1)(c) order that is mandatory under the Criminal Code takes effect even if a judicial order is not made. The short answer is that no judicial order means no order. In other words, “no” means “no”.
The court record is the only authentic source from which to determine whether a s. 109(1)(c) firearms prohibition exists and can be enforced. An examination of the court record in this case would have disclosed that the presiding judge made no order under s. 109(1)(c). The fact that the order is supposed to be mandatory does not mean it applies even where there has been judicial default in ordering it. The existence of such an order depends on a judicial act, not an investigative assumption. [@34 and 38]