Court File and Parties

Court of Appeal for Ontario Date: 20220117 Docket: C65003

Before: Tulloch, Hourigan and Harvison Young JJ.A.

Between: Her Majesty the Queen Respondent

And: James Hawryluk Appellant

Counsel: James Hawryluk, acting in person Louis Strezos, appearing as duty counsel David Quayat, for the respondent

Heard: November 2, 2021 by video conference

On appeal from the sentence imposed on January 23, 2018 by Justice Jane E. Kelly of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] On April 23, 2016, officers of the Toronto Police Service executed a search warrant at the appellant’s apartment. Before executing the warrant, the police arrested a male coming out of the apartment, who said that he had purchased four cannabis pills from the appellant. The police executed the warrant and found, among other items, a shotgun and 114 rounds of ammunition. The appellant was subsequently charged with drugs and firearms offences.

[2] On January 22, 2018, the appellant was acquitted of the firearm offences, and one of the drug-related offences. He was found guilty of trafficking in marihuana and granted an absolute discharge. The sentencing judge also imposed an order under s. 109 of the Criminal Code, R.S.C. 1985, c. C-46 prohibiting the appellant from possessing firearms and made an order forfeiting the shotgun. She also imposed a victim fine surcharge of $200 with 24 months to pay.

[3] The appellant now seeks leave to appeal his sentence, and more specifically, the automatic ancillary s. 109(1) prohibition order attached to the finding of guilt for trafficking in marijuana, and he asks that the ancillary forfeiture order be modified to exclude the firearm. The appellant further asks that in the event he cannot possess the firearm, that it be transferred to a family member who is legally entitled to possess the firearm. And finally, in the alternative, if the appeal is dismissed, that it be without prejudice to the appellant to bring an application in the future under s. 113(1) of the Criminal Code.

[4] The appellant is Métis and asserts his s. 35 constitutional right to hunt for sustenance: R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207. Duty counsel for the appellant argued that the sentencing judge erred by failing to consider s. 113(1)(a) of the Criminal Code which provides an exemption to prohibition orders where the person subject to the order requires a firearm or restricted weapon in order to hunt for sustenance. Duty counsel further submits that the matter should be remitted to a competent authority to consider whether a s. 113 order should be granted.

[5] In oral submissions, the appellant explained that he wishes to hunt for sustenance when visiting his family who are currently living in rural areas in different parts of Canada. The appellant also submits that he is considering permanently moving to a rural area in the near future and would require the firearm to hunt for sustenance. He further explained that the firearm has personal sentimental value and asked to have the firearm transferred to a family member in the event he is not permitted to keep it.

[6] The Crown opposes the request and argues that the sentencing judge did not commit any errors in principle that justify this court’s interference.

[7] We do not find that the sentencing judge committed any errors in principle that warrant appellate interference. A sentencing judge is not required to consider s. 113 when imposing a s. 109 order. There were sufficient reasons to order the forfeiture of the shotgun: as pointed out by the Crown, the appellant resides in a city and does not require the use of a shotgun at present. The appellant is free to bring an application under s. 113 before a competent authority whenever he chooses, and, in our view, nothing in the wording of s. 113 suggests that the dismissal of the appeal would preclude the appellant from bringing such an application.

Section 113 of the Criminal Code

[8] Section 113 reads as follows:

113 (1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of a competent authority that (a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or (b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person, the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing a chief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considers appropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employment purposes.

113 (5) In this section, competent authority means the competent authority that made or has jurisdiction to make the prohibition order.

[9] In the present case, the competent authority is the Superior Court of Justice. Contrary to duty counsel’s concerns, nothing precludes the appellant from bringing an application seeking an exception under s. 113 before a judge of that court.

[10] Accordingly, leave to appeal sentence is granted. The appeal is dismissed on all issues but one. The victim surcharge of $200 is set aside, as the relevant statutory provision has been found unconstitutional: see R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Stockton, 2019 ONCA 300.

“M. Tulloch J.A.” “C.W. Hourigan J.A.” “Harvison Young J.A.”