DATE: 20060418

DOCKET: C43503

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – MARCEL TESSIER (Respondent)

BEFORE:

ROSENBERG, GOUDGE and FELDMAN JJ.A.

COUNSEL:

Marie Comiskey

for the appellant

John Hale

for the respondent

HEARD & RELEASED ORALLY:

April 5, 2006

On appeal from the order of Justice Adams of the Ontario Court of Justice dated March 2, 2005.

E N D O R S E M E N T

[1] Heaving regard to the circumstances of this case, it is not necessary to provide a definitive statement of the meaning of s. 113(1)(a) of the Criminal Code. At the very least, if s. 113(1)(a) can apply to a farmer who requires a weapon to protect his livestock from serious a predator problem, there would have to be circumstances where the offender either solely or predominately depends on the firearm to sustain himself or his family. That is not this case. The respondent’s principal means of livelihood is from his pest control business and he does not require a firearm to sustain himself or his family.

[2] Accordingly the appeal is allowed and the s. 113(1)(a) exemption is set aside.

Signed: “M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”