Ontario Court of Justice

Date: April 4, 2016

Court File No.: 14-08435 Newmarket

Between:

Her Majesty the Queen

— and —

Glen Edward Brown

Application to Vary Section 110 Order and Probation

Before: Justice Joseph F. Kenkel

April 4, 2016

Counsel:

• Ms. Leanne McCallum, Mr. Peter Westgate — counsel for the Crown
• Mr. Glen Brown — Applicant

KENKEL J.:

[1] Mr. Brown applies to vary a s.110 order and his probation order to permit recreational hunting via cross-bow and compound bow.

Section 110 Variation

[2] Section 113 of the Criminal Code permits a court to vary a prohibition order where appropriate for employment purposes or sustenance hunting. The exceptions were added to the Criminal Code to address constitutional objections to the prohibition sections. R. v. Conley 2010 BCSC 1092 at para. 31. An application for a s.113 variation may be brought at the time of sentence or afterwards. R. v. Conley at para. 33.

[3] This trial court has no authority to vary a s.110 order other than the limited power in s.113. The exception in 113 does not apply to recreational hunting.

[4] If there is an avenue to vary a s.110 order apart from s.113 it would be by way of appeal. In R. v. Melchionna [2005] OJ No.5616 (SCJ) the Summary Conviction Appeal court varied a 10 year s.110 order to permit recreational hunting where the trial judge and both counsel appeared to have assumed at the time of sentencing that a 110 order was mandatory without power to grant an exception. In fact, the order was discretionary given the Crown's summary election. The appeal court corrected the error by hearing and then granting the application for an exception to be added to the s.110 order.

[5] In R. v. Lucchese [2015] OJ No.1126 (SCJ) (reversed on other grounds [2015] OJ No.6708](https://www.canlii.org/en/on/onca/doc/2015/2015canlii6708/2015canlii6708.html)) at para. 27 another Summary Conviction Appeal court questioned whether the court in Melchionna had jurisdiction to grant an exception to a 110 order outside of the statutory exceptions in s.113.

[6] An appellate court may delete a discretionary s.110 order where there was no basis upon which the order could have properly been made. R. v. Lucchese [2015] OJ No.6708 (CA).

[7] This court has no jurisdiction to vary the s.110 order to permit recreational hunting so this aspect of the application must fail. Both parties agree that the 110 order applies to cross-bows only and does not apply to standard "compound" bows. The accused is prohibited from possessing compound bows by the "no weapons" term in his probation order.

Probation Variation

[8] This court has jurisdiction to vary probation terms – s.732.2 Criminal Code.

[9] The probation officer confirms that Mr. Brown has complied with all of the terms of his probation and has not had any contact with the complainants. Mr. Brown has explained his family tradition of bow hunting and that his teenage children are now licensed to engage in that activity but cannot do so without him.

[10] I find that the limited variation requested to the "no weapons" term would not endanger public safety and would not otherwise be contrary to the public interest. Accordingly I will vary probation term 7 to include, "except compound bows for the purpose of hunting only."

Conclusion

[11] The s.110 variation application is dismissed. The probation variation application is granted with respect to compound bows only.

Delivered April 4, 2016:

Justice Joseph F. Kenkel