Court Information

Date: July 6, 2017

Information No.: 16-2386

Ontario Court of Justice

Her Majesty the Queen v. Arnold Shobway Jr.

Reasons for Decision

Section 113 Exemption

Before: The Honourable Justice G.M. Hornblower

On: July 6, 2017, at Walpole Island, Ontario

Appearances

• K. Leszczynski – Counsel for the Crown
• P. Millar – Counsel for Arnold Shobway Jr.
• M. Stone – Duty Counsel

Decision

HORNBLOWER, J. (Orally):

Arnold Shobway is a member of the Walpole Island First Nation. In 2013 he was a member of the Canadian Armed Forces stationed at C.F.B. Petawawa. On the ninth of December, 2013, Mr. Shobway was charged with Gun Trafficking under Section 93 of the Criminal Code, having sold two pistols to a drug dealer to satisfy a debt. He pled guilty and was sentenced to a period of incarceration of 15 months. A firearms prohibition was imposed at that time for a period of 10 years from the date of sentence, August 25, 2015.

Mr. Shobway has since returned to the Walpole Island First Nation to live. He seeks an Order under Section 113 exempting him from that Order so that he can hunt in order to sustain himself and his family. The transcript of the sentencing proceedings on the 25th of August, 2015 confirms Mr. Shobway's evidence that the exemption was not considered when the sentence was imposed. According to Mr. Shobway, his lawyer never discussed an exemption with him, and he was not aware of the exemption provision until after he returned home to Walpole Island. Once he became aware of the exemption under Section 113, he began to explore how he could obtain an exemption with his Probation Officer. The impetus for this present application was his arrest on the 29th of November, 2016 on a number of charges relating to having a weapon in his possession. His possession of that firearm occurred in the face of the Section 110 order.

On May 9, 2017, Mr. Shobway pled guilty to a charge of transporting a firearm in a careless manner, contrary to Section 86(1) of the Criminal Code.

Facts Regarding the Current Offence

On November 29, 2016, Mr. Shobway was out hunting. At approximately 6:05 p.m., R.C.M.P. officers on marine patrol encountered Mr. Shobway on the St. Clair River where he was operating a small boat without running lights. After nearly colliding with Mr. Shobway's boat, the R.C.M.P. officers pulled alongside in their boat to investigate the absence of running lights, and one of them, Constable Kukhka noted firearms: a 30-30 calibre rifle and a 22 calibre semi-automatic rifle. Both were loaded and both were in a container. Neither rifle had a trigger lock. Transporting the firearms in that manner constitutes the offence that Mr. Shobway pled guilty to.

Legal Framework for Section 113 Exemptions

Under Section 113(1), a person who is either subject to a prohibition order or against whom one is made or to be made, may apply to a competent authority for an authorization for the use of a firearm or restricted weapon for sustenance purposes. The person must first establish that they need the firearm or restricted weapon to hunt to sustain themselves or their family. Once that is established, the competent authority then goes on to consider the factors set out in Section 113(2), namely: the criminal record, the circumstances of the offence that gave rise to the prohibition and the safety of that person and others.

"Sustenance" is not defined in the Criminal Code. Some guidance in determining how sustenance has been interpreted can be found in the rather limited case law on this section.

Interpretation of "Sustenance"

R. v. Tessier, [2006] O.J. No. 1477, a decision of the Ontario Court of Appeal, supports a very narrow interpretation of sustenance. The British Columbia Supreme Court adopted that narrow interpretation in R. v. Conley, [2010] B.C.J. No. 1559. On the other hand, the Northwest Territories Court of Appeal established a broader interpretation of sustenance in R. v. Allooloo, [2010] N.W.T.C.A. 7.

Tessier contains little analysis. The decision is simply an Endorsement that concludes as follows:

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.

On such a narrow interpretation, it would seem that only those with virtually no source of income and no access to a food bank, would be able to meet the test.

In R. v. Conley, the British Columbia Supreme Court adopted that narrow interpretation. Conley sought an exemption from a prohibition order imposed on him for an aggravated assault, for which a two-year jail sentence had been imposed. Mr. Conley had a lengthy related record. In dismissing his application, the Court noted not only that he did not need a firearm to hunt to sustain his family, but that even if he did, given his record, one would not be granted. Following the Tessier decision, the Court stated the following:

The prohibition should not be lifted as a matter of convenience or to provide a person with greater economic opportunity, but rather, to prevent injustice. It is in that light that the Court should read the requirement that an applicant must establish the need to hunt for sustenance or for employment.

In commenting on the purpose of Section 113, that Court stated the following at paragraph 40:

It is intended to relieve against the most grievous effects of the mandatory prohibition. In my view the prohibition should not come to the aid of part time hunters or cultural or social hunters.

It appears that Mr. Conley was an Indigenous person. There is nothing in the Tessier decision to indicate that Mr. Tessier was an Indigenous person, and it is on that basis that I would distinguish Tessier from this matter. Mr. Shobway is a member of the Walpole Island First Nation. The Conley case does not discuss the provisions of Section 113 in the context of an Indigenous applicant and is therefore distinguishable as well. Gladue principles apply to all aspects of sentencing for First Nations people. Since prohibition orders flow from a conviction and are an aspect of sentencing, I believe that those same principles have to apply for an Indigenous person seeking an exemption under Section 113.

Broader Interpretation for Indigenous Persons

The Canadian Oxford Dictionary defines "sustain" in the following manner: "provide with the basic necessities to support or preserve life, livelihood or existence." If we have learned anything from the travesty of colonialism and the Residential Schools, it is that the culture, language and traditions of Indigenous people are as integral to their existence as is the air they breathe, the water they drink, and the food they eat. To understand what it means to sustain an Indigenous person requires an understanding of the culture and traditions that are bound up in the concept of sustenance hunting for Indigenous people. The failure to consider the cultural context of sustenance hunting for an Indigenous person would, I believe, perpetuate the approach to their culture that is rooted in colonialism and the Residential Schools. That approach would amount to an injustice. Gladue requires an approach that is respectful of First Nations' tradition and cultures.

Support for this more purposeful approach to Section 113 for Indigenous persons is found in R. v. Allooloo. Mr. Allooloo was an R.C.M.P. officer convicted of an assault, who was seeking an exemption from a Section 110 order, so he could hunt to sustain himself and his family. In granting the authorization enabling him to hunt, the Court accepted the following evidence from Mr. Allooloo:

We follow a modern aboriginal lifestyle with our children. It is paramount that we blend our home with traditional values as much as possible. We hunt for our meat and gather as much from the land. We use our caribou, moose, birds, fish and berries as our primary source of food for our family. We gather wood to supplement heating our home and spend our recreational time on the land and the water.

The trial judge, in the face of that evidence, found that since Mr. Allooloo was a participant in the wage economy, he could not be found to be a sustenance hunter and dismissed his application.

The Court of Appeal rejected that approach as being too narrow, stating as follows at paragraph 16:

Hunting or trapping can be used to "sustain" a family even if the survival or subsistence of the family does not depend on it. Participating in the wage economy or relying partly on non-traditional food sources does not disqualify the applicant from an exemption.

Evidence Regarding Mr. Shobway's Hunting Practices

With that more purposeful approach in mind, I turn to a consideration of the evidence of Mr. Shobway, his father and Mr. Pinnance. They each spoke about the traditions and culture of hunting in their community.

Arnold Shobway Sr. testified that he hunts for sustenance for himself as well as other members of his family. He uses a firearm to hunt for deer, muskrat and ducks, all used for food with deer, it seems, being the most versatile and essential meat he uses. Mr. Shobway Sr. has been hunting since he was 10. He passed what he learned from his father on to his sons, and they pass on what they learned from him to their sons.

On the evidence of Mr. Shobway Sr., deer hunting is often a communal activity. Several hunters can be involved in hunting a bush site for deer. Some of the hunters enter the site to push the deer toward the other end of the site, where other hunters are ready for any deer that come out. All hunters have to be armed, he explained, because the deer, as he said, "don't go where you want 'em to go. They go where they want to go."

Earl Pinnance is a family friend of the Shobway's. Like Arnold Shobway Sr., he has hunted nearly all of his life and he too has passed on what he learned as a child to his sons. Unlike Arnold Shobway Sr., Mr. Pinnance did not learn to hunt from his father who, according to Earl Pinnance, wasn't much of a hunter. Rather, he learned from his grandfather. Mr. Pinnance explained the importance of hunting in the following way:

...we do not hunt for sport. We hunt for food. That is the way we keep our families fed all the time. All the years. Ever since we started learning hunting. He learned from his father. He's gonna teach his son. I taught my son to hunt. Taught him the right way, the way it should be done, according to all Creator's ways of putting things here. We only take so much and leave the rest for tomorrow. We do not waste. Anything we take, we take for food....

A lot of people nowadays don't give a damn. They'll go out and kill, just because they can kill. That's not respect. That does not even help the next generation down the road. What about our kids? What about our grandkids? This is something that has to be passed down through the generations, that you have to learn. This isn't something you inherit.

Arnold Shobway testified regarding the role of hunting in his life. Like his father, he learned to hunt at a young age. He learned to shoot at age five with a pellet gun. At age 11, he was given a .22. In his family, the meat was almost always obtained through hunting. He describes hunting in a way similar to his father – a family affair where the meat is shared among family members. For the family, four or five deer are needed to provide for everyone.

In explaining why he was hunting on November 29, 2016, Mr. Shobway stated he was running low on food, and knew how to solve the problem. He was unable to find others to go hunting, so took it upon himself to do that, explaining as follows:

...I knew the answer to my problem. I knew how to fix that, so that's what I did and it's part of the role that's been passed down like and, you know what, I want to say I'm a provider for my family. When I don't feel like that, I feel like a failure.

What I take from Mr. Shobway's evidence is that he does not hunt for fun, for sport, or for the occasional meal. He hunts for food, in his role as a provider for his family, because that is a part of who he is. He learned from his father, and will teach his son because that too is part of his role, part of who he is; because that is the way it has been.

I do not profess to have any particular knowledge about the many facets of First Nations people and their culture. What I have learned from the evidence of Mr. Pinnance, Mr. Shobway and his father, is that hunting is not done for sport, but rather is a way of life, a part of their tradition and part of their culture. What is learned about hunting from the father, is taught to the son. Whatever is hunted is a gift from the Creator. Only what is needed is taken. What is taken is shared with the family.

The cultural and traditional aspects of hunting for Mr. Shobway, as for many Indigenous people, is engrained in their lives. It is a part of what sustains them. Mr. Shobway does not hunt for sport or the occasional meal. He hunts because that is part of his life – providing for himself and his family. To interpret sustenance narrowly, restricting it to simply providing food when there is no other means by which to provide it, misses the point for Indigenous people. That narrow interpretation does not respect the culture and traditions of Indigenous persons. It serves only to undermine them.

That is not to say that every Indigenous person should be entitled to an exemption under Section 113. Rather, what it says is that for Indigenous persons, sustenance should be broadly interpreted in a manner that recognizes the cultural and traditional importance of hunting. This establishes the ability to seek the exemption. Whether it is actually granted depends on a consideration of Section 113(2).

I am satisfied that Mr. Shobway has demonstrated that he hunts to sustain himself and his family. The issue that remains then is whether he should be granted an authorization to use a firearm to do so.

Consideration of Section 113(2) Factors

Before any authorization is made, the Court must consider the criminal record of the applicant, the nature and circumstance of the offence giving rise to the prohibition order and the safety of the applicant and other persons.

Mr. Shobway's criminal record consists of a conviction for gun trafficking in 2015. At that time, Mr. Shobway, then a member of the Canadian Armed Forces, had a substance abuse problem and was suffering from depression. The guns were given to a drug dealer in satisfaction of a debt. The guns in question were restricted handguns. The seriousness of that offence cannot be overstated.

Since that time, however, Mr. Shobway has returned home and has taken steps to address his depression and the substance abuse problem. He spent time in residential treatment for an alcohol and substance problems. Those issues seem to be under control.

The circumstances surrounding the current offence were outlined elsewhere in these Reasons and by its very nature, that offence gives rise to safety concerns both for Mr. Shobway as well as for members of the public.

Decision on Section 113 Exemption

Having considered all of those factors, I am satisfied that an exemption should be granted. While the offence giving rise to the prohibition is serious and the facts concerning, there is but one conviction. There are no offences for violence. Mr. Shobway has undergone treatment for substance abuse. The safety concerns that arise from this current offence can be addressed in large part by conditions requiring Mr. Shobway to be in the company of a person lawfully entitled to possess firearms, as well as a condition that prohibits him from storing a firearm in his residence. Accordingly then, I am prepared to grant an exemption under Section 113 of the Criminal Code with the following conditions:

1. Sustenance is limited to hunting in order to provide food for himself and his family.

2. Mr. Shobway will use non-restricted firearms only while hunting for sustenance.

3. Mr. Shobway is not to store any firearm in his place of residence.

4. While travelling to and from hunting and while hunting, Mr. Shobway must be in the company of a person who is lawfully entitled to possess firearms in Canada.

5. The granting of this exemption will be suspended immediately upon Mr. Shobway being charged with a firearm-related offence or a crime of violence.

Sentencing Decision

Turning then to the issue on sentence on the outstanding charge, I am satisfied that a suspended sentence and a period of probation is appropriate.

The issues that lead to the initial conviction in 2015 have been addressed. I am satisfied that the only requirement in the probation order is a statutory condition requiring you to keep the peace and be of good behaviour. Given the exemption that now exists under the mandatory prohibition under Section 109, I decline to impose a further prohibition which I have dealt with by exemption in any event.

WHEREUPON THESE REASONS ARE COMPLETE.

Ordered: July 6, 2017

Completed: July 18, 2017

Ordering Party Notified: July 18, 2017