



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Hawryluk, 2022 ONCA 36

DATE: 20220117

DOCKET: C65003

Tulloch, Hourigan and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Hawryluk

Appellant

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 appellants 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
    courts 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.

[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 persons 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 counsels 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.


