IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Edward Herbert Williams, a.k.a. Edward Herbert Perry, is before the Court seeking an order cancelling or varying two discretionary firearms prohibition orders, made pursuant to s. 110 of the Criminal Code on August 9, 2016. Mr. Williams is a member of the Lake Babine First Nations and submits he requires a firearm to hunt in his traditional territory for sustenance and for employment purposes. Although the Crown takes no position on the court carving out an exemption pursuant to s. 113 of the Criminal Code, it contests the Court’s jurisdiction to cancel the prohibition in its entirety.

[2]           The issues before the Court are:

[3]           Mr. Williams appeared before me on March 26, 2019, self-represented. He testified on his own behalf. He tendered no exhibits or other witnesses. The Crown provided the Court with legal authorities, but called no evidence and declined the opportunity to cross-examine Mr. Williams. At the end of the hearing, I reserved my decision. Given the dearth of evidence, I reviewed the Court’s record of the sentencing proceedings on August 9, 2016, which gave rise to Mr. Williams’ last s. 110 firearms prohibition order. This is my decision on Mr. Williams’ application and my reasons for judgment.

[4]           On August 28, 2014, Edward Herbert Williams pleaded guilty to Counts 3 and 4 of Information 8806-1-K, charging him with assaulting his spouse, R.P. and his son, D.P., contrary to s. 266 of the Criminal Code. The Court imposed a 90-day Conditional Sentence followed by a one year Probation Order. By the terms of the CSO and Probation Order, Mr. Williams was prohibited from having contact with R.P., or their sons, D.P. and B.P. Also, at that time, Judge Jackson ordered pursuant to s. 110 of the Criminal Code Mr. Williams be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for five years, with the following exception:

[5]           Mr. Williams’ five-year firearm prohibition on Information 8606-1-K expires on August 27, 2019.

[6]           At the end of the sentencing hearing, the Crown directed a stay-of-proceedings on Counts 1, 2, and 5 of Information 8606-1-K.

[7]           On August 9, 2016, Mr. Williams pleaded guilty and was convicted of six different counts on four different Informations for which he received a global sentence of 140 days in jail followed by 15 months’ probation. Particulars of those convictions are as follows:

[8]           At the conclusion of the sentencing hearing on August 9, 2016 on Informations 9122-1 and 9130-2-KC, Judge Jackson imposed a 10 year discretionary firearms prohibition pursuant to s. 110 of the Criminal Code, with the following exception:

[9]           As of August 9, 2016, when Mr. Williams plead guilty the above-noted charges on Informations 8960-4KBC, 8960-5KB, 9122-1, and 9130-2-KC, Mr. Williams had a criminal record consisting of 22 convictions beginning on December 16, 2002, and continuing in an unbroken pattern until August 9, 2016. All but two of Mr. Williams’ convictions were for Criminal Code offences. Mr. Williams has had no further convictions since August 9, 2016.

[10]        Mr. Williams’ criminal record consists of the following offences:

[11]        The Crown does not assert that any of the offences for which Mr. Williams was convicted involved a firearm.

[12]        Mr. Williams says he needs the firearms prohibitions lifted for sustenance hunting and employment purposes. Although he has an exemption to permit sustenance hunting, the exemption associated with Information 8806-1-K requires him to do so in the presence of Rita or John Makowski. Because of their busy schedules, Mr. Williams has found it difficult to coordinate a hunting trip with the Makowskis. Mr. Williams’ children are getting older and he would like to teach his sons how to hunt in their traditional territory without having to find another adult with a Possession and Acquisition Licence (“PAL”) to accompany them.

[13]        Mr. Williams says he also requires a PAL and the right to carry a firearm in order to train and work as a security guard. With the assistance of the Lake Babine Nation, Mr. Williams’ has enrolled in a security services training course with the College of New Caledonia. This course is scheduled to proceed on April 8, 2019. Mr. Williams’ seeks to obtain employment on the LNG Pipeline at Kitimat as a security guard. He says that in order to qualify for this position he will require a firearm to protect himself and LNG’s property from wild animals, such as wolves.

[14]        Mr. Williams is 41 years old, born on July 3, 1977. He resides with an elderly woman in Burns Lake, B.C. He has three children, D.P., who is now a young adult, B.P. and E.W., who are adolescents. As the result of his various offences, Mr. Williams’ children were raised by their mother, R.P.

[15]        Mr. Williams has suffered much of the adverse impacts of colonialism endemic to Canada’s indigenous population. Two of his parents and both of his grandparents attended residential school. Mr. Williams was removed from his biological family and raised in foster homes between the ages of 7 to 15. Although some of Mr. Williams’ foster homes were good, others were horrific. While growing up, Mr. Williams’ home life was rife with alcohol abuse and domestic violence. Mr. Williams eventually became an alcoholic, but eschewed the use of illicit drugs.

[16]         I accept Mr. Williams’ criminal record was fuelled by his addiction to alcohol. Since his August 9, 2016 convictions, Mr. Williams has been “working on [himself] quite a bit.” He has been to residential treatment twice. He has taken anger management and healthy relationship counselling. He believes he has become more polite. He has also been working with the youth. Mr. Williams appears to have taken positive identifiable steps to distance himself from his criminogenic past.

[17]        Mr. Williams wants to improve his employment opportunities. He only has Grade 10 and has difficulty reading and writing. Nevertheless, Mr. Williams has recently successfully completed courses in Workplace Hazardous Materials Information System (WHMIS) and first aid. In the past, Mr. Williams worked as a labourer; however, he now wishes to train and seek employment as a security guard.

[18]        The Crown does not challenge the veracity of Mr. Williams’ evidence as to his need for a firearm for sustenance or employment purposes.

[19]        Section 110 is a discretionary prohibition where the conviction for summary offence for ten years or more. It states:

[20]        Part XXVIII of the Criminal Code governs summary convictions. Section 785(b) defines “sentence” to include a firearm prohibition order made under ss. 109(1) or 110(1). On August 28, 2014, and again on August 9, 2016, Mr. Williams was convicted in Provincial Court and s. 110 firearm prohibition orders were made as part of his sentence. Pursuant to ss. 812 and 813 of the Criminal Code, Mr. Williams was entitled to appeal his sentence to the Supreme Court of British Columbia.

[21]        Once it has passed a valid sentence after a lawful hearing, except in the rarest of cases, the court is functus officio, meaning it lacks authority to reopen the case. In R. v. Gallant, 2018 ABPC 159, Judge Mason canvasses the Provincial Court’s jurisdiction to correct its error. Judge Mason state at para. 28:

[22]        In Gallant, Judge Mason concluded (at para. 32) if the Court of Appeal, also a statutorily created court, can modify its implied powers and jurisdiction to control and regulate its process, so can the Provincial Court. Mason J. applied the relevant factors in Fas Gas to the case before him and found at para. 33:

[23]        I conclude that even though this Court does have limited jurisdiction to correct an error in sentence, this is not the situation before me. There was no error, in fact the firearms prohibitions ordered at sentencing on Informations 9122-1 and 9130-2-KC formed part of a joint sentence submission the Crown and Defence submitted to the Court. Even if this Court had jurisdiction to set aside the firearms prohibitions, which it does not, I would not accede to Mr. Williams’ request to cancel the firearms prohibition. When Mr. Williams entered his guilty pleas and was sentenced on these matters, the Crown and Court reasonably concluded the case was at an end. The sentencing judge accepted the joint submission and imposed the sentence sought. This disposition included the Crown directing a stay of proceedings on Count 1 on Information 9130-2-KC. If an offender were subsequently allowed to apply to the sentencing court to cancel discretionary ancillary orders, it may have a chilling effect on the Crown’s willingness to enter into plea bargains. In R. v. Wong, 2018 SCC 25 (CanLII), the Supreme Court of Canada stated:

[24]        In R. v. S.C.W., 2018 BCCA 346 (CanLII) and R. v. Faulkner, 2018 ONCA 174 (CanLII), the appellate courts recognized, albeit in a different context, the deleterious effect on guilty plea negotiations if they did not produce finality.

[25]        In R. v. Brown, 2016 ONCJ 183 (CanLII), Justice Kenkel found at paras. 3 to 7, the trial court has no authority to vary a s. 110 order other than the limited power set out in s.113 of the Criminal Code. An appellate court may cancel a 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). Mr. Williams’ remedy to have the firearms prohibition set aside was to appeal that portion of his sentence. This he did not do and the firearms prohibitions are binding and conclusive. To cancel the firearms prohibition in its entirety is outside this Court’s narrow and discretionary powers to correct an error. It constitutes a collateral attack on the exercise of Judge Jackson’s judicial discretion to impose the order in the first place. In Toronto (City) v. CUPE, Local 29, 2003 SCC 63, the Supreme Court of Canada described at paras. 33 and 34, a collateral attack occurs when a party seeks to overturn a court order in the wrong forum to attack that order.

[26]        For the reasons set out above, I decline to cancel the firearms prohibitions.

[27]        As an alternative to cancelling the s. 110 orders, Mr. Williams seeks their variance under Section 113(1)(a) of the Criminal Code, which states:

[28]        For the purposes of this application, s. 113(5) defines “competent authority” as the judge who made the order or a court which has jurisdiction to make the prohibition order. Jackson, P.C.J., made the firearms prohibition orders on August 28, 2014 and August 9, 2016, I am satisfied this Court is the “competent authority” for the purposes of this application.

[29]        In R. v. Conley, 2010 BCSC 1092 (CanLII), Mr. Justice Wilcock noted at para. 31 that s. 113 was enacted in response to a constitutional challenge to mandatory prohibition orders under s. 109 of the Criminal Code. Section 113(1) is ameliorative: R. v. Wiles, 2005 SCC 84. It allows the Court to eliminate, where appropriate, any unacceptable consequences of a firearms prohibition by making an order authorizing a chief firearms officer or registrar to issue a licence or registration certificate to a person, in accordance with such terms and conditions as the Court considers appropriate for “sustenance or employment purposes.”

[30]        Mr. Williams has made this application relying upon a need to possess a firearm for the purpose of sustenance hunting pursuant to s. 113(1)(a) and for employment pursuant to s. 113(1)(b). At the time of sentencing, Judge Jackson invoked s.113 to vary the s. 110 firearm prohibition order to allow Mr. Williams to hunt for sustenance purposes. I need not address this issue except perhaps to regularize the two orders.

[31]        Mr. Williams also says he needs a firearm for employment purposes. As set out above, a s. 113 application may be brought where a prohibition order would constitute a virtual prohibition against employment in the only vocation open to the person. There is competing authority as to how broadly s. 113(1)(b) ought to be interpreted. In Conley, Justice Wilcock was persuaded (see para. 39) by the more restrictive approach adopted by the Ontario Court of Appeal in R. v. Tessier, [2006] O.J. No. 1477. Justice Wilcock states at para. 40, in part:

[32]        Mr. Williams bears the onus of establishing through evidence, on a balance of probabilities, he needs to use a firearm for sustenance or employment purposes. The employment exemption requires Mr. Williams to prove the existing firearms prohibition orders constitute “a virtual prohibition against employment in the only vocation open to him.” If I am satisfied he met this burden, I can make an order authorizing a chief firearms officer or the Registrar to issue an authorization or license or registration certificate after taking into account those factors set out in s. 113(2), namely: Mr. Williams’ criminal record, the nature and circumstances of the offences in respect of which the prohibition orders were made, Mr. Williams’ safety and the safety of others.

[33]        In this regard, I note:

[34]        I also take into account that when Mr. Williams is not abusing alcohol, he is a contributing member to both his family and his community.

[35]        I accept that given his lack of formal education Mr. Williams has limited career options. As he ages, working as a labourer will become increasingly difficult. Training as a security guard is a reasonable career plan. Nevertheless, I doubt it can be said a prohibition order constitutes a virtual prohibition against employment in the only vocation open to him. I am not convinced that that upon a strict reading of s. 113(1)(b), Mr. Williams has satisfied the criteria. Having said that, if I were to decline Mr. Williams’ application, he would still have access to firearms by virtue of his existing s. 113 exemptions. I do not see how Mr. Williams having access to firearms for employment purposes would significantly increase the risk to the safety of himself or others.

[36]        In conclusion, I am prepared to allow Mr. Williams’ application in part. I order that pursuant to section 113(1)(a) and (b) of the Criminal Code the chief firearms officer or Registrar is authorized to issue an authorization, a license, or a registration certificate to Edward Herbert Williams for sustenance or employment purposes.