R. v. Lupyrypa, 2010 ABQB 788

Court of Queen ’ s Bench of Alberta Citation: R. v. Lupyrypa, 2010 ABQB 788 Date: 20101209 Docket: 061118246Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Barry Lupyrypa Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking s. 113 of the Code, Mr. Lupyrypa applies for an order lifting a discretionary firearm prohibition for the purpose of his and his family’s sustenance, and, for related relief including an order to have returned to him the firearms and ammunition which are currently being held by the RCMP. [ 2 ] Approximately one year ago, Mr. Lupyrypa was sentenced by another judge of this court to a 12 month conditional sentence followed by probation for twelve months. The sentence was imposed after a trial in which the sentencing judge had convicted Mr.

Lupyrypa of assault of a peace officer and obstruction of the same peace officer. During the sentencing process, pursuant to the provisions of s. 110 of the Code, the sentencing court issued a discretionary prohibition order with respect to firearms for the two year period covered by the sentence; the order was accompanied by a direction that Mr. Lupyrypa surrender his firearms to the RCMP for a two year period.

[ 3 ] The Crown opposes Mr. Lupyrypa’s application on the grounds that this court is not a “competent authority” within the meaning of s. 113 of the Code. [ 4 ] Mr. Lupyrypa’s application is denied: in the circumstances here, this court is not a “competent authority” for the purposes of s. 113. Specifically, this court did not make the prohibition order against Mr. Lupyrypa and does not have jurisdiction to make a prohibition order against Mr.

Lupyrypa. [ 5 ] Moreover, even a sentencing court does not have jurisdiction to delegate its responsibility to both determine whether an applicant has satisfied the sustenance or employment criteria for the lifting of a prohibition and, if so satisfied, to set terms and conditions for authorization of use of a firearm for sustenance to a Registrar or chief firearms officer. [ 6 ] Mr. Lupyrypa is given leave to bring his application to the sentencing judge who imposed the prohibition order on him. Cases and authority cited [ 7 ] By the Crown, Respondent: R. v.

Jararuse , 2001 CarswellNfld 339, [2001] 3 C.N.L.R. 301 ; R. v. Bowen , 2007 ABCA 40 ; R. v. Giroux , 2010 ABQB 642 ; R. v. Blackbird , 2007 CanLII 79939(ON S.C.) ; R. v. Allooloo , 2010 NWTCA 7 ; R. v. Conley , 2010 BCSC 1092 ; R. v. Lupyrypa , 2010 ABCA 264 ; R. v. Boucher , 2003 CarswellNWT 4, 2003 NWTSC 2 ; R. v. G.M.M. , 2005 ABQB 144 ; R. v. McDonald , 2006 CarswellNS 685, [2006] N.S.J. No. 104, 2006 NSPC 7 . [ 8 ] By the court: R. v Wiles 2005 SCC 84 , [2005] S.C.J. No. 53 . 1. Background [ 9 ] After a trial in which he represented himself, Mr.

Lupyrypa was convicted by a judge of this court of one count of assault of an RCMP officer and one count of obstruction of the same officer. [ 10 ] At the sentence hearing, Mr. Lupyrypa was represented by a lawyer. Relying, among other matters, on both the fact that no firearm formed the basis of any action by Mr. Lupyrypa and that the firearm was actually returned, without incident, to Mr. Lupyrypa on the evening of the incident in question, that lawyer invited the sentencing judge not to impose a discretionary firearms prohibition: p. 21, line 41, p. 22, lines 1-10, transcript of sentencing hearing.

However, I have not been able to find any reference in defence counsel’s submissions to s. 113 of the Code. [ 11 ] On this hearing, Mr. Lupyrypa asserts that his lawyer at the sentence hearing did not follow Mr. Lupyrypa’s instructions concerning the potential imposition of a discretionary prohibition order, including Mr. Lupyrypa’s instructions concerning sustenance. [ 12 ] Mr. Lupyrypa has appealed his conviction and sentence to the Court of Appeal. That appeal is scheduled to be heard in early January, 2011. [ 13 ] The court notes that Mr.

Lupyrypa’s brief for this application includes a letter dated October 19, 2010 to himself from a member of the RCMP indicating that certain materials were seized from Mr. Lupyrypa on September 14, 2010 in which the author of the letter states, in part: . . . you are currently bound by a two year Order of Prohibition dated December 4, 2009 with respect to the possession of firearms and ammunition.

I did not find any reference to ammunition or a prohibition in relation to ammunition in the sentencing judge’s remarks at the sentencing hearing. 2.

On this application, is this court a court of “competent jurisdiction” within the meaning of s. 113 of the Code? [ 14 ] In the circumstances here, the court concludes that it is not a court of competent jurisdiction relative to s. 113 of the Code; where a judge of this court has imposed a prohibition order pursuant to s. 110 of the Code as part of a sentencing process, and that sentencing judge is still able to act, no other judge of this court is a “competent authority” within the meaning of s. 113.

Where, as here, an individual has appealed his sentence to the Court of Appeal, the appeal panel hearing the sentence appeal would presumably also be a competent authority within the meaning of the section: see Allooloo , at para. 18 . [ 15 ] Section 113(5) of the Code states: In this section, “competent authority” means the competent authority that made or has jurisdiction to make the prohibition order. (Emphasis added) [ 16 ] Although I am a superior court judge, I do not satisfy either of Parliament’s criteria as set set out in s.s. (5): I did not make the prohibition order against Mr.

Lupyrypa and I do not have jurisdiction to make a prohibition order against him, there being no process before me in which I am asked to impose such an prohibition. As to the latter conclusion, it is clear from s. 113(1) that the notion of “has jurisdiction to make” relates to the potential for making a prohibition order; I do not come within that meaning since Mr.

Lupyrypa already has an order made against him - he is not a person “who will be subject to a prohibition order”. [ 17 ] In his usual careful, competent and ethical manner, counsel for the Crown has brought to my attention two decisions in which superior court sentencing judges appear to have authorized a chief firearms officer or a Registrar to lift a prohibition order for sustenance or employment: Blackbird , at para. 94 and G.M.M. at para. 38 . With respect, I am of the view that those decisions are technically incorrect.

Parliament has established a two-level system for lifting a firearms prohibition for reasons of sustenance or employment: in the first level, a competent authority - which in the context here is the sentencing court - must first satisfy itself either that the applicant needs a firearm to sustain themselves or their family or that the prohibition would constitute a virtual prohibition against employment in the only vocation open to the person.

That there is a legal component to this assessment is made obvious by the Northwest Territories’ Court of Appeal decision in Allooloo where the court made the following comment at para. 16: 16 While there is an evidentiary burden on a person seeking an exemption, the

section is not as narrow as the trial judge assumed. Hunting or trapping can be used to "sustain" a family even if the survival or subsistence of the family does not depend it. Participating in the wage economy or relying partly on non-traditional food sources does not disqualify the applicant from an exemption. The evidence on this record respecting the appellant's sustenance activities was uncontradicted, and satisfied the requirements of the section. Nothing about the offence, the offender, or the safety of the public precluded an exemption for the appellant's sustenance activities.

It was an error to conclude that there was insufficient evidence. [ 18 ] Having first satisfied itself about either sustenance or employment, the competent authority must then determine appropriate terms and conditions for the granting of an authorization or licence or registration certificate. For example, as Mr. Lupyrypa himself points out, the competent authority may determine that the firearms authorization should be limited to certain months of the year. One might also expect that a term might relate to the identity of specific firearms or the category of firearms for which authorization is allowed.

Many other terms and conditions might be appropriate given the specific circumstances of each application. [ 19 ] Once a competent authority has made the decision that either s. 113, (

a) or (

b) has been satisfied and determined what terms and conditions it requires in relation to firearms’ use, that authority then may make an order authorizing a second level of consideration: consideration by the Registrar or chief firearms officer. Parliament did not empower the competent authority to issue an authorization, licence or registration certificate; that power remains with the Registrar or chief firearms officer. [ 20 ] Parliament’s careful two level structure relating to the lifting of firearms prohibitions should not, in my respectful view, be undermined by delegation of the judicial function within that structure to a firearms official.

[ 21 ] Mr. Lupyrypa argued that the court should look to the Firearms Act to determine if it is a competent authority in relation to his application. With respect, the definition and determination of competent authority in the circumstances here must be made within the meaning of s. 113(5) of the Criminal Code . The particular over-rides the general; since Mr. Lupyrypa is already subject to a firearms prohibition imposed during a sentencing process, this is not a situation where either he or this court can invoke the general provisions of the Firearms Act . [ 22 ] The wording of Parliament in ss.113(5) is clear. Therefore it is not necessary to articulate a purposive

interpretation of the sub-section. Nonetheless, if a purposive

interpretation were appropriate, it would emphasize the wisdom of having the sentencing judge deal with applications relating to the lifting of firearms prohibition orders: the sentencing judge will, by reason of the trial itself if there has been one, or of the agreed facts if there was a guilty plea, together with sentencing submissions, be generally aware of the risk posed by the individual who is the subject of the prohibition order.

The most comprehensive, quick and fair determination of the possible lifting of a firearms prohibition can therefore be made by the sentencing judge or by the court which varies the sentence. As the Supreme Court of Canada put it in Wiles , it is the sentencing judge who is in the best position to weigh the ameliorative effect of s. 113 in relation to its companion section, s. 110. 3. Has Mr. Lupyrypa established that he is entitled to relief based on the notion of “sustenance”? [ 23 ] Because of the above conclusion that I am not a competent authority in relation to Mr.

Lupyrypa’s application, I have not determined either whether Mr. Lupyrypa satisfies the sustenance or employment criteria created by Parliament or what terms or conditions should be imposed on any authorization, etc. that may be issued to him. 4. Leave to bring this application to the sentencing judge [ 24 ] Although I have determined that I am not a competent authority to deal with Mr. Lupyrypa’s application, it is clear that the sentencing judge who imposed the prohibition order is a competent authority. In the circumstances, I give leave to Mr. Lupyrypa to bring his application before Justice Thomas.

Heard on the 8 th day of December, 2010. Dated at the City of Edmonton, Alberta this 8 th day of December, 2010. J.B. Veit J.C.Q.B.A. Appearances:

Barry Lupyrypa on his own behalf Kerry Hart, Crown Prosecutor for the Crown