R. v. G.D.G., 2012 ABQB 78

Court of Queen ’ s Bench of Alberta Citation: R. v. G.D.G., 2012 ABQB 78 Date: 20120201 Docket: 101213437Q1 Registry: Peace River Between: Her Majesty the Queen - and - G.D.G. Accused Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________ [ 1 ] On January 10, 2012, Mr.

G.D.G. was sentenced to a period of incarceration currently being served in the community pursuant to a Conditional Sentence Order. He entered a guilty plea to a single count alleging sexual assault against two nephews between January 4, 1983 and December 31, 1987.

[ 2 ] During the Sentencing Hearing, a Firearms Prohibition Order was requested by the Crown. I reserved my decision in relation to this matter in order to check the legislation applicable at the time. [ 3 ] It is conceded that Mr. Gauchier lives in an isolated area in rural Alberta near High Prairie. It would be convenient for him to have a rifle because of the type of wildlife prevalent in the area. It is not uncommon for bears to roam near his home. It is conceded that Mr. Gauchier does not need a long gun for sustenance hunting or employment. [ 4 ] The Criminal Code provision for a Firearms Prohibition Order in effect between January of 1983 and December of 1987 is found below: 98.

(1) Where an offender is convicted or discharged under

section 662.1 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years of more or of an offence under

section 83, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from having in his possession any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day the order is made and expires not earlier than (

a) in the case of a first conviction for such an offence, five years, and (

b) in any other case, ten years, after the time of his release from imprisonment after conviction for the offence or, if he is not then imprisoned or subject to imprisonment, after the time of his conviction or discharge for that offence. [ 5 ] During the intervening years, the

section has been amended from time to time. It presently reads: 109(1) Where a person is convicted, or discharged under

section 730 of (

a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more, (

b) an offence under subsection 85(1) (using firearm in commission of offence), subsection 85(2) (using imitation firearm in commission of offence), 95(1) (possession of prohibited or restricted firearm with ammunition), 99(1) (weapons trafficking), 100(1) (possession for purpose of weapons trafficking), 102(1) (making automatic firearm), 103(1) (importing or exporting knowing it is unauthorized), or

section 264 (criminal harassment), (

c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or (

d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing, the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for the offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.

[ 6 ] Over the years, the scope of the

section has been broadened to include a variety of offences. Weapons offences and offences contrary to the Controlled Drugs and Substances Act now attract such a mandatory prohibition. [ 7 ] The only way that Mr. G.D.G. ’ s conduct could be captured by either

section is if he was convicted of an indictable offence in the commission of which violence against a person was used, threatened or attempted to be used. The facts that were put before the Court at his Sentencing Hearing did not make any such allegation. No violence was used, threatened or attempted to be used against either of the victims. Assaultive behaviour was committed as both victims were under the age of 14 years and could not consent to any sexual activity. [ 8 ] Not having allegations of violence in any form placed before the Court, a mandatory prohibition does not follow.

The statutory prerequisite has not been met and I decline to impose a Firearms Prohibition in relation to Mr. G.D.G. Heard at the Town of Peace River, Alberta on the 10 th day of January, 2012. Dated at the City of Edmonton, Alberta this 31 st day of January, 2012. Sterling Sanderman J.C.Q.B.A. Appearances: Mr. David Sherwin for the Crown Mr. Shawn Beaver for the Accused