R. v. Chaulk, 2024 NLSC 3

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Chaulk , 2024 NLSC 3 Date : January 10, 202 4 Docket : 202204G0123 eRIC CHAULK v. hIS MAJESTY THE kING Before: Justice George L. Murphy On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 1318A00181 dated the 12th day of September, 2019. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: January 19, 2023

Summary: The Appellant appealed part of the sentence imposed on him by a Provincial Court judge, namely the imposition of a 10-year weapons prohibition order under s. 110 of the Criminal Code and the imposition of a probation order under s. 731 . The appeal was initially filed in the Court of Appeal in error. By the time the error was discovered and the appeal properly filed in this Court, the Appellant had served his period of probation. The Court declined to decide the issue of whether the sentencing judge had erred in imposing a probation order on the basis of mootness.

With respect to the weapons prohibition order, the Court found that the trial judge had erred by imposing such an order in the absence of a safety concern and also found that the trial judge had failed to conduct a proper Gladue analysis. Both of these errors justified setting aside the weapons prohibition order in its entirety. The Court found the circumstances did not justify an award of costs against the Crown as had been requested by the Appellant.

Appearances: Arnold W. Hussey, K.C. Appearing on behalf of the Crown Brian D. Wentzell Appearing on behalf of the Appellant Authorities Cited: CASES CONSIDERED: Taylor v. Newfoundland and Labrador, 2023 NLCA 22; Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, 47 C.C.C. (3d) 1 (S.C.C.); R. v. Nahanee, 2022 SCC 37; R. v. Burback, 2012 ABCA 30; R. v.Scott, 2016 NLCA 16; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385 (S.C.C); R. v. Ipeelee, 2012SCC 13; R. v. Wauer, 2014 ABCA 270; R. v. Ralph, 2008 NLCA 71; and R. v. Garcia (2005), (ON CA), 195 O.A.C.64, 194 C.C.C. (3d) 361 (Ont.

C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Eric Chaulk (the “Appellant”) has appealed the sentence imposed on him by a Provincial Court judge for three convictionsunder s. 266 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).

The sentence imposed was a period of 9 months’ incarceration tobe served conditionally, a 12-month probation order and a weapons prohibition order for 10 years under s. 110 of the Code. [2] In his Notice of Appeal, the Appellant indicated that he was appealing only a part of his sentence, namely the imposition of the10-year weapons prohibition order. In his Factum, the Appellant also challenged a further part of his sentence, namely the imposition ofthe probation order.

The Crown took no issue with the Appellant appealing the imposition of the probation order notwithstanding it wasnot raised in the Notice of Appeal. However, the Crown argued firstly that this issue was moot given that the period of probation hadbeen completed by the time the appeal was heard.

Secondly, it argued in the alternative that the sentencing judge did not err in imposinga period of probation. [3] In addition, the Appellant argued that he should be awarded costs on this appeal because the error of the trial judge, inimposing the maximum possible weapons prohibition order in the circumstances of the case, was so egregious that it warranted an awardof costs in his favour. The Crown argued that no exceptional circumstances existed in this case such that fairness required that theAppellant be awarded costs. the probation order [4] I will first deal with the issue of mootness.

Sentence was imposed on September 12, 2019 and the 12-month period ofprobation was to follow the 9-month conditional sentence imposed on the Appellant. The appeal of the sentence imposed on theAppellant was initially filed in the Court of Appeal. This was an error since this Court was the appropriate appeal court for the initialappeal from sentence.

The result was that the appeal in this Court was not filed until September 16, 2022 after the error was discovered.By the time the appeal was filed in this Court, both the conditional sentence and the period of probation had been served. [5] Given that the period of probation has been served, there is no doubt that the appeal in respect of same is moot. That beingsaid, this Court has the discretion to hear and decide a moot appeal. The question is whether the Court should do so on the facts of thiscase. This issue was recently dealt with by our Court of Appeal in Taylor v.

Newfoundland and Labrador, 2023 NLCA 22 and at paras.16 – 18 the Court said: 16 The Supreme Court of Canada established the considerations that the Court must consider when determining whether to hear a mootappeal in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at pages 358-363. These principleshave been applied by this Court on numerous occasions, including in Newfoundland and Labrador (Information and PrivacyCommissioner) v. Beverage Industry Association of Newfoundland and Labrador, 2023 NLCA 2; Z.B. v.

Provincial Director of Adults inNeed of Protective Intervention, 2020 NLCA 17, 5 C.A.N.L.R. 450; M.S. v. Newfoundland and Labrador (Child and YouthServices), 2020 NLCA 43, 6 C.A.N.L.R. 191; Powers v. Mitchell, 2019 NLCA 16, 4 C.A.N.L.R. 231; and Rees v. Fong, 2018 NLCA 60,3 C.A.N.L.R. 437.

17 The Borowski principles are based on the basic rationale for the doctrine of mootness and require consideration of the following: * the presence of an adversarial context; * judicial economy; and * sensitivity to the role of the Court as the adjudicative branch in the Canadian political and constitutional framework. 18 The exercise of discretion requires consideration of each of the rationale in a process that recognizes that neither is necessarily moreimportant than the others and the outcome will depend on the particular facts and context of each case (Borowski, at 363): In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia forenforcement of the mootness doctrine is present.

This is not to suggest that it is a mechanical process. The principles identified abovemay not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, andvice versa. [6] In terms of the principles outlined in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342,47 C.C.C. (3d) 1 (S.C.C.), I am satisfied that the necessary adversarial context still exists despite the fact the period of probation has beenserved.

This is evident from the fact that, despite the mootness argument by the Crown, it has also advanced its argument on the merits.Thus, there is no doubt that the presence of an adversarial context exists. [7] As for the second principle, judicial economy, the Court of Appeal in Taylor at para. 27 said: 27 The Supreme Court in Borowski, at pages 361-362, gave examples of categories of cases where the use of scarce judicial resources todecide a moot appeal might be justified.

These include circumstances where: • special circumstances warrant resolution of the dispute; • a decision, while not resolving the parties’ dispute, will nevertheless have some practical effect on their rights; • an important issue of a recurring nature, but brief duration, may evade judicial review because the issue will virtually always disappearbefore it is ultimately resolved; and • the issue is of public importance and its resolution is in the public interest. [8] I do not see this case as falling into any of the categories outlined in Borowski.

I also do not see anything about this case asotherwise justifying the use of scarce judicial resources in deciding it despite its mootness. [9] In terms of the third principle from Borowski, I do not see it as particularly important on the facts of this case as no matter howthe issue of the appropriateness of the probation order might be decided it is not a case that will create new law or have significantprecedential value. [10] Overall, upon consideration of the Borowski factors, I have concluded that based on the facts of this case it would not beappropriate to exercise my discretion to decide the moot issue of whether the sentencing judge erred in imposing a probation order. the WEAPONS prohibition order under s. 110 of the code [11] The Crown in its sentencing submissions requested only a period of 12 months of conditional imprisonment.

It specificallyadvised the sentencing judge that it was not seeking a period of probation and made no submissions on whether a s. 110 weaponsprohibition order should be imposed. [12] Defence counsel agreed with the Crown submission for a conditional sentence but argued for a shorter period of conditionalimprisonment than that sought by the Crown.

It made no submissions on whether a probation order or weapons prohibition order shouldbe imposed. [13] The sentencing judge mischaracterized the Crown’s sentencing submissions when he said at para. 30 of his decision: 30 The Crown sought the imposition of a period of twelve months of conditional imprisonment and a period of probation. The Crown didnot seek the issuing of a DNA order or a weapon prohibition. [14] The mischaracterization was that he indicated the Crown was seeking a period of probation when the Crown had specifically

indicated it was not seeking a period of probation. [ 15 ] While not argued in his Factum, in oral argument on the appeal, counsel for the Appellant argued that there was in essence a joint submission between Crown and Defence in this case. He characterized it as a joint submissions on the basis that both Crown and Defence had recommended a conditional sentence and neither requested a probation order or weapons prohibition order. He further argued that the sentencing judge had erred by not treating the matter as being subject to a joint submission.

I do not agree with Defence counsel’s argument that there was a joint submission in this case which was not properly recognized by the sentencing judge. [ 16 ] In R. v. Nahanee , 2022 SCC 37 , Moldaver, J. for the majority at para. 27 clarified what constitutes a joint submission: [27] To be clear, a joint submission covers off every aspect of the sentence proposed. To the extent that the parties may agree to most, but not all, aspects of the sentence — be it the length or type of the sentence, or conditions, terms, or ancillary orders attached to it — the submission will not constitute a joint submission.

The public interest test does not apply to bits and pieces of a sentence upon which the parties are in agreement; it applies across the board, or not at all. Apart from the logistical problems of applying two different tests to parts of the same proposed sentence, at the end of the day, there is only one composite sentence. Arriving at a sentence involves an assessment of all of its component parts.

Isolating one or two parts of the sentence and subjecting them to a different test is antithetical to this determination, and may well undermine it. [ 17 ] While Crown and Defence both agreed that a conditional sentence was the appropriate sentence, they differed in their submissions on the length of same. Given this difference, the overall submissions on sentence by Crown and Defence cannot be properly characterized as a joint submission based on Nahanee .

As a result, the sentencing judge did not err by failing to treat his consideration of the issue of the weapons prohibition order as a joint submission. [ 18 ] However, that is not the end of the matter in terms of how the sentencing judge dealt with the weapons prohibition order. Notwithstanding that neither the Crown nor Defence made any submission on whether a weapons prohibition order should be made, the sentencing judge had an obligation to consider whether one should have been made. This is shown by wording of s. 110(1)(a): Discretionary prohibition order 110

(1) Where a person is convicted, or discharged under

section 730, of (

a) an offence, other than an offence referred to in any of paragraphs 109(1)(

a) to (c.1), in the commission of which violence against a person was used, threatened or attempted, or (

b) 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, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was not 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 that offence or any other condition prescribed in the order of discharge, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross- bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order. [ 19 ] Thus, there was nothing improper about the sentencing judge considering whether he should make a weapons prohibition order.

In fact, he had a duty to do so. [ 20 ] However, the sentencing judge did commit an error by proceeding to consider whether he should make a weapons prohibition order without providing counsel an opportunity to make submissions. Given that neither Crown nor Defence had addressed the issue, the proper approach would have been to raise it with counsel and invite submissions from them. [ 21 ] That the approach of the sentencing judge in dealing with s. 110 constituted an error is in my view supported by the decision of the Alberta Court of Appeal in R. v.

Burback , 2012 ABCA 30 which was explicitly adopted by our Court of Appeal in R. v. Scott , 2016 NLCA 16 . [ 22 ] Burback and Scott characterized the issue as one of procedural fairness. The Supreme Court of Canada in Nahanee dealt with a similar issue but characterized it differently. The Supreme Court of Canada characterized it as an error of principle.

No matter how the error is characterized, Burback, Scott , and Nahanee all support the view that the sentencing judge ought to have alerted counsel to the fact that he was going to consider whether a weapons prohibition order should be made and given them an opportunity to make further submissions.

In Nahanee , Moldaver, J. for the majority said at para. 4: [4] In my opinion, the public interest test adopted by this Court in Anthony-Cook does not, and should not, apply to contested sentencing hearings following a guilty plea, regardless of the amount of prior negotiation between the parties culminating in the plea.

In such cases, however, if the sentencing judge is of a mind to impose a harsher sentence, in any respect, than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions — failing which, they run the risk of having the harsher sentence overturned on appeal for any one of the following three errors in principle:

(

i) the appellant establishes that there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence; (ii) the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or (iii) the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence.

While I declined to decide the issue of whether the sentencing judge erred in imposing a probation order on the basis of mootness, I would note that the principles from Burback , Scott and Nahanee just discussed would apply equally to the decision by the sentencing judge to impose the probation order. [ 23 ] The failure on the part of the sentencing judge to give counsel an opportunity to make submissions on the weapons prohibition order amounted to an error in principle; however, based on Nahanee it does not in and of itself justify appellate intervention.

In this regard, at paras. 51 – 52, Moldaver, J. said: [51] Mr. Nahanee submits that, in cases like his, a judge’s failure to provide notice and/or the opportunity for further submissions is a breach of procedural fairness that will always justify a hearing where the sentence is considered afresh, even if there is no additional information — much less pertinent information — that the accused could have presented to the judge. [52] With respect, I disagree. Procedural fairness is not the applicable route of appeal. Rather, the applicable route of appeal is the error in principle model, as outlined in R. v.

Lacasse , 2015 SCC 64 [2015] 3 S.C.R. 1089 . The judge’s failure to provide notice and the opportunity for further submissions is an error in principle that will only justify appellate intervention “where it appears from the trial judge’s decision that such an error had an impact on the sentence” ( Lacasse , at para. 44 ; see also R. v. Friesen , 2020 SCC 9 , at para. 26 ). In short, this failure is always an error, though not necessarily one warranting appellate intervention.

Where the appellant can establish impact, the judge will have been deprived of an important piece of information relevant to determining a fit sentence. I see no reason to diverge from this established approach to sentence appeals. [ 24 ] He then went on to say at paras. 59 – 61: [59] In my view, where the sentencing judge fails to provide notice and/or an opportunity for further submissions, there are three types of errors in principle that would warrant intervention by the appellate court: i. If the failure to provide notice and/or further submissions impacts the sentence.

The appellant must demonstrate that there was information that they could have provided, if given the opportunity to do so, and it appears to the appellate court that this information would have impacted the sentence. If the appellate court is of the view that there is missing information that would realistically have impacted the sentence, the court can consider the sentence afresh. In assessing impact, the focus should be on whether the missing information is material to the sentence at issue.

For example, where both parties propose non-custodial sentences and the judge imposes a period of incarceration without notice, the appellant can establish impact by pointing to something material that they would have presented had they been given notice and the opportunity for further submissions, such as a pertinent authority or important mitigating fact. The Crown should assist the appellate court wherever possible by providing or confirming the information that the sentencing judge did not have. ii.

If the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence. Failure to provide sufficient reasons is an error of law, which is a type of error in principle ( Friesen , at para. 26 ; R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 , at para. 28 ). The appellate court may only intervene if the insufficiency of reasons foreclosed meaningful appellate review. While it is preferable for sentencing judges to explicitly say why they exceeded the Crown range, it will not necessarily foreclose meaningful appellate review if this is not done.

The court may look to the record, as a whole, to determine whether sufficient reasons have been given for exceeding the Crown range. Courts are to take a functional approach to sufficiency of reasons ( Sheppard , at para. 50 ). iii. If the sentencing judge provided erroneous reasons for imposing the harsher sentence. The appellate court may intervene if the sentencing judge relied on flawed or unsupportable reasoning for imposing the harsher sentence, such as the erroneous consideration of an aggravating factor or misapprehension of relevant authorities.

Standing alone, however, flawed reasoning will not be enough; the appellant must also satisfy the court that this reasoning impacted the sentence ( Lacasse , at paras. 43-44 ). [60] An appellant may argue one or more of these three grounds of appeal. In cases where it may be difficult for the appellant to demonstrate impact based on the content of the sentencing judge’s reasons, the latter two grounds of appeal — in addition to the Crown’s

obligation to assist the appellate court with respect to information not in front of the sentencing judge — act as safeguards to ensure thatthe appellant can obtain a remedy where appropriate. [61] If there is an error in principle that impacts the sentence, the appellate court may sentence the appellant afresh without deference,save for the findings made by the sentencing judge (Friesen, at para. 28).

Although I need not decide whether appellate courts can remita case back to the trial court for a fresh sentencing hearing, I would not foreclose the possibility that they could, in rare cases, order afresh sentencing hearing where the record is so incomplete as to foreclose a fresh assessment at the appellate court. If no error inprinciple is established, or the error in principle does not have an impact on the sentence, then the only potential remaining ground ofappeal will be whether the sentence is demonstrably unfit (Friesen, at para. 26).

Thus, the error on the part of the sentencing judge in not affording counsel an opportunity to make submissions on the weaponsprohibition order only justifies appellate intervention if the error falls within any of the categories of error justifying appellateintervention outlined by Moldaver, J. in Nahanee. [25] In this case, I have determined there were errors in principle by the sentencing judge which warrant appellate intervention.

Thefirst of these errors relates to the failure of the sentencing judge to give proper consideration to the Appellant’s status as an aboriginaloffender and, as well, his failure to properly apply the principles applicable to the sentencing of aboriginal offenders contained in s. 718.2of the Code. [26] The sentencing judge dealt with the s. 110 weapons prohibition order at paras. 58 and 59 of his decision where he said: [58]

Section 110 of the Criminal Code allows me to issue a weapon/ammunition prohibition when an offender has committed an offence“in the commission of which violence against a person was used, threatened or attempted.” This provision requires that I be satisfied that"it is desirable, in the interests of the safety of the person or of any other person, to make an order." [59] Mr. Chaulk committed three offences involving violence. Considering the circumstances, I am satisfied that it is in the interests ofthe safety of the public to issue a weapon/ammunition prohibition. Based upon the circumstances of the offences and the offender, I haveconcluded that the order issued pursuant to

section 110 of the Criminal Code should be in place for a period of ten years. [27] Earlier in his decision, the sentencing judge referred to the Appellant being an aboriginal offender. At para. 14 he said: [14] The pre-sentence report indicates that both of Mr. Chaulk’s parents “are aboriginal and Mr. Chaulk self-identifies as being anaboriginal person. Mr. Chaulk noted that his family is from Nunatsiavut… Mr. Chaulk does not speak any language other than English. However, he was exposed to traditional values; activities and respect for the land.

Elders from his extended family have been positiverole models for him. Mr. Chaulk related that he often visited with relatives in Nunatsiavut, NL to fish, hunt and trap”. The pre-sentencereport also indicates that Mr. Chaulk’s early family of origin dynamics were stable. There were no maladaptive factors such as substanceabuse; abusive behaviour; victimization; financial hardship or criminal involvement having had a negative impact on Mr. Chaulk or anymember of his immediate family. Mr.

Chaulk assessed that, overall, he had a positive family environment”. [28] Later at paras. 23 – 25 he said: [23] It is clear that “sentencing judges are required to consider the Gladue principles in every case involving the sentencing of anIndigenous offender” (see R. v. Sanderson, 2018 MBCA 63, at paragraph 10). In. R. v.

Skookum, 2018 YKCA 2, it was indicated thatsection 718.2(e) “recognizes that the devastating intergenerational effects of the collective experience of First Nations peoples may shapethe way in which expression is given to the fundamental purposes and principles of sentencing” (at paragraph 98). [24] As noted earlier, Mr. Chaulk self-identifies as being an aboriginal person. However, the evidence presented concerning Mr.Chaulk’s Indigenous heritage does not contain any circumstances that bear on his moral culpability for the offences he committed orwhich suggest an alternative approach to sentencing.

There is no evidence that Mr. Chaulk has been negatively impacted by anysystemic disadvantages or marginalization commonly faced by Indigenous people which could inform his moral blameworthiness andtherefore affect the sentencing principle of proportionality. [25] Based upon the evidence presented, I must consider Mr. Chaulk’s Indigenous heritage in imposing sentence. However, I concludethat in this case it is of minor significance. [29] In terms of aboriginal offenders, s. 718.2(

e) of the Code provides as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [30] The leading authority from the Supreme Court of Canada in how sentencing judges should deal with s. 718.2(

e) is the decisionin R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385 (S.C.C.). By this decision, the Supreme Court of

Canada developed a framework to guide sentencing judges in sentencing aboriginal offenders. Subsequently in R. v. Ipeelee , 2012 SCC 13 , the Supreme Court of Canada had an opportunity to revisit its decision in Gladue and provide further guidance on s. 718.2 (e). At para. 59 of Ipeelee , LeBel, J. for the majority, in reference to Gladue , said: 59 The Court held, therefore, that s. 718.2 (

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing ( Gladue , at para. 93 ). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2 (

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non- Aboriginal offenders ( Gladue , at para. 37 ). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66 ). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84 ). [ 31 ] Later at paras. 72 – 74, LeBel, J. said: 72 While the purpose of s. 718.2 (

e) may not be to provide "a remission of a warranted period of incarceration", critics argue that the methodology set out in Gladue will inevitably have this effect. As Professors Stenning and Roberts state: "... the practical effect of this alternate methodology is predictable: the sentencing of an Aboriginal offender is less likely to result in a term of custody and, if custody is imposed, it is likely to be shorter in some cases than it would have been had the offender been non-Aboriginal" (p. 162). These criticisms are unwarranted.

The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence. 73 First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.

This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender's conduct" (para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani , 2002 ABQB 1097 , 331 A.R. 50 , after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. As Cory and Iacobucci JJ. state in Gladue , at para. 69 : In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. 74 The second set of circumstances - the types of sanctions which may be appropriate - bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself.

As Cory and Iacobucci JJ. point out, at para. 73 of Gladue : "What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities." As the RCAP indicates, at p. 309, the "crushing failure" of the Canadian criminal justice system vis-à-vis Aboriginal peoples is due to "the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice".

The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. [ 32 ] A weapons prohibition order is punitive in nature and part of the overall sentence of an offender. In this regard, I agree with the decision of the Alberta Court of Appeal in R. v.

Wauer , 2014 ABCA 270 where at para. 13 the Court said: [13] A weapons prohibition is part of an offender’s sentence since it is a consequence which attaches to criminal conduct.

Section 110 refers to the prohibition as “punishment” in that it provides that a weapons prohibition is “in addition to any other punishment that may be imposed ...”, or in addition to “any other condition prescribed in the order of discharge ...”. A weapons prohibition order is not only protective or preventative it also has a punitive aspect: R v Wiles, 2005 SCC 84 , [2005] 3 SCR 895 ; see also R v Hurl, 2013 SKQB 217 , 422 Sask R 59 and R v SL, 2013 ONCJ 189 , [2013] OJ No 1692 .

[ 33 ] As such, it is my view that s. 718.2 (

e) applies and therefore the fact an offender is aboriginal must be considered when deciding whether to make a weapons prohibition order and, if so, the length of same. [ 34 ] The comments of the sentencing judge at paras. 14 and 23 – 25 of his decision, as set forth earlier, indicate that while he did mention the first set of circumstances mandated by Gladue and Ipelee , namely systemic and background factors of the Appellant which might bear on moral culpability, he did not consider the second set of circumstances as mandated by those cases, namely the types of sentencing procedures which may be appropriate for aboriginal offenders.

These last set of circumstances do not bear on the moral culpability of the Appellant but on the effectiveness of the sentence. [ 35 ] I am of the view that a consideration of the particular types of sentencing sanctions which might be appropriate for aboriginal offenders should also include consideration of any particular types of sentencing sanctions which might not be appropriate. It should also include a consideration of the impact a particular sanction is likely to have on an aboriginal offender as compared to a non-aboriginal offender.

This is particularly important when a sentencing judge is considering whether to impose some form of weapons prohibition order on an aboriginal offender. It is well known that hunting forms an extremely important part of the tradition of most aboriginal people and as such weapons prohibition orders are likely to have a much greater impact on an aboriginal person than a person who does not partake in traditional activities like hunting.

It is for this very reason that a sentencing judge must consider the aboriginal status of an offender when dealing with s. 110 of the Code and, in particular, consider how a weapons prohibition order might negatively impact an aboriginal offender disproportionately compared to non-aboriginal offenders. In this case, the sentencing judge did not do this and, in my view, that constituted error. [ 36 ] The sentencing judge correctly stated at para. 23 of his decision set forth earlier that he was required to consider the Appellant’s indigenous heritage when imposing sentence.

However, he then immediately stated that it was of minor significance. Such a conclusion is difficult to comprehend in the circumstances of this case given the evidence before the Court and, in particular, in relation to a consideration of s. 110 of the Code . That evidence indicated the Appellant was exposed to traditional values, activities and respect for the land, that elders from his extended family had been positive role models for him and that he often visited his relatives in Nunatsiavut to fish, hunt and trap.

With respect, given that evidence, I fail to see how the Appellant’s indigenous heritage could be characterized as being of only minor significance when considering whether to impose a weapons prohibition order.

Such a conclusion constituted error in that it was not supported by the evidence and was inconsistent with the law, in particular s. 718.2 of the Code . [ 37 ] Aside from the issue of the Appellant’s status as an aboriginal person, there was another error committed by the sentencing judge in dealing with whether to impose a weapons prohibition order. [ 38 ] As indicated in the wording of s. 110 , a sentencing judge considering whether to make an order under that

section must determine whether it is desirable in the interests of the safety of the person or of any other person to make an order . [ 39 ] Wauer dealt with this concern regarding safety and at para. 22 said: [22] However, even when the prerequisite offences have been committed, if the court is not satisfied there is a safety concern it can not make a prohibition order.

There must be some evidence of a safety concern or reason to believe that safety is a concern. [ 40 ] The obvious implication from this statement in Wauer is that it is only desirable in the interests of the safety of the person or of any person to make a weapons prohibition order where there is a safety concern.

That safety concern by the wording of s. 110 can relate to the person against whom the order would be imposed or any other person. [ 41 ] The sentencing judge in his decision at para. 59 set forth earlier simply said that he was satisfied that it was in the interests of the safety of the public to impose a weapons prohibition order. When discussing the issue of the weapons prohibition order, he did not discuss whether there was a safety concern or, if so, what it was.

Interestingly, however, at para. 50 of his decision when dealing with the issue of the appropriateness of a conditional sentence of imprisonment for the Appellant he said: Danger to the Public: [50] Mr. Chaulk committed three violent assaults, but he has no prior convictions. What occurred should never be described as a “bad night out”, but it can be fairly characterized as an isolated incident that is uncharacteristic of Mr. Chaulk. I am satisfied that Mr.

Chaulk does not constitute a danger to the public. [ 42 ] The Appellant argues that this finding by the sentencing judge is such that, based on Wauer , it was not appropriate to make the weapons prohibition order. Counsel for the Crown took no issue with the legal principles referenced in Wauer . However, he drew a distinction between the sentencing judge’s statement that the Appellant was not a danger to the public when reviewing the appropriateness of a conditional sentence and the safety issue which had to be considered when deciding whether there should be a weapons prohibition order.

He pointed out that the safety issue under s. 110 was broader in that it related to the Appellant himself or of other persons as opposed to the safety concern being just the public when giving consideration to a conditional sentence. [ 43 ] Counsel for the Crown is correct that the consideration regarding safety under s. 110 is broader because it relates to the safety of both the Appellant himself and other persons whereas the consideration regarding safety in relation to a conditional sentence is just the safety of the public.

However, in this case, the sentencing judge mentioned nothing about the safety of the Appellant in his discussion about the weapons prohibition order.

To the contrary, he specifically referenced only the safety of the public as the justification for his decision to make the order as shown at para. 59 of his decision set forth earlier. [ 44 ] In my view, based on Wauer , the finding by the sentencing judge that the Appellant was not a danger to the public meant there was no justification for a finding that it was desirable in the interests of the safety of the public to issue a weapons prohibition order. [ 45 ] Given my finding that there was no justification for the making of a weapons prohibition order, I need not go on to deal with

the issue of the length of the order made by the sentencing judge, namely the maximum possible term of 10 years. However, in the event I am wrong in my conclusion that there was no justification for the making of the weapons prohibition order in the first place, I have decided to go on to deal with this issue.

The Crown conceded that imposition of the maximum term was an error on the part of the sentencing judge because it was not proportional to the gravity of the offences committed by the Appellant, the Appellant’s circumstances or the safety risk to the Appellant and others. [ 46 ] The Crown also pointed out in its Factum that there were no reasons readily apparent from the record in this case why the 10- year term was chosen. This is an accurate statement by the Crown.

An absence of such reasons makes appellate review difficult but it is not a valid reason for not carrying out the review. [ 47 ] All that was said by the sentencing judge was that based upon the circumstances of the offences and the offender, he had concluded that the weapons prohibition order should be in place for 10 years. This is the maximum term the sentencing judge could impose. The sentencing judge gave no explanation of what circumstances he was referring to.

The imposition of the maximum term weapons prohibition order is not reconcilable with the earlier findings of the sentencing judge in his decision including, in particular, the sentencing judge’s comments at para. 50 of his decision which is set forth earlier. [ 48 ] The sentencing judge characterized the incident that led to the offences as isolated and uncharacteristic of the Appellant. He also knew that the Appellant had no prior convictions and had pleaded guilty. Further, he knew that the Crown had not sought a weapons prohibition order.

In addition, he would have been aware of the very positive Pre-Sentence Report indicating that the Appellant was motivated to exit the criminal justice system and that there was no assessed risk or need issue that would preclude the Appellant from performing community service. Finally, the sentencing judge would have known the Appellant was aboriginal and that he often visited with his relatives in Nunatsiavut, NL to fish, hunt and trap. [ 49 ] I find it impossible to reconcile how in such circumstances the sentencing judge could have determined it to be appropriate to order the maximum weapons prohibition order.

It is grossly disproportionate to the circumstances of the offences and the Appellant and warrants appellate intervention. Conclusion re weapons prohibition order [ 50 ] The failure of the sentencing judge to advise counsel that he was considering making a weapons prohibition order and to provide them with an opportunity to make submissions on the issue was an error based on the decisions in Burbank , Scott and Nahanee . [ 51 ] While such an error does not always justify appellate intervention, it does in this case because of other errors in principle on the part of the sentencing judge.

These errors were as follows: a. failure to give proper consideration to the Appellant’s status as an aboriginal offender in deciding whether to make a weapons prohibition order; b. imposing a weapons prohibition order in circumstances where he had found the Appellant was not a danger to the public which was inconsistent with the principles established in Wauer ; and c. imposing a weapons prohibition order with maximum permitted duration which was grossly disproportionate to the circumstances of the offences and the Appellant. [ 52 ] Given the finding by the sentencing judge that the Appellant was not a danger to the public, based on Wauer there was no justification for ordering a weapons prohibition order in the interests of the safety of the public.

Further, in my view, even leaving aside the Wauer decision and whether there were safety concerns, the weapons prohibition order was not justified given the circumstances of the offences and the offender including in particular the Appellant’s aboriginal status. A weapons prohibition order has a far greater impact on an aboriginal person such as the Appellant who partakes in hunting activities as part of their aboriginal culture and lifestyle. Considering the Appellant’s aboriginal status and the other circumstances of the offences and the Appellant, a weapons prohibition order was unjustified.

On both of these grounds, the appropriate disposition is to set aside the weapons prohibition order in its entirety which I so order. [ 53 ] Even if I am wrong in my conclusion that the weapons prohibition order should be set aside in its entirety, which I do not accept is correct, the circumstances of the offences and the offender did not justify a weapons prohibition order with a maximum permitted duration.

The Crown agreed on this point and therefore at the conclusion of the hearing of the appeal and without any opposition from the Crown, I suspended the weapons prohibition order pending my decision on this appeal. At that point, the weapons prohibition order was already in place for over three years.

Even if it could be said that the imposition of a weapons prohibition order for some period of time was justified, the circumstances of the offences and the Appellant, and in particular the aboriginal status of the Appellant, would not have justified a term longer than the period the weapons prohibition order was already in place. Thus, even if a weapons prohibition order was justified, the appropriate result would be to order it be varied to a period that ended on the date of hearing of this appeal, namely January 19, 2023. costs [ 54 ] The Appellant asks that the Court award costs to him on this appeal.

He recognizes that an award of costs against the Crown on a criminal appeal is reserved for exceptional cases but argues that this is an exceptional case. His argument in this regard is set out at paras. 80 – 86 of his Factum which I set forth in their entirety: 80. There are, however, those occasional cases that are beyond the pale – ones where the error was so egregious, either because of it (sic) blatancy or because of the erroneous precedent it sets, that an Appellant is left with no choice but to appeal the decision so as to set the record straight. It is submitted this is one of those cases.

81. We have here a first time offender who committed a common assault on three people in one isolated incident and in circumstanceswhere the Appellant had no weapon or imitation thereof, did not attempt to use a weapon or imitation thereof and did not threaten to use aweapon. The sentencing judge determined that the incident was out of character for the offender and that he did not pose a danger to thepublic. The Respondent, no doubt in light of these factors, did not seek either a weapons prohibition or a period of probation. 82.

In addition to all this, the sentencing judge was aware that the offender was aboriginal and that he practices traditional activities,most significantly hunting. 83. With all this in mind, the sentencing judge did not embark on a Gladue procedure for determining the appropriate sentence yetinexplicably reversed himself by stating that protection of the victims required a period of probation and the interest of public safetyrequired a weapons prohibition. Not only that, he determined that the maximum duration possible was warranted in the circumstances. 84.

It is the position of the Appellant that to impose the maximum possible discretionary weapons prohibition on a first time offenderwho did not use or threaten to use a weapon in the commission of the offence and knowing that the prohibition would preclude theoffender from one of the most important practices of his heritage is intolerable and cannot be allowed to stand as precedent. TheAppellant realizes that the decision came from a

summary conviction Court, however

summary conviction Courts are regularly cited byboth Crown and defence, particularly in cases within the same jurisdiction. 85. Moreover, it is well known that a significant rehabilitative and restorative activity, particularly in aboriginal culture, is beinginvolved in traditional activities, especially where elders are involved. It is also the case, as set out in the pre-sentence report that theAppellant has a six year old son.

While it is not so stated in the pre-sentence report, it would be expected that the Appellant would soonstart including his son in hunting trips (if he had not already done so), so as to teach him his aboriginal heritage as he himself learned itfrom his elders. He would be sixteen before he could have the benefit of his father’s teachings. 86. In all, it is submitted that to allow the sentencing decision in this matter stand would constitute an injustice in terms of sentencinggenerally but particularly in the case of an aboriginal offender.

It cannot be permitted to stand as against the Appellant and for thepurposes of the within argument on costs, it cannot stand as a sentencing precedent involving aboriginal offenders. It is so contrary to lawas it relates to aboriginal sentencing that the Appellant had no choice but to appeal it. He should not bear the cost associated therewith asit serves the interest of justice for all future aboriginal sentencing cases that it be set aside. [55] The fact that an award of costs against the Crown on a

summary conviction appeal is reserved for exceptional cases wasconfirmed by our Court of Appeal in R. v. Ralph, 2008 NLCA 71 where Mercer, J.A. for the Court said at paras. 11 – 12: [11] The statutory authority for an award of costs by the Appeal Court is granted by s. 826 of the Criminal Code which states: Where an appeal is heard and determined or is abandoned or is dismissed for want of prosecution, the appeal court may make any orderwith respect to costs that it considers just and reasonable. [12] Despite this broad language it is clearly established that an award of costs against the Crown on a

summary conviction appeal isreserved for exceptional cases. R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at pp. 569-570; R. v. Trask, (SCC), [1987] 2 S.C.R. 304. [56] The Ontario Court of Appeal in R. v. Garcia (2005), (ON CA), 195 O.A.C. 64, 194 C.C.C. (3d) 361 (Ont.C.A.) examined the statutory authority to grant costs in

summary convictions appeals and how the discretion granted by the Code in thatregard had been exercised. At paras. 10 – 13 of that decision, the Court stated: [10] The statutory authority to grant costs in the

summary conviction appeal court is found in s. 826 of the Criminal Code: Where an appeal is heard and determined … the appeal court may make any order with respect to costs that it considers just andreasonable. [11] This provision gives the

summary conviction appeal court judge a broad discretion to award costs. Orders which reflect theexercise of discretion attract considerable deference on appeal. This court will interfere only if satisfied that the exercise of the discretionin the court below reflects an error in principle or has resulted in a miscarriage of justice. Counsel for the Crown accepts that thisdeferential approach should be applied to costs orders made under s. 826.

[12] It is beyond dispute that the broad discretion described in s. 826 extends to the making of costs orders against the Crown, evenif the Crown is successful on the

summary conviction appeal: R. v. Ouellette (1980), (SCC), 52 C.C.C. (2d) 336 at 344(S.C.C.). It is also clear that despite the broad language of s. 826, an award of costs for or against the Crown in

summary convictionappeal matters will be the exception and not the rule: R. v. M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 at 376-77. There are strong policy reasons which dictate that the court should be reluctant to grant costs for or against the Crown in criminalproceedings: see R. v. Robinson (1999), 1999 ABCA 367 , 142 C.C.C. (3d) 303 at 315-16 (Alta. C.A.). [13] The cases in which costs have been awarded against the Crown in

summary conviction appeal proceedings fall into two broadcategories. The first, and by far the largest, category consists of cases where the conduct of the prosecution is said to merit sanction inthe form of an award of costs against the Crown. The second category consists of cases where there is no Crown misconduct, but otherexceptional circumstances exist such that fairness requires that the individual litigant not carry the financial burden flowing from his orher involvement in the litigation: R. v.

Trask (1987), (SCC), 37 C.C.C. (3d) 92 at 94-95 (S.C.C.); R. v.Gagnon (2000), (QC CA), 147 C.C.C. (3d) 184 at 190 (Que. C.A.); R. v. Veri, (ON CA), [2000]O.J. No. 384 (C.A.). [57] In this case, there is no claim of misconduct by the Crown. Instead, the claim for costs is based on a fairness claim that theAppellant alone should not have to carry the financial burden of the litigation.

While there is no doubt, in my view, that the imposition ofa weapons prohibition order was not justified in this case and more egregiously the imposition of one of maximum duration, particularlygiven the aboriginal status of the Appellant, I do not see this as a case where costs are warranted based on the principle that the Appellantalone should not have to bear the costs associated with the appeal. [58] Counsel for the Appellant attempted to characterize this as a situation where to allow the decision of the sentencing judge tostand would constitute an injustice generally speaking as opposed to only in relation to the Appellant and further that it would constitutean injustice in relation to all aboriginal offenders.

I agree that the decision of the sentencing judge is one which should not be allowed tostand for a number of reasons, as I have outlined, including the failure on the part of the sentencing judge to conduct a proper Gladueanalysis in considering whether to impose a weapons prohibition order. However, the Appellate himself had a significant personal stakein the outcome of the appeal. In such circumstances, it is not appropriate in my view to awards costs. Our Court of Appeal in R. v.

Ralphdealt with the issue of the circumstances where costs could be awarded against the Crown in cases not involving Crown misconduct. Atparas. 15 – 18, Mercer, J.A. for the Court said: [15] As contended by the Crown and discussed below, the characterization of the prosecution as a test case, being the stated reason forthe award of costs, was an improper characterization. The basis for an award of costs against the Crown as a test case was explained byMcIntyre J. in Trask, at pp. 307-308: … The Court, from time to time, when the Crown wishes to appeal a

summary conviction matter in order to settle a point of law, willrequire the Crown to pay the respondent’s costs. This is because it is the public-at-large who are the beneficiaries of such a step and it isnot considered just that one individual should be put to substantial expense when it is the Crown that seeks to effect a valid socialpurpose by taking the appeal. … [16] That basis is insufficient when, as here, the issue before the court is of real personal significance to the individual involved. Thatpoint was explained in R. v. Garcia (2005), (ON CA), 194 C.C.C. (3d) 361 (Ont.

C.A.) In Garcia the accused wasconvicted of impaired driving. In sentencing, the trial judge held that the applicable minimum sentence provisions of the CriminalCode were unconstitutional. The Crown appeal on the constitutional issue was allowed but the appeal court ordered costs against theCrown on the basis that the proceedings were “akin to a test case”. The Ontario Court of Appeal quashed the costs award on the basisthat the proceedings could not properly be characterized as a “test case”. Doherty J.A. for the court stated: [20] In relying on the public interest nature of the appeal, the

summary conviction appeal court judge mischaracterized the appeal asakin to a test case. While the appeal doubtless raised an important legal issue of general application to cases where the Crown relied ons. 255(1)(a)(iii), it also raised a very real issue as between the Crown and the respondent. The Crown sought an order imprisoning therespondent for the minimum 90 day period required by s. 255(1)(a)(iii). The respondent had a vital interest in opposing the appeal. Hisliberty was at stake.

Indeed, the respondent was successful in that he ultimately obtained an order on appeal that enabled him to avoidthe minimum jail term imposed by Parliament. [21] This was not an appeal where the issue as between the Crown and the respondent was moot: see R. v. Girard, [2000] B.C.J. No.1518 (QL) (S.C.); R. v. A.J.O., (ON SC), [2004] O.J. No. 1221 (QL), 185 C.C.C. (3d) 120 (S.C.J.). Nor can thisappeal be described as one in which the Crown had little or no interest in the disposition of the specific appeal, but a vital interest in theresolution of the legal issue raised on the appeal.

The Crown had a real interest in both the outcome of the appeal and the resolution ofthe legal issue. ….. [26] In deciding whether the public interest at stake in an appeal justifies a costs order against the Crown under s. 826, the

summaryconviction appeal court must consider both the public importance of the legal issue raised on the appeal and the significance of theoutcome of the appeal to the individual respondent. Where the public interest is high and the appeal has little or no significance to the

particular respondent, a costs order against the Crown may be appropriate regardless of the outcome of the appeal. Where, however,there is a significant public interest in the legal issue raised on the appeal and the respondent has a significant personal interest, it is notunfair to follow the general rule and require each side to bear its own costs. [27] The

summary conviction appeal court judge failed to consider the significance of the appeal to the respondent. He was not anominal respondent brought to court so that the Crown could settle a question of law for the general public good. The respondent had avital stake in the outcome of this appeal. This was not a test case or anything akin to a test case. See also R. v. B(D.) (2006), (ON CA), 206 C.C.C. (3d) 289 (Ont. C.A.) at paras. 95-98. [17] The applicable principles were similarly set forth in R. v. Taylor (2007), 2007 BCCA 250 , 240 B.C.A.C. 257 (B.C.C.A.)in which Hall J.A. stated: [22] …

Summary conviction proceedings are now usually brought by and on behalf of the state and as noted by Lamer C.J. in R. v. M.(C.A.), supra, the general rule is that costs are not routinely awarded in criminal cases in this country. [23] Madam Justice McFadyen said in R. v.

Robinson (1999), 142 C.C.C. (3d) 303 at 315, 1999 ABCA 367 that a reason to limit costsawards is because the Crown is not an ordinary litigant and does not win or lose but rather conducts prosecutions and makes decisionsabout prosecutions in the public interest. [24] Leaving aside the cases where costs may be awarded because of what is found to be Crown misconduct in the course of aprosecution, it appears to me that only in the exceptional circumstances of what can be truly characterized as ‘test cases’ will it beappropriate for a Court in

summary conviction proceedings to award costs against the Crown to an accused person. An accused personwill in most instances, as is the case here, have had some practical stake in the outcome of the proceedings. True test cases advanced bythe Crown to elucidate or establish a significant legal principle, that is a case such as R. v. Orbanski or R. v. Elias will be rare. As suchcases will be rare, so too should awards of costs be rare. The prevailing practice in Canada adverted to by Lamer C.J. in R. v. M.(C.A.) ought to be observed by trial and appellate tribunals. … [18] In

summary, where an accused has a significant practical stake in the prosecution, high public interest in the outcome of theproceedings would not warrant the characterization of that matter as a “test case” and therefore would not displace the general rule thatcosts are not awarded against the Crown. [59] As I have already noted, the Appellate had a significant practical stake in the outcome of this appeal and therefore the facts arenot such as to displace the general rule that costs are not awarded against the Crown in the absence of Crown misconduct. As a result, theclaim for costs in favour of the Appellate is denied.

summary and conclusion [60] Based on the doctrine of mootness, I decline to exercise my discretion to decide whether the imposition of the period ofprobation constituted an error on the part of the sentencing judge. [61] The sentencing judge erred by proceeding to consider whether he should make a weapons prohibition order without alertingcounsel and providing them with an opportunity to make submissions on the issue. The sentencing judge also erred by failing to conducta proper Gladue analysis when deciding whether to impose a weapons prohibition order and by imposing same in the absence of a safetyconcern.

Both of these errors justify setting aside the weapons prohibition order in its entirety. In the alternative, even if the imposition ofa weapons prohibition order was justified, a weapons prohibition order of maximum duration was disproportionate to the circumstancesof the offences and the Appellant. The period the weapons prohibition order was already in place of just over three years was more thana sufficient duration given the circumstances of the offender. [62] The circumstances of this appeal do not justify an award of costs against the Crown. _____________________________ George L. Murphy Justice