R. v. Hakongak, 2014 ONCJ 557

Citation: R. v. Hakongak , 2014 ONCJ 557 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. George Hakongak Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision on

Section 113 Application Released October 28, 2014 Ms. C. Lefebvre.. .……………………………………………………………….… for the Crown Mr. J. Harbic ……………………………………………………………….… for Mr. Hakongak Paciocco J. [ 1 ] On September 11, 2014 Mr. George Hakongak was sentenced after guilty plea to eight months imprisonment for having committed the indictable offence of sexual assault. Given that sexual assault carries a penalty of up to 10 years of incarceration, a firearm prohibition is mandatory pursuant to section 109(1) (

a) of the Criminal Code . Mr. Hakongak, an Innu gentleman, has long depended upon the use of firearms for many facets of his life, including at times for his full-time employment, for supplementing the food provisions of his family and members of his remote community, for engaging in volunteer work that takes him onto the land, and for running his part- time outfitting and guiding business which he operates two months a year. At the time of his sentencing Mr. Hakongak had full-time employment in a job that would have provided for him and his family and did not require the use of firearms. He therefore did not seek an exemption from the mandatory prohibition under

section 113 of the Criminal Code . As a result of the sentence he received, however, Mr. Hakongak, at the age of 51, has been informed that he has lost that job. He now applies for an exemption pursuant to

section 113 so that he can support himself and his family upon his release by converting his part-time outfitting and hunting job into full-time employment. [ 2 ] Section 113 (1) provides: 113(1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of a competent authority that (

a) The person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or (

b) A prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing a chief firearms officer or the Registrar to Issue, in accordance with such terms and conditions as the competent authority considers appropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employment purposes. [ 3 ] As with all provisions that impose a burden of proof on the accused, that burden is discharged if the necessary facts are proved on the balance of probabilities. [ 4 ] The Crown contends that Mr.

Hakongak has not satisfied either precondition (

a) or (b), (what I will call the “necessity” prerequisite) to a

section 113 authorization order. It is contended that Mr. Hakongak does not hunt or trap in order to sustain his family, nor is he a person whose only possible vocation requires possession of firearms. The Crown relies in part on the fact that Mr. Hakongak has worked jobs in the past that do not require the use of a firearm and is therefore capable of other work, and has not yet sought full- time employment, which is something he intends to do upon his release. Since neither necessity prerequisite is met the Crown argues that the authorization order cannot issue.

[ 5 ] The Defence contends that

section 113 has to be interpreted and applied realistically, and in context. Mr. Hakongak is a 51 year old who resides in Cambridge Bay, Nunavut, a northern community of 1800 people located on an island. The nearest community outside Cambridge Bay is 300 to 400 miles. There are few job opportunities for him now that he has lost his employment, and having a sexual assault conviction will not help.

His plan, to convert his practice of helping to support himself with income from an outfitting hunting- guide business that he runs in August and September each year into a full-time job is the sole means of employment that is realistically available to him upon his release. This work would require him to possess a firearm for the protection of his family, staff and clientele at the hunting camps and when on the land, given the presence of dangerous animals including grizzly bears, polar bears, wolves and rabid foxes.

The defence contends that this satisfies the necessity requirement provided for in section 113(1)(b). [ 6 ] Section 113(1) (

b) of the Criminal Code does impose a narrow, circumscribed and necessity-based exception. It cannot be interpreted, however, to require that an accused person who depends on the possession of firearms to obtain assured employment must remain unemployed in the hope and expectation that a different line of work might become available to him. The purpose of the exemption is to avoid situations where a mandatory prohibition would unfairly undermine the ability of an individual to provide for themselves or their family. There is nothing in section 113(1) (

b) that requires this necessity requirement to be permanent. If I am satisfied on the balance of probabilities that the prohibition will disqualify Mr. Hakongak from the only means of support that will be available to him at the time of his pending release, the necessity prerequisite in section 113(1) (

b) will be met. [ 7 ] On the evidence before me I am satisfied that Mr. Hakongak is now unemployed, having lost his job. I am also satisfied that he does not have a job available to him upon his impending release and that unless and until he finds a job he will have to be self-sufficient. I also find that operating as an outfitter and or hunting guide is the means of vocation that is securely open to him, given his skill set, his age, and the needs, nature and opportunities in his community. This kind of work requires access to firearms.

To impose a firearms prohibition order on him would therefore operate as a virtual prohibition on the only vocation that will realistically be open to him immediately upon his release. In my view this is adequate to meet section 113(1) (b). [ 8 ] Even if a longer term view is taken the necessity requirement in section 113(1) (

b) is met. I agree with Mr. Harbic that the court must take a realistic, contextual approach in making such determinations. To be sure, the fact that an applicant has worked in the past at jobs that do not require the possession of firearms is a relevant factor. It is important to remember, however, that when Mr. Hakongak attempts to find employment he will be looking for work as a 51 year old ex-convict in a remote, economically deprived community. His employment future cannot be assured. It is clear that his prospects of being hired as a teacher are dim, and he lost his government job because of this offence.

That avenue of employment does not look hopeful. He will probably have to be self-employed. Meanwhile the plan to run the outfitting and guiding service full-time as that mode of self-employment is realistic and obvious for Mr. Hagkongak. He is experienced in this work and the letters of testimonial filed on Mr. Hakongak’s behalf confirm that he is an able outdoorsman and hunter. The business already exists. In all the circumstances I am satisfied on the balance of probabilities that it will be necessary in the foreseeable future for Mr.

Hakongak to reinstitute his business on full time basis in order to support himself and his family. The necessity component under section 113(1) (

b) of the Criminal Code of Canada is therefore met even on a longer term view. [ 9 ] Indeed, while the business is being established, and possibly indefinitely, it is probable that given the nature of this work Mr. Hakongak will have to supplement the income he does earn by living off the land, as he was taught to do, with firearms. He will have to do some hunting and trapping for sustenance. This, in my view, also satisfies the necessity ground in section 113(1) (a). [ 10 ] For those who fear that this

interpretation and application of

section 113 provides too easy a gateway for individuals who pose a danger to avoid firearm prohibitions it is important to bear in mind that compliance with section 113(1)’s necessity requirement is not the sole prerequisite to granting an order authorizing an exemption. Satisfying this necessity condition is a necessary but not a sufficient condition. Section 113 (1) provides that the competent authority “may,” not must, make the authorized exemption order, after considering all of the factors including those identified in section 113(2).

Even if necessary for sustenance or employment purposes within the meaning of section 113(1) , if granting the exemption is inappropriate because it leaves others at real risk, no exemption will be made. [ 11 ] In this case I am going to exercise my discretion in favour of an authorization order. I have no concerns about the risk Mr. Hakongak poses to others through the use of firearms. Indeed, I would not have ordered a firearm prohibition had it not been mandatory for me to do so under

section 109 as I do not consider Mr. Hakongak to pose a risk of weapons-based violence. He comes before me as a first offender, a man of good character who has demonstrated deep remorse for his offence and who took steps to push the prosecution forward so he could answer for his crime. He has no record of violence, and while he struggles with alcohol there is no evidence of mental instability. What Mr.

Hakongak does have is a long record of engaging in activities, many of them socially important in his community, involving the use of firearms for appropriate purposes, including in his volunteer activities as a search and rescue worker and as a community food provider. Indeed, he is the sole certified hunter safety course instructor in Cambridge Bay, Nunavut. To be sure, the offence Mr. Hakongak was convicted of was an assault on the sexual dignity of the complainant that did involve Mr.

Hakongak taking physical control over the complainant for a brief period, but it did not involve the use of the weapon or any attempt to cause the

complainant physical injury. The offence does not by its nature defeat sensible reliance on Mr. Hakongak’s broader record, which shows he does not pose a danger to others if given access to firearms. I therefore have no hesitation in exercising my discretion in favour of making an exemption order under

section 113. [ 12 ] Mr. Hakongak must be aware, however, of two things. The order I am about to make simply “authorizes” a chief firearms officer or the Registrar to issue a licence or registration certificate setting out exceptions to the

section 109 weapons prohibition. Unless and until that certificate is issued, the

section 109 prohibition remains in effect, in full force, without qualification. [ 13 ] Second, if instituted, the exceptions I am providing are narrow ones, in keeping with

section 113. They will enable Mr. Hakongak to possess firearms solely when it is necessary for him to hunt and trap for sustenance of himself and his family, including to supplement the food supply; or when he is employed in a vocation requiring the possession of firearms and that vocation is the only vocation reasonably open to him, in all of the circumstances. The exemptions are not for the purpose of sport hunting. They are not for the purpose of providing food for the community.

And they are not exceptions allowing firearms to be possessed when travelling on the land for purposes other than family sustenance or employment. [ 14 ] Under section 113(1) I therefore authorize a chief firearms officer or the Registrar to issue to you an authorization licence or registration certificate in accordance with the following terms and conditions, which I consider to be appropriate: (

a) You may possess and use a firearm and ammunition appropriate for hunting or trapping, for the purpose of enabling you to hunt or trap in order to sustain yourself or your family, including by supplementing the food supply when economically necessary; and/or (

b) You may possess and use a firearm and ammunition appropriate and necessary to enable you to carry on your employment, including but not limited to securing your safety and the safety of other persons under your charge, provided alternative employment is not reasonably available to you. Released this 28 day of October 2014, _____________________________________ The Hon. Justice David M. Paciocco