R. v. Williams, 2019 BCPC 91

Citation: R. v. Williams 2019 BCPC 91 Date: 20190423 File Nos: 8806-1-K, 9122-1, 9130-2-KC Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWARD HERBERT WILLIAMS Application under

Section 113 of the Criminal Code RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: L. Feinberg Appearing in person: E. Williams Place of Hearing: Burns Lake , B.C. Date of Hearing: March 26, 2019 Date of Judgment: April 23, 2019 Introduction

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

Issue [ 2 ] The issues before the Court are: a. Should the Court cancel Mr. Williams’ s. 110 firearms prohibition? b. If not, should the Court vary Mr. Williams’ s. 110 firearms prohibition? [ 3 ] Mr. Williams appeared before me on March 26, 2019, self-represented. He testified on his own behalf. He tendered no exhibits or other witnesses. The Crown provided the Court with legal authorities, but called no evidence and declined the opportunity to cross- examine Mr. Williams. At the end of the hearing, I reserved my decision.

Given the dearth of evidence, I reviewed the Court’s record of the sentencing proceedings on August 9, 2016, which gave rise to Mr. Williams’ last s. 110 firearms prohibition order. This is my decision on Mr. Williams’ application and my reasons for judgment. Background Facts [ 4 ] On August 28, 2014, Edward Herbert Williams pleaded guilty to Counts 3 and 4 of Information 8806-1-K, charging him with assaulting his spouse, R.P. and his son, D.P., contrary to s. 266 of the Criminal Code . The Court imposed a 90-day Conditional Sentence followed by a one year Probation Order.

By the terms of the CSO and Probation Order, Mr. Williams was prohibited from having contact with R.P., or their sons, D.P. and B.P. Also, at that time, Judge Jackson ordered pursuant to s. 110 of the Criminal Code Mr. Williams be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for five years, with the following exception: Pursuant to s. 113 , the offender may possess one (1) firearm for sustenance hunting when in the presence of Rita Makowski or John Makowski.

At the completion of the hunt you must return the firearm to Rita Makowski or John Makowski. [ 5 ] Mr. Williams’ five-year firearm prohibition on Information 8606-1-K expires on August 27, 2019. [ 6 ] At the end of the sentencing hearing, the Crown directed a stay-of-proceedings on Counts 1, 2, and 5 of Information 8606-1-K. [ 7 ] On August 9, 2016, Mr. Williams pleaded guilty and was convicted of six different counts on four different Informations for which he received a global sentence of 140 days in jail followed by 15 months’ probation.

Particulars of those convictions are as follows: Count 1 on Information 8960-4-KBC charged Mr. Williams with breaching his probation order on May 7, 2016. He was sentenced to 15 days in jail, time served. Count 1 on Information 8960-5-KB, charged Mr. Williams with breaching his probation order on April 21, 2016. He was sentenced to 15 days in jail, time served. Counts 1 and 2 on Information 9122-1, charged Mr. Williams with two counts of assault which occurred on March 5, 2016. The victims of the assault were Mr. Williams’ cousin, S.W., and his grandfather, W.W. Mr.

Williams was sentenced to 40 days in jail for each assault, to be served concurrently; Counts 2 and 3 Information 9130-2-KC , charged Mr. Williams with two counts assault which occurred May 7, 2016. The victims of the assault were Mr. Williams’ former spouse, R.P. and his son, D.P. Mr. Williams was sentenced to 100 days in jail for each assault, to be served concurrently. Mr.

Williams was placed on a 15 month Probation Order which prohibited him having contact with R.P., their sons D.P., B.P. and E.P., or S.W. or W.W. [ 8 ] At the conclusion of the sentencing hearing on August 9, 2016 on Informations 9122-1 and 9130-2-KC, Judge Jackson imposed a 10 year discretionary firearms prohibition pursuant to s. 110 of the Criminal Code , with the following exception: Except you may possess firearms and ammunition when sustenance hunting. In all matters giving rise to the firearms prohibition orders subject of this application, the Crown proceeded summarily. [ 9 ] As of August 9, 2016, when Mr.

Williams plead guilty the above-noted charges on Informations 8960-4KBC, 8960- 5KB, 9122 -1, and 9130-2-KC, Mr. Williams had a criminal record consisting of 22 convictions beginning on December 16, 2002, and continuing in an unbroken pattern until August 9, 2016. All but two of Mr. Williams’ convictions were for Criminal Code offences. Mr. Williams has had no further convictions since August 9, 2016. [ 10 ] Mr. Williams’ criminal record consists of the following offences: a.

Ten convictions for assault, seven of which were designated “K” files, meaning the assault was against a domestic partner; b. one conviction for assaulting a police officer; c. one conviction for impaired driving; d. one conviction for driving while prohibited ( Motor Vehicle Act offence);

e. one conviction for driving without due care and attention ( Motor Vehicle Act offence); f. six breaches of undertakings or recognizances; and g. two breaches of Probation Orders. [ 11 ] The Crown does not assert that any of the offences for which Mr. Williams was convicted involved a firearm. [ 12 ] Mr. Williams says he needs the firearms prohibitions lifted for sustenance hunting and employment purposes. Although he has an exemption to permit sustenance hunting, the exemption associated with Information 8806-1-K requires him to do so in the presence of Rita or John Makowski.

Because of their busy schedules, Mr. Williams has found it difficult to coordinate a hunting trip with the Makowskis. Mr. Williams’ children are getting older and he would like to teach his sons how to hunt in their traditional territory without having to find another adult with a Possession and Acquisition Licence (“PAL”) to accompany them. [ 13 ] Mr. Williams says he also requires a PAL and the right to carry a firearm in order to train and work as a security guard. With the assistance of the Lake Babine Nation, Mr. Williams’ has enrolled in a security services training course with the College of New Caledonia.

This course is scheduled to proceed on April 8, 2019. Mr. Williams’ seeks to obtain employment on the LNG Pipeline at Kitimat as a security guard. He says that in order to qualify for this position he will require a firearm to protect himself and LNG’s property from wild animals, such as wolves. [ 14 ] Mr. Williams is 41 years old, born on July 3, 1977. He resides with an elderly woman in Burns Lake, B.C. He has three children, D.P., who is now a young adult, B.P. and E.W., who are adolescents. As the result of his various offences, Mr. Williams’ children were raised by their mother, R.P. [ 15 ] Mr.

Williams has suffered much of the adverse impacts of colonialism endemic to Canada’s indigenous population. Two of his parents and both of his grandparents attended residential school. Mr. Williams was removed from his biological family and raised in foster homes between the ages of 7 to 15. Although some of Mr. Williams’ foster homes were good, others were horrific. While growing up, Mr. Williams’ home life was rife with alcohol abuse and domestic violence. Mr. Williams eventually became an alcoholic, but eschewed the use of illicit drugs. [ 16 ] I accept Mr.

Williams’ criminal record was fuelled by his addiction to alcohol. Since his August 9, 2016 convictions, Mr. Williams has been “working on [himself] quite a bit.” He has been to residential treatment twice. He has taken anger management and healthy relationship counselling. He believes he has become more polite. He has also been working with the youth. Mr. Williams appears to have taken positive identifiable steps to distance himself from his criminogenic past. [ 17 ] Mr. Williams wants to improve his employment opportunities. He only has Grade 10 and has difficulty reading and writing. Nevertheless, Mr.

Williams has recently successfully completed courses in Workplace Hazardous Materials Information System (WHMIS) and first aid. In the past, Mr. Williams worked as a labourer; however, he now wishes to train and seek employment as a security guard. [ 18 ] The Crown does not challenge the veracity of Mr. Williams’ evidence as to his need for a firearm for sustenance or employment purposes. Legislative Framework [ 19 ]

Section 110 is a discretionary prohibition where the conviction for

summary offence for ten years or more. It states: 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, 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.

Duration of prohibition order

(2) An order made under subsection (1) against a person begins on the day on which the order is made and ends not later than ten years after the person’s release from imprisonment after conviction for the offence to which the order relates or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence. Application to set aside [ 20 ]

Part XXVIII of the Criminal Code governs

summary convictions.

Section 785 (

b) defines “sentence” to include a firearm prohibition order made under ss. 109(1) or 110(1) . On August 28, 2014, and again on August 9, 2016, Mr. Williams was convicted in Provincial Court and s. 110 firearm prohibition orders were made as part of his sentence. Pursuant to ss. 812 and 813 of the Criminal

Code, Mr. Williams was entitled to appeal his sentence to the Supreme Court of British Columbia. [21] Once it has passed a valid sentence after a lawful hearing, except in the rarest of cases, the court is functus officio, meaning itlacks authority to reopen the case. In R. v. Gallant, 2018 ABPC 159, Judge Mason canvasses the Provincial Court’s jurisdiction tocorrect its error. Judge Mason state at para. 28: [28] In a civil case, Fas Gas Oil Ltd. v. J.H.

Automotive Ltd. 2005 ABCA 120 , the Alberta Court of Appeal dealt with theprinciples of functus officio and referenced the two specific situations where a court could intervene, in Chandler,: 1) where there was aclerical mistake and 2) where there had been an error in expressing the manifest intention of the Court.

However, the Court expanded itsability to consider other situation at para. 25-26: In exceptional circumstances like these the Court has power under its inherent jurisdiction to control and regulate its own process to setaside entry of a judgment or order that has been entered improperly; in breach of undertakings, trust conditions or escrow; or in the faceof an existing motion to re-open the judgment or order or delay its entry, where no affected party intends by entry to forestall that motion,so as to permit an application for leave to re-argue to proceed and, if leave is granted, to direct the setting aside or variation of thejudgment or order.

The Court’s power to set aside an entered judgment or order where Rule 339 does not apply is narrow and discretionary.

It will not beexercised unless, inter alia, (1) there has been no delay in applying; (2) no party has taken the benefit of the judgment or order; (3) noparty will suffer prejudice as a result of setting aside entry of the judgment or order and permitting the application for leave to proceedon its merits; and (4) the interests of justice favour setting aside entry. [22] In Gallant, Judge Mason concluded (at para. 32) if the Court of Appeal, also a statutorily created court, can modify its impliedpowers and jurisdiction to control and regulate its process, so can the Provincial Court.

Mason J. applied the relevant factors in FasGas to the case before him and found at para. 33: a. there was no significant delay in applying for the corrective measure, b. no party would suffer prejudice from the direction sought, and c. the interests of justice favour the Court adhering to the specific agreement made between Counsel for the resolution of Mr.Gallant’s files in court that day. [23] I conclude that even though this Court does have limited jurisdiction to correct an error in sentence, this is not the situationbefore me.

There was no error, in fact the firearms prohibitions ordered at sentencing on Informations 9122-1 and 9130-2-KC formedpart of a joint sentence submission the Crown and Defence submitted to the Court. Even if this Court had jurisdiction to set aside thefirearms prohibitions, which it does not, I would not accede to Mr. Williams’ request to cancel the firearms prohibition. WhenMr. Williams entered his guilty pleas and was sentenced on these matters, the Crown and Court reasonably concluded the case was at anend. The sentencing judge accepted the joint submission and imposed the sentence sought.

This disposition included the Crown directinga stay of proceedings on Count 1 on Information 9130-2-KC. If an offender were subsequently allowed to apply to the sentencing courtto cancel discretionary ancillary orders, it may have a chilling effect on the Crown’s willingness to enter into plea bargains. In R. v.Wong, 2018 SCC 25 , the Supreme Court of Canada stated: [61] Guilty pleas are of central importance to the Canadian criminal justice system.

For many years, a substantial majority of criminalconvictions in Canada have resulted from guilty pleas [Citation omitted]...The guilty plea is one aspect of the plea bargaining process, inwhich Crown and defence counsel negotiate a joint submission on sentence and the accused agrees in exchange to plead guilty. As thisCourt recently stated, such agreements are “commonplace and vitally important to the well-being of our criminal justice system, as wellas our justice system at large”: see R. v. Anthony-Cook,2016 SCC 43 at para. 25.

The plea bargaining process is fundamental tothe administration of justice: the disposition of cases by means of plea bargains benefits all participants in the justice system, preserveslimited resources and introduces certainty into the criminal process: Anthony-Cook, at paras. 35-40. [24] In R. v. S.C.W., 2018 BCCA 346 and R. v. Faulkner, 2018 ONCA 174 , the appellate courts recognized,albeit in a different context, the deleterious effect on guilty plea negotiations if they did not produce finality. [25] In R. v.

Brown, 2016 ONCJ 183 , Justice Kenkel found at paras. 3 to 7, the trial court has no authority to vary a s. 110order other than the limited power set out in s.113 of the Criminal Code. An appellate court may cancel a s. 110 order where there wasno basis upon which the order could have properly been made: R. v. Lucchese [2015] OJ No.6708 (CA). Mr. Williams’ remedy to havethe firearms prohibition set aside was to appeal that portion of his sentence. This he did not do and the firearms prohibitions are bindingand conclusive.

To cancel the firearms prohibition in its entirety is outside this Court’s narrow and discretionary powers to correct anerror. It constitutes a collateral attack on the exercise of Judge Jackson’s judicial discretion to impose the order in the first place. InToronto (City) v. CUPE, Local 29, 2003 SCC 63, the Supreme Court of Canada described at paras. 33 and 34, a collateral attack occurswhen a party seeks to overturn a court order in the wrong forum to attack that order. [26] For the reasons set out above, I decline to cancel the firearms prohibitions.

Application to vary the firearms prohibitions [27] As an alternative to cancelling the s. 110 orders, Mr. Williams seeks their variance under Section 113(1)(

a) of the CriminalCode, which states: Lifting of prohibition order for sustenance or employment 113

(1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of acompetent 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 theperson, the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing achief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considersappropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employmentpurposes. Factors

(2) A competent authority may make an order under subsection (1) only after taking the following factors into account: (

a) the criminal record, if any, of the person; (

b) the nature and circumstances of the offence, if any, in respect of which the prohibition order was or will be made; and (

c) the safety of the person and of other persons. Effect of order

(3) Where an order is made under subsection (1), (

a) an authorization, a licence or a registration certificate may not be denied to the person in respect of whom the order was made solelyon the basis of a prohibition order against the person or the commission of an offence in respect of which a prohibition order was madeagainst the person; and (

b) an authorization and a licence may, for the duration of the order, be issued to the person in respect of whom the order was made onlyfor sustenance or employment purposes and, where the order sets out terms and conditions, only in accordance with those terms andconditions, but, for greater certainty, the authorization or licence may also be subject to terms and conditions set by the chief firearmsofficer that are not inconsistent with the purpose for which it is issued and any terms and conditions set out in the order. When order can be made

(4) For greater certainty, an order under subsection (1) may be made during proceedings for an order under subsection109(1), 110(1), 111(5), 117.05(4) or 515(2), paragraph 732.1(3)(

d) or subsection 810(3). Meaning of competent authority

(5) In this section, competent authority means the competent authority that made or has jurisdiction to make the prohibition order. [28] For the purposes of this application, s. 113(5) defines “competent authority” as the judge who made the order or a court whichhas jurisdiction to make the prohibition order. Jackson, P.C.J., made the firearms prohibition orders on August 28, 2014 and August 9,2016, I am satisfied this Court is the “competent authority” for the purposes of this application. [29] In R. v. Conley, 2010 BCSC 1092 , Mr.

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

Williams [30] Mr. Williams has made this application relying upon a need to possess a firearm for the purpose of sustenance hunting pursuantto s. 113(1)(

a) and for employment pursuant to s. 113(1)(b). At the time of sentencing, Judge Jackson invoked s.113 to vary the s. 110firearm prohibition order to allow Mr. Williams to hunt for sustenance purposes. I need not address this issue except perhaps toregularize the two orders. [31] Mr. Williams also says he needs a firearm for employment purposes. As set out above, a s. 113 application may be broughtwhere a prohibition order would constitute a virtual prohibition against employment in the only vocation open to the person. There iscompeting authority as to how broadly s. 113(1)(

b) ought to be interpreted. In Conley, Justice Wilcock was persuaded (see para. 39) bythe more restrictive approach adopted by the Ontario Court of Appeal in R. v. Tessier, [2006] O.J. No. 1477. Justice Wilcock states atpara. 40, in part: [40] ...The prohibition should not be lifted as a matter of convenience or to provide a person with greater economic opportunities, but,rather, to prevent injustice. It is in that light that the court should read the requirement that an applicant establish the need to hunt forsustenance or employment. [32] Mr.

Williams bears the onus of establishing through evidence, on a balance of probabilities, he needs to use a firearm forsustenance or employment purposes. The employment exemption requires Mr. Williams to prove the existing firearms prohibition ordersconstitute “a virtual prohibition against employment in the only vocation open to him.” If I am satisfied he met this burden, I can make anorder authorizing a chief firearms officer or the Registrar to issue an authorization or license or registration certificate after taking intoaccount those factors set out in s. 113(2), namely: Mr.

Williams’ criminal record, the nature and circumstances of the offences in respectof which the prohibition orders were made, Mr. Williams’ safety and the safety of others.

[ 33 ] In this regard, I note: a. Mr. Williams has previous criminal history, however, he has no firearm convictions; b. Mr. Williams has a lengthy criminal record for alcohol fueled violent offences; c. Mr. Williams violent offences do not appear to have included a firearm; d. Mr. Williams has attended residential treatment centres and his offending has abated; e. I have no evidence to conclude Mr. Williams’ own safety would be at risk if he were to have greater access to firearms; f. Mr. Williams already has an s. 113 exemption to possess firearms and ammunition for sustenance hunting; and g.

There is no evidence of any untoward incidents arising from Mr. Williams having limited access to possessing firearms and ammunition. [ 34 ] I also take into account that when Mr. Williams is not abusing alcohol, he is a contributing member to both his family and his community. [ 35 ] I accept that given his lack of formal education Mr. Williams has limited career options. As he ages, working as a labourer will become increasingly difficult. Training as a security guard is a reasonable career plan.

Nevertheless, I doubt it can be said a prohibition order constitutes a virtual prohibition against employment in the only vocation open to him. I am not convinced that that upon a strict reading of s. 113(1)(b), Mr. Williams has satisfied the criteria. Having said that, if I were to decline Mr. Williams’ application, he would still have access to firearms by virtue of his existing s. 113 exemptions. I do not see how Mr. Williams having access to firearms for employment purposes would significantly increase the risk to the safety of himself or others. Disposition [ 36 ] In conclusion, I am prepared to allow Mr.

Williams’ application in part. I order that pursuant to section 113(1) (

a) and (

b) of the Criminal Code the chief firearms officer or Registrar is authorized to issue an authorization, a license, or a registration certificate to Edward Herbert Williams for sustenance or employment purposes. _______________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia