In R. v. Hawryluk, 2022 ONCA 36, January 17, 2022, the accused was convicted of the offence of trafficking in a controlled substance. A judge of the Ontario Superior Court of Justice imposed an absolute discharge and imposed a section 109 Criminal Code weapon prohibition. The accused, a Metis, appealed from sentence, arguing that “the sentencing judge erred by failing to consider s. 113(1)(a) of the Criminal Code which provides an exemption to prohibition orders where the person subject to the order requires a firearm or restricted weapon in order to hunt for sustenance”.

Sections 113(1) and (5) state as follows:

(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.

(5) In this section, competent authority means the competent authority that made or has jurisdiction to make the prohibition order.

The appeal was dismissed.  The Ontario Court of Appeal held that the sentencing judge did not committed “any errors in principle that warrant appellate interference. A sentencing judge is not required to consider s. 113 when imposing a s. 109 order. There were sufficient reasons to order the forfeiture of the shotgun: as pointed out by the Crown, the appellant resides in a city and does not require the use of a shotgun at present. The appellant is free to bring an application under s. 113 before a competent authority whenever he chooses, and, in our view, nothing in the wording of s. 113 suggests that the dismissal of the appeal would preclude the appellant from bringing such an application” (at paragraph 7).

As to what constitutes a “competent authority”, the Court of Appeal concluded that “[i]n the present case, the competent authority is the Superior Court of Justice. Contrary to duty counsel’s concerns, nothing precludes the appellant from bringing an application seeking an exception under s. 113 before a judge of that court” (at paragraph 9).