R. v. Cruickshank (K.A.), 2013 NSPC 120

• Judge: Tax, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: November 26, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSPC 120;(2013), 337 N.S.R.(2d) 292 (PC)

R. v. Cruickshank (K.A.) (2013), 337 N.S.R.(2d) 292 (PC);

    1067 A.P.R. 292

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. DE.042

Her Majesty the Queen v. Kevin Anthony Cruickshank

(2477558; 2013 NSPC 120)

Indexed As: R. v. Cruickshank (K.A.)

Nova Scotia Provincial Court

Tax, P.C.J.

November 26, 2013.

Summary:

The applicant applied under s. 113(1)(a) of the Criminal Code to lift a mandatory 10 year firearms prohibition order made under s. 109(1)(c) of the Code.

The Nova Scotia Provincial Court allowed the application.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - [See all Criminal Law - Topic 5799.2 ].

Criminal Law - Topic 5799.2

Punishments (sentence) - Prohibition orders - Stay or lifting of - The accused pleaded guilty to possession of marijuana for trafficking purposes - An 18 month conditional sentence was imposed, plus a 10 year firearms prohibition - The applicant applied to lift the prohibition order (Criminal Code s. 113(1)(a)), claiming that he needed a firearm to hunt or trap in order to sustain himself or his family - The Nova Scotia Provincial Court granted the order - The court noted that the applicant had been extensively involved in hunting and that wild meat had been the primary source of food for himself and his family for 18 years - He had no prior record - Safety concerns could be addressed by ordering that the firearms be under the custody and control of another family member when not in use - See paragraphs 29 to 37.

Criminal Law - Topic 5799.2

Punishments (sentence) - Prohibition orders - Stay or lifting of - Section 113(1)(a) of the Criminal Code provided that, notwithstanding a prohibition order, a "competent authority" could authorize issuance of a firearm licence or registration where the applicant established that he needed a firearm or restricted weapon to hunt or trap in order to sustain the person or the person's family - The Nova Scotia Provincial Court held that the onus was on the applicant to establish that he met the requirements of s. 113(1)(a) on a balance of probabilities (i.e., that he needed a firearm to sustain himself or his family) - Once the applicant did so, the "competent authority", before authorizing issuance of a licence or registration certificate, had to consider the applicant's criminal record (if any), the nature and circumstances of the offence in respect of which the prohibition order was made and the safety of the applicant and of others - See paragraphs 14 to 17.

Criminal Law - Topic 5799.2

Punishments (sentence) - Prohibition orders - Stay or lifting of - Section 113(1)(a) of the Criminal Code provided that, notwithstanding a prohibition order, a "competent authority" could authorize issuance of a firearm licence or registration where the applicant established that he needed a firearm or restricted weapon to hunt or trap in order to sustain the person or the person's family - The Nova Scotia Provincial Court held that it was a "competent authority" within the meaning of s. 113 - See paragraph 14.

Criminal Law - Topic 5799.2

Punishments (sentence) - Prohibition orders - Stay or lifting of - Section 113(1)(a) of the Criminal Code provided that "Where 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, ... 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 .... an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employment purposes" - The Nova Scotia Provincial Court interpreted the phrase "sustain the person or the person's family" in s. 113(1)(a) - See paragraphs 18 to 28 and 31 to 34.

Words and Phrases

Sustain the person or the person's family - The Nova Scotia Provincial Court discussed the meaning of this phrase as it appeared in s. 113(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 18.

Cases Noticed:

R. v. Wiles (P.N.) (2004), 220 N.S.R.(2d) 126; 694 A.P.R. 126; 2004 NSCA 3, refd to. [para. 13].

R. v. Jararuse, [2001] N.J. No. 431 (Prov. Ct.), refd to. [para. 14].

R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322; 2010 NWTCA 7, refd to. [para. 19].

R. v. Tessier (M.), [2006] O.A.C. Uned. 176 (C.A.), refd to. [para. 20].

R. v. Conley (H.R.), [2010] B.C.T.C. Uned. 1092; 2010 BCSC 1092, refd to. [para. 21].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 113(1)(a) [para. 1].

Counsel:

Jeff Moors, for the Crown;

David Green and Gillian MacNeil, for the defence.

This application was heard on November 26, 2013, before Tax, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision orally on the same date.