R. v. Simon (H.), (2012) 328 Nfld. & P.E.I.R. 174 (NLPC)

JudgeMennie, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateSeptember 10, 2012
JurisdictionNewfoundland and Labrador
Citations(2012), 328 Nfld. & P.E.I.R. 174 (NLPC)

R. v. Simon (H.) (2012), 328 Nfld. & P.E.I.R. 174 (NLPC);

    1019 A.P.R. 174

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. SE.025

Herbert Simon v. Her Majesty the Queen

(2012 PCNL 1412PA00229)

Indexed As: R. v. Simon (H.)

Newfoundland and Labrador Provincial Court

Mennie, P.C.J.

September 10, 2012.

Summary:

On December 2, 2011, the accused was convicted of a charge under s. 5(2) of the Controlled Drugs and Substances Act. As part of his sentence, the Provincial Court judge imposed a mandatory 10 year firearms prohibition pursuant to s. 109 of the Criminal Code. The accused applied under s. 113 of the Code for an order lifting the prohibition for sustenance purposes.

The Newfoundland and Labrador Provincial Court dismissed the application.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - On December 2, 2011, the accused was convicted of a charge under s. 5(2) of the Controlled Drugs and Substances Act - As part of his sentence, the Provincial Court judge imposed a mandatory 10 year firearms prohibition pursuant to s. 109 of the Criminal Code - The accused applied under s. 113 of the Code for an order lifting the prohibition for sustenance purposes - The accused was of aboriginal descent - He had hunted since he was about 12 years old - Hunting helped him put food on the table - He maintained that he required a firearm - The Newfoundland and Labrador Provincial Court dismissed the application - The accused's desire to sustain his family by relying on moose, birds and small game fell within the spirit of s. 113(1)(a) - However, the accused currently had a source of big game and other animal species that were available to him without a firearm - As well, it was too late for the accused to apply in his own right for a big game license for the 2012 season - In all of these circumstances, the court was not satisfied on a balance of probabilities the accused needed a firearm in order to provide additional sustenance.

Cases Noticed:

R. v. Tessier (M.), [2006] O.A.C. Uned. 176 (C.A.), refd to. [para. 14].

R. v. Conley (H.R.), [2010] B.C.T.C. Uned. 1092; 2010 BCSC 1092, refd to. [para. 15].

R. v. Jararuse, 2001 CarswellNfld 339 (Prov. Ct.), refd to. [para. 16].

R. v. Allooloo (C.R.) (2010), 487 A.R. 322; 495 W.A.C. 322 (C.A.), leave to appeal denied (2011), 417 N.R. 392; 510 A.R. 410; 527 W.A.C. 401 (S.C.C.), refd to. [para. 17].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 113(1), sect. 113(2) [para. 9].

Counsel:

Susan Gallant, for Her Majesty the Queen;

Brian Dunphy, for Herbert Simon.

This application was heard at Stephenville, NL, by Mennie, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on September 10, 2012.

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