R. v. McLeod

Citation: R. v. McLeod Date: 19990602 1999 BCCA 347 Docket: CA024593 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN:

REGINA

RESPONDENT AND: TONY JACK McLEOD

APPELLANT Before: The Honourable Chief Justice McEachern The Honourable Mr. Justice Goldie The Honourable Madam Justice Prowse Mark C. Smith Counsel for the Appellant Beverly MacLean Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia May 5, 1999 Place and Date of Judgment Vancouver, British Columbia June 2, 1999 Written Reasons by: The Honourable Madam Justice Prowse Concurred in by: The Honourable Chief Justice McEachern The Honourable Mr. Justice Goldie Reasons for Judgment of the Honourable Madam Justice Prowse:

NATURE OF APPEAL [1] Mr. McLeod is appealing from the decision of a Provincial Court judge made April 26, 1998 designating him a long-term offender and sentencing him to a period of two years' imprisonment followed by seven years' supervision in the community on strict conditions. The Provincial Court judge also made an order under s. 100 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"), prohibiting Mr. McLeod from possessing firearms "except for the purpose of aboriginal hunting for sustenance and then only with the consent of his probation officer and on any conditions as set out by the probation officer".

GROUNDS OF APPEAL [2] Mr. McLeod submits that the learned sentencing judge erred in: (1) finding Mr. McLeod to be a long-term offender despite the fact that Mr. McLeod had not been convicted of one or more of the sexual offences enumerated in s. 753.1(2)(a) of the Code; (2) finding Mr. McLeod to be a long-term offender in the absence of the consent of the Attorney General to a long-term offender application, contrary to s. 754(1)(a) of the Code; (3) imposing a lifetime weapons prohibition in the absence of a notice seeking greater punishment under s. 727 of the Code, or, alternatively, failing to exercise his discretion to impose a lesser prohibition. [3] In reply, the Crown submits that the learned sentencing judge erred in exceeding his jurisdiction by imposing conditions on the lifetime weapons prohibition.

BACKGROUND [4] In October 1997, Mr. McLeod was charged on a four-count Information with: aggravated assault, use of a weapon during an assault; possession of a weapon for a purpose dangerous to the public peace; and uttering a threat to cause death or bodily harm. These charges arose out of an incident which occurred on September 29, 1997 in Fort St. John, B.C. [5] Prior to Mr. McLeod's first appearance, Crown counsel and counsel for Mr. McLeod had discussions whereby Mr. McLeod agreed to plead guilty to two counts on the Information on the understanding that the Crown would stay the other charges and seek to have Mr. McLeod designated a long-term offender pursuant to s. 753.1 of the Code. Accordingly, on November 26, 1997, Mr. McLeod pleaded guilty to one count of assault causing bodily harm and one count of possession of a weapon for a purpose dangerous to the public peace. Thereafter, the sentencing judge ordered an assessment of Mr. McLeod pursuant to s. 752.1 of the Code. [6] The sentencing was adjourned to permit the assessment to be completed and to permit the Crown to seek the consent of the Attorney General to its proposed application to have Mr. McLeod designated a long-term offender. In the result, the Attorney General did not provide a consent to an application to have Mr. McLeod designated a long-term offender, but, rather, provided a consent to have Mr. McLeod

designated a dangerous offender. [7] Thereafter, on March 20, 1998 Crown counsel filed his application to have Mr. McLeod designated a dangerous offender, together with a notice to Mr. McLeod in that regard. On March 24 the matter returned to court and the sentencing judge was advised that the Crown would be proceeding by way of a dangerous offender application. Counsel for Mr. McLeod objected, stating that Mr. McLeod's guilty plea was predicated upon the Crown proceeding by way of a long-term offender application. The sentencing judge dealt with this objection by finding that the Crown was bound by its plea bargain and then proceeding with the application before him as if it were an application for a long-term offender designation. As earlier noted, he determined that Mr. McLeod should be designated a long-term offender and subjected to the maximum period of post- incarceration supervision.

CRIMINAL CODE PROVISIONS [8] In order to place the grounds of appeal in context, it is useful to set out the relevant provisions of Part XXIV of the Code dealing with dangerous offenders and long-term offenders. [9] Section 752 is the definition section under Part XXIV and defines "serious personal injury offence" as follows: 752. In this Part, . . . "serious personal injury offence" means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [10] Section 752.1 provides for the remand for assessment of an offender in anticipation of a Crown application for either a dangerous offender or a long-term offender designation. It provides: 752.1 (1) Where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed on

the offender, on application by the prosecution, the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court may, by order in writing, remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts. The assessment is to be used as evidence in an application under section 753 or 753.1. . . . [11] Section 753(1) of the Code sets out the circumstances in which the court may find an offender to be a dangerous offender. It provides, in part: 753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain

his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [12] Section 753(2) provides that an application for a

dangerous offender designation must be made before sentencing except in certain specified circumstances which are not relevant here. [13] If a person is designated a dangerous offender, s. 753(4) provides that the court must impose an indeterminate sentence to be served in a penitentiary. This is a change from the predecessor legislation which left it to the discretion of the court whether to sentence a dangerous offender to a determinate or indeterminate sentence. [14] If the court finds that the offender does not meet the criteria for a dangerous offender designation, s. 753(5) provides that the court may go on to consider whether the offender meets the criteria for a long-term offender designation, or whether the offender should simply be sentenced for the predicate offence(s) for which he or she has been convicted. [15] Applications for long-term offender designations are dealt with under s. 753.1 of the Code which provides, in part, as follows: 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a

reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (b) the offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. (3) Subject to subsection (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for

a term of two years; and (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. If the court does not find the offender to be a long-term offender, the court simply sentences the offender for the offence(s) for which he or she has been convicted. [16] The provision which is relevant to the second ground of appeal is s. 754, which provides, in part: 754.(1) Where an application under this Part has been made, the court shall hear and determine the application except that no such application shall be heard unless (a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application; (b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and (c) a copy of the notice has been filed with the clerk of the court or the magistrate, as the case may be. . . . [Emphasis added]

DISCUSSION 1. Long-term Offenders - Sexual Offences (a) Position of the Parties [17] Counsel for Mr. McLeod submits that the long-term offender provisions of the Code are only applicable to sexual offenders who have been convicted of an offence listed in s. 753.1(2)(a) of the Code. Since the predicate offences to which Mr. McLeod pleaded guilty are not sexual offences, his counsel submits that the sentencing judge erred in designating Mr. McLeod a long-term offender. [18] Counsel's submission turns primarily on the wording of s. 753.1(1) and (2) of the Code, set out at para. 15, supra. [19] Mr. McLeod's position with respect to this issue is summarized in the following excerpt from his factum: 14. There are three prerequisites listed in s. 753.1(1) before a person can be designated a long-term offender. First, that it is appropriate to sentence the offender to a term of imprisonment for at least two years. Second, that "there is a substantial risk the offender will reoffend". Third, that there is a reasonable possibility that the risk created by the offender can be controlled while he is in the community.

15. Subsection (2) directs the court to find an offender is a substantial risk for reoffending if he has been convicted of one or more of a list of offences in paragraph (a), which are sexual in nature, and the offender meets the criteria, in paragraph (b), of "a pattern of repetitive behaviour" or "has shown a likelihood of causing injury, pain...in the future".

16. The appellant submits that in determining substantial risk in subsection (1), the court must refer to subsection (2). Therefore, to receive the designation of long-term offender he had to be convicted of at least one of the sexual offences listed in (2)(a). He was not. [20] In support of this argument, counsel for Mr. McLeod also relies on the wording of s. 752.1(1) of the Code, which states: 752.1 (1) Where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed on the offender, on application by the prosecution, the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court may, by order in writing, remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts. The assessment is to be used as evidence in an application under section 753 or 753.1. Counsel submits that the wording and internal construction of this section support the proposition that, where an offender is convicted of a serious personal injury offence, the appropriate application is one for a dangerous offender designation; where an offender is

convicted of a sexual offence mentioned in s. 753.1(2)(a), the appropriate application is one for a long-term offender designation. [21] Counsel submits that, to the extent that there is any ambiguity in the interpretation of these provisions, recourse may be had to Hansard. He submits that a reading of Hansard establishes that the mischief sought to be remedied by the introduction of the long-term offender provisions was directed toward repeat sexual offenders, particularly paedophiles. (b) Position of the Crown [22] Counsel for the Crown submits that it is not necessary to look beyond s. 753.1 of the Code in order to determine its meaning. She submits that it is clear from the plain meaning of s. 753.1 that the only prerequisites to the court designating an offender a long-term offender are those set out in s. 753.1(a), (b) and (c). None of those prerequisites indicates that the only offenders targeted by the long-term offender proceedings are offenders who have committed one or more of the offences set forth in s. 753.1(2)(a). Counsel submits that the significance of s. 753.1(2)(a) is that it requires the court to find that there is a substantial risk that the offender will reoffend if the offender has been convicted of an offence under that subsection. In the event that the offender has not been convicted of an offence under s. 753.1(2)(a), the court has to make its own

determination of whether there is a substantial risk the offender will reoffend. The Crown submits that there is nothing in the langauge of s. 753.1, either alone, or in conjunction with s. 752.1(1), which suggests that the former section is limited to sexual offenders. (c) Analysis (i) General Principles of Statutory Interpretation [23] In a recent decision of the Supreme Court of Canada, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Mr. Justice Iacobucci, speaking for the Court, restated the fundamental principle of statutory construction in the following passage at para. 21 of the decision: Although much has been written about the interpretation of legislation [citations provided], Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [24] Recent cases which have cited the above passage with approval include: R. v. Hydro-Qu‚bec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v.

Toronto-Dominion Bank, [1996] 3 S.C.R. 550; and Friesen v. Canada, [1995] 3 S.C.R. 103. [25] It is also important to have regard to s. 12 of the Interpretation Act, R.S.C. 1985, C. I-21, which provides: 12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. (ii) Application of Principles of Statutory Interpretation [26] In my view, the meaning of 753.1 is straightforward, whether read separately or in the larger context of Part XXIV of the Code. It provides that a court may find an offender to be a long-term offender if the three conditions set out in s-ss. 753.1(1)(a) to (c) are met: (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. Subsection 753.1(2)(a) simply provides that the court must find ("shall be satisfied") that there is a substantial risk the offender will reoffend if the conditions set out in that subsection are met. One of those conditions is that the offender has been convicted of the sexual offences set out in that subsection (which include sexual offences of a less serious nature than those caught

within the definition of "serious personal injury offence" in s. 752). Thus, if an offender is convicted of one of the sexual offences delineated in s. 753.1(2)(a), the court must find that there is a substantial risk that the offender will reoffend; that is, that the second condition in s. 753.1(1)(b) has been met. Before the court can designate the offender a long-term offender, however, the court must still determine whether the other two conditions in s. 753.1(1)(a) and (c) have been satisfied. [27] I do not agree with the submission on behalf of Mr. McLeod that the effect of s. 753.1(2)(a) is to restrict the scope of s. 753.1(1) to apply only to offenders who are convicted of one or more of the sexual offences listed in s. 753.1(2)(a). If Parliament had intended to limit the designation of long-term offender to those convicted of sexual offences, it could have done so by simply adding that as a fourth condition to be satisfied under s. 753.1(1). Counsel for Mr. McLeod is, in effect, asking us to read a fourth condition into that subsection which does not otherwise exist. [28] Nor am I persuaded that the wording of s. 752.1(1) (set out at para. 10, supra) is of assistance in determining the scope of s. 753.1. The former section simply enables the court to order that an offender be remanded for assessment if the person is convicted of a serious personal injury offence as

defined in s. 752 (which includes both sexual and non-sexual offences), or of one of the less serious sexual offences included in s. 753.1(2)(a). I am unable to find anything in s. 752 which limits the scope of s. 753.1 to sexual offenders. [29] Similarly, I am unable to find any other provision in Part XXIV of the Code which either directly or indirectly suggests that Parliament intended the long-term offender designation to apply only to sexual offenders. If recourse to Hansard were necessary to determine the mischief at which the long-term offender provisions were directed (and I do not find such recourse necessary), I would agree with Mr. McLeod's counsel that the primary focus of discussion in the House of Commons with respect to these provisions was directed to the supervision and control of sexual offenders when they return to the community upon completion of their sentences of two years or more. Paedophiles, in particular, were seen to present a particular concern. But, it is difficult to accept the proposition that Parliament intended that repeat offenders who did not meet the criteria for a dangerous offender designation under s. 753(1) could not be found to be long-term offenders unless they had committed one of the sexual offences listed in s. 753.1(2)(a). For example, if an offender repeatedly assaulted his or her spouse when intoxicated, but his or her actions did

not fit within the definition of "serious personal injury offence" in s. 752, it is difficult to conceive that Parliament did not intend to provide the same protection to the public upon that offender's release into the community as in the case of a repeat offender who was convicted of "exposure" under s. 173(2) of the Code. (Exposure is one of the sexual offences set out in s. 753.1(2)(a).) While the sexual offender may be a higher profile offender in the community than the spouse-beater, I can find nothing in s. 753.1, read alone, or in the context of Part XXIV, which suggests that the long-term offender designation was not intended to protect the public from the latter by providing for his or her ongoing supervision in the community upon release from custody. [30] I also note that s. 753(5) provides that where the court finds that a person does not meet the criteria for a dangerous offender designation, the court may go on to determine whether the offender meets the criteria for a long-term offender designation based on the same predicate offences. Again, there is nothing in that section which indicates that the court can only go on to determine whether an offender meets the long-term offender criteria if the predicate offences are sexual offences. [31] In coming to these conclusions, I am mindful of the background and legislative history leading to the revisions to the

dangerous offender provisions of the Code and the introduction of the long-term offender provisions. A key factor in that background was the Report of the Federal/Provincial/Territorial Task Force on High Risk Violent Offenders: Strategies for Managing High-Risk Offenders (Department of Justice, January 1995) (the "Report"). Amongst other things, the Report stressed that there was a need for legislation to deal with some categories of offenders (with an emphasis on paedophiles), who do not meet the criteria of dangerous offenders, but, who, nonetheless, are capable of harming numerous victims as a result of their chronic criminal behaviour. At p. 19 of the Report, which specifically deals with the proposed new classification of long-term offenders, the authors state as follows: A sentencing option providing for long term supervision would be aimed at cases where an established offence cycle with observable cues is present, and where a long term relapse prevention approach may be indicated. The success of an LTS [long term supervision] scheme based on the relapse prevention model rests on several key factors. a. The measure should be focused on particular classes of offender. The inclination to make long-term supervision widely available should be resisted as costly, unwarranted in most cases, and as contributing to "net widening". The target group, and thus the expectations of

the scheme, should be well defined; b. The criteria should selectively target those offenders who have a high likelihood of committing further violent or sexual crimes but who would not likely be found to be a Dangerous Offender; . . . [Emphasis added] It is evident when reading the Report in conjunction with Part XXIV of the Code, that the recommendations of the Task Force with respect to the long-term offender proposals were, for the most part, adopted in Bill C-55, An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, S.C. 1997, c.

17. The provisions with which we are here concerned came into force on August 1, 1997. Thus, while paedophiles and other sexual predators may well have been the primary targets of the new long-term offender provisions, I can find nothing in the background or legislative history confining their application to sexual offenders. [32] I am also satisfied that the interpretation I have given to these provisions is in accordance with s. 12 of the Interpretation Act, as providing a "fair, large and liberal construction and interpretation" which best attains the object of these provisions, which is to provide increased protection to the public from repeat offenders who represent a risk to the community if left unsupervised after serving a federal custodial sentence. (d) Conclusion [33] On the basis of my conclusion that the long-term offender provisions of the Code are not restricted in their application to those convicted of the sexual offences set out in s. 753.1(2)(a) of the Code, I would dismiss the first ground of appeal.

2. Consent of the Attorney General [34] Counsel for Mr. McLeod submits that the sentencing judge erred in designating Mr. McLeod a long-term offender in the absence of the consent of the Attorney General to an application for a long-term offender designation. [35] Counsel for the Crown points to the fact that the defence did not object at the time of sentencing to the sentencing judge proceeding as if he were dealing with a long-term offender application. Her principal argument with respect to this ground of appeal, however, is summarized in the following excerpt from her factum: 48. As well, because s. 753(5) allows the court to treat a DO [dangerous offender] application as an LTO [long-term offender] application, by necessary implication the consent of the Attorney General to a DO proceeding must be sufficient for what is in effect a lesser included proceeding. There is no mention of a further consent being filed in the event that the court finds itself under s. 753(5). The consent filed in this case therefore met the requirements of s. 754(1)(a). [36] While this submission has a certain pragmatic attraction, I am of the view that this issue is jurisdictional in nature and not amenable to the compromise solution fashioned by the sentencing judge. The only application before the sentencing judge was an application for a dangerous offender designation, together with the

consent of the Attorney General to that application. While it is understandable that the sentencing judge was unwilling to proceed with the dangerous offender application given the previous position taken by the Crown, which had resulted in Mr. McLeod's guilty pleas, I am satisfied that it was not open to the court to override the Attorney General's election to proceed in this fashion by unilaterally treating the application as one under s. 753.1 of the Code. [37] Section 754 is explicit as to the nature of the consent required in circumstances such as these. It provides: 754. (1) Where an application under this Part has been made, the court shall hear and determine the application except that no such application shall be heard unless (a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application consented to the application; [Emphasis added] As earlier noted, the only application before the court was the application for a dangerous offender designation. That is the only application to which the Attorney General had consented. In fact, when asked to consent to a long-term offender designation he had declined to provide it. If pressed to provide his consent to a long-term offender designation when the sentencing judge made it clear that he had no intention of proceeding with a dangerous offender proceeding, the

Attorney General may well have deemed it appropriate to proceed by way of prohibition or mandamus. Thus, even if it were open to the court to infer that the Attorney General would have consented to a long-term offender application, I would not draw that inference in these circumstances. [38] Further, while it is true that in the circumstances set out in s. 753(5) of the Code a dangerous offender application may ultimately result in a long-term offender designation, there is no suggestion that s. 753(5) had any application in this case. I agree with the defence that if s. 753(5) applied, it would not have been necessary for the Crown to seek the further consent of the Attorney General to continue with the proceeding once it had been determined that the offender was not a dangerous offender and before the offender could be designated a long-term offender. [39] I would allow the appeal on this ground.

CONCLUSION [40] The options available to the Court of Appeal from a finding that an offender is a long-term offender are set out in s. 759(3.1) of the Code. It provides: (3.1) On an appeal against a finding that an offender is a long-term offender, the court of appeal may (a) allow the appeal and (i) find that the offender is not a long- term offender and quash the order for long-term supervision, or (ii) order a new hearing; or (b) dismiss the appeal. [41] Since the issues raised on this appeal did not deal with the merits of the finding that Mr. McLeod is a long-term offender, I would not accede to his counsel's request that we find that Mr. McLeod is not a long-term offender and quash the order for long-term supervision. Rather, I would order a new hearing under s. 759(3.1)(a)(ii) of the Code. At that hearing, if the Crown persists in seeking to proceed by way of a dangerous offender application, it is open to the defence to raise any arguments with respect to the propriety and legal consequences of the Crown's failure to adhere to its plea bargain that were available to it at the original hearing. [42] Because I have concluded that there must be a new hearing, I do not find it necessary to scrutinize the third ground of appeal. I agree with the Crown, however, that the sentencing judge had no jurisdiction under s. 100 to impose terms such as those referred to in para. 1 of

these reasons. It was, however, open to him not to make a prohibition order if Mr. McLeod was able to bring himself within s-ss. 100(1.1)-(1.3) of the Code, in relation to the concerns raised by Mr. McLeod with respect to needing a gun to hunt for sustenance purposes. Since the matter is to proceed to a rehearing, I will say no more concerning this point. [43] In the result, I would allow the appeal and remit the matter to the Provincial Court for a new hearing. "The Honourable Madam Justice Prowse" I AGREE: "The Honourable Chief Justice McEachern" I AGREE: "The Honourable Mr. Justice Goldie"