Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen Respondent
— And —
Donald Bachensky Applicant
Before: Justice N. Gregson
Reference Hearing
Heard on: September 29, 2014 and October 2, 2014
Reasons for Decision released on: November 26, 2014
Counsel
D. King — counsel for the Crown
J. Stephenson — counsel for the Applicant, Donald Bachensky
Reasons for Decision
Overview
1The applicant, Donald Bachensky, brought an application for a reference hearing under section 74 of the Firearms Act to review the decision of W. Gardner, Area Firearms Officer and Designate of the Chief Firearms Officer of Ontario in refusing to issue him a firearms licence. The hearing was held on September 29 and October 2, 2014.
2My reasons for decision were adjourned to November 26, 2014.
Documentary Evidence
3The following documents were tendered during the hearing and formed part of the evidence. I felt it was pertinent to summarize the documents as they led to Officer Gardner's decision to refuse Mr. Bachensky's firearms application.
Mr. Bachensky's Firearms Application
4Mr. Bachensky's application for a firearms possession and acquisition licence dated July 25, 2012 noted that he had an expired firearms licence and that he currently did not possess any firearms. Mr. Bachensky wished to possess a non-restricted firearm.
5Mr. Bachensky's application revealed that he had not been charged, convicted or granted a discharge of a criminal offence in the past five years nor was he under a peace bond or protection order under section 810 of the Criminal Code.
6Mr. Bachensky further noted in his application that during the past five years neither he nor any household member was prohibited from possessing a firearm. His application further revealed no mental health issues or conflict reported to police or social services. Mr. Bachensky's application noted he had not in the past two years experienced a breakdown in a significant relationship, loss of employment or bankruptcy.
7Mr. Bachensky indicated on his application that he did not have a spouse, common law or other conjugal partner, and had not lived in a conjugal relationship for the prior two years. He also provided proof that he had passed the Canadian Firearms Safety Course test.
Notice of Refusal to Issue a Firearms Licence
8On November 20, 2012, a Notice of Refusal to issue a firearms licence was issued to the applicant by Superintendent Chris Wyatt, Chief Firearms Officer of Ontario, pursuant to section 68 of the Firearms Act.
9The reason for the refusal was the following:
Failure to meet the eligibility criteria under section 5 of the Firearms Act, in particular, subsection 5(1) – not in the interests of the safety of that or any other person. See Appendix "A".
Appendix "A" to the Notice of Refusal to Issue a Licence to Possess and Acquire Firearms
10The Area Firearms Officer, W. Gardner, Designate of the Chief Firearms Officer of Ontario, outlined in Appendix "A" her reasons for refusal.
11The Appendix outlined the eligibility requirement to hold a firearms licence which is based on criteria set out in section 5 of the Firearms Act. Subsection 5(1) is a broad statement of the role that public safety plays in assessing eligibility; subsection 5(2) of the Act sets out those factors to which the firearms officer or, on a reference under section 74 of the Firearms Act, a provincial court judge, must give greater weight in the eligibility assessment. Section 5 of the Firearms Act reads as follows:
5(1) Public Safety – A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.
(2) Criteria – In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person, within the previous five years,
(a) has been convicted or discharged under section 730 of the Criminal Code of
(i) an offence in the commission of which violence against another person was used, threatened or attempted,
(ii) an offence under this Act or Part III of the Criminal Code,
(iii) an offence under section 264 of the Criminal Code (criminal harassment), or
(iv) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act;
(b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or
(c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person.
(3) Exception – Notwithstanding subsection (2), in determining whether a non-resident who is eighteen years or older and by or on behalf of whom an application is made for a sixty-day licence authorizing the non-resident to possess firearms that are neither prohibited firearms nor restricted firearms is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge may but need not have regard to the criteria described in subsection (2).
12Officer Gardner noted in the Appendix that she determined Mr. Bachensky was not eligible to hold a firearms licence as a result of conducting an investigation and balancing the information she reviewed. She also stated she was relying on her training and experience as a firearms officer and specifically her background relating to the issue of public safety.
13The information considered during her investigation included the following checks:
- CPIC [Canadian Police Information Centre]
- FIP [Firearms Interest Police]
- CFIS [Canadian Firearms Information System]
- Partnered NICHE Records Management Systems
- PIP [Police Information Portal]
14Officer Gardner also noted Mr. Bachensky did not have a criminal record. However, police files were reviewed from 2001 to the present day. The police reports consisted of Biker Enforcement Unit observations and traffic stops by uniform police officers. A summary of a few of the occurrences reviewed by Officer Gardner were as follows:
Norfolk OPP: LP02005947 – 2002/02/03
Police responded to a report of a fight inside a bar. Police spoke to you and you confirmed that you had an altercation with an unknown male. At the time of the incident police observed that you were wearing the colours of the Hells Angels by displaying the bottom rocker of "Ontario" on the bottom of the vest centered in the back. Also displayed on the back was the patch "MC" to the bottom right of the "Ontario" rocker. On the front of the vest, the patches "Prospect" and "Kitchener" were displayed on the upper right-hand side. Police also observed that you wore a large gold Hells Angel ring on your left index finger.
OPP – RM07013417 – 2006/12/19
Police observed that you attended the funeral of Hells Angel member David Buchanan.
OPP – RM07065801 – 2007/06/17
Police conducted a traffic stop on Sunday 17 June 2007. You were driving a motorcycle and once stopped you identified yourself with a valid driver's licence of Donald J. Bachensky (DOB 1966/05/06) and the police officer observed you were wearing a full Hells Angels member vest.
15Officer Gardner also stated in the Appendix to the Notice of Refusal that she had relied on a Statement of Opinion provided to her by Detective Sergeant Len Isnor and said as follows:
Detective Sergeant Isnor is familiar with you and that you are presently a member of the Hamilton Chapter of the Hells Angels. He became aware of you in the late 1990's when you were a close associate of Walter Stadnick, a member of the Quebec Nomads Chapter of the Hells Angels. Stadnick is presently incarcerated for conspiracy to commit murder. In the early 2000's you became a prospect member and later a full patch member of the Niagara Hells Angels Chapter. In the mid to late 2000's you transferred from the Niagara Chapter to the Hamilton Hells Angels Chapter.
16Officer Gardner went on to state that the specific reasons with respect to her decision under section 68 of the Firearms Act to refuse to issue a firearms licence to Mr. Bachensky were "based on police reports observing him in Hells Angels insignia indicating that he was a member of a known criminal organization. Detective Sergeant Isnor's familiarity with the history, the background and the characteristics that make up the Hells Angels. His opinion was that the Hells Angels is a criminal organization."
17Officer Gardner further stated the Firearms Act was created to protect and promote public safety. In considering the eligibility of an individual to hold a firearms licence, it is public safety that is of chief concern. Under Canadian law, firearms possession is a privilege not a right.
18It was further noted under section 68 of the Firearms Act, a firearms officer shall refuse to issue a firearms licence to such an individual where, in the opinion of the firearms officer, the individual is not eligible to hold such a licence. The provisions of section 5 of the Act govern eligibility.
19Accordingly, it was Officer Gardner's opinion that it was not desirable in the interests of individual or public safety that Mr. Bachensky be issued a firearms licence and his application for a possession and acquisition licence for non-restricted firearms was refused.
Notice of Application for Judicial Reference by Applicant
20The applicant claims that in determining his application for a firearms possession and acquisition licence, the Chief Firearms Officer for the Province of Ontario failed to consider the relevant criteria as outlined in subsection 5(1) of the Firearms Act.
21The applicant claims that based on the criteria set out in subsection 5(2) of the Firearms Act, the applicant is eligible for such a licence.
22In the alternative, the applicant claims the Chief Firearms Officer failed to provide sufficient reasons for refusing the applicant's application having regard to the section 5 criterion.
23The applicant further claims the Chief Firearms Officer failed to apply the correct standard when refusing the applicant's application as she relied solely on the applicant's alleged membership with the Hells Angels Motorcycle Club. The police occurrence reports relied upon by the Chief Firearms Officer were not sufficient to refuse the applicant's application.
24The applicant claims it would not be contrary to the interests of the public to grant the applicant a firearms licence.
25Accordingly, the applicant requests an Order overturning the refusal of the Chief Firearms Officer and issuing a firearms licence to the applicant pursuant to subsection 76(b) of the Firearms Act.
Response of the Crown to the Application for Judicial Reference
26The Crown opposed the application on the basis that the decision of the Chief Firearms Officer to refuse the firearms licence was justified especially considering the applicant was a full patch member of the Hells Angels, a criminal organization. The Crown noted it was in the interests of public safety that the applicant not possess a firearm or ammunition.
Summary of Viva Voce Evidence
27Pursuant to subsection 75(2) of the Firearms Act, at the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.
28As per subsection 75(3) of the Firearms Act, the burden of proof at the hearing is on the applicant or holder to satisfy the provincial court judge that the refusal to issue the licence was not justified.
29The Crown called two witnesses, namely Area Firearms Officer, Wendy Gardner and Detective Sergeant Len Isnor.
30The applicant called no witnesses. The applicant did concede that he was a full patch member of the Hells Angels.
Officer Wendy Gardner
31Officer Gardner testified she had been employed by the OPP since 1998. She became the Area Firearms Officer in 2008 for the West Region. Her superior is Chris Wyatt, the Chief Firearms Officer for the Province of Ontario.
32Officer Gardner testified Mr. Bachensky's application for a possession and acquisition licence for a non-restricted firearm would have been sent to Mirimichi, New Brunswick. At this juncture, data entry is performed and a series of checks are done on the applicant. If there are no red flags, the application will be processed and she would never see the application.
33Mr. Bachensky's application came to her attention as a result of two issues. He had fingerprints in the system and a CPIC check revealed the Biker Enforcement Unit had flagged Mr. Bachensky as a member of the Hells Angels.
34Officer Gardner proceeded to review police occurrences involving Mr. Bachensky. She testified there were a number of police occurrences, however, she only noted a few in her Notice of Refusal.
35Officer Gardner testified she had already come to the conclusion she would not grant Mr. Bachensky a firearms licence when she coincidently attended a seminar and heard Detective Sergeant Isnor speak on the topic of the Hells Angels. She connected with Detective Sergeant Isnor and asked him to provide her with an opinion regarding the Hells Angels. She testified the opinion of Detective Sergeant Isnor simply confirmed the decision she had reached of her own accord about public safety and her belief the Hells Angels are a criminal organization.
36Officer Gardner testified that when she considers whether she should grant an application for a firearm she must always consider subsection 5(1) of the Firearms Act, whether granting a licence for a firearm would be a public safety issue. She therefore has to consider what the public is thinking, what their perception is as to who should have a firearms licence and who should not. She stated whether it was somebody who is a member of a motorcycle gang, or it was somebody who had mental health issues, there is an array of situations that she has to consider to determine public safety. She believed that since the Hells Angels are involved in criminal activity and a number of the members have criminal records, being associated with such an organization would be a public concern.
37Officer Gardner confirmed Mr. Bachensky was never convicted of a criminal offence. She believed he had been charged in 1987 with mischief and in 1988 with assault in Hamilton, Ontario; however, the charges were withdrawn or Mr. Bachensky was discharged. It was for this reason, his fingerprints were still in the system.
38Officer Gardner testified Mr. Bachensky stated on his application that he was not involved in a domestic relationship for the prior two years. Officer Gardner had since learned from Detective Sergeant Isnor that Mr. Bachensky had a partner, Ms. Marion Rankin, who was the same person who had signed his photo as guarantor. Officer Gardner was advised Ms. Rankin had the same address on her driver's licence as Mr. Bachensky since 1997. She also learned Mr. Bachensky and Ms. Rankin owned a business together at one time.
39Officer Gardner confirmed that if Mr. Bachensky received a possession and acquisition licence for a non-restricted firearm he could purchase and possess a long gun. As the long gun registry has been abolished, one would never know how many firearms a person owned. Officer Gardner testified that if someone had their licence and purchased a .22 rifle and wanted to sell it or give it as a gift to someone who has a possession and acquisition licence they could do so and there would be no record of the transaction. A person who has a non-restricted possession and acquisition licence could also purchase any kind of ammunition.
40During cross-examination, Officer Gardner concurred the police occurrence reports simply outlined the fact Mr. Bachensky was a member of the Hells Angels and that no acts of violence or criminal charges had ever taken place.
41Officer Gardner went on to state during cross-examination that she had informed Detective Sergeant Isnor that she was going to refuse Mr. Bachensky's application since he was part of the Hells Angels and the criminal element involved with their organization. She however felt she needed confirmation and more knowledge in order to be confident in doing the refusal. She also noted that knowing Mr. Bachensky was a member of the Hells Angels made her nervous and she knew that once she issued the refusal to him, he would appeal her decision. Officer Gardner stated that she was nervous because of the history of what you read in the paper in regards to violence that is associated with the Hells Angels.
42Thereafter, after speaking with Detective Sergeant Isnor and learning the history of the Hells Angels and how they came about, along with their criminal activity, Officer Gardner refused Mr. Bachensky's application based on public safety issues since he was a member of the Hells Angels which she believed to be a criminal organization.
43Officer Gardner was asked during cross-examination if she had received positive information about Mr. Bachensky or generally about the Hells Angels Motorcycle Club. She responded she was not told about any positive comments by the Biker Enforcement Unit; however, she was aware of some charity work the Hells Angels Motorcycle Club had done from reading the newspaper.
44The only contact she had with Mr. Bachensky was when he called her to ask about the status of his application. There were no issues noted with the telephone contact.
45Officer Gardner acknowledged she had not contacted Mr. Bachensky's references as noted on his application as she had decided to refuse his request.
46Officer Gardner confirmed she was aware Mr. Bachensky had an FAC (Firearms Acquisition Certificate) in the 1990's. She was asked whether she had looked into whether any incidents, problems or revocations had occurred. Officer Gardner stated nothing showed up on the records and accordingly there would have been no issues.
47Officer Gardner was not aware whether other members of the Hells Angels had been approved for a firearms licence. She indicated she would be surprised if they had. She never looked into this issue. Counsel for Mr. Bachensky provided Officer Gardner with a picture of a firearms licence belonging to another member of the Hells Angels, namely, Jason Shamus Hall, which expires in 2020. Officer Gardner was however, not aware of this specific application.
Detective Sergeant Len Isnor
48Detective Sergeant Isnor produced a statement of opinion in report form which was 46 pages in total. The information contained in his report supported his opinion that the Hells Angels are an Outlaw Motorcycle Gang as well as a criminal organization, as defined by section 467.1(1) of the Criminal Code.
49Detective Sergeant Isnor's report summarized the history, the background and the characteristics that make up the Hells Angels to support his opinion that the Hells Angels are a criminal organization. His report also outlined his knowledge about Mr. Bachensky.
50Detective Sergeant Isnor's curriculum vitae was produced during his evidence. According to same he is presently a supervisor with the Joint Forces Operation (JFO), Biker Enforcement Unit (BEU), Organized Crime Enforcement Bureau, and OPP. His primary duty as the A/Detective Staff Sergeant is to manage the intelligence, strategic investigations and programs for the unit.
51He is also the National Intelligence Officer for the Canadian Intelligence Service Canada and his duties include coordinating the National Outlaw Motorcycle Gang Expert Witness program and assist with the National Strategy to Combat Outlaw Motorcycle Gang.
52Detective Sergeant Isnor has been employed as a police officer with the OPP as of June, 1984. Initially, he worked in drug enforcement, general policing and traffic duties for the first 11 years of service. As of 1995, he has been actively investigating Outlaw Motorcycle Gangs (OMG) investigations, primarily in Ontario, as a member of specialized policing units operating in various investigative capacities.
53Over the course of the last 19 years, Detective Sergeant Isnor has acquired significant insight into Canadian-based OMG, specifically the Outlaw Motorcycle Gangs: the Bandidos Motorcycle Gang and the Hells Angels Motorcycle Gang. Though the majority of his investigations have been limited to the Province of Ontario, international and national networking has allowed him to garner an in-depth understanding of national and international OMG.
54Over the past 19 years, Detective Sergeant Isnor has investigated and gathered intelligence on OMG within various capacities such as lead investigator, expert witness, expert witness coordinator, affiant, source/agent handler, instructor/lecturer, case manager assistant, surveillance operator and supervisor. He is currently identified as a key resource within Ontario regarding the criminal activities of OMG, their organizational structure, membership process, history, code of conduct/rules, criminal partnership and the intricacies of how a motorcycle gang's social and business interactions play a pivotal role in their criminal operations. As an identified expert witness, he has assisted national and international agencies with investigations, lectured and instructed police and other law enforcement personnel.
55During many investigations, Detective Sergeant Isnor was responsible for agent and human source handling. As a result, he has gained extensive information into the inner operations and functioning of OMG. Discussions and interviews with agents allowed for detailed accounts and firsthand facts to be acquired to understand the similarities and differences among OMG.
56Detective Sergeant Isnor testified that he had been qualified by the Court as an expert in Hells Angels cases across Canada approximately 12 times over the years. Counsel for Mr. Bachensky advised this Court that she would not be challenging Detective Sergeant Isnor's expertise as a whole since he had been qualified as an expert on a number of occasions; however, she would during cross-examination challenge some of his opinion evidence especially regarding Mr. Bachensky. Counsel for Mr. Bachensky made it clear she was not prepared to acknowledge the contents of Detective Sergeant Isnor's report to be true and accurate.
57Detective Sergeant Isnor testified that he has been with the Biker Enforcement Unit for 20 years. Back in 1995, his duties were assigned to investigating all motorcycle gangs and that was on a full-time basis. He learned the inner connections of how the networking operated. At that time, they did not have Hells Angels in Ontario, but he was very involved with Hells Angels from Quebec who had a lot of influence in Ontario. He was involved in investigations throughout that time that gave him the knowledge, the skills and abilities that he has gained through the years on Hells Angels. He has read thousands of reports. He has listened to numerous wiretap interceptions. He has debriefed many members of the organization, that being members, prospects, hang-arounds, friends and also associates of the Hells Angels. He has compared notes with investigators throughout the world.
58Detective Sergeant Isnor testified about various investigations in which he was personally involved in over the years dating back to 1998-1999 which targeted the Hells Angels. Most of these investigations involved informants of the Hells Angels who would have taken direction from him to purchase drugs and guns from the Hells Angels. Some of these investigations led to a number of arrests of Hells Angels members. During cross-examination, it was acknowledged that informants were handsomely paid to provide the information.
59Detective Sergeant Isnor's report and his oral evidence provided information regarding the structure, charters/chapters, membership, meetings/clubhouse, big house crew, club rules (including unwritten rules), colours and patches of the Hells Angels. According to his evidence it takes approximately eight years going through various stages to become a full patch member of the organization.
60Detective Sergeant Isnor explained there were unwritten rules that Hells Angels members must follow such as not reporting any criminal acts to police. They are not to call police nor provide a statement and deal with it themselves within their own association.
61According to Detective Sergeant Isnor, in 2011, out of all of the Hells Angels members in Ontario, 68.6 per cent of the members had criminal records and of that, 65 per cent had records for drug-related offences.
62Detective Sergeant Isnor believes the Hells Angels are a criminal organization. In his interviews with numerous members and in particular from one comment made by an informant, Steven Gault, was that "he could not even think of one member of the Hells Angels that was not involved in criminality of one way".
63Detective Sergeant Isnor stated the Hells Angels' whole purpose basically starts from 1948 where they built up the reputation from that time through the media, through the Hollywood propaganda machine that provided the name Hells Angels, making it a household name and making it a name that people were scared of. Society on a whole, when they hear the words "Hells Angels", they, right away, describe them as somebody that they fear. Detective Sergeant Isnor testified the Hells Angels built their reputation through violence throughout the years up through the '60's and '70's when they first came to Canada. They basically took over the drug market out of Montreal and they did that basically again out of fear. It was a whole type of organized crime that both the police and society were not used to at that time because most organized crime in Canada do not advertise. They remain covert. The Hells Angels is an organization that wears a patch on their back. They command respect through fear and it is a process that has worked very well for them, that has made them very successful.
64Detective Sergeant Isnor testified the Hells Angels will be into anything that makes them money which may include drugs, firearms trafficking, theft of motorcycle parts, theft, mortgage frauds, et cetera.
65Detective Sergeant Isnor testified that he was familiar with Mr. Bachensky. He stated Mr. Bachensky first surfaced before he was a Hells Angels member when Detective Sergeant Isnor was involved in Project Hustle wherein the main target was Walter Stadnick. They would follow Mr. Stadnick and that's when Mr. Bachensky first came on their radar, in 1999-2000.
66Walter Stadnick was a Hells Angels member from Quebec, a member of the Nomad's Chapter although he lived in Hamilton, Ontario. As a result of their investigation, Mr. Stadnick went to jail for conspiracy to commit murder and also drug trafficking. Mr. Stadnick had a very complex criminal network of runners and people that did things, such as people that collected debts and ran stash houses, and Mr. Bachensky according to Detective Sergeant Isnor was part of that network. However, Mr. Bachensky was never charged with any wrongdoing.
67Detective Sergeant Isnor testified that in 2011 during Project Manchester, Mr. Bachensky was supplying cocaine to Brandon Goodfellow. Mr. Goodfellow was at that time a hang-around member of the Hamilton Hells Angels. Their agent, Buddy Frank, was purchasing large quantities of cocaine from Brandon Goodfellow and during one of the sales, Mr. Goodfellow advised the cocaine was from Mr. Bachensky. According to Detective Sergeant Isnor, this statement was recorded as a result of a one-party consent. However, Buddy Frank became a reluctant agent and decided to quit, so their investigation could go no further. During cross-examination, Detective Sergeant Isnor acknowledged that as a result of this investigation a number of search warrants were executed and a number of arrests were made. However, Mr. Bachensky's home was never searched and he was never charged.
68During cross-examination, Detective Sergeant Isnor was asked about Project Blenheim which took place this past summer. Detective Sergeant Isnor was unaware whether there was a wiretap authorization for Mr. Bachensky's telephone. However, he did confirm Mr. Bachensky's home was not searched and he was never charged.
69Detective Sergeant Isnor acknowledged during cross-examination that since 1999, he has never had the necessary grounds to obtain a search warrant or charge Mr. Bachensky for a criminal offence. Detective Sergeant Isnor stated that the best of them don't get detected. Detective Sergeant Isnor explained Mr. Bachensky is part of an organization that isolates themselves very well and insulates themselves. Detective Sergeant Isnor went on to state it was very expensive for the authorities to expose all members.
70Detective Sergeant Isnor also explained that Mr. Bachensky was not a member of the Hells Angels in 1999. Mr. Bachensky was working for Walter Stadnick who was a member. Mr. Bachensky did not become a member until 2003 so Mr. Bachensky would have been one of numerous associates. At that time according to Detective Sergeant Isnor there were 400 Hells Angels in the country. Each Hells Angels member has an average of 10 associates. Some have 20 and some have none. Therefore, there could be up to 4,000 associates and this makes it difficult for him to look at over 4,000 associates on a daily basis.
71Detective Sergeant Isnor testified that he felt the Hells Angels were trying to clean their image in order to avoid criminal organization charges. The Hells Angels have been deemed to be a criminal organization in over 10 countries in the world.
72Detective Sergeant Isnor testified Mr. Bachensky is currently a member of the Hamilton Chapter of the Hells Angels. In the early 2000's, Mr. Bachensky became a prospect member and later a full patch member of the Niagara Hells Angels Chapter. In the mid to late 2000's, Mr. Bachensky transferred from the Niagara Hells Angels Chapter to the Hamilton Hells Angels Chapter.
73Detective Sergeant Isnor stated he has been observing Mr. Bachensky since 1999. He is aware he lives in a common law relationship with Marion Rankin and has for a long time. He was aware Mr. Bachensky and Ms. Rankin have had a number of businesses together. Detective Sergeant Isnor did concede during cross-examination that he is not privy to the couple's bedroom and he could not state with certainty Mr. Bachensky and Ms. Rankin were in a conjugal relationship at the time of Mr. Bachensky's application for a firearms licence.
74During cross-examination, Detective Sergeant Isnor confirmed Mr. Jason Hall had become a member of the Hells Angels in the past two years and despite same had been issued a firearms licence. He responded that sometimes a member of the Hells Angels gets flagged however, it does not get put into the system fast enough or a level two CPIC search is required for the information to be raised. Therefore, if the Biker Enforcement Unit is not consulted, some members might get through the screening. With respect to Mr. Hall, his application came up and they advised the firearms officer to deny the licence; however, this person went on vacation and the file was provided to another person who did not have the knowledge the original firearms officer had and the licence was issued.
Position of the Parties
75Counsel for Mr. Bachensky argued Officer Gardner neglected to look at Mr. Bachensky as an individual applying for a firearms licence rather than a group (Hells Angels Motorcycle Club). She also believed Officer Gardner based her decision on public perception rather than public safety which is not the appropriate eligibility criteria.
76In fact, counsel for Mr. Bachensky noted that none of the eligibility factors as outlined in subsection 5(2) of the Firearms Act apply to Mr. Bachensky. The Firearms Act does not specifically indicate that being an alleged member of a motorcycle group should be considered when determining the eligibility requirements to hold or refuse a firearms licence. The only factor Officer Gardner relied on to refuse Mr. Bachensky a firearms licence was the fact he was a member of the Hells Angels as he has no criminal record or mental health issues.
77Despite the fact the Canadian Charter of Rights and Freedoms does not apply, counsel for Mr. Bachensky asked the Court to be mindful of an individual's rights under section 2 of the Charter. Mr. Bachensky had the right to freely associate with the Hells Angels organization. There was no evidence that being a member of the Hells Angels meant you would commit criminal acts. There was no evidence of members of the Hamilton Hells Angels Chapter who had committed criminal acts or evidence that Mr. Bachensky was associated with any criminal acts.
78Moreover, counsel for Mr. Bachensky argued her client previously had a firearms licence and there were no issues stemming from same. It was also argued that Officer Gardner did not conduct a thorough investigation as she failed to look into whether other members of the Hells Angels had received a firearms licence. Furthermore, Officer Gardner did not call Mr. Bachensky to ask why he wanted a firearm and the officer did not call his references.
79Counsel for Mr. Bachensky argued Officer Gardner was second-guessing her decision and felt the need to be validated by Detective Sergeant Isnor. However, Detective Sergeant Isnor refused to acknowledge the positive activities done by some members of the Hells Angels. As such, since he had a unilateral view of this organization, he cannot provide a credible expert opinion.
80Lastly, counsel for Mr. Bachensky argued it was unlikely Mr. Bachensky would commit a criminal offence with a licensed firearm. It was clear Mr. Bachensky was being discriminated against simply because of his association with the Hells Angels Motorcycle Gang.
81The Crown argued during his closing submissions that Officer Gardner's decision for refusal was reasonable and counsel for Mr. Bachensky had not called any evidence to refute the evidence provided by Officer Gardner and Detective Sergeant Isnor.
82The Crown argued the decision made by Officer Gardner was based on the fact Mr. Bachensky was a member of the Hells Angels Motorcycle Gang and they are deemed a criminal organization. As such, Mr. Bachensky would lack the responsibility and discipline the law requires to be a responsible gun owner.
83The Crown felt the Court should also consider the fact that Mr. Bachensky had been dishonest on his firearms application by stating he was not involved in a domestic relationship when clearly he had been in a long-standing relationship with Ms. Rankin. Moreover, Mr. Bachensky did not testify to proffer why he would want a firearm.
84The Crown believed it to be suspicious that Mr. Bachensky's application was dated July, 2012 considering in April, 2012 the long gun registry was abolished. The Crown pointed out concerns of modifying a firearm to become a prohibited weapon, the ability to purchase ammunition and the lack of tracking by police authorities of firearms.
85The Crown noted Mr. Bachensky went through an eight year process to become a member of the Hells Angels which is a criminal organization. Mr. Bachensky made the choice to associate with an organization which has a reputation for violence and criminality. Officer Gardner had evidence before her that the Hells Angels was a criminal organization.
86The Crown argued the rules of the Hells Angels are anti-police. If a gun is stolen, for example, an individual must report the theft to police pursuant to the Criminal Code of Canada; this is what is expected of a responsible gun owner. A member of the Hells Angels would therefore be deemed not to be a responsible gun owner as they have to refrain from contacting police under their club rules.
87The Crown also stated there was no evidence provided by the firearms officer who had issued a firearms licence to Hells Angels member Jason Hall and what they knew about him when the licence was issued.
88Lastly, the Crown suggested that people who would be responsible gun owners would not want to associate themselves with an association that has a reputation for being a criminal organization.
89Both the Crown and counsel for Mr. Bachensky provided books of authorities and referred to a number of decisions during their submissions which I have also considered when reaching my decision.
Law and Analysis
90The applicable legislation is the Firearms Act. Subsections 5(1) and 5(2) set out the eligibility requirement to hold a licence. Subsection 5(2) is not an exhaustive list however, they are categories to be reviewed when the firearms officer makes a determination to issue or refuse a licence.
The Purpose of the Firearms Act
91The possession and use of firearms in Canada is not a right or freedom guaranteed under the Charter, but a privilege. See R. v. Wiles, 2005 SCC 84.
92The purpose of the Act is to promote public safety. Section 4 of the Firearms Act provides for an applicant to apply for the issuance of a licence to permit the possession of a device, which would otherwise be unlawful and criminal. Section 5 circumscribes the possession of these devices by precluding their distribution through a licensing system if it is desirable, in the interests of the safety of that or any other person, that the person not possess them. See Reference re: Firearms Act (Can.), 2000 SCC 31 and R. v. Pagnotta, 2001 BCSC 444 at pp. 26-27.
The Standard of Review
93In Nikitczuk v. Ontario (Ministry of Community Safety and Correction Services) [2006] O.J. No. 4341, Justice J. Nadel reviewed at paragraphs 8 to 15 the standard of review at a Reference Hearing and stated the following:
[8] In Ontario, the applicable standard of review precludes the reviewing court from interfering with the decision referred for review unless that decision was "clearly wrong".
R. v. Wellheiser, [2005] O.J. No. 585
Messina v. Ontario (Attorney General), [2000] O.J. No. 417
Akinwenzie v. Ontario (Chief Firearms Officer), [2001] O.J. No. 3943
R. v. D.L.B., [2003] O.J. No. 2471
R. v. Fisher, [2004] O.J. No. 3890
[9] In other provinces the test to be applied on a reference has been explained as deciding whether "…the firearms officer's decision was reasonable" considered against, at a minimum, the mandatory criteria that the firearms officer was obliged to take into account.
Alberta (Chief Firearms Officer) v. Rolls, [2004] A.J. No. 912
British Columbia (Chief Firearms Officer) v. Falham, 2004 BCCA 343
[10] The language of the enabling provision does not describe the reference as a hearing de novo. Consequently, the reviewing court must defer to reasonable findings of fact initially made by the firearms officer, which animated his decision.
[11] Moreover, section 75(3) of the Act provides that there is a burden on the applicant to satisfy the Court that the firearms officer's refusal to issue him a licence was not justified, a term that denotes standard of reasonableness
[12] In essence, these articulations come down to the same test regardless of which way the questions are asked:
(i) Was the firearms officer clearly wrong in arriving at his decision to refuse the applicant a licence?
(ii) Given all of the relevant evidence is the original decision of the firearms officer one that was reasonable?
[13] "A court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it". Accordingly, I have charged myself to inquire into whether the firearms officer had a reasonable basis for his decision not to grant the applicant a licence after considering all relevant evidence.
[14] In reviewing Horn's decision this Court is entitled to consider the evidence, including credible and trustworthy hearsay evidence, relied upon by Horn that has been called at this reference.
[15] If the evidence before this Court is substantially the same as the evidence considered by the firearms officer, the applicant will be required to show that the firearms officer was "clearly wrong" as this Court is not entitled to reverse the decision simply because it would have concluded differently. However, if there was a serious defect in the evidentiary foundation or a defect in the logical processes used by the firearms officers, such that the decision can be shown to be unreasonable, interference by this Court would be warranted. Additionally, where the Court has significant and meaningful evidence that was not before the firearms officer or the evidence reveals that the firearms officer's assumptions were clearly wrong, then, the two stage process should apply: first, the Court should examine the firearms officer's decision, to see whether it was reasonably made, and if so, give it deference. Second, the Court should examine the new evidence to see whether it is significant enough to undermine the factual assumptions or inferences drawn by the firearms officer. If so, then the Court is entitled to interfere even if the original decision was reasonable.
Canada (C.F.O. for the Province of Alberta) v. Pogson, [2005] A.J. No. 281
R. v. Wellheiser, [2005] O.J. No. 585
Alberta (Chief Firearms Officer) v. Rolls, [2004] A.J. No. 912
British Columbia (Chief Firearms Officer) v. Falhman, 2004 BCCA 343
Chief Firearms Officer of Alberta v. Barry Holland, [2004] A.J. No. 51
British Columbia (Chief Firearms Officer) v. Donnelly, [2001] B.C.J. No. 1037
94The onus is on the applicant, Mr. Bachensky, to demonstrate that Officer Gardner's decision in refusing his application for a firearms licence was clearly wrong.
95The standard to be applied in the review of such a decision is whether given all relevant evidence, is the original decision of Officer Gardner one that was reasonable? Is there merit to her decision?
96It is not up to the Court to reverse a firearms officer's decision simply because they would have concluded differently. The Court has to determine whether there is a serious defect in the evidentiary foundation or logical process such that the decision is shown to be unreasonable and interference would be warranted. If the decision made was reasonable, the Court should give deference to the firearms officer's decision.
97Officer Gardner had the authority to determine whether Mr. Bachensky was entitled to a firearms licence. There was no evidence to suggest she had not adequately performed her duties when she came to her conclusion that Mr. Bachensky should be refused a firearms licence. It appeared she had conducted a full and fair investigation into Mr. Bachensky's eligibility to hold a licence prior to refusing his application. This included her training and experience as a firearms officer and her background relating to issues of public safety. It also included her own research/investigation into Mr. Bachensky's criminal history and seeking out an opinion from an individual who has been deemed an expert on the Hells Angels organization.
98The evidence which was supplied to her from the Biker Enforcement Unit which detailed police occurrence reports demonstrated Mr. Bachensky was indeed a member of the Hells Angels Motorcycle Club. In fact there was evidence of overt display that Mr. Bachensky was part of the Hells Angels considering his attire and some of his associations during his contact with police.
99The Hells Angels Motorcycle Club, despite any charitable work they may have done, are also known to have a reputation for committing violent acts and being involved in criminality. Officer Gardner testified she was aware of some charitable work done by the Hells Angels as published in the newspaper. Despite same, she was also of the view from her own knowledge that the Hells Angels was a criminal organization.
100As Sergeant Isnor stated, Mr. Bachensky chose, of his own volition, to be associated with an organization which is viewed by some members of the public and by the authorities as commanding respect through violent acts, fear and intimidation. According to Sergeant Isnor, the Hells Angels have a reputation of being a complex organized network involved in illegal criminal offences.
101Officer Gardner testified she came to the conclusion Mr. Bachensky's application should be refused once she became aware that he was a member of the Hells Angels. Officer Gardner made it clear that she was exercising due diligence when she asked Detective Sergeant Isnor to provide her with an opinion regarding the Hells Angels based on his extensive experience and involvement with this organization. She testified she was fearful because Mr. Bachensky is part of the Hells Angels organization and she believed he would appeal her decision to refuse his licence. The opinion of Detective Sergeant Isnor simply validated her belief that Mr. Bachensky was part of a criminal organization and the likelihood of criminal involvement, despite the fact Mr. Bachensky did not have a criminal record. In my view, Officer Gardner had sufficient grounds to believe the Hells Angels was a criminal organization and a member of said organization would pose a risk to the public's safety.
102Since Mr. Bachensky was associated with such an organization, there was an element of risk to the public and firearms licences should not be provided to individuals who pose a risk to the public.
103I concur with counsel for Mr. Bachensky that none of the factors outlined in subsection 5(2) of the Firearms Act specifically apply to him. He does not have a criminal record, he does not suffer from a mental health illness and he has no history of behaviour that includes violence against another person. However, subsection 5(1) is an overreaching provision which enables a firearms officer to refuse a firearms licence in the interests of the safety of that or any other person.
104Accordingly, in my view, there could be a number of factors a firearms officer could consider in determining whether an individual should be disentitled to a firearms licence. For example, the fact that Mr. Bachensky has no criminal record or does not suffer from any mental health issue, does not automatically entitle him to a firearms licence.
105Subsection 5(2) of the Firearms Act is not an exhaustive list. Accordingly, the fact that belonging to the "Hells Angels Motorcycle Gang" or any other motorcycle gang for that matter is not enumerated in subsection 5(2) would not preclude a firearms officer in considering same when they are considering issues of public safety.
106Whether Mr. Bachensky was accurate or not on his firearms application regarding his spousal relationship with Ms. Rankin is a moot point. There was no concrete evidence Mr. Bachensky had been dishonest on his application. Regardless, Officer Gardner did not have any information that would have contradicted Mr. Bachensky on this issue when she issued the refusal.
107The fact Officer Gardner did not call Mr. Bachensky to ask him why he wanted a gun would in my view not have persuaded her to grant the licence because of his ties with the Hells Angels Motorcycle Club which she believed to be a criminal organization. Moreover, the fact that Officer Gardner did not inquire as to whether other members of the Hells Angels had received firearms licences does not suggest she did not reach a reasonable decision. Decisions made by other chief firearms officers are not binding. Officer Gardner was unaware of Hells Angels member Jason Hall's application. Officer Gardner's responsibility was to review Mr. Bachensky's application and determine whether granting him a licence could pose a risk to the public.
108Some members of the Hells Angels are known to have committed violent acts. There was evidence supplied to Officer Gardner that Mr. Bachensky was associated with the Hells Angels. Accordingly, Officer Gardner reasonably believed there was a likelihood Mr. Bachensky could be involved in some form of criminality. An individual does not need a criminal record to be deemed a risk to public safety.
109For the above reasons, I have determined that Officer Gardner was justified in reaching her decision to refuse Mr. Bachensky's application for a firearms licence. Her decision had merit and it was reasonable in light of all of the information she had at her disposal. Counsel for Mr. Bachensky did not raise any evidence which refuted Officer Gardner's decision or lead me to the conclusion she had been unreasonable. As such, I am not interfering with her decision.
Released: November 26, 2014
Signed: "Justice N. Gregson"
Justice N. Gregson