Ontario Court of Justice
Central East Region
Between:
HER MAJESTY THE QUEEN
— AND —
KIMBERLEY BORCHUK
Before: Justice F. Javed
Heard on: February 11, 2016
Reasons on Reference Hearing released on: February 19, 2016
Counsel:
M. Newell — counsel for the Crown
J. Bogel — counsel for the applicant Kimberley Borchuk
F. Javed J.:
Overview
1The applicant, Kimberly Borchuk, brought an application for a reference hearing under s.74 of the Firearms Act ("Act") to review the decision of Police Constable Hickey, designate of the Chief Firearms Officer of Ontario, refusing to issue her a firearms license.
2Ms. Borchuk lives on a small farm in Port Perry. She applied for a firearms license to scare away coyotes and protect her livestock. At the time of applying, she was in a common law relationship with Mario DaSilva who was a member of the Hells Angels Motorcycle Club (HAMC), a criminal organization. In refusing her a license, Mr. Hickey cited public safety concerns under s.5(1) of the Act. Ms. Borchuk seeks to review the reasonableness of this decision.
Background
3Prior to commencing the reference, I alerted the parties of a potential conflict. In my former role as Crown counsel in the Durham region, I prosecuted Mr. DaSilva as part of Project Lodestar in 2012 which was a wiretap investigation involving the trafficking of narcotics. Mr. DaSilva was charged with criminal offences but all of them were stayed. Mr. Newell indicated to the court that he would be relying on this background information as it was relied upon by Mr. Hickey in his refusal. Mr. Bogel, after obtaining instructions from his client was satisfied that there was no conflict, nor an appearance of one. There is no issue that Mr. DaSilva was a member of the HAMC at the time. The narrow issue on this reference is the reasonableness of the decision denying Ms. Borchuk a firearms license.
Positions of the Parties
4Mr. Newell, on behalf of the Chief Firearms Officer, submits that the court should defer to the decision of PC Hickey as it remains undesirable in the interests of public safety that she be permitted to have a firearm.
5In support of this position, Mr. Newell sought to admit the expert opinion evidence of Detective Constable G. Thibodeau of the Ontario Provincial Police, Biker Enforcement Unit. After a voir dire, I qualified him as an expert in the characteristics of the HAMC and in particular, the relationship between "retired" members and their spouses/girlfriends and its effect, if any, on public safety.
6Mr. Bogel submits that Ms. Borchuk meets the criteria to obtain a firearms license under s.5(2) of the Act and there is no real concern to public safety. He takes the position that the public interest criterion should be given a narrow scope in accordance with Ms. Borchuk's views, not a broader scope.
The Applicable Principles on the Reference Application
7The parties are in agreement about the principles that govern this application and also agree on the standard of review which is reasonableness. In R. v. Bachensky, [2014] O.J. No. 6022 (Ont. Ct. J.), Gregson J. exhaustively set out the principles at paragraphs 90-96 which I adopt as correct. I need not repeat all of them here.
8Suffice to say, the onus is on Ms. Borchuk to demonstrate that PC Hickey's decision was not reasonable. In Canada (Attorney General) v. Henderson, [2011] O.J. No. 4946 (Ont. C.A.) Goudge J.A. explained the standard of review and concomitant obligations on a reviewing court as follows:
34 The Act obliges the provincial court to hear all relevant evidence presented by both the applicant and the Registrar. It is clear that the provincial court is to engage in its own fact finding process. That is why it is described as a reference and not an appeal from the Registrar's decision. Nor is it a hearing de novo, since the Registrar has not held a hearing. Clearly the legislative intent is that the provincial court is to find its own facts and need give no deference to any facts recited in the reasons of the Registrar.
35 However, having done that, s. 75(3) of the Act directs the provincial court to decide, in light of the facts it has found, if the applicant has satisfied it that the Registrar's refusal was "not justified". That is, the applicant must do more than show that, given the facts found, the decision was wrong. Rather, the provincial court must be satisfied that the refusal was not justified. In my view this reflects the legislative intent that the provincial court accord deference to the Registrar's decision. I say this for several reasons.
36 The first is the particular language of the Act. The pertinent definition of "justification" in Black's Law Dictionary, 8th ed., is "a lawful or sufficient reason for one's acts or omissions." That is, a decision is not justified if there is no sufficient reason for it. As well, the Supreme Court of Canada has linked the deferential standard of reasonableness to the concept of justification. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, the court describes the qualities that make a decision reasonable and makes clear that justification is a key aspect of reasonableness. Thus I think the language of s. 75(3) of the Act directs the provincial court to apply a deferential standard of review to the Registrar's decision itself. The provincial court is to test that decision against the facts it has found. It is not to determine if it agrees with the decision, but whether it has been satisfied by the applicant that the decision is not reasonably defenceable. This mandates deference.
9It is within this lens that I propose to set out on my own fact-finding process below. Keeping in mind the above binding principles, the deferential standard of review is reasonableness. Ms. Borchuk must satisfy me that PC Hickey's decision was unreasonable. My findings are not limited to those as set out in the notice of refusal. I am permitted to make my own findings, keeping in mind that the decision at first instance was a refusal. In doing so, I am permitted to consider all the relevant evidence, which includes credible and trustworthy hearsay relied upon by PC Hickey and the evidence adduced on this reference. See R. v. Bachensky, supra; R. v. Pagnotta, 2001 BCSC 444 , [2001] B.C.J. No. 2260 (B.C.S.C.) at p.62. On this application, I had the benefit of hearing viva voce evidence of PC Hickey, DC Thibodeau and Ms. Borchuk.
The Factual Background of the Refusal
10The parties tendered several documents on consent, which will be referenced below. It was also agreed that Mr. DaSilva was a full-patch member of the HAMC since 2012 but was not a member at the time Mr. Hickey reviewed Ms. Borchuk's application.
(a) Evidence of PC Hickey
11PC Hickey is a 29 year veteran with the police force. He processed Ms. Borchuk's application as he was the designate of the Chief Firearms Officer for the Central East Region. He held this role for 5 years, which ended in 2015. Over the course of his tenure, he estimated that he had reviewed 250-300 firearm applications and had refused 25-30, one of which was Ms. Borchuk's. As part of his role, he would vet all applications that were flagged for public safety concerns.
12Like other applications, he performed his due diligence by confirming the information which included speaking with references. He noted that Ms. Borchuk did not have a criminal record (or discharge) and had not been treated for any mental illness which would have disqualified her under s.5(2) of the Act. He did however, have some concerns related to public safety under s.5(1) of the Act.
13These concerns related primarily to her involvement with her then common law husband, Mr. DaSilva who was a member of the HAMC. On December 5, 2014, he advised her of his concerns indicating that her application would be investigated further. Ms. Borchuk told him that she was no longer with him and he was an ex-member of the HAMC. When asked why she wanted a firearm she stated that she lived on a farm and wanted to scare away coyotes that were threatening her livestock.
14He spoke to her ex husband, Clay Reid, who has a 12 year old daughter with Ms. Borchuk. She also lives with Ms. Borchuk and at the time, Mr. DaSilva. Mr. Reid was concerned about his daughter's safety as he didn't know what goes on at the house. He was not aware of any issues with coyotes but remained guarded in his conversation with PC Hickey as he didn't want to "cause problems".
15He then spoke with Det. Sgt. Len Isonor, of the Biker Enforcement Unit who confirmed that Mr. DaSilva was formerly a full-patch member of the HAMC and left in 2012 "not in good standing". I will return to this below.
16His investigation revealed that on March 1, 2012, Ms. Borchuk was stopped in a vehicle with other women near a HAMC clubhouse. Mr. DaSilva wasn't present with her. In June, 2012, he learned that the Durham Regional Police Service executed a search warrant on her premises where some drug packaging material was found resulting in Mr. DaSilva being arrested. The warrant was based on intercepted communications between Mr. DaSilva and another accused who was charged, about a drug deal that was to take place. He knew that those charges were subsequently stayed.
17On December 8, 2014, he told her over the telephone that he would be refusing her application. A formal notice was sent on December 19, 2014, which was marked as exhibit 5. In his reasons for refusal, he cited the following:
(a) her relationship with Mr. DaSilva and his belief at the time that he was bound by a weapons prohibition order under s.117.01 of the Criminal Code set to expire on November 23, 2015. He reasoned that permitting Ms. Borchuk to possess a firearm would potentially put him at risk of breaching that order;
(b) her apparent lack of candour in not telling him about Mr. DaSilva's weapons prohibition, and
(c) her affiliation with Mr. DaSilva as a member of the HAMC. In particular, he wrote: "Through an extensive investigation, police reports reviewed and an interview and communication with you and our biker enforcement unit, I have carefully considered material and believe that at this time you are not a suitable candidate for a Canadian Firearms License. This is based on your spouses' affiliation with the Hells Angels and it being identified by law as a Criminal Organization. It causes me a great deal of public safety concern knowing a firearm could be present and available legally to a member of a criminal organization due to your association to this person".
18In his viva voce evidence, he cited other concerns, which were not detailed in his written refusal.
19First, he discovered that Ms. Borchuk had reserved a used 18.5" Remington Wingmaster with a pistol grip from Gagnon Sports on July 7, 2014 (before the application was submitted) which had been purchased by her father on December 8, 2014, three days after he told her of the refusal. (Exhibit 4). He was concerned that she had reserved a specific firearm, which had been quickly purchased after the fact.
20Second, he had concerns with the specific firearm itself. In particular, Ms. Borchuk had reserved a rifle which in his view was not typical for a hunting rifle to shoot animals. Drawing on his personal and police experience in firearms, he testified that Ms. Borchuk's selected firearm was more consistent as a short range shooting weapon as opposed to a hunting rifle. A shorter stock (as opposed to a longer one typical for hunting) helps with aiming and controlling the weapon. A shorter barrel is designed for accuracy whereas a longer barrel is designed for long range shooting, and thus better suited for hunting which was Ms. Borchuk's intended purpose. When he learned from her that she wanted to scare coyotes off her property, he became concerned about the weapon she chose and the veracity of her intent. At the hearing, it was suggested to him that Ms. Borchuk had a disabled shoulder explaining why she needed a weapon with a shorter stock. He could not investigate this as he only learned of this on the application. If true, that could be a factor in his decision.
21Third, new information received by the OPP after the refusal reinforced his belief that Ms. Borchuk was continuing to associate with Mr. DaSilva. He learned that Ms. Borchuk and Mr. DaSilva had traveled together to Niagara Falls in May 2015, after she had told him that Mr. DaSilva had moved out, which incidentally, was the same location of a HAMC biker run.
22In cross-examination, PC Hickey was challenged extensively on the extent of his investigation and in particular the steps he took to find out Mr. DaSilva's status with the HAMC. He acknowledged that he and Det. Sgt. Isonor discussed his status, leaving in "bad standing" but didn't discuss in detail what this meant, only that it was "complicated". It was suggested to PC Hickey that he had a personal vendetta against Ms. Borchuk and even issued a firearms license to Alessandro Saltarelli, a neighbour of Ms. Borchuk, who cited similar issues with coyotes. He denied having any vendetta and could not recall if he issued a license to her neighbour.
23Ultimately he testified that despite Mr. DaSilva's current "retired" status with the HAMC, including not living in the home, he still believed that there existed a potential risk for public safety. He was unable to investigate Mr. DaSilva's lack of presence in the home and remained concerned about a 12 year old living in the house. If Mr. DaSilva's affairs were brought to the home, public safety would be at risk. He relied, in part, on the evidence of DC Thibodeau of the BEU as support for his continued concerns.
(b) Evidence of DC Thibodeau
24DC Thibodeau was qualified to give expert evidence in the characteristics of the HAMC. Mr. Bogel objected to the admissibility of the evidence. In my oral judgment, I ruled that he was a properly qualified expert and permitted him to offer an opinion on the HAMC and in particular, applying his specialized knowledge of the criminal organization to its characteristics involving the role played by women/girlfriends of retired members and its effect, if any, on the issue of public safety. I was satisfied that he understood his duty to be impartial and neutral. See White Burgess Langille Inman v. Abbott and Haliburton 2015 SCC 23. I further qualified the opinion to the activities of Mr. DaSilva in the preceding 5 years which would have been the time frame under the Act that PC Hickey would have been entitled to examine when considering Ms. Borchuk's application. I appreciate that there's jurisprudence going the other way, allowing a Chief Firearm Officer to go beyond the 5 years but given that the narrow issue in this case pertained to Ms. Borchuk's application and not Mr. DaSilva's, it struck me as fair that the evidentiary time frame should be narrowed. Accordingly, I did not consider Mr. DaSilva's criminal history before 2009.
25DC Thibodeau adopted a 46 page statement of opinion of Det. Sgt. Len Isnor of the BEU who had prepared a comprehensive report in 2012 summarizing the history, background and characteristics that make up the HAMC to support his opinion that the HAMC is a criminal organization. Incidentally, I note that Justice Gregson in R. v. Bachinsky, supra, also accepted the expert opinion of Det. Sgt. Isnor in a case where the applicant was an alleged member of the group. Mr. Bogel does not take issue with the fact that the HAMC is a criminal organization. This is a reasonable position to take in light of the jurisprudence on point. For example, see R. v. Lindsay, [2005] O.J. No. 2870 (Ont. Sup. Ct.) per Fuerst J.
26DC Thibodeau's knowledge of how women factor into the HAMC comes from years of personal experience. He has investigated several wiretap projects and has listened to many intercepted communications. In this case, he obtained intelligence on Mr. DaSilva by speaking with Det. Randy Tutton of the OPP who had intricate knowledge of the Simcoe County Chapter, the area in which Mr. DaSilva was once a full-patch member. He testified that to be a full-patch member, one would have to pay into the organization as the rules of the criminal organization were strict and heavily enforced. High ranking members could insulate themselves from the lower ranked members and would not necessarily have to commit criminal activities or do any of the "dirty work" which might include trafficking in narcotics. It could take up to 3 years to become a full member. The title is accompanied with power, control, fear and other fringe benefits.
27He explained that women can't join the organization and are viewed as a step lower than associates in the hierarchy. Members will often embrace girlfriends/wives into the "brotherhood" and expect that the rules will be obeyed. One's private life comes second to the organization. Some of these rules include not reaching out to the police. In particular, he adopted Det. Sgt. Isnor's report on this issue who wrote:
The HA [Hells Angels] use women to acquire intelligence regarding rival gangs and police officers. Women may be employed in various key occupations that would allow them to gather valuable information and provide various services to the outlaw motorcycle gang community.
28When a member "retires" from the organization such as Mr. DaSilva would have in 2012, one can exit on good or bad terms. If one leaves in good standing, one would still be able to profit from the criminal activities but leaving in bad standing means that the ex member will have to protect himself. Det. Sgt. Isnor described 'bad standing' as "being removed from the gang as a result of a serious violation of some Hells Angels written and unwritten rules of conduct that would bring embarrassment or disgrace to the Hells Angels organization". In addition to adopting this definition, DC Thibodeau relying on his personal experience in investigations, reasoned that it was highly likely that an ex member would still be subject to following the HAMC rules, failing which could carry repercussions. In this case, Mr. DaSilva left "in bad standing" which means that he was out of the organization but testified that he appeared to share the status of an associate. Associates can't participate in meetings but can be invited to bike runs (which Mr. DaSilva did attend in Niagara Falls). Det. Sgt. Isnor wrote: "an associate generally assist club members by facilitating, promoting and protecting their criminal activities". Often times, associates don't get close to full patch members but here, the surveillance photographs showed that as of May 2015, Mr. DaSilva was still cordial with full-patch members as evidenced by exhibits 6(a) to (g). While he agreed that retired members can live a life free of criminality, the unhindered contact with full patch members signified that Mr. DaSilva was still respected. The fact that Ms. Borchuk appeared to share this same level of unrestricted access to full patched members of the HAMC, was of concern to DC Thibodeau and ultimately PC Hickey.
(c) Evidence of Kimberley Borchuk
29Ms. Borchuk testified that she lived on a farm in Port Perry since 2005. The property is spread over 18 acres and contains a variety of livestock. In or around 2011, Mr. DaSilva moved in with her and stayed there for 4 years. He moved out in April 2015. She knew he was a full-patch member of the HAMC and described him as "wonderful and kind". She currently lives with her teenage daughter and a tenant.
30On August 7, 2014, Ms. Borchuk applied for a firearms license. She filled out the four page application and noted Mr. DaSilva as her common law partner. Mr. DaSilva signed the application and provided a phone number as requested. She testified that she needed a firearm because she had an issue with coyotes on her property. She wanted to scare them away and shoot them only if she had to. In the past, she had to rely on her neighbours to help fend off the coyotes. She didn't want to trouble them anymore so she decided to get a firearm herself.
31On December 19, 2014, her application was refused by PC Hickey. She never sought to renew the application and instead chose to pursue a reference. This is important because as she testified, Mr. DaSilva moved out on April 29, 2015, at a time when she had no further contact with PC Hickey.
32Ms. Borchuk completed the Canadian Firearms Safety Course, scoring very high on both the written and practical tests. (Exhibit 3).
33When she learned of the refusal, she was shocked that it referenced Mr. DaSilva's criminal record and a weapons prohibition. With the assistance of Mr. DaSilva, she obtained a copy of his criminal record from the police which showed, contrary to PC Hickey's information, no weapons prohibition. Instead, it showed two convictions in 1987 for trafficking in narcotics. She did not advise PC Hickey of this discrepancy because she gave the notice to her lawyer as in her view"the matter was out of her hands".
34Ms. Borchuk testified that after Mr. DaSilva moved out in April 2015, she hadn't seen him much and thinks that he might have obtained employment in the trucking industry. While he removed most of his property out of her home, he still gets some mail delivered to her home and continues to maintain a good relationship with her daughter. She could reach him if she needed to. Again, this was not probed by PC Hickey as he was not privy to this information at the time of his refusal.
35In May, 2015 (after moving out), Mr. DaSilva invited her for a motorcycle ride to Niagara Falls. She was told that the HAMC would be having a "run" at the same time. She decided to accompany him. Mr. DaSilva told her that they would drop in to say hello. She didn't have any concerns doing so. When they arrived in Niagara Falls, they spent an hour with various members of the HAMC but she was mainly "tagging along" with Mr. DaSilva. She didn't know that the police had the event (and their meeting) under surveillance. She could not identify anybody in the photographs that were tendered as exhibits 6(a) to (g). Evidence was lead that Mr. DaSilva was meeting with at least four full-patch members of the group. Both he and Ms. Borchuk appeared to be cordial in their demeanor.
36Ms. Borchuk was extensively challenged on her affiliation with Mr. DaSilva and her knowledge of the HAMC. She was aware that in 2012, Mr. DaSilva was a full-patch member of the HAMC. He kept some club property at her home including some jewellery and a vest which was seized by the police in the 2012 search warrant. She testified that she didn't really get too involved with the club as she "didn't really like it too much". Despite being an avid fan of motorcycles which explains how she met Mr. DaSilva, she didn't like the idea of motorcycle clubs and didn't go to many HAMC events. She "gathered" that the club could be intimidating to others but in her view, the group was mainly about men riding motorcycles. Women didn't get too involved and she was never concerned for her safety. When asked if she knew that the group was a criminal organization, she stated that while she heard about it, she didn't know for sure but knew that other groups and not just bikers were involved in criminal activity as well.
37While she agreed that PC Hickey had expressed to her his ongoing concerns about her affiliation with Mr. DaSilva, she felt that he was more concerned about the weapons prohibition. In her view, PC Hickey had a personal vendetta against her stating that "he would do anything to stop her from getting a license".
38When asked why she didn't tell PC Hickey about Mr. DaSilva moving out, she testified that in her mind"it [Mr. DaSilva] was irrelevant as it was her property and her gun". She disagreed with DC Thibodeau's opinion that women also play a role in the hierarchical chain of the HAMC and added that she disagreed with his evidence that the HAMC was a criminal entity organized for profit.
Analysis
39As noted above, the standard of review on this reference is one of deference. I must engage in my own fact finding process and only disturb PC Hickey's decision if it was unreasonable. It is not enough for me to disagree with it – I must go further and find that in light of my findings of fact, he was clearly wrong. There is no doubt that PC Hickey was in error in citing Mr. DaSilva's criminal record involving a weapons prohibition and Ms. Borchuk's apparent reluctance in discussing it. The issue on this application is whether in light of this, was his decision on the public interest criterion under s.5(1) of the Act reasonable.
40Specifically, the governing sections of the Act are 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).
41Mr. Bogel submits that PC Hickey should have taken a narrow scope of the public interest and focused on Ms. Borchuk's views to the exclusion of others. Mr. Newell disagrees and cites that the Act demands a broader scope. I agree. In my view, to interpret s.5(1) of the Act with a narrow compass would frustrate the purpose of the Act.
42The purpose and scheme of the Act is to promote and protect public safety. The statutory regime grants firearms officials with a vast amount of discretion to refuse to grant a license when in the "interests of safety". This broad discretion is necessary given the wide range of possible circumstances that may arise in a given case. An interpretation of the Act which limits that discretion by narrowing the scope of the public interest flies in the face of the Act's purpose and could result in harmful consequences. See Manson v. Ontario (Chief Firearms Officer) (2004), 183 C.C.C. (3d) 169 (Ont. C.A.) at paras. 32, 34 per Laskin J.A; Reference re: Firearms Act (Can.) 2000 SCC 31 , [2000] S.C.J. No. 31 (S.C.C.); R v. Pagnotta, 2001 BCSC 444 , [2001] B.C.J. No. 2260 (B.C.S.C.) at pp.26-27; Bachensky, supra.
43In R. v. D.L.B., [2003] O.J. No. 2471 (Ont. Sup. Ct.), Durno J. referred to the proper test to be applied in refusing a license at para. 49:
The legislation is designed to preclude persons from possession of firearms, if to permit them to do so would compromise public safety. I agree with the test set out by Fairgrieve J. in R. v. Morgan, [1995] O.J. No. 18 (Ont. Prov. Ct.) that it is "sufficient if there is a legitimate concern the [license holder or applicant] lacks the responsibility and discipline the law requires of gun owners."
44The formulation of the above test has been cited with approval by many other courts. Intuitively, it makes sense because the statutory provisions emphasize the safety of both the Applicant and the public. By its nature, this demands a broad not narrow consideration of the public interest. Conversely, the same test governs the revocation of licenses where there is a legitimate concern that the Applicant lacks the responsibility and discipline the law requires of gun owners.
45Applying this broader test of public safety to the circumstances of this case, PC Hickey was entitled to consider Ms. Borchuk's affiliation with Mr. DaSilva. Moreover, he was entitled by statute to consider his antecedents as far back as 2009 in considering whether issuing a firearm to Ms. Borchuk would impact not only her safety but also the safety of others, including her 12 year old daughter. At the time of applying, he was aware that Mr. DaSilva had "retired" from the HAMC in 2012 but this didn't mean that he could not consider the implications of his previous status, along with a recent police investigation in 2012 where he was arrested based on the fruits of a wiretap investigation. In effect, he questioned her responsibility as a potential gun owner given her affiliation with Mr. DaSilva.
46In my view, he was entitled to do so and in fact, the viva voce lead on this application reinforces this view – to some extent. At the time of his refusal, he did not know that Mr. DaSilva had moved out of Ms. Borchuk's home. Nor was he told of this after he sent her the refusal. It's unclear whether this would have changed his view that there existed a public safety concern. Moreover, he also didn't know that even after he told her both orally and in writing that her application for a firearm would be encumbered by her association with Mr. DaSilva, she continued to associate with him in May 2015 on a HAMC run in Niagara Falls. With great respect to Ms. Borchuk, this court shares the concern of PC Hickey, especially because it elucidates her apparent naivete to the characteristics of the HAMC. I find that she simply doesn't appreciate the gravity of the public safety concerns that exist with a criminal organization such as the HAMC and the milieu in which it operates. Whether this sheltered view is based on her personal experience or a decision to turn a blind eye, it highlights the concern of PC Hickey about her judgment when he refused the application in the first instance. Her evidence that his status is "irrelevant" is seriously misguided.
47Mr. Newell, quite understandably, probed Ms. Borchuk's direct affiliation with the HAMC and the potential to lawfully place firearms in the hands of individuals who have any ties to the organization. I need not fully consider the extent of Ms. Borchuk's affiliation, if any, with the HAMC as that issue did not appear to factor into PC Hickey's decision. Suffice to say, I find no clear evidence that suggests that Ms. Borchuk was or is "affiliated" with the HAMC. It's clear to me that she simply chose to have a romantic relationship with a former full-patch member and continues to have some access to him even after he has moved out of the home. It's regrettable that her public safety – as she described – by virtue of the coyotes that jeopardize her livestock is intertwined with personal decisions she has made in her life about whom she chose to associate with. It's even more regrettable that even after hearing evidence from DC Thibodeau about the intricacies of the HAMC, she continues to see any affiliation with them as "irrelevant". One would have thought that she would have done everything in her power to distance herself from anything related to the HAMC to satisfy the concerns of the firearms officer.
48The question of assessing public safety from one's subjective views is arguably a challenging task but the Act vests this discretion with firearms officers. Unless the decision is arbitrary or motivated by improper means and cannot be supported by the evidence, the authorities hold that the decision is entitled to deference. I do not find that PC Hickey's decision was arbitrary. Nor am I persuaded that he had a personal vendetta against Ms. Borchuk as there's simply nothing in the record to support this position. In fact, his track record points to the opposite. The vast majority of applications he received over his 5 year tenure, he approved. In this case, he acted diligently by following up on the information provided and explaining in clear reasons why he felt that Ms. Borchuk didn't meet the public safety criterion in s.5(1) of the Act. I reject the evidence of Ms. Borchuk that he told her he would make sure she didn't receive a license. He had no reason to jeopardize his professional reputation, especially because he told her that she could review the decision in court.
49I am sensitive to the submission that Mr. DaSilva has moved out of Ms. Borchuk's home but somehow this continues to encumber Ms. Borchuk's application. However, this ignores the spirit of the Act which permits Chief Firearms Officers to rely on their expertise in what is arguably a regulatory legal context to make decisions based on public safety. I have looked to other similar contexts to ascertain whether what might be considered historical information unfairly hampers a person's present ability to become licensed. I have concluded that it does not as long as that information is not arbitrarily used and does not amount to a denial of natural justice. See R. v. Liu 2010 ONSC 798 (Ont. Sup. Ct.) In my view, this did not occur in this case as PC Hickey never got a chance to investigate the veracity of this claim.
50While there is no similar jurisprudence in this area, I can draw on an analogous set of circumstances to highlight this point. In R. v. Moulton, [2010] O.J. No. 1794 (Ont. Sup. Ct.), the court reviewed the decision of Correctional Service Canada's (CSC) refusal to transfer the Applicant to a minimum security institution because he posed a risk to public safety. Mr. Moulton was a federal inmate and had not been convicted of a criminal organization offence. He was classified by the CSC to a medium security institution. He applied to transfer to a minimum security institution which was refused. He appealed seeking to review CSC's decision by way of a habeas corpus. One of the reasons he cited for relief was that the CSC relied in large part on historical information of his affiliation with the HAMC. He argued that the refusal was an unlawful deprivation of his liberty. Graham J. refused the application concluding that the decision of the CSC was fair. In doing so, he relied inter alia on Mr. Moulton's continued affiliation with the HAMC as grounds for a risk to public safety. He wrote at paragraph 97: "[the] court agrees with the comments in the CSC reports indicating that Mr. Moulton's continuing decision to not disaffiliate from the HAMC is a dynamic factor in assessing his risk". The CSC relied on a Commissioner's Directive which defined associate to mean "a person associated to or involved with a criminal organization which includes supporters, sympathizers, strikers, affiliates, hangarounds, prospects, associated members and persons aspiring to be members". Mr. Moulton was still sympathetic to the HAMC despite being incarcerated.
51In my view, while these contexts are obviously different, a similarity arises by virtue of a regulatory scheme that permits the authorities to consider one's attitudes towards a criminal organization as relevant to assessing public safety. In effect, the same thing happened here when PC Hickey questioned Ms. Borchuk's affiliation with Mr. DaSilva. Mr. Moulton remained a risk to public safety for sympathizing with the HAMC. This, despite being incarcerated where arguably that risk could be mitigated. As noted above, it is problematic that despite being told of her affiliation with Mr. DaSilva, Ms. Borchuk continued to associate with him in 2015, after she was refused and even travelled with him to a HAMC run. Assessing the risk to public safety is dynamic and multi-faceted. It was not improper for PC Hickey to treat it as such.
52Mr. Bogel submits that Ms. Borchuk otherwise meets the criteria in s.5(2) of the Act. I agree, but I echo the comments of Gregson J. in Bachensky, supra, at para. 105 that subsection 5(2) of the Act is not an exhaustive list. The fact that Mr. DaSilva's affiliation with the HAMC is not enumerated in s.5(2) does not preclude a firearms officer in considering same when they are considering issues of public safety.
Conclusion
53I am not satisfied that Ms. Borchuk has met her onus on this application. PC Hickey was justified in reaching his decision on his determination of the public safety concerns even without the two errors relating to Mr. DaSilva's criminal record and weapons prohibition. The binding authority requires me to defer to a decision when it is otherwise reasonable. Based on my findings of fact, I agree with PC Hickey that his decision continues to be reasonable. As such, I am not interfering with it.
54I will conclude by observing that the procedural history of this matter is somewhat perplexing. When Ms. Borchuk learned of the two errors committed by PC Hickey, she did not submit a new application which she is rightfully entitled to do. The notice of refusal states that she can reapply when sufficient time has passed so the "eligibility concerns that have resulted in this refusal have been resolved". She did not do so. Instead, she chose to refer the matter to a court for a reference – which is also her right. Prior to ruling on this matter, I inquired whether in light of this new information, the parties were seeking to suspend this application to permit the necessary inquiries to be made. Ms. Borchuk did not press the issue while Mr. Newell was satisfied with a ruling. I say this without criticism to any party but wonder, parenthetically, whether this matter would have benefitted from a future application as opposed to the time, expense and obvious delay in a reference application.
Released: February 19, 2016
Signed: "Justice F. Javed"