Court Information

Ontario Court of Justice Old City Hall – Toronto

Between: Her Majesty the Queen And: Jeffrey Douglas

Counsel:

• A. Samberg, for the Applicant Crown
• Self-Represented, for the Respondent

Heard: May 31, August 19 and 20, and September 17, 2013

Released: November 26, 2013

Reasons for Ruling

(Re S. 117.05 Firearms Forfeiture and Prohibition Application)

Justice Melvyn Green

A. INTRODUCTION

[1] On September 11, 2008, the police apprehended Jeffrey Douglas as authorized by a Form 1 "Application by Physician for Psychiatric Assessment" issued under the Mental Health Act (MHA). He was released early the next day, September 12th, following his psychiatric assessment. Some six months later, the police seized several rifles and a couple of hundred rounds of ammunition from Mr. Douglas' home. The seized firearms were all properly registered and stored, as was the ammunition. Mr. Douglas has never been charged, let alone convicted, of a criminal offence. Nor has he ever been the subject of a weapons prohibition order.

[2] The seized firearms and ammunition remain in the possession of the Toronto Police Service (TPS). The Crown, meantime, has applied for orders forfeiting the seized firearms and ammunition and prohibiting Mr. Douglas from possessing firearms on the statutory basis that his possession of these items "is not desirable in the interests of the safety of [Mr. Douglas] or of any other person". Mr. Douglas resists these applications. In short, he wants his guns and ammunition returned.

[3] The hearing of the Crown's application did not begin until more than four years after the firearms and ammunition were seized. Mr. Douglas represented himself throughout. In aid of its application, the Crown called Dr. Michael Lewis, the medical doctor who issued the Form 1 on September 11, 2008, the seizing officer and several of Mr. Douglas' co-workers during the previous years. Mr. Douglas called a further co-worker and his personal family physician. He also testified. As "all relevant evidence" is to be heard on such applications, considerable evidence was admitted which might otherwise be barred for violation of the rule against hearsay. Its weight remains to be determined.

B. EVIDENCE

(a) Background

[4] Some of the evidence led at this hearing is not in dispute and is best approached by way of a summary review.

[5] Mr. Douglas was 49 years of age in September 2008. He had been a "roll off driver" at Wasteco, a waste removal company, for many years when, in June 2005, he suffered a serious work-related injury that led to chronic and debilitating pain in his lower back and right leg. He was off work for a time, and then returned to modified duties in the management department, with interruptions for surgery, physiotherapy and physician-ordered immobilization. It seems clear that Mr. Douglas was frustrated by his new role and his treatment by management at Wasteco and bore a number of grievances towards his employer. He was ultimately dismissed in November 2008.

[6] Following an assessment in mid-2008, Mr. Douglas was admitted into a six-week "Functional Restoration Program" (FRP) at the Toronto Western Hospital (TWH). The Workplace Safety and Insurance Board (WSIB) funded Mr. Douglas' participation in this "interdisciplinary cognitive-behavioural pain management treatment program". Mr. Douglas presented as co-operative and motivated. His intake report was chiefly focused on Mr. Douglas' physical and occupational challenges, but the psychological portion of the report included the assessment that Mr. Douglas was free of thought or perceptual disturbances, obsessions, compulsions or indicia of a personality disorder. There was, however, "evidence of low frustration tolerance and anger problems", which Mr. Douglas is said to have acknowledged. He was further assessed as having "underdeveloped strategies" for dealing with stress and anger management. His reported consumption of six beers a day was also a cause for concern.

[7] Mr. Douglas began attending the FRP on August 18, 2008. He did not complete the program as he was effectively discharged on September 11th, the day he walked off the ward and was later apprehended under the authority of the Form 1 issued by Dr. Lewis, the FRP's consulting physician. Dr. Lewis, a family physician, was the only member of the FRP multi-disciplinary team to testify at this hearing. His narrative of the material events relied heavily on the clinical notes prepared by some of his colleagues on the FRP team. None of the members of the FRP team were psychiatrists, although one, Dr. James Murray, was a psychologist.

[8] The weeks preceding September 11th were relatively uneventful. Mr. Douglas routinely attended the program. He initially appeared agitated and exhibited anger, both in general and, more specifically, towards his employers. However, prior to September 11th, he never expressed a risk of harm to himself or others and had begun to "engage" with the FRP team by September 4th. There are no further clinical notes respecting Mr. Douglas' conduct or participation in the FRP until September 11th.

(b) September 11, 2008: The Events Precipitating the Form 1

(i) The FRP Account

[9] The FRP's perspective of the events leading to the issuance of a Form 1 on September 11, 2008 are fully set out in the TWH "Discharge Summary":

On September 11, 2008, Mr. Douglas attended the FRP and requested to speak with a team member. [The] Kinesiologist met with Mr. Douglas. He reported that he was feeling increased anxiety and stress due to a family emergency. He reported that would like to attend as scheduled, however, that he might have to leave to take phone calls. Due to Mr. Douglas' increased anxiety concerning his family issues, as well as a noticeable smell of alcohol, this kinesiologist suggested that Mr. Douglas take the day off to deal with these issues, and attend the FRP the next day. At this time, Mr. Douglas appeared to become upset and started crying. Mr. Douglas stated to [the kinesiologist] that he wanted to meet with a Psychiatrist to discuss his reported uncontrollable crying spells. This clinician made an appointment with Dr. James Murray, the FRP consultant Psychologist for that morning.

Dr. Murray spent approximately 30 minutes with Mr. Douglas [that] morning … During this session, Mr. Douglas was noticed to be agitated as well as intoxicated from alcohol. Mr. Douglas indicated to Dr. Murray that he had significant family stress and that he had had "three beers since about 4am this morning". Due to Mr. Douglas' agitation, intoxication, and limited stress coping skills, Dr. Murray had the FRP Medical Consultant Dr. Lewis also meet with Mr. Douglas on September 11, 2008.

During this meeting it was noted that Mr. Douglas had been experiencing significant psychosocial stress related to his son being arrested as well as his daughter being deemed not capable to look after her three children. It was reported to Dr. Lewis that that morning he communicated thoughts of killing himself to another staff member on the team. At the time of the meeting with Dr. Lewis, Mr. Douglas denied this. When questioned about alcohol consumption, Mr. Douglas acknowledged his alcohol consumption though denied that he was intoxicated.

Discussion revealed that Mr. Douglas had a previous history of query [sic] suicidal versus reckless behaviour, once driving very quickly in a snowstorm not caring whether or not he had an accident and died. On September 11, 2008 he had thoughts of hurting others.

… Mr. Douglas was severely agitated, fidgeting, and very shaky. It was questioned whether he had passive suicidal ideation and homicidal ideation versus intent. In summary, there was no flight of ideas, circumstantiality, or tangentiality, as well as no active hallucinations or delusions of thought. Mr. Douglas did have insight that he was feeling increasingly anxious and he also acknowledged using alcohol as a method of coping. Despite Mr. Douglas' insight into his anxiety, it was Dr. Lewis' and Dr. Murray's clinical opinion that Mr. Douglas' judgment was questionable and than an impulsive act or spontaneous behaviour could not be ruled out. A plan was, therefore, made to walk Mr. Douglas down to the emergency room for assessment by the emergency room Physician as well as Psychiatry. Mr. Douglas was agreeable to this course of action at the time that it was discussed with him.

Unfortunately, Mr. Douglas left the premises before he could be taken down to the emergency room. Given the significant concerns of all team members regarding his psychological state … a Form 1 was completed by Dr. Lewis.

Dr. Lewis could not recall whether he spoke to Mr. Douglas directly about attending at the emergency room. He explained that Mr. Douglas did not display indicia of paranoid schizophrenia during his mental status examination. However, Dr. Lewis was concerned that Mr. Douglas' anger might be directed to someone at his workplace or someone who Mr. Douglas believed owed him $6,000. Mr. Douglas refused to answer whether he owned a firearm, referring instead to a knife that he characterized as "untraceable". Mr. Douglas then volunteered that he would not harm anyone. Prior to September 11th, Mr. Douglas had been a reasonably co-operative and compliant participant in the FRP.

[10] Mr. Douglas left the unlocked ward sometime between 11:30am and noon on September 11th. The Form 1 was issued at 1:10pm. In it, Dr. Lewis asserts that he has reasonable cause to believe that Mr. Douglas has or is threatening bodily harm to himself or others and that, in his opinion, Mr. Douglas "is apparently suffering from mental disorder of a nature or quality that likely will result in serious bodily harm to himself [or] another person". As a result, the form authorized Mr. Douglas' apprehension and detention in a psychiatric facility for a maximum of 72 hours for purposes of a psychiatric assessment. The form was faxed to the TPS for execution.

(ii) Mr. Douglas' Account

[11] Mr. Douglas' account of the events of and preceding September 11, 2008 differed in a number of material respects from that recited by Dr. Lewis.

[12] Mr. Douglas was facing considerable familial stress at the time. His son (then 21) had been arrested, but that occurred at least six months earlier and he was on probation in September 2008. The issues involving Mr. Douglas' adopted daughter, Theresa, were more immediately pressing. Theresa, who was then 28, was in a custody dispute with the local CAS respecting her four children. She called Mr. Douglas on September 10th asking for help. He promised to do what he could. He figured he could improve his daughter's position in the custody litigation if he provided her and the children with stable housing and the supervision of a trusted adult. Accordingly, he devised a plan to purchase a house in which his daughter and grandchildren could live along with his former wife, Janice, who had raised three children. He visited Janice on September 10th. She agreed to the proposal and agreed to meet with Mr. Douglas and a realty agent the next day. Mr. Douglas had never bought a house before and hoped to get a few days off the FRP to negotiate the purchase.

[13] Things did not go well when he tried to explain his need for some "time off" to the FRP team on the morning of September 11th. In Mr. Douglas' words, "when he doesn't like a situation he just leaves". This is exactly what he did. He left the ward about 11:35am, passed the FRP secretary and handed his meal ticket to another participant. He then made his way to Janice's home.

[14] Mr. Douglas denied having told the FRP team that he'd had three beers the morning of September 11th. He did have one beer around 3am while puzzling out a solution to his daughter's crisis, but he denied being intoxicated. He agreed that he had reported drinking about six beers a day on intake and this accurately reflected his daily consumption at the time. While he agreed that he was experiencing considerable "stress" on September 11th as a result of familial pressure, he refused to characterize his stress as "anxiety". He also denied any suicidal ideation or expressing such thoughts to the FRP team. He agreed that he did speak to a FRP staff member about being owed money ($16,000, not $6,000), which he attributed to support overpayments – a matter he ultimately never pursued. He agreed, as well, that he refused to answer Dr. Lewis' question about whether he owned firearms, explaining that he did not think it was Dr. Lewis' business. He denied, however, ever discussing knives or their traceability with any member of the FRP. Mr. Douglas also denied being generally angry or ever requiring anger management counseling. Indeed, Mr. Douglas denied ever having an anger problem.

(c) September 11-12, 2008: The Form 1 Assessment and Mr. Douglas' Discharge from the FRP

[15] After leaving the TWH on September 11th, Mr. Douglas picked up Janice and then made his way to the condo he shared with his father. There were two police officers in the unit when he arrived at about 3pm. The officers cuffed Mr. Douglas and transported him to the emergency room at TWH where he was held for a psychiatric assessment as authorized by the Form 1 issued by Dr. Lewis. The psychiatric assessment concluded that Mr. Douglas did not have suicidal or homicidal intent. As a result, Mr. Douglas was not admitted to the TWH. Instead, he was discharged and released from the hospital before 11am the next day, September 12th.

[16] Mr. Douglas called the FRP on the afternoon of September 12th. He wanted to continue in the program but without further contact with the FRP doctors. He was told the FRP members worked as a team and that he would be discharged from the program. Dr. Lewis' last personal contact with Mr. Douglas was around 11am on September 11, 2008. He was in no position, he testified, to assess Mr. Douglas' mental status or dangerousness at the time of this hearing, in August 2013.

[17] Mr. Douglas did not return to the FRP. Applying DSM-IV-TR criteria, the TWH Discharge Summary reported diagnoses of alcohol abuse and dysthymic and pain disorders (Axis I: Clinical Disorders), "Failed Back Surgery Syndrome" (Axis III: General Medical Condition), problems with primary support group and housing, occupational and financial concerns (Axis IV: Psychological and Environmental Conditions) and a Global Assessment of Functioning score of 56 to 60 (Axis V). An Axis II diagnosis, pertaining to Personality Disorders, was deferred. The Discharge Summary recommended community-based treatment for alcohol abuse and one-on-one treatment with a psychologist to develop a plan for a graduated return to modified employment. The Discharge Summary was directed to the WSIB. A copy was forwarded to Mr. Douglas' family physician, Dr. Aaron Hotz.

(d) March 10, 2009: The Police Seizure of the Firearms and Ammunition

(i) The Police Account

[18] PC Timothy Trotter of the TPS is the officer in charge of the case. His first involvement was on March 9, 2009. He reviewed the Form 1 issued by Dr. Lewis and the police Occurrence Report filed after Mr. Douglas' apprehension on September 11, 2008. A firearms registry check noted five firearms registered to Mr. Douglas. The only previous reference to Mr. Douglas in the TPS database was of his being the victim of an assault with a weapon while he worked at Wasteco. PC Trotter visited the Wasteco facility and learned that Mr. Douglas was no longer employed there. He then spoke to a number of Mr. Douglas' former co-workers who, he says, reported their concerns about Mr. Douglas' volatility and his "enthusiasm" for firearms. According to PC Trotter, one employee said that Mr. Douglas had told her he would notify those he liked before he did anything violent.

[19] PC Trotter, accompanied by other officers, attended the condo unit that Mr. Douglas occupied with his father the next day. Mr. Jeffrey Douglas was home. He appeared a bit agitated on seeing the police and complained of the "injustice" he had suffered at the hands of Wasteco. PC Trotter explained that, given the background to the matter and the concerns of Mr. Douglas' co-workers, he intended to seize the firearms in the interest of public safety.

[20] Mr. Douglas led the police into his bedroom where the police located five rifles next to the mattress. All were properly registered and stored. There were also about 200 rounds of ammunition stored in a locked red metal box on the other side of the mattress. All of the ammunition was appropriate to the seized firearms. PC Trotter seized the weapons and ammunition. During a phone call later that day, Mr. Douglas endeavoured to explain that if he was going to "go off" he would already have done so given the "injustices" he had endured, including his earlier being the victim of an assault.

[21] In cross-examination, PC Trotter could not recall whether there was a safe or storage locker in Mr. Douglas' bedroom. Nor did he recall entering a "TV room" in the unit. PC Trotter did concede that his escort officers may have seized the rifles in another room in the condo and handed them to him while he, PC Trotter, was in Mr. Douglas' bedroom.

[22] The firearms and ammunition remain in the hands of the police. None have ever been tested to determine their operability.

(ii) Mr. Douglas' Account

[23] Mr. Douglas' recall of the police seizure of his firearms differed somewhat from PC Trotter's. According to Mr. Douglas, the firearms were not stored in his bedroom but, rather, in a double-locked firearms safe in a closet behind sliding doors in the TV room next door to the bedroom. He agreed the ammunition was stored in a locked red metal case in his bedroom, but the case was also inside a closet behind sliding doors some feet from the bed.

(e) The Evidence of Mr. Douglas' Co-Workers

[24] While testifying, PC Trotter resisted disclosing the names of those with whom he spoke at Wasteco before he seized Mr. Douglas' firearms and ammunition on the basis that these persons were "confidential informants". This is a legally dubious proposition but disclosure of these persons' names was not pressed during PC Trotter's testimony. In any event, it appears a reasonable surmise that the three Wasteco employees called by the Crown were among, if not exclusively, those with whom PC Trotter spoke before attending at Mr. Douglas' home. Having heard their evidence, it is also a reasonable surmise that the evidence tendered by these witnesses was not what the Crown anticipated in electing to call them.

[25] None of these three Wasteco employee witnesses had had any contact with Mr. Douglas in the approximately five years since he left the company, nor did any of them have any interaction with Mr. Douglas outside the work environment in the years their tenures at Wasteco overlapped. All three knew him as a gun owner and avid hunter.

[26] Two of witnesses were operations managers who supervised Mr. Douglas in the period after his injury forced his re-assignment to less arduous work. Both had daily personal contact with Mr. Douglas. Neither had ever heard Mr. Douglas threaten anyone or express any violent intention. The first, Kenneth Hartley, characterized Mr. Douglas as "a nice guy" and testified that Mr. Douglas never caused him any concerns for his own or others' safety. The second, Serge Gomes, testified that Mr. Douglas would sometimes appear nervous or agitated at work, but that his anger, if any, was directed towards the company as an abstraction rather than any individuals. He never received any complaints about Mr. Douglas from other employees. Mr. Gomes had personally terminated Mr. Douglas on behalf of Wasteco in November 2008. Mr. Douglas was "not happy" with his dismissal, but despite a measure of safety concern Mr. Gomes had not invoked any extra security or any other precautions.

[27] The third Wasteco employee, Arlene MacMullin, was a truck dispatcher whose role led to daily interaction with Mr. Douglas. Mr. Douglas never gave her cause for personal concern. Others, she volunteered, might have been intimidated by Mr. Douglas' directness, but no one was afraid of Mr. Douglas or tried to avoid him. He was, in short, sometimes a hothead and a blowhard, but not someone who was ever involved in a physical altercation. Ms. MacMullin had never heard Mr. Douglas threaten to harm anyone – not even Hartley and Gomes who had earlier testified and who she knew Mr. Douglas felt had mistreated him. On one occasion he told Ms. MacMullin that "if he ever chose to harm someone he'd let her know not to be there", but Mr. Douglas was smiling and laughing when he said this and she understood that he was joking.

[28] Ms. MacMullin was aware that Mr. Douglas suffered from what she described as a "nervous disorder" that sometimes led to the twitching of his arm when he was excited. She would try to calm him down when she observed this behaviour.

[29] Ms. MacMullin also testified to Mr. Douglas' initiative in trying to resolve an overpayment issue with Wasteco. The episode, as described by Ms. MacMullin, clearly attests to Mr. Douglas' honesty and self-restraint when met with unfounded allegations and his forbearance in the face of efforts by yet another member of management to provoke him.

[30] A fourth current Wasteco employee, Ray Zekas, testified at the behest of Mr. Douglas. Mr. Zekas had known Mr. Douglas for about 25 years and, up until the time Mr. Douglas was fired, had occasionally socialized with him outside of work hours. Mr. Douglas would sometimes "speak his mind" and appear agitated, but he too had never heard Mr. Douglas threaten to cause harm to himself or anyone else. Mr. Zekas was also a gun-owner and hunter, but nothing in Mr. Douglas' conduct or speech ever caused him concern that he would misuse his weapons. He had never seen Mr. Douglas drink to excess.

(f) Post-September 11, 2008: Mr. Douglas' Account

[31] Mr. Douglas retained a real estate agent within a day of his discharge from TWH on September 12, 2008. He bought a house for his daughter, her children and his former wife in Bancroft on November 13th of that year. He helped his wife move in that day. Apart from a couple of occasions, he never returned to that home. He has not spoken to his former wife Janice or his daughter Theresa since February 2010. He only occasionally speaks to his son. He no longer owns the house in Bancroft. At the time of the hearing, Mr. Douglas continued to live with and care for his elderly father. Mr. Douglas endeavoured to return to work at Wasteco on November 23, 2008. He was terminated the next day.

[32] Since about 2000, Mr. Douglas has had the same family physician, Dr. Aaron Hotz, who he sees once a month on average. Mr. Douglas' self-reported alcohol consumption was much reduced since September 2008: from six beers a day to approximately six beers a week, at most. He agreed that, contrary to the TWH Discharge Summary recommendations, he had not pursued a program for alcohol abuse. Mr. Douglas attributed this to, first, not having an alcohol abuse problem and, second, to Dr. Hotz never recommending that he enroll in such a program. He would attend such a program if Dr. Hotz referred him to one.

[33] Mr. Douglas, now 54, had considered other work possibilities after being terminated by Wasteco but his physical disabilities limited his options. He had not been gainfully employed since September 2008. He survives on provincial disability payments (ODSP), is entitled to a pension he soon hopes to collect, and anticipates receiving CPP payments in the near future. He is careful about his money and spends his days visiting the library, reading, walking and helping his father. He went hunting with a friend in Nova Scotia (from whom he borrowed a rifle) in October 2010, but he has not repeated the activity as his federal gun card expired in 2011. He wants to return to recreational hunting but he recognizes this depends on the renewal of his federal gun card which, in turn, may well depend on the disposition of this application. Although he once enjoyed fishing, he can no longer pursue this sport as it exacerbates his back condition. Similar physical risks attend hunting with a bow and arrow.

(g) Mr. Douglas' Family Physician: Dr. Aaron Hotz

(i) Introduction

[34] Dr. Aaron Hotz has practiced family medicine for the past 17 years. Before entering medical school Dr. Hotz secured a Masters Degree in clinical psychology from the University of Toronto and then worked in halfway houses, including approximately two years with persons suffering from mental health problems. His medical education, also at the University of Toronto, included training and rotations in psychiatry. Dr. Hotz had been Mr. Douglas' primary care physician since February 28, 2001.

(ii) Pre-September 2008

[35] Mr. Douglas visited Dr. Hotz approximately monthly in 2008. Prior to his entry into the FRP in September of that year, Mr. Douglas was dealing with chronic, severe back pain, family stressors and a sense of occupational grievance. He was also experiencing some depression but, in Dr. Hotz' professional opinion, it was situational and appropriate rather than chronic or pathological. On a single occasion in 2005, Mr. Douglas had discussed an experience of suicidal ideation that Dr. Hotz interpreted as fatalism rather than intentionality. He had discussed a psychiatric referral with Mr. Douglas at the time. Mr. Douglas never revisited this option nor, in Dr. Hotz' estimation, was there any reason to do so. Overall, Dr. Hotz saw no signs of obsessive thinking or behaviour. He was aware that Mr. Douglas was prepared to confront those who provoked him, but his confrontations were verbal rather than physical.

[36] Long before 2008 Dr. Hotz had prescribed a low dose of an SSRI (selective serotonin reuptake inhibitor) to address Mr. Douglas' moderate depression and anxiety. Dr. Hotz was also aware that Mr. Douglas was a hunter and possessed firearms. (He had once been the beneficiary of a gift of deer meat.) Over the years Dr. Hotz had alerted the authorities about patients who he feared might cause harm to themselves or others and had issued Form 1s on several occasions. He had no similar concerns respecting Mr. Douglas and had never considered institutionalizing him for psychiatric assessment.

[37] Dr. Hotz had read both the intake Assessment Report and Discharge Summary prepared by the TWH respecting Mr. Douglas. He found the characterization of Mr. Douglas as someone at risk of harming himself or others to be, "surprising", "out of character" and inconsistent with his own clinical assessment. It was also inconsistent, in Dr. Hotz' view, with Mr. Douglas' forward planning which, in September 2008, included the buying of a house that he subsequently did purchase. Nor had Mr. Douglas ever presented as labile or as a problem drinker (there was no clinical or laboratory evidence of liver-toxicity) or as one who used alcohol as a coping mechanism. Indeed, it remained Dr. Hotz' impression that Mr. Douglas rarely drank to excess except on occasional weekends. Reading the two TWH reports did not change Dr. Hotz' personal assessment of Mr. Douglas' psychological wellbeing.

(iii) Post-September 2008

[38] Dr. Hotz had a scheduled visit with Mr. Douglas a few days after September 11, 2008. He testified that Mr. Douglas expressed some degree of frustration with his institutionalization but otherwise presented "as usual". In a May 2009 letter to Mr. Douglas' counsel, Dr. Hotz afforded a more dramatic description of Mr. Douglas as someone who was "angry, upset and deeply affected" by his apprehension. In any event, Dr. Hotz had no concerns for the safety of Mr. Douglas or others at that time. There were no material changes, Dr. Hotz testified, in his assessment of Mr. Douglas in the past five years: in short, Mr. Douglas does not represent a danger to himself or others, nor would he even if there was a recurrence of the stressors to which he was exposed in 2008. Dr. Hotz had discontinued prescribing Mr. Douglas SSRIs several years earlier and no longer prescribed him any pharmaceuticals for either cognitive or affective issues. Historically, Mr. Douglas would always return any unused portions of his prescribed medication.

[39] Dr. Hotz currently sees Mr. Douglas every six to eight weeks. In his professional opinion, Mr. Douglas is not a threat to himself or others, with or without firearms. He had seen Mr. Douglas weather severely stressful situations without harming himself or anyone else. Further, Mr. Douglas' current pressures were less stressful than those weighing on him in 2008. Mr. Douglas was not a social isolate, he had support in his community and he enjoyed a stable domestic situation in so far as he had lived with his father and stepmother for the past five years. Mr. Douglas "worries" about his aging father, but Dr. Hotz read this as an appropriate response to a "caring relationship" rather than reflecting any pathological condition.

[40] Dr. Hotz had not urged Mr. Douglas to adopt any of the recommendations emanating from the TWH discharge report as he did not believe they were necessary. He conceded that his view as to therapeutic participation might well be different if he had personally witnessed some of the behaviour described in the Discharge Summary. Unlike the FRP team, Dr. Hotz believed that back pain and occupational insecurity, rather than any free-floating anxiety, were the source of Mr. Douglas' problems. Further, Mr. Douglas' financial stress had recently been reduced as a result of a regular ODSP allowance and the prospect of WSIB retraining.

(h) The Civil Litigation Sidebar

[41] The events surrounding his Form 1 institutionalization and the seizure of the weapons and ammunition led Mr. Douglas to launch civil suits against the FRP doctors and the TWH and, in Small Claims Court, PC Trotter. These legal actions remain unresolved. According to Dr. Lewis, the FRP first learned of the possibility of civil litigation in June 2009 when it received a request for copies of its clinical notes respecting Mr. Douglas. Dr. Lewis thought this "odd". Concerned that this request might bear legal consequences, he called Dr. Hotz to discuss Mr. Douglas' motivation. Dr. Hotz, he said, later left a cryptic voice mail effectively confirming the possibility of legal action.

[42] Dr. Hotz had a somewhat dissimilar recall of this exchange. He first heard from Dr. Lewis on September 11, 2008 when Dr. Lewis called to advise that Mr. Douglas had been "formed". Dr. Lewis called again some time later. He expressed "concern" about the risk of litigation as a result of what had occurred and, in particular, wanted to know whether Mr. Douglas intended to take him to court. Dr. Hotz was a "little surprised" by the second call. He had, it appears, some reservations about the ethical propriety of Dr. Lewis' inquiry. As set out in Dr. Hotz' letter of May 5, 2009 to Mr. Douglas' then-counsel, and adopted in the course of his testimony:

Dr. Lewis was not opposed to my informing Mr. Douglas of this conversation and was amenable to my acting as liaison if necessary. I notified Mr. Douglas of this conversation and was instructed not to communicate with Dr. Lewis. I did however have permission from Mr. Douglas to inform Dr. Lewis of this decision. Further to this I left a telephone message for Dr. Lewis explaining that communication between us without Mr. Douglas' permission was unauthorized.

C. ANALYSIS

(a) Introduction

[43] The law respecting the state's forfeiture of registered firearms has attracted substantial jurisprudential attention. Fortunately, the contours of the legal architecture require no great elaboration in the circumstances of this case. Accordingly, I first set out my understanding of the legal framework that governs this application. I then distill the salient facts from the evidence. And, finally, I apply the law to the facts to resolve the question before me.

(b) The Legal Framework

[44] The Crown seeks an order forfeiting to the Queen the firearms and ammunition seized from Mr. Douglas and an order prohibiting him from possessing these and similar weapons for the next five years. This application is brought under s. 117.05 of the Criminal Code. Pursuant to sub.-s. (4) of that provision:

Where, following the hearing of an application made [for an order for the disposition of the thing … seized], the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall

(a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and

(b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order. [Italics added.]

Clearly, what is contemplated in the case of a Crown application for forfeiture of, as here, seized firearms and ammunition, is a hearing in which the presiding justice determines on the basis of "all relevant evidence" (sub.-s. (3)) whether it is "not desirable" in the interests of the safety of the subject of the application (here, Mr. Douglas) or others that the subject should possess firearms or related weapons. If so determined, the justice shall then order the forfeiture sought and, if warranted by the circumstances, prohibit, here, Mr. Douglas from possessing any such weaponry for up to five years.

[45] Some procedural rules governing s. 117.05 applications appear settled. First, as said by the Court of Appeal in R. v. Peacock-McDonald, 2007 ONCA 128, 218 C.C.C. (3d) 257, at para. 40: "s. 117.05(4) requires the determination of the sufficiency of the evidence relied upon to support a forfeiture order as at the date of the forfeiture hearing, rather than the date of the commencement of the forfeiture application". Second, while the burden of establishing the statutory requirements for the orders sought rests on the Crown, the standard of proof is the civil threshold of proof on a balance of probabilities rather than the conventional criminal standard of proof beyond reasonable doubt: R. v. Zeolowski, 50 C.C.C. (3d) 566, at para. 17. And third, while hearsay evidence is admissible at such hearings, "in considering its weight, the judge must scrutinize the evidence to ensure that it is credible and trustworthy": R v. Zeolowski, supra, at para. 18.

[46] Less straightforward is the meaning of the critical words "not desirable" in sub.-s. (4). Unbound, as they are, by any statutory qualifiers such as "reasonable" or "appropriate", the standard of "desirable" (or "not") appears, at least on its face, to invite a judicial discretion so broad as to countenance subjectivism in the exercise of judicial wisdom. The better interpretation, from my perspective, draws on similar statutory language employed in the Code's surrounding regime governing the possession and control of firearms. In s. 117.04, for example, the issuance of a judicial warrant for the seizure of firearms which are then subject to a s. 117.05 forfeiture application may proceed only where the justice is satisfied that "there are reasonable grounds to believe ... that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon …". (Emphasis added.) If the temporary seizure of weapons requires a judicial assessment of the reasonableness of the contextualized non-desirability of a person's possession of those weapons, it seems both sensible and logical that a state application to permanently divest the same person of the very same weaponry would require the application of at least as onerous a standard – that is, reasonable grounds to believe ... that it is not desirable in the interests of the safety of the subject person, or of any other person, for the subject person to possess the weapon. Any other interpretation risks substituting subjectivity and arbitrariness for objectivity and reason. Indeed, Crown counsel rightly acknowledges that a standard of reasonableness must attach to a proper application of the test of "not desirable" in s. 117.05(4).

[47] The word "desirable" is itself fraught with problems. In R. v. Hurrell, 166 C.C.C. (3d) 343, the term was attacked as "unconstitutionally vague" in the context of the firearms search provisions in s. 117.04. The language of that provision, as I have already noted and unlike that set out in s. 117.05, expressly includes the qualifying phrase "reasonable grounds to believe". Given my interpretation of the necessary inclusion of an objective standard in the latter provision, the Hurrell Court's conclusion, as authored by Moldaver J.A. (as he then was) at paras. 45 and 48, seems apposite:

The word "desirable" is not a free-standing criterion. It is an adjective firmly anchored to the objective concept embodied by the words "reasonable grounds to believe", which precede it, and the public safety concept contained in the words "the interests of the safety of the person, or of any other person", which follow it.

…

… when the words "not desirable", which in my view simply mean "not advisable", are read in context, they can hardly be described as so subjective, vague and amorphous that they fail to provide an adequate basis for legal debate. [Emphasis added; citations omitted.]

[48] I confess to having difficulty locating any materially greater legal clarity or direction in the words "not advisable" than I do in the words "not desirable". Neither expression of the legal standard fits comfortably with the adjudicative work normally conducted by criminal court judges. More immediately helpful is the guidance afforded by Durno J. in the more recent case of R. v. Day, [2006] O.J. No. 3187 (S.C.J.). As said at para. 36 of the Day case: "the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners". (See also, R. v. Morgan, [1995] O.J. No. 18 (Prov. Div.); R. v. Biscope, [2001] O.J. No. 628 (S.C.J.) and R. v. Shannon, [2005] O.J. No. 1653 (S.C.J.).)

[49] However, R. v. Hurrell, supra, remains of practical utility through its endorsement of certain regulatory criteria as properly applicable to the risk-assessment analysis inherent in the Crown's application. As said by Justice Moldaver at para. 48:

Finally, to the extent that the police or the issuing justice need a framework within which to assess the "non-desirability/public interest" component of s. 117.04(1), Parliament itself has provided guidance in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39. These provisions deal with the eligibility for holding a firearms licence and read as follows:

5(1) 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) 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 6(1) or (2) or 7(1) or (2) of the Controlled Drugs and Substances Act;

(b) has been treated for 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.

(c) Assessing the Evidence

[50] There are many inconsistencies in the evidence led on this application. Mr. Douglas' account of the storage of the firearms and ammunition seized at his home contradicts some of PC Trotter's testimony. The impression conveyed by PC Trotter as to Mr. Douglas' workplace reputation for gun-enthusiasm, emotional volatility and potential dangerousness is also very different from that consistently reflected in the evidence of Mr. Douglas' former coworkers, some if not all of whom were clearly PC Trotter's "confidential" sources. Mr. Douglas' account of his involvement with the FRP and, in particular, the events of September 11, 2008, significantly departs from that afforded by Dr. Lewis and the clinical notes and TWH intake and discharge reports on which Dr. Lewis relied while testifying. Dr. Lewis' evidence as to his post-September 11th exchange with Mr. Douglas' family physician differs materially from Dr. Hotz' recall. And, of course, Dr. Lewis and Dr. Hotz have discrepant clinical impressions and professional assessments of Mr. Douglas.

[51] Some of these inconsistencies are easily resolved. Some others are of no substantial moment. As to the storage of the weapons, for example, Crown counsel rightly concedes that there is no reason to reject Mr. Douglas' account of their vigilant safekeeping. Similarly, I much prefer the direct recall of Mr. Douglas' former co-workers as to his relatively benign conduct, demeanour and character to the much more disconcerting hearsay portrait painted by PC Trotter. None of the workplace witnesses called by the Crown shared any social life with Mr. Douglas and the two in managerial positions had historically fractious relations with him, yet none expressed any tangible fear or concern for themselves or others, or certainly none that compelled them to alert others or even take any personal precautions. Indeed I found Arlene MacMullin, the third former co-worker called by the Crown, a refreshingly candid, sensitive, balanced and, in the end, reliable witness as to Mr. Douglas' reasonableness and restraint.

[52] The differing testimony of the two doctors as to their exchanges after the Mr. Douglas' Form 1 apprehension and psychiatric assessment has little impact on my evaluation of either's credibility. I agree that Dr. Lewis may fairly be seen as interested party in these proceedings as he is a defendant in a separate but related civil action brought by Mr. Douglas. There is also something unseemly, at minimum, about Dr. Lewis' efforts to garner some insight into Mr. Douglas' litigative intentions by contacting his personal physician, Dr. Hotz. However, most of Dr. Lewis' testimony was founded on and generally consistent with the clinical notes and impressions of others on the FRP team as chronicled in real time and before he, Dr. Lewis, signed off on the Form 1. Further, the TWH Discharge Summary appears to have been prepared before Dr. Lewis first learned of Mr. Douglas' requests for his hospital records.

[53] I accept most of the TWH documentation of Mr. Douglas' participation in the FRP and Dr. Lewis' recall of his personal interaction with Mr. Douglas on September 11, 2008. Given the nature of the information he had received about Mr. Douglas that day, his limited but worrying exchanges with Mr. Douglas, the team accounts and his own observation of Mr. Douglas' alcohol consumption, anxiety, agitation and threatening verbalizations, I find that Dr. Lewis' concern that Mr. Douglas might decompensate and constitute a risk to himself or others is at least understandable. So too, I find, was Dr. Lewis' issuance of a Form 1 once Mr. Douglas appeared to evade his efforts to attend at the hospital's emergency psychiatric services. To be very clear, I am not here assessing the legal or professional propriety of Dr. Lewis' conduct in signing a Form 1. I am, however, of the view that Mr. Douglas' documented conduct on September 11, 2008 at least raised clinical and public safety concerns. Mr. Douglas' apparent evasion of the staff's more probing questions and the team's failure to then contact his family physician for a more dynamic or historical overview likely contributed to the decision to intervene by way of his apprehension and compelled psychiatric assessment.

[54] Mr. Douglas, by his own account and that tendered through Dr. Hotz, was in a particularly stressful period of his life. He declined, however, to accept that he experienced "anxiety", a denial I attribute to his effort to resist pathologization. His insistence that he never demonstrated anger seems a product of a related psychological matrix and one arguably reflective of limited insight. To be clear, I am not here endeavouring my own psychological assessment of Mr. Douglas. My point, rather, is that I find elements of minimization and rationalization in Mr. Douglas' narrative of the events surrounding September 11th. I am more confident of his testimony when it is confirmed, at least generally, by the accounts of others. There is, in fact, much direct and indirect support for Mr. Douglas' overarching narrative through the agency of his former co-workers and his personal physician, Dr. Hotz. However, the disparate features of his account of the events of September 11th are not similarly confirmed.

[55] As I have already indicated, based on Dr. Lewis' evidence and that set out in the TWH reports, I accept that there was at least a clinical basis for concern about Mr. Douglas' risk potential on September 11, 2008. That period, however, is but a snapshot – if a cautionary one – of Mr. Douglas' character and dangerousness. The bigger picture, canvassing more than a decade of Mr. Douglas' life, is provided by Mr. Douglas himself and as largely confirmed by Dr. Hotz. In essence, Mr. Douglas is man who has endured a number of personal crises – physical, familial, occupational and financial. He has, throughout, sustained himself, avoided criminal misconduct or other forms of deviant, self-destructive or violent behaviour, and maintained a trusting therapeutic relationship with, in my view, a caring and intelligent doctor who is sensitive to the stressors in Mr. Douglas' life and his capacity to respond to them. Further, Dr. Hotz' encouraging assessment of Mr. Douglas is not only historically rooted but reflects a currency that, by virtue of their brief, limited and dated exposure, necessarily escapes Dr. Lewis or any member of the FRP team. Dr. Hotz may appear compassionate towards Mr. Douglas but, in my view, he is not sentimental nor would he support the possession of firearms by any patient who constituted a physical risk to himself or others. In his view, Mr. Douglas is not a danger to himself or others. I find no reasons to dismiss or discount Dr. Hotz' opinion in this regard.

(d) Applying the Law

[56] I begin with the obvious: firearms are dangerous. Their possession by persons who are unstable or disposed to physical anger, violence, intemperate behaviour or poor impulse control cannot be countenanced. In the language of s. 117.05(4), such persons' possession of firearms is "not desirable". In applying this provision one must not forget, as said analogously of s. 117.04(1) in R. v. Hurrell, supra, at para. 31, that it "is preventative in nature. Its primary purpose is the prevention of serious injury and death resulting from the use of firearms and other dangerous objects."

[57] Critically, and as noted earlier, the assessment under s. 117.05(4) is to be made at the time of the hearing of the Crown application, not the date on which the events giving rise to the application occurred or the date the application was filed. Put otherwise, the test as set out in R. v. Day, supra, of "whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners" is to be applied in the present tense. Following R. v. Hurrell, supra, the application of this test is guided by the criteria set out in s. 5(2) of the Firearms Act. I also take into consideration the factors recently outlined in R. v. Vardomskiy, 2013 ONSC 4113, at paras. 78-79, to the degree that they are relevant to the immediate application.

[58] Having conducted this exercise, I am not satisfied that the statutory standard necessary to invoke the orders sought has been established. Expressed in the relevant statutory language, I do not find that it is not desirable in the interests of the safety of Mr. Douglas or of any other person that Mr. Douglas should possess any firearms, nor am I satisfied that the circumstances warrant Mr. Douglas being prohibited from possessing such weapons for any period.

[59] I reach this conclusion for the following evidence-based reasons:

• The incident that gave rise to the police investigation reflects a troubling sequence of events that occurred some five years ago, in September 2008. There has been no recurrence.

• At worst, Mr. Douglas' conduct, even then, reflected immoderate language, ambiguous threats and worrying levels of anxiety and agitation.

• Sport hunting aside, there is no evidence before me of Mr. Douglas ever having committed an act of physical violence. The only violence associated with Mr. Douglas is a police report in which he is the documented victim – not the perpetrator – of a workplace assault.

• Mr. Douglas has no criminal record.

• Mr. Douglas has never been the subject of a weapons prohibition order or, it appears, a recognizance to keep the peace.

• Mr. Douglas does not use illicit drugs. He returns any unused balance of his prescriptions to his doctor.

• Mr. Douglas has never been diagnosed with a major mental illness. While he has exhibited anxiety and moderate depression, his family physician's opinion is that these conditions are situational, appropriate and managed rather than chronic or pathological.

• Mr. Douglas has never been treated for a mental illness.

• Mr. Douglas' only institutionalization was for assessment purposes in September 2008 and pursuant to a Form 1. He was found not to be a danger to himself or others and released the following day.

• Despite continuing stress and his anger respecting his Form 1 apprehension in September 2008, Mr. Douglas exhibited no violent, threatening or other behaviour that raises concerns for his own or public safety during the six months between his psychiatric assessment and the police seizure of his weapons. Nor has he displayed any worrying behaviour in the more than four years that have since followed.

• When finally seized by the police, Mr. Douglas' firearms and ammunition were stored in a careful, safe and secure manner.

• Mr. Douglas has pursued his grievances through litigation. Whether or not his civil actions are ultimately found meritorious, his patient use of the judicial system to seek redress – rather than any self-help remedies – speaks to a socially responsible reaction to a subjective sense of injustice.

• Mr. Douglas possessed only long guns and used them exclusively for sport hunting.

• Mr. Douglas' family physician, Dr. Hotz, has continuously served as Mr. Douglas' primary health care provider for more than a decade. He is familiar with the TWH's 2008 reports respecting his patient. In his professional opinion, with or without firearms Mr. Douglas does not constitute a physical risk to himself or others.

D. CONCLUSION

[60] For the reasons just set out, I decline the Crown's application for the firearms orders sought under s. 117.05 of the Criminal Code.

Released on November 26, 2013

Justice Melvyn Green