Court Information

Ontario Court of Justice

Her Majesty the Queen v. George Mourtzis

Before: The Honourable Justice W. Horkins

Date: January 22, 2015, at Toronto, Ontario

Appearances

Counsel for the Crown: N. Krigas

Counsel for George Mourtzis: J. Koumarelas

Ruling

Background

The Crown has applied pursuant to section 117.05 of the Criminal Code for an order for the disposition of a collection of 16 shotguns seized by the Toronto Police Service on April 2, 2014. These guns belong to the respondent George Mourtzis.

If the disposition order is made, the Crown also applies for an ancillary general weapons prohibition pursuant to the same sections of the Criminal Code.

At the time of the events leading to the police taking possession of this collection of guns, there was some tension in the relationship between Mr. Mourtzis, his wife and his adult children. A particular issue had arisen as a result of his daughter and wife having discovered in his mobile phone numbers of certain escort services. These discoveries were the subject of concern, domestic arguments and a confrontation immediately leading up to and triggering the events in question.

What precipitated the police involvement was Mrs. Mourtzis contacting the police and reporting that her husband George had left their home "with his belongings including shotguns and rifles," to use her expression, and she had no idea where he had gone. He had made certain utterances on his way out which led her to believe that he meant harm to himself. She feared that he had gone to commit suicide. She provided the police with the details of her husband's car and license plate. She told the police that her husband had become unstable, was separating from her and that he had left a suicide note with a friend. She also advised the police that her husband had threatened suicide.

Amongst the other information provided to the police was Mr. Mourtzis' cell phone number. With that and the assistance of the cell phone provider, the police were able to locate the phone and as a result, locate Mr. Mourtzis. He was parked down at Cherry Beach, found in his vehicle facing the water having a coffee. There were no firearms in the car and no indication that he was contemplating immediate harm to himself or anyone else. He did appear despondent.

And so, considering the information provided by the family, the police apprehended Mr. Mourtzis under the Mental Health Act and took him for an assessment with which he cooperated fully, was assessed and released the following day.

Meanwhile, Mrs. Mourtzis had had her son-in-law come over to the home, collect and take away all of the firearms and ammunition with the intention of the son-in-law holding them for safekeeping. The police quite appropriately went and collected these firearms from the son-in-law and have held them ever since pending this application.

At the hearing, the Crown filed a brief of materials including the application itself, the return of the seized property, a report detailing the seizure material includes an inventory of the firearms related property, and a useful summary of the police activity surrounding the seizure of the guns. This material provides the factual background to the bringing of the application.

The Hearing

George Mourtzis gave viva voce evidence and filed testimonial affidavits from a friend and from his family physician. The affidavit of Anastasio Georgopoulos who is a friend of 14 years and has hunted with Mr. Mourtzis many times over the past five years states his opinion that Mr. Mourtzis is a very responsible gun owner. He has never known him to be reckless or dangerous in handling or carrying his firearms and states in his affidavit that he knows of no mental health issues affecting George Mourtzis.

The affidavit of Dr. Dracopoulos provides a report in the form of a letter dated August of 2014 which was filed at the hearing. In that report the doctor states: "In terms of his mental health this patient did not show in the clinic any aberrant behaviour except at times moderate irritability and frustration and no violent anger." The doctor states he has no concerns about Mr. Mourtzis' mental health.

Mr. Mourtzis gave evidence at the hearing. As stated, he did so viva voce under oath and subject to cross-examination. Mr. Mourtzis is an avid recreational hunter. This is why he has a collection of shotguns gathered over the years. His impression from his evidence was that he uses some and others are simply a collection. They are all lawfully possessed, kept in good repair, stored safely in accordance with all of the appropriate rules and regulations surrounding possession of these firearms.

With respect to these events he explained that he and his wife were having issues at the time, that she was quite upset with him. He explained that all of this concern within the family stemmed from this business with the escort agency numbers on his cell phone. He said that his wife was threatening to leave him and have the house sold and that he was becoming quite frustrated with the situation. Mr. Mourtzis explained that these escort agency phone numbers were in his cell phone. They were there as a result of his hunting pals joking around and phoning these numbers using his phone and that this was at the root of the misunderstanding that his daughter and wife had and his frustration in their refusal to accept this explanation.

On the date that all of this came to a head there was a confrontation, heated discussion, between Mr. Mourtzis and his wife and he left the home. He does not take serious issue with the fact that he may have made utterances at the time which caused her distress. He drove down to Cherry Beach to find some peace and quiet and when the police arrived, he was simply sitting there contemplating the situation.

Mr. Mourtzis was adamant that he had no intention of causing harm to himself or anyone else. There is no suicide note. There were no firearms in his car. In fact, as stated, all of the guns had been collected the previous day by his son-in-law. Mr. Mourtzis cooperated fully with the police in surrendering into custody and cooperating with an assessment.

The Law

In determining the issue before the Court, I have instructed myself in accordance with the plain reading of section 117.05 of the Criminal Code. As well, I have reviewed a number of precedential cases considering this and related provisions of the Criminal Code.

The relevant portion of section 117.05 reads as follows:

(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or...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...; and

(b) where the justice is satisfied that the circumstances warrant such an action, order the possession by that person of any weapon [and that sets out other items], be prohibited during [a] period, not exceeding five years...

In other words, make a general weapons prohibition order. The section also provides that where the order is not made, that the court provide a statement of reasons.

The following cases have been considered:

• R v. Douglas, 2013 ONCJ 649
• R v. Zeolowski
• R v. Day, [2006] O.J. 3187 (S.C.J.)
• R v. Bokhari, [2009] O.J. 5975 (O.C.J.)
• R v. Morgan, [1995] O.J. 19 (O.C.J.)
• R v. Shannon, [2005] O.J. 1653 (S.C.J.)
• Karatopis v. Ontario, [2014] O.J. 6137 (S.C.J.)
• R v. Wiles, 2005 SCC 84
• R v. Peacock-McDonald, 2007 ONCA 128
• R v. Barnes, 2011 ONCJ 419

The decision of Justice Melvyn Green in R v. Douglas eloquently canvasses the principles required to decide this application. Having reviewed the same case law as my colleague Justice Green I adopt his observation at Paragraph 43 that:

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.

Section 117.05 of the Criminal Code directs me to determine whether it is "not desirable" in the interest of the safety of the subject of the application, that is Mr. Mourtzis, or others, that is the public, including his family, that the subject should possess firearms or related weapons.

The onus of proof on this application is on the applicant, the Crown.

The standard of proof is the civil burden of proof on a balance of probabilities.

Strict evidentiary rules are relaxed and hearsay evidence that is considered credible and trustworthy is admissible at such hearings.

At Paragraph 46 of R v. Douglas, Justice Green discusses the meaning of the critical words "not desirable" in the context of this section and I adopt his conclusion that the test on such an application must be whether or not there are: "... reasonable grounds to believe ...that it is not desirable in the interests of the safety of the subject...[or other persons]...for the subject person to possess the [weapons in question.]"

The point in time at which this question is to be asked and answered is at the date of the hearing of the application, not at the point in time of the seizure.

As Justice Green comments at Paragraphs 47 to 48, this "not desirable" standard, or the judicially approved equivalent expression "not advisable" do not fit comfortably with the adjudicative work normally conducted by criminal court judges.

In the case of R v. Day, a decision of Justice Durno at Paragraph 36, he states this: "The appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners." Both Justices Green and Durno reference in their decisions the cases of R v. Morgan and R v. Shannon.

Justice Blacklock in the case of R v. Bokhari at Paragraph 10 makes this observation:

It is sufficient if there is a finding that there in fact exist legitimate concerns that the respondent lacks the responsibility and discipline the law requires of gun owners. It would appear that if such a state of affairs exists then given the inherent dangerous nature of firearms, it should be taken as following that the continued possession of such a person would pose the necessary danger to the possessor, or to other members of the public that is contemplated by the legislation.

Having reviewed these authorities, it is my conclusion that this is not a very high threshold of concern, which is understandable when you consider that unlike some neighbouring jurisdictions, the ownership, possession or use of firearms in Canada is not a right, but rather it is a very heavily regulated privilege which can be both granted and revoked by the State.

Analysis

Turning to apply these principles to the evidence put before me, I conclude in this case, and comfortably conclude, that the case has not been sufficiently made out for me to order Mr. Mourtzis to forfeit his otherwise lawfully entitled right of possession to his shotgun collection. To be clear, the record before me does not establish on a balance of probabilities that it is "not desirable" in the interests of the safety of either him or others that he possess these firearms.

I want to hasten to add that I have absolutely no hesitation in concluding that at the time of the events the Toronto Police Service officers involved in this case acted in a completely lawful, legitimate and reasonable fashion in their actions and investigation. At that time the seizure of this collection of firearms was based on credible reports that clearly established reasonable grounds to believe that it was both lawful and necessary to collect and hold these firearms pending a judicial determination of the advisability of their return to their owner.

Having said that, I equally have no hesitation in finding that the evidence presented by Mr. Mourtzis at the hearing of this application has clearly established his right to have his property returned to him.

While I may personally have difficulty understanding the need or desirability of anyone having 16 shotguns, it is not my place to impose that personal view on Mr. Mourtzis when he has complied with every regulatory and licensing requirement imposed by the licensing authorities, the legislature of the province and the Parliament of Canada.

At the core of this application is the question whether Mr. Mourtzis' possession of these shotguns poses a danger. I am satisfied that it does not, or, at least no more danger than all of the laws allowing and regulating the possession of such firearms recognizes, regulates and permits.

Mr. Mourtzis is a mature individual. He has for many years complied with all of the regulatory requirements for licensing, possession, use and safe storage of these firearms. The evidence before me is that he is a careful and conscientious hunter and gun owner. He not only follows safe gun handling practices but urges his hunting companions to do the same. There is no evidence before me that Mr. Mourtzis suffers from any mental illness or significant anger management issues. In fact, the evidence is that he does not. He has no criminal record. There are no allegations against him of violent behaviour. At the time of being apprehended by police, he was fully cooperative and compliant. He continued on his own initiative to fulfill a psychological assessment and has provided that at the hearing through his doctor.

In assessing Mr. Mourtzis' behaviour on the date in question, I have the reported concerns expressed to the police back at the time of the events and I have the evidence of Mr. Mourtzis. I have had the advantage of hearing and seeing Mr. Mourtzis give evidence, viva voce under oath and subject to cross-examination. Where his evidence conflicts with the information or characterization of the events as reported to the police and through them in the material filed, I prefer his version and characterization of the events.

As a witness, Mr. Mourtzis struck me as being frank and forthright in his evidence and I accept his evidence that he means no harm to himself or others, not then, and not now. To put a point on his assurances, he advised the Court that he had survived multiple bypass heart surgery a few years ago and having made it through that, and survived, he has no intention of taking his own life now.

Decision

This application is dismissed. Mr. Mourtzis is entitled to the return of his gun collection after the appropriate review period has expired.

Those are my reasons.

Released: January 22, 2015

Justice W. Horkins