Court File and Parties
Court File No.: Simcoe 17-205 Date: 2018-05-22 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Don Roman
Before: Justice Joe P.P. Fiorucci
Heard on: May 4, 2018
Reasons for Ruling re: Section 111 Criminal Code Prohibition Application
Released on: May 22, 2018
Counsel
Lynette H. Fritzley — counsel for the Crown/Applicant
Albert E. Smelko — counsel for Don Roman/Respondent
Decision
A. Introduction
1On May 15, 2018, by way of oral reasons, I prohibited the Respondent, Don Roman, from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of three years, pursuant to section 111 of the Criminal Code. I advised the parties that written reasons would follow. These are my written reasons.
2At the commencement of the hearing of this Crown application, there was some confusion as to whether the application was being brought pursuant to section 111 of the Criminal Code or section 117.05(4) of the Criminal Code. That confusion likely stemmed from the fact that the Norfolk Ontario Provincial Police are currently in possession of two firearms which belong to Mr. Roman, a Cooey 12 Gauge single shot shotgun and a Chinese SKS rifle (hereinafter "the Firearms").
3These Firearms were seized by the police on or about February 2nd, 2017. At that time, the Firearms were in the possession of Mr. Roman's brother-in-law, Timothy Sherk. Mr. Sherk voluntarily provided the Firearms to the police for reasons that will be outlined below. The police commenced a section 117.05 Criminal Code application against Mr. Sherk. The resolution of that application had no bearing on the issue that needed to be determined in this application, which was whether, pursuant to section 111 of the Criminal Code, Mr. Roman should be prohibited from possessing firearms and the other items listed in that section, and if so, for what period of time not exceeding five years.
4The Crown did not seek an Order for the forfeiture and disposition of the Firearms, pursuant to section 117.05(1) of the Criminal Code. On May 15, 2018, when I made the prohibition Order, I also signed an Order, jointly submitted by Crown counsel and Mr. Roman's counsel, which permits Mr. Roman to transfer the Firearms to a properly licenced third party.
B. The Evidence
Timothy Sherk
5The first witness called by the Crown was Timothy Sherk, the brother-in-law of Mr. Roman. His sister, Mrs. Jodi Roman, is married to Mr. Roman. Mr. and Mrs. Roman are currently separated and involved in divorce proceedings. Mr. Sherk has known Mr. Roman for over ten years.
6Mr. Sherk is a licenced firearms owner. Mr. Roman was also licenced to own firearms. Sometime in the summer of 2016, Mr. Roman asked Mr. Sherk to "hang on to" the Firearms for him. Mr. Sherk and Mr. Roman met at a Tim Hortons in Tillsonburg. At that meeting, Mr. Roman gave his Firearms to Mr. Sherk for safekeeping. The Firearms were not loaded, and had trigger locks on them.
7This conversation at the Tim Hortons lasted an hour to an hour and a half. During this conversation, Mr. Roman advised Mr. Sherk that he was being treated for Post-Traumatic Stress Disorder (PTSD), that he was off work from his job as a jail guard at the Elgin-Middlesex Detention Centre, and that he was medicated.
8Although Mr. Roman did not go into great detail, he did tell Mr. Sherk that he was having violent thoughts; "imaginings of what he wanted to do to people." For example, Mr. Roman told Mr. Sherk that he was having thoughts about what he would want to do to somebody who made him angry driving, like pull the person out of his car and hurt him.
9During this conversation in the summer of 2016, Mr. Roman also told Mr. Sherk that he was not comfortable having the Firearms in his house. Mr. Roman said he would never hurt his family, but he didn't trust himself and wanted the Firearms out of his house. Mr. Sherk testified that Mr. Roman was very honest and was talking normally during this conversation at the Tim Hortons.
10After taking possession of Mr. Roman's Firearms in the summer of 2016, Mr. Sherk stayed in touch with Mr. Roman for a short while. However, at some point thereafter, Mr. and Mrs. Roman separated and Mr. Roman moved out of the matrimonial home. After the separation, Mr. Sherk did not have contact with Mr. Roman again, until February 2017.
11On or about February 1st or 2nd, 2017, Mr. Sherk received a text message from Mr. Roman, asking when would be a good time to pick up his Firearms. Mr. Sherk was not comfortable giving the Firearms back to Mr. Roman because of the conversation he had with him, in the summer of 2016, about his mental health, and the thoughts he was having at that time, which caused him not to trust himself to have the Firearms in his house. Mr. Sherk did not know if Mr. Roman had "gotten better". Mr. Sherk testified: "If I don't know, I'm not going to give them back."
12Mr. Sherk spoke with his sister, Mrs. Roman, about Mr. Roman's request to get his Firearms back. Mrs. Roman advised Mr. Sherk that she had just served Mr. Roman with papers seeking full custody of the children that day, or the previous day. Mr. Sherk advised Mrs. Roman that he would have to turn the Firearms in because they did not belong to him. Mrs. Roman contacted the police about this issue. The next day, the Norfolk O.P.P. took possession of the Firearms from Mr. Sherk.
13In cross-examination, Mr. Sherk acknowledged that Mr. Roman stored the Firearms safely when he had them in his home. Mr. Roman kept the Firearms in the basement, with trigger locks on them, and both were in cases. The Firearms were hidden in a cubby hole, behind a power distribution box.
14In cross-examination, Mr. Sherk disagreed with Counsel's suggestion that Mr. Roman was a careful "user" of guns. In re-examination, he explained this answer by stating that, on one occasion, at a family function, Mr. Roman was struggling to put shells in a shotgun; trying to put them in backwards. Furthermore, according to Mr. Sherk, when Mr. Roman gave him the Firearms, in the summer of 2016, the Firearms were not in a good state; they were covered in rust, so he had to clean and oil them before storing them.
Jodi Roman
15Mrs. Jodi Roman testified for the Crown. She is the estranged wife of Mr. Roman. Mr. and Mrs. Roman have two children, a 10-year old daughter and a 6-year old son. Mr. and Mrs. Roman separated on September 7th, 2016, after about ten years of marriage. They are currently embroiled in family law proceedings, which include issues regarding custody and support of the children.
16Mrs. Roman stated that her husband had a difficult job as a jail guard at the Elgin-Middlesex Detention Centre. In May of 2016, Mr. Roman came to Mrs. Roman's workplace to tell her that he had a breakdown at his work, needed to see a doctor, and was off work for a while. Prior to May 2016, Mrs. Roman hadn't noticed any signs of the breakdown coming, even though she was the person who spent the most time with her husband.
17After May of 2016, Mr. Roman was off work because he was not doing well mentally. Mrs. Roman described Mr. Roman as "really unwell" in the summer of 2016. He was very angry, full of rage, and he expressed thoughts of suicide and homicide. Mr. Roman's rage was mostly related to inmates. He would comment that, if he saw an inmate driving or at the park, he didn't know what he would do to him.
18One day, Mrs. Roman came home from work for lunch. Mr. Roman came home shortly after her, shaking with anger. He told Mrs. Roman that a lady looked at him "funny" at a store, which made him want to hurt the lady.
19In the summer of 2016, due to Mr. Roman's angry behaviour, Mrs. Roman did not leave the children at home alone with him. However, she was never concerned for her own safety because Mr. Roman had always been a protector of her and the children. During that period of time, when Mr. Roman expressed his anger, it was not directed at Mrs. Roman. Mr. Roman was not emotionally present, and the couple grew distant.
20Mrs. Roman recalled a conversation she had with Mr. Roman about the Firearms. He told her that he had asked her brother to take the Firearms because he didn't feel safe with them in the home, and just wanted them out.
21Mrs. Roman did not have any concerns with how Mr. Roman stored the Firearms in the home; they were safely locked up and the bullets were stored separately.
22In September of 2016, Mr. Roman told Mrs. Roman that he wanted to separate. Mr. Roman was not in a good mental state at the time. After the marital separation on September 7th, 2016, Mr. Roman started to direct his anger and bitterness at Mrs. Roman, and blamed her for the separation. According to Mrs. Roman, he sent her texts incessantly.
23After Mr. Roman moved out of the matrimonial home, Mrs. Roman did not see him for approximately two months, although they communicated by text messages. Mrs. Roman kept in contact with Mr. Roman's mother daily, because they were both worried about him. They didn't know where he went, who he was living with, or what he was doing. They also knew that he wasn't in a good mental state. Mrs. Roman testified that she didn't know if he was in the hospital, or in jail because he had hurt somebody, or if he had killed himself. At times, Mr. Roman would check in with either Mrs. Roman or his mother to let them know he was okay.
24Family law proceedings were initiated in or around October or November of 2016. Those proceedings continued through the winter and into the spring of 2017, and are still ongoing.
25Sometime between February 1st and 3rd, 2017, Mr. Roman sent Mrs. Roman a text message. In this message, he asked her whether her brother, Mr. Sherk, had changed his cell phone number because Mr. Sherk was not responding to his request that the Firearms be returned. Mrs. Roman was immediately worried because she knew the state Mr. Roman was in when he had asked her brother to take the Firearms, and she wondered why he would want them back now. The timing of Mr. Roman's request also worried Mrs. Roman. Mr. Roman had just received correspondence from her lawyer which indicated that Mrs. Roman may be seeking full custody of the children.
26Mrs. Roman spoke with Mr. Sherk about her husband's request that his Firearms be returned. She told her brother that she did not want Mr. Roman to have the Firearms because she was worried that he asked for them just after receiving the family law paperwork. It seemed bizarre to Mrs. Roman that her husband had not asked for the Firearms at all up to that night, but was now asking for them. Mr. Sherk advised his sister that he was not giving Mr. Roman his Firearms back.
27Mrs. Roman was concerned about a possible confrontation between Mr. Sherk and Mr. Roman if Mr. Sherk did not respond to her husband's request. For instance, she was worried that Mr. Roman might go to Mr. Sherk's residence to confront him about the Firearms. Therefore, Mrs. Roman contacted the police to seek guidance on the issue, and to ask whether Mr. Sherk had to give the Firearms back. The police advised that they could seize the Firearms, in order to remove Mr. Sherk from the situation. Mr. Sherk provided the Firearms to the police.
28Mrs. Roman described the current mood of the family law proceedings as "not great", partly because her lawyer returned to Court in March of 2018 seeking child support. According to Mrs. Roman, she continues to receive text messages from Mr. Roman which direct blame and anger toward her, including a claim that it would be her fault if he loses his job because of this weapons prohibition application. Pursuant to Mrs. Roman's request, the police have spoken with Mr. Roman to advise him not to communicate with her, except for matters pertaining to the children. Mrs. Roman has told Mr. Roman that he is not welcome at the house. The two of them only communicate by text messages, and don't see each other except at pickups and drop offs of the children at a Tim Hortons.
29Mrs. Roman is worried about Mr. Roman having his Firearms now because she is the "root of his anger". She knows that he would store the Firearms safely, but she worries about his anger, his impulsiveness, and all of the blame he places on her. It is her opinion that Mr. Roman is a pretty high risk for suicide, and has all of the markers for suicide. She is also concerned that he could be a danger to others, if he has another breakdown.
30In cross-examination, Mrs. Roman acknowledged that, when she and Mr. Roman have seen each other for purposes of access to the children, there have been no issues regarding Mr. Roman's treatment of her.
Don Roman (the Respondent)
31Mr. Roman testified at the hearing of this application. He is 48 years old. He has been a jail guard at the Elgin-Middlesex Detention Centre for approximately nine or ten years. He acknowledged that it is a violent jail and his work is stressful.
32Mr. Roman obtained a firearms licence, but stated that he has no experience with guns. In fact, he has never shot the Firearms. He did not have a firearms licence or guns before his relationship with Mrs. Roman. His objective in getting the Firearms was to fit into her family. One of the Firearms was given to him by Mr. Sherk's father (presumably the Cooey). The SKS fascinated Mr. Roman because it has a bayonette at the end.
33Mr. Roman testified that the Firearms are dirty and rusty because he has never been taught to maintain them. He confirmed Mr. Sherk's evidence that, on one occasion, he was putting the shells in backwards because he had no experience with firearms.
34Mr. Roman does not like the picture that is being painted of him in this application. He feels that it is wrong that he is being set up to look like a dangerous person. He testified that he has done nothing wrong which would merit the Firearms being taken away from him.
35Mr. Roman testified that he is not a violent person. He has never threatened his wife or children, and has never hurt anyone. In fact, he is a very passive person, who always tries to negotiate with words, instead of coming "heavy handed". He has never been investigated at work for inappropriate use of force. For Mr. Sherk and Mrs. Roman to be concerned about his Firearms is ludicrous because he is not that kind of person.
36He described his marital relationship with Mrs. Roman as not very good. According to Mr. Roman, his wife was very distant throughout their marriage, which made him feel alone. He felt that she was not very supportive when he was diagnosed with PTSD. He acknowledged that, prior to his diagnosis, he was really angry and didn't know why. He was very confused, and described it as "almost like a fog in my head."
37Mr. Roman sought help for these feelings, which included consulting with a psychiatrist that his wife had recommended. Mr. Roman testified that Mrs. Roman has been employed by the Canadian Mental Health Association for between seven and nine years. Her employment duties there include taking calls from persons who are suicidal, and going out on calls with police if someone is acting erratically.
38In the summer of 2016, Mr. Roman gave his Firearms to his brother-in-law, Timothy Sherk. Mr. Roman testified that he did so because a friend told him that the police may take his Firearms due to his PTSD diagnosis. Mr. Roman was concerned that this would defeat his objective of passing the Firearms down to his son. According to Mr. Roman, he gave the Firearms to Mr. Sherk because he actually thought the police were going to come and take them away.
39In cross-examination, Mr. Roman denied the suggestion that he gave Mr. Sherk the Firearms because of his anger, and because he was experiencing homicidal thoughts. He also denied the suggestion that he didn't feel safe having the Firearms in his house. Mr. Roman stated that he had no thought of ever using the Firearms. He reiterated that his only concern was that the police would take the Firearms from him. His only objective was to hold on to his licence and to hold on to the Firearms, so that he could pass them down to his son.
40In cross-examination, Mr. Roman denied having "homicidal thoughts". He stated, "well one, it's not homicidal, like I wasn't about to kill anybody, I was frustrated with everything, like specifically inmates, and as soon as I had thoughts like that I sought help."
41Mr. Roman testified that when he was younger, he thought of suicide. He had these suicidal thoughts when he was a teenager. He noted that, at that time, alcohol was a contributing factor in him having those thoughts. When he was diagnosed with PTSD, he did not feel like living, and was really down, but was not going to commit suicide.
42Mr. Roman associated his PTSD with the inmates at the jail. When he would see inmates, he didn't know what he might do. However, he never acted out violently. Mr. Roman acknowledged that, at its worst, his mental illness made him think of harming people, including inmates at the jail. At those times of high anxiety and anger, he didn't know what he would do.
43Mr. Roman testified that he has never turned his anger toward his spouse or children. He stated the following: "I may not like Jodi, but I still love her."
44On or about February 1st, 2017, Mr. Roman asked Mr. Sherk to return the Firearms to him. Mr. Roman acknowledged that he asked for the Firearms back on the same day that he received family court papers which stated that his wife may want full custody of the children. He admitted that he was angry with his wife at that time, because he felt that she was "trying to take my children away." When he received the family law papers that day, he was also hurt that his wife did not want to work on the relationship.
45Mr. Roman maintained that he asked for the Firearms back because they were the only thing tying him to his wife's family, aside from the children. He was angry and wanted to break all communication with her family, so he asked for his Firearms back. He did acknowledge that he could see how people could read in to the timing of his request that the Firearms be returned. However, he stated that he did not associate getting the news about his wife potentially seeking full custody with his request for the return of the Firearms. He went on to say that he doesn't think he could have associated those two things at that time.
46Mr. Roman was asked what prompted him to seek the return of his Firearms the very day he received the family law papers. He responded: "I'll be honest with you, I have no clue. I can't sit here and lie. I don't know, but I never put them together. Yes I was angry about Jodi I felt at that time taking my children away". Mr. Roman again maintained that he asked for the Firearms back so that he could move on, and avoid having further contact with the Sherk family.
47In cross-examination, the Crown asked Mr. Roman why he was not concerned, in February 2017, that the police would take his Firearms. More specifically, the Crown asked when and how he had learned that the police would not take his Firearms. Mr. Roman stated that he could not answer that question because his memory was not as good as it should be, due to the "fogginess" he was experiencing at the time. He stated that although he is not in a fog now, he still doesn't remember everything that happened during that time period. Mr. Roman testified that, sometime prior to February 2017, he learned that the police would not take his Firearms away if they were returned to him, but he couldn't recall how, or from whom, he learned that information.
48Mr. Roman consulted with two psychiatrists before being referred to Dr. Mark Petter, a Psychologist who has been treating him since February 2017. Mr. Roman returned to modified work duties recently at the Elgin-Middlesex Detention Centre. His primary duty was to search for weapons and drugs in the kitchen and laundry areas after the inmates were locked in their cells. However, one night, he had contact with the inmate population, when he did rounds inside the units, and his "anxiety went through the roof." On this occasion, Mr. Roman was not able to control his breathing and anxiety. He described it as "over-exposure". Mr. Roman is currently off work due to this recent episode of anxiety at the jail. Mr. Roman views this as a little bit of a setback. His goal is to return to work as a correctional officer because he doesn't want his PTSD to defeat him. When asked how long he would keep trying to return to this stressful line of work, he stated that he would discuss that with Dr. Petter, who is working with him to help with triggers.
49Mr. Roman has access to his children every Wednesday, when he picks them up from school. He drops them off the next morning. Furthermore, he picks the children up every second weekend from a Tim Hortons, where he and Mrs. Roman meet for the drop off. Mr. Roman testified that there are no problems with these meetings because "[Jodi] doesn't even look at me."
50Mr. Roman acknowledged that dealing with the issues involved in the family law proceedings is stressful, and adds stress to his current employment issues. He expects that the family law proceedings will be complete in a few months or less. He stated that his wife's interpretation of how the two of them are dealing with each other is different than his; the two of them haven't been fighting, and he has not been frustrated with her lately.
51Mr. Roman testified that he is not in a fog now, but still has memory problems. His family physician oversees his prescriptions for the PTSD medications. He agreed that when he gets stressed and there are stressful triggers in his life, his PTSD comes out through anxiety. When asked whether it could go beyond anxiety, he replied, "I don't believe it will." Mr. Roman believes that now that he knows about his PTSD, he would never let it get to its worst point.
52Since being diagnosed with PTSD, Mr. Roman does not listen to the news because it makes him anxious and can be a trigger for him.
Dr. Mark Petter
53Dr. Mark Petter is a clinical Psychologist. The parties agreed that Dr. Petter was qualified to give evidence as an expert in the diagnosis, treatment and risk factors associated with PTSD, especially as it relates to Mr. Roman's case.
54PTSD is a trauma-related disorder that people develop as a result of either an "index incident," in which they or someone close to them is threatened with death or serious injury, or a more "cumulative trauma", where there are repeated threats. Dr. Petter testified that a largely held misconception is that PTSD is an incurable disease. PTSD is highly curable with the right treatment; it is not a life-long condition.
55Dr. Petter testified that Mr. Roman was being treated by two psychiatrists at St. Thomas General Hospital, and was discharged from their treatment in December 2016. At that time, Mr. Roman was transferred to his family physician, Dr. David Dixon, who managed his PTSD medications.
56Dr. Petter has been providing ongoing psychological assessment and treatment to Mr. Roman since February 2nd, 2017, related to the psychological difficulties he is experiencing as a result of his work duties as a correctional officer. Mr. Roman was referred to Dr. Petter by the Workplace Safety & Insurance Board (W.S.I.B.).
57In February 2017, Dr. Petter conducted an assessment of Mr. Roman and found that he met the diagnostic criteria for PTSD. Dr. Petter also diagnosed an alcohol use disorder that was in partial remission at that time, meaning that it had improved somewhat. This alcohol use disorder probably arose from Mr. Roman's efforts to cope with the PTSD symptoms and irritability. After Mr. Roman started his medications in December 2016, he reduced, if not ceased, his drinking.
58When Dr. Petter first met Mr. Roman, he was a fairly stereotypical first responder with PTSD. As part of his job, Mr. Roman would be threatened by inmates on a relatively regular basis, and would have seen violence amongst inmates. Mr. Roman also experienced a more acute incident one night when he was followed home from work by someone. After this acute incident, he felt unsafe at work, and that was being carried home. The irritability and anger that Mr. Roman was feeling would be classified as "hyper-arousal", resulting in him withdrawing from a lot of things like work and family.
59Dr. Petter testified that his initial assessment of Mr. Roman would have included risk assessments for suicidality and propensity for aggression. Dr. Petter's initial assessment of Mr. Roman, in February 2017, did not raise any concerns regarding harm to himself or others. Mr. Roman discussed with Dr. Petter the fears he had months prior to their first meeting in February 2017, including the fear of what he may do if he ran into an inmate on the street. At the initial assessment, Mr. Roman reported to Dr. Petter that he had come out of a bit of a fog after he started the medication. In Mr. Roman's opinion, things seemed more clear for him from December 2016 onwards.
60Dr. Petter's assessment of risk continues throughout his treatment of Mr. Roman. There are static risk factors that are assessed. For instance, if someone has a history of violence, they are more likely to be violent in the future. Younger men tend to be more violent than older men or women. Then, there are more dynamic risk factors, such as PTSD severity and substance abuse, all of which Mr. Roman has shown steady improvement with over time. Dr. Petter also assesses suicidality throughout treatment. Dr. Petter stated that he has a professional obligation to contact the authorities if he ever feels that Mr. Roman is a threat to himself or others. According to Dr. Petter, there has never been such an issue with Mr. Roman at any point in his treatment.
61Dr. Petter's opinion did not change when factoring in the element of guns. He stated that access to guns is not a concern for someone who has not demonstrated any specific risk factors throughout treatment. A fair portion of Dr. Petter's patients are first responders, many of whom own personal firearms. Part of Dr. Petter's job is to assess whether patients returning to work duties are capable of returning to use of force options, including police and correctional officers. Dr. Petter does not have concerns with respect to Mr. Roman having firearms because he is a medicated and dedicated participant in treatment for his PTSD.
62Dr. Petter conducted his initial assessment of Mr. Roman on February 2nd, 2017, the day after Mr. Roman asked Mr. Sherk to return his Firearms. Dr. Petter could not specifically recall whether he spoke with Mr. Roman about his Firearms at that initial assessment, although he imagines that, in the assessment of risk factors, he would likely have asked Mr. Roman about access to firearms or other weapons. At that time, presumably, Mr. Roman would have said that he didn't have access to firearms.
63Dr. Petter testified that he and Mr. Roman have talked about the Firearms on a number of occasions throughout treatment. Mr. Roman was upset that he was being portrayed as someone who was dangerous.
64Dr. Petter was asked whether he and Mr. Roman discussed the fact that Mr. Roman requested the return of his Firearms the same day that he received the family law paperwork. Dr. Petter didn't think that would have been addressed, unless it was identified as a specific threat.
65Dr. Petter wrote a letter dated August 8, 2017. The letter was made an exhibit in these proceedings. In this letter, Dr. Petter confirmed that he was providing ongoing psychological assessment and treatment to Mr. Roman since February 2nd, 2017. He described Mr. Roman as "a motivated and engaged participant in his treatment," and a patient who has "been motivated to follow through with all treatment recommendations."
66In the August 8, 2017 letter, Dr. Petter also wrote the following:
During my initial assessment (in February 2017), Mr. Roman reported that he had previously experienced suicidal thoughts in December 2016. He also reported experiencing homicidal thoughts towards inmates (who he blamed for his psychological distress) at that time. At no point during my treatment of Mr. Roman have I felt that he would pose a risk of violence to himself or others. He has not experienced any thoughts of harming himself or others since beginning treatment. In fact, Mr. Roman's PTSD symptoms have shown improvement to the point that I am currently recommending that he begin a gradual return to his work duties.
67Dr. Petter confirmed that Mr. Roman reported to him that he had experienced suicidal and homicidal thoughts prior to beginning treatment on February 2nd, 2017. In cross-examination, the Crown suggested to Dr. Petter that Mr. Roman had downplayed the use of the word "homicidal" in his testimony on this application. The Crown asked Dr. Petter whether he specifically recalled that Mr. Roman had "homicidal thoughts". Dr. Petter replied by stating: "I don't specifically recall them being homicidal thoughts, but any thoughts of harming others, I would err on the side of indicating them as homicidal".
68Although medications are prescribed for PTSD, the "gold standard" of treatment is exposure therapy, which involves putting the patient in situations that he or she has been avoiding. The medications have helped Mr. Roman cope with his symptoms. However, he has mostly benefitted from exposure treatment, and working through the traumatic experience of being followed home from work.
69Mr. Roman's symptoms improved to the point that, in October of 2017, he began a return to modified work duties at the Elgin-Middlesex Detention Centre. This was part of the exposure protocol, which involved being in and around the work environment, a place that would typically elicit a fair amount of anxiety. This began by getting Mr. Roman into the building for a number of weeks, working up to doing checks by going throughout the building, without having interaction with inmates.
70Dr. Petter testified that, about three to four weeks before the hearing of this application, they attempted to do a transition which involved Mr. Roman having contact with the inmate population in a holding unit. At that time, Mr. Roman experienced a fair amount of physiological anxiety, getting physically worked up, feeling quite anxious. Mr. Roman recognized immediately that it was too much for him. Mr. Roman has been off work since then, for a "stabilization period." Dr. Petter testified that this is fairly common in return to work processes. Patients realize that a step is too large, and that it needs to be "broken down a bit".
71Mr. Roman's prognosis for a full return to work duties with male inmates is "guarded"; it's not an impossibility, but would certainly take time and work. Mr. Roman's prognosis for a return to work without as much direct contact with male inmates is better.
72In Dr. Petter's opinion, the main stressor in Mr. Roman's life right now is the return to work process. When Dr. Petter was asked whether he saw any anger toward Mrs. Roman during his treatment of Mr. Roman, Dr. Petter stated that he did not notice any greater level of frustration or anger than would be typical in any separation proceeding. Dr. Petter reiterated that being portrayed as a danger has caused Mr. Roman frustration and anger.
73Dr. Petter has seen Mr. Roman for approximately forty-five sessions of treatment. Mr. Roman's PTSD symptoms have improved substantially, but he still experiences symptoms. Dr. Petter's assumption is that Mr. Roman has a "relatively reasonable prognosis." Mr. Roman is receiving prolonged exposure therapy and cognitive processing therapy, specifically for PTSD. These are the two most effective interventions for the disorder. Dr. Petter expects that Mr. Roman will eventually get to the point where he will not meet PTSD criteria. However, a patient has to be stabilized over a long period of time before he or she no longer has PTSD, or can be considered cured. Mr. Roman is not at that point.
74There were periods of time during treatment that Dr. Petter had concerns about Mr. Roman's alcohol use. However, over the last three months, there has been very little concern about alcohol consumption. Mr. Roman currently drinks one to two alcoholic beverages a day, which is well within safe drinking guidelines.
75Mr. Roman is currently seeing Dr. Petter once a week. Dr. Petter has never had any discussions about Mr. Roman with Mrs. Roman, or anyone in Mr. Roman's family. All of his dealings are with Mr. Roman personally, and with a WSIB work transition specialist that works with Mr. Roman.
C. The Law
76Section 111 of the Criminal Code states:
(1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.
(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.
(6) Where a provincial court judge does not make an order under subsection (1), or when a provincial court judge does make such an order but does not prohibit the possession of everything referred to in that subsection, the provincial court judge shall include in the record a statement of the court's reasons.
77Section 111 of the Criminal Code requires the Crown to establish, on a balance of probabilities, that it is "not desirable" that the Respondent possess firearms or the other regulated items. Hearsay evidence is admissible at a firearms prohibition hearing, and the Judge should consider what weight, if any, is to be given to the hearsay evidence. In considering the weight to be given to the hearsay evidence, the Judge must scrutinize it to ensure that it is credible and trustworthy.
78The Ontario Court of Appeal considered the meaning of "not desirable" in R. v. Hurrell. The Hurrell case involved a constitutional challenge to section 117.04(1) of the Criminal Code, which contained language similar to that found in section 111 of the Criminal Code. Section 117.04(1) provided for the issuance of a search warrant to seize weapons and other items in the possession of a person, if a justice was satisfied that there were reasonable grounds to believe that it was "not desirable in the interests of the safety of the person, or of any other person" for the person to possess any weapon and other such items.
79In Hurrell, one of the arguments advanced by the appellant was that section 117.04(1) was unconstitutionally vague because it used the words "not desirable" in the interests of public safety. The appellant submitted that "the criteria of 'desirable' injects a subjectivity into the issuance process that vests police and issuing justices with far too much discretion in deciding when to invade an individual's reasonable expectation of privacy". The Court of Appeal rejected the argument:
45 Turning to his second argument, the appellant submits that s. 117.04(1) is impermissibly vague because the word "desirable" is amorphous and injects a subjective criterion into the provision that could lead to the issuance of a warrant based on irrational or emotional rather than objective grounds. With respect, I disagree. 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.
80The Court of Appeal went on to state:
48 Applying that reasoning to this case, I am satisfied that 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. The fact that language may be open to judicial interpretation does not render it impermissibly vague.
81In Hurrell, the Ontario Court of Appeal also noted that "to the extent that the police or the issuing justice need a framework within which to assess the 'non-desirability/public interest' component of section 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 of the Firearms Act which deal with the eligibility for holding a firearms licence, read as follows at the time of the Hurrell decision:
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.
82Accordingly, in relation to section 5 of the Firearms Act, in considering whether it is "desirable", in the interests of the safety of a person or any other person that the person not possess a firearm or related item, one relevant consideration is whether the person, within the previous five years, has been treated for a mental illness.
83In a recent decision, Justice Wheeler of the Ontario Court of Justice wrote:
- The British Columbia Court of Appeal has held that the criteria set out in s. 5 of the Firearms Act are not exhaustive as to the circumstances in which a chief firearms officer may refuse to issue a licence, or as to when an order may be made under section 111 of the Criminal Code. In other words, a licence can be refused under the Firearms Act, and a prohibition order can be justified under s. 111 even though none of the circumstances set out in s. 5(2) (a), (b) or (c) are present. See British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343; Re Christiansen, 2006 BCCA 189.
84In British Columbia (Chief Firearms Officer) v. Fahlman, the British Columbia Court of Appeal held that, in determining whether a person is eligible to hold a firearms licence under section 5(1) of the Firearms Act, "[t]he firearms officer and the judge are entitled to consider anything about the background or conduct of the applicant or licence holder that is relevant to public safety."
85Similarly, in R. v. Christiansen, the British Columbia Court of Appeal held that, a provincial court judge conducting a hearing under section 111 of the Criminal Code is not confined to a determination of whether the three criteria set out in section 5(2) of the Firearms Act are met in order to impose the prohibition. The British Columbia Court of Appeal affirmed the decision of the appeal court judge who found that the provincial court judge had made no error "in holding that there can be a firearms prohibition without criminal conduct, a history of real or threatened violent behavior or a documented mental disorder that leads to violence."
86In Hurrell, the Ontario Court of Appeal also addressed a submission made by the appellant that s. 117.04(1) was constitutionally offensive because it permitted "entry into the highly protective sphere of a dwelling house….in circumstances where there may be absolutely no evidence to ground a reasonable belief that actual harm, much less a criminal offence of any kind, will ever be caused or committed." The appellant, therefore, contended that section 117.04(1) established a deficient standard for issuing a warrant.
87In addressing this argument, and rejecting it, Justice Moldaver made comments regarding the nature and purpose of section 117.04(1). I find that Justice Moldaver's comments regarding the nature and purpose of section 117.04(1) apply to the nature and purpose of section 111 of the Criminal Code. Justice Moldaver stated the following in Hurrell:
The deficient standard argument fails, in my view, because it is contextually insensitive and disregards the nature and purpose of the impugned provision. Section 117.04(1) is not offence-based legislation. It does not involve a search for evidence designed to show that a criminal offence has been or is being committed, nor does it place the liberty interest of the subject at risk. Rather, s. 117.04(1) 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.
To be sure, criminal conduct is one of the chief contributors to the type of harm envisaged by the provision. Tragically, in the realm of domestic violence, the use of firearms has skyrocketed. The Honourable Allan Rock, Minister of Justice at the time, recognized this in a 1995 address to Parliament concerning the issue of firearms registration:
Statistics demonstrate that every six days a woman is shot to death in Canada, almost always in her home, almost always by someone she knows, almost always with a legally owned rifle or shotgun. This is not a street criminal with a smuggled handgun at the corner store. This is an acquaintance, a spouse or a friend in the home.
- In the same speech, the Minister made it clear that Parliament's concern about the harm caused by firearms was not limited to criminal conduct:
Suicides and accidents provide another example. Last year, of the 1,400 people who died by firearms in Canada, 1,100 were suicides.
- The concerns expressed by the Minister have been the subject of considerable research and they are well-documented. (See generally Canada, Firearms Control and Domestic Violence (Ottawa: Communications and Consultation Branch, Department of Justice of Canada, 1995); T. Gabor, "The Impact of the Availability of Firearms on Violent Crimes, Suicide, and Accidental Death: A Review of the Literature with Special Reference to Canadian Situation" (Working Paper, 1994). In addition to exposing the dangers associated with the misuse of firearms, this research demonstrates that given the dynamics of domestic violence and suicide, the timely removal of firearms in appropriate circumstances can save lives:
The higher the availability of firearms, therefore, the more likely they are to be chosen in suicide attempts. Because firearms have been found to be the most lethal suicide method, increases in the use of firearms in suicide attempts will likely lead to more completed suicides.
Recent research indicates that many firearm suicides are not carefully calculated but are precipitated by stressful events and facilitated by the consumption of intoxicants. Studies of survivors of serious attempts indicated that many were happy to survive and adjusted well subsequently without further attempts. Thus, suicidal motivation may frequently be transitory. ...
Studies of adolescent suicide indicate that many suicides and attempted suicides can be characterized as impulsive.
As for the issue of weapon substitution, the evidence on offender motivation and offence dynamics indicates that, in many killings, the offender did not have a single-minded determination to kill and therefore may not have killed had a firearm not been available. Killings often arise out of conflicts characterized by intense but often transient rage. Situational stresses and the consumption of intoxicants are also characteristics of many homicides. That homicides often are not carefully pre-meditated actions is also shown by the number of perpetrators who fire only one shot into the victim or who leave the scene of the offence while the victim is still alive. A large proportion of offenders, especially in domestic homicides, attempt or commit suicide following the killing, again suggesting that the consequences of the homicide were not carefully considered.
Many domestic homicides are not necessarily premeditated, although they often occur as a culmination of abusive and violent behavior.
"The evidence indicates that potential murderers are usually not persons engaged in premeditated homicidal acts, but rather, participants in family quarrels, arguments between acquaintances, brawls, clashes of personality and so on."
In these situations, preventing access to firearms can make a critical difference.
88The test to be applied on an application to prohibit a person from possessing firearms and other regulated items, pursuant to section 111 of the Criminal Code, is set out by Justice Blacklock in R. v. Bokhari:
Justice Durno in Regina and Day, [2006] O.J. No. 3187, 2006 CarswellOnt 4808, reviewed a series of cases in different Provinces on this topic, and noted that there appeared to be different approaches taken in those differing Provinces with respect to this matter. Ultimately, as I read his decisions, he concluded that he favoured the approach taken by Justice Fairgrieve in Regina and Morgan, [1995] O.J. No. 18.
Under this approach a court does not have to be satisfied that, in fact, it is more likely than not that the respondent will, in fact, use his weapons to cause harm to a person. 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.
It is also settled that in applying this test, I do not apply the burden of proof regarding the guilt or innocence of a person charged with a criminal offence. The applicant's burden in this matter, is not proof beyond a reasonable doubt. It is merely, proof on the balance of probabilities.
89Courts have held that the assessment of whether it is not desirable that the Respondent possess firearms 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, or the date that the firearms were seized.
D. Analysis
90The question I must ask myself is: "Am I satisfied, after reviewing the evidence in its totality, that it is more likely than not that there are in fact legitimate concerns indicating that Mr. Roman currently lacks the responsibility and discipline required of a gun owner?" When I review the record in its totality, I am satisfied that the Crown has met its burden in this regard.
91The fact that the statutory test "is to be applied in the present tense," having regard to the circumstances that exist at the time of the hearing of the Crown application, does not mean that the background or past experiences of the Respondent are irrelevant to the analysis. On the contrary, the Court must consider anything about the background or conduct of the Respondent that is relevant to public safety.
92I find that Mrs. Jodi Roman and Mr. Timothy Sherk presented their evidence in a clear and straightforward manner, and demonstrated a genuine concern for Mr. Roman's own safety, and the safety of others, notwithstanding the ongoing issues which have yet to be determined in the family law proceedings. I also find that, for the most part, Mr. Roman gave his evidence in a manner which showed that he was making a genuine attempt to recollect the events he described as accurately as he was able. However, for reasons that I will set out below, I prefer the evidence of Mrs. Roman and Mr. Sherk where it conflicts with Mr. Roman's evidence on certain material matters.
93Mr. Roman has never threatened his wife or children, and has never hurt anyone. He has never been investigated for inappropriate use of force during his career as a jail guard. When the Firearms were in his possession, by all accounts, he stored them safely. There was no evidence presented at the hearing that Mr. Roman used the Firearms in an unsafe manner. The most that can be said is that Mr. Roman was an untrained user of firearms, as evidenced by the one occasion when he was trying to put shells in a shotgun backwards. There was no evidence about any criminal conduct, or a history of real or threatened violent behavior by Mr. Roman. However, such conduct is not required in order to make a section 111 Criminal Code prohibition order.
94I relied upon the following evidence and findings of fact to reach the conclusion that it is not desirable for Mr. Roman to possess firearms:
(1) In or around May of 2016, Mr. Roman was diagnosed with PTSD and was off work. I accept the evidence of Mrs. Roman that, throughout the summer of 2016, Mr. Roman was very angry and expressed thoughts of suicide and homicide. Mr. Roman's rages during this time period were directed mostly at inmates.
(2) Mr. Roman admitted that, at its worst, his mental illness made him think of harming people, including inmates at the jail, and that at times of high anxiety and anger, he didn't know what he would do.
(3) In the summer of 2016, Mr. Roman gave his Firearms to his brother-in-law, Mr. Sherk. This fact was not in dispute. What was in dispute was the reason he did so. I accept that Mr. Roman told Mr. Sherk that he was having violent thoughts, and was imagining what he might do to people. I also accept that Mr. Roman told Mr. Sherk that he did not trust himself, and wanted the Firearms out of his home. Based upon this conversation between Mr. Roman and Mr. Sherk, it is reasonable to infer that, in the mental condition he was in at the time, Mr. Roman feared that he may act upon his violent thoughts, which made it unwise for him to have the Firearms in his home. I reject Mr. Roman's evidence that the only reason he gave the Firearms to Mr. Sherk was his concern that the police would take them due to his PTSD diagnosis. Although Mr. Roman maintained that he had no thought of ever using the Firearms, he testified that, even as late as February of 2017, his memory was not as good as it should be due to the "fogginess" he was experiencing. For this reason, I reject Mr. Roman's evidence that he gave Mr. Sherk the Firearms in the summer of 2016 merely to avoid their seizure by the police.
(4) In December of 2016, Mr. Roman experienced homicidal thoughts towards inmates who he blamed for his psychological distress at that time.
(5) Mr. Roman experienced suicidal thoughts in December of 2016. He testified to having previously had suicidal thoughts as a teenager, when alcohol was a contributing factor.
(6) I accept Mrs. Roman's evidence that, after the marital separation in September of 2016, Mr. Roman directed his anger and bitterness at Mrs. Roman. This evidence is supported by Mr. Roman's own testimony that when he received documents, in February 2017, stating that Mrs. Roman may seek full custody of the children, he was angry with her.
(7) Mr. Roman acknowledged that he asked Mr. Sherk to return his Firearms on or about February 1st, 2017, the same day he received the family court documents stating that his wife may seek full custody of the children. He admitted to being angry at the time, because he felt that his wife was trying to take his children away. Although there is no evidence to suggest that Mr. Roman asked for his Firearms that day because he was contemplating using them for some improper purpose, the timing of his request is concerning. When questioned about what prompted him to ask that very day for the Firearms to be returned, Mr. Roman stated that he didn't know why he chose that day. The fact that he was experiencing "fogginess" at the time, due to his mental illness, adds to the concern. When he was asked why, in February 2017, he was no longer concerned that the police would take his Firearms, he was unable to provide information as to when and how he learned that information. Again, he attributed this lack of memory to the "fogginess" he was experiencing at the time. He testified that, although he is not in a fog now, he still doesn't remember everything that happened during that time. It was reasonable, in the circumstances, for Mr. Sherk and Mrs. Roman to have been reluctant to return the Firearms to Mr. Roman at that time.
(8) On February 2nd, 2017, when Dr. Petter conducted his initial assessment, Mr. Roman met the diagnostic criteria for PTSD and was in partial remission for an alcohol use disorder. There is no evidence that, at the initial assessment, Mr. Roman and Dr. Petter specifically discussed the request Mr. Roman had made the previous day for the return of the Firearms, although Dr. Petter "imagines" that he would likely have asked Mr. Roman about access to firearms or other weapons.
(9) Mr. Roman continues to meet the diagnostic criteria for PTSD. Approximately three to four weeks before the hearing of this application, Mr. Roman experienced "over-exposure" during a period of modified work duties at the detention centre. He has been off work for a "stabilization period" since this episode. Although Mr. Roman's symptoms have improved substantially since February 2017, due to his commitment to treatment, this recent episode at the detention centre is evidence that stressful situations can trigger the anxiety which he experiences as a result of his mental illness.
(10) According to Dr. Petter, currently, the main stressor in Mr. Roman's life is the return to work process. Mr. Roman acknowledged that dealing with the ongoing issues involved in the family law proceedings is stressful and adds stress to his current employment issues. The uncontroverted evidence of Mrs. Roman is that she continues to receive text messages from Mr. Roman which direct blame and anger toward her, which prompted the police to speak with Mr. Roman about appropriate communication with his wife.
(11) I have considered Dr. Petter's evidence that, during the course of his approximately forty-five sessions of treatment with Mr. Roman, he has never assessed him to be suicidal or homicidal, and Dr. Petter's opinion that access to guns is not a concern for Mr. Roman because he has not demonstrated any specific risk factors throughout treatment. However, I note that Dr. Petter's opinion is based on his personal dealings with Mr. Roman over a relatively short period of time, and that all information he has received about Mr. Roman is essentially from Mr. Roman himself. Furthermore, the fact that Mr. Roman has not demonstrated these specific risk factors since starting his treatment on February 2nd, 2017, does not negate the fact that, in the very recent past, Mr. Roman experienced homicidal and suicidal thoughts due to his mental illness.
95For the above reasons, I find that, on a balance of probabilities, it is not desirable that Mr. Roman possess firearms and the other regulated items listed in section 111 of the Criminal Code. After reviewing the evidence in its totality, I find that it is more likely than not that there are in fact legitimate concerns indicating that Mr. Roman currently lacks the responsibility and discipline required of a gun owner.
96In light of the fact that Mr. Roman has been without the Firearms for a period of approximately two years from the date he voluntarily provided them to Mr. Sherk, I made an Order, pursuant to section 111 of the Criminal Code, that Mr. Roman be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of three years.
Released: May 22, 2018
Signed: Justice Joe P.P. Fiorucci