His Majesty the King v. Phillip Rodd

Ontario Court of Justice

Date: 2023 02 07 Court File No.: Windsor 21-20415

Between: His Majesty the King — And — Phillip Rodd

Before: Justice S. G. Pratt

Heard on: 16 and 18 January 2023 Reasons for Judgment released on: 7 February 2023

Counsel: Christina Eid, Counsel for the Crown Stephen Bruni, Counsel for the Defendant

Pratt J.:

[1] The Crown has brought an application for the forfeiture of several firearms and related items seized from Phillip Rodd, hereinafter the Respondent. The Respondent opposes the application and seeks the return of his property. These reasons explain why the Crown’s application will be granted.

Facts

[2] On 1 September 2021 at 122pm police were dispatched to the Victoria Park Place apartments at 150 Park Street West, Windsor. They were advised that the resident of apartment 604 had a loaded firearm that had been seen by a building security officer.

[3] Earlier that day, the Respondent contacted building security to complain that the resident in the unit above his had poured grease down onto his balcony. When the security officer, Daniel Blok-Buxton, entered the apartment to see the problem, he noticed a handgun on a table. According to his statement, filed on the application, there was a magazine next to the handgun that appeared to have rounds in it. When he pointed it out to the Respondent, the Respondent stated, “Don’t worry about it, I’m a police officer”. Blok-Buxton left the apartment and, on the advice of the building manager, called police.

[4] At approximately 124pm three officers arrived at the building. PCs Pocock, Van Sickle, and Abukhatir went to the 6th floor. They were standing outside unit 604 when, unexpectedly, the Respondent emerged. He turned and was locking the door behind him when PC Pocock ordered him at gunpoint to the ground. He was quickly placed in handcuffs and told he was under arrest for possessing a weapon for a dangerous purpose. The Respondent was compliant throughout his dealings with police.

[5] Once he was in custody, he admitted there was a handgun in his apartment. Police entered the residence, without a warrant, to look for the gun and to ensure there was no one else inside. They quickly cleared the residence and found it unoccupied. On a table in the living room, they found a Sig Sauer 9mm pistol in a holster. It was next to a magazine with rounds loaded into it. A photo of the table was filed as an exhibit on this application. In addition to the gun and magazine, there was a black belt, a second holster for mounting a firearm on the wearer’s thigh, a short leather baton (described by one witness as a “slapper” – an item carried by police in the past), a folding knife, a black mask, a pair of rubber gloves, and a wallet. I will have more to say about this collection of items later in these reasons.

[6] The Respondent told police he had additional firearms in a closet. Police found and seized another handgun and seven long guns. They also found a total of 58 shotgun shells, twelve .22 calibre rounds, 7 .45 calibre rounds, and twenty 9mm rounds. These all matched the calibres of several of the seized firearms. Police confirmed in evidence that aside from the Sig Sauer pistol, all firearms were properly stored.

[7] Further investigation led to the collection of statements from Mr. Blok-Buxton and Robert McLean, the building manager. Both statements were filed by the Crown.

[8] Mr. Blok-Buxton’s said that when he saw the gun in the apartment the Respondent told him it was ok because he was a police officer. The witness further said, “He told me he keeps it there normally because someone had thrown a pop can at his balcony. He keeps it staged on the table in preparation or something for the next time someone does it.”

[9] In his statement, Mr. McLean confirmed what he was told by Blok-Buxton on 1 September, and also told police that the Respondent had claimed to him to be an Air Marshall. He further told McLean of an incident where another resident had thrown a pop bottle onto his balcony and startled him. The Respondent told him he had his gun out to protect himself if he was confronted.

The Law

[10] Section 117.04(2) of the Criminal Code states the following:

(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

[11] If items are seized under subsection 2, a justice may hold a hearing under s. 117.05 to determine how those items are to be disposed of. Subsection 4 sets out the orders that may be made after such a hearing:

(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 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.

[12] The Crown bears the burden of convincing a court that orders under subsection 4 should be made. The test is a balance of probabilities (see: R. v. Zeolkowski, [1989] 1 S.C.R. 1378 at paragraph 17; R. v. Douglas, 2013 ONCJ 649, [2013] O.J. No. 5430 (C.J.) at paragraph 45). Further, s. 117.05(2) states that a court shall hear “all relevant evidence” in determining the application. This can include hearsay, but a court must be mindful of the appropriate weight to be given to such evidence (see: Zeolkowski, supra, at paragraph 18).

Analysis

[13] Section 117.05(4) identifies the question that must be asked on this application: is it not desirable, in the interest of the safety of the Respondent or any other person, that the Respondent possess weapons or related items?

[14] In the case of R. v. Day, [2006] O.J. No. 3187 (S.C.J.) Justice Durno commented that “the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners.”

[15] I begin my analysis by noting that firearm ownership is not a right in Canada. Rather, it is a closely guarded privilege granted by the state only to those who meet certain criteria. A person wishing to own firearms must pass a recognized safety course, make application to the Royal Canadian Mounted Police, and be granted a license. If that person wishes to own restricted firearms such as handguns, a more substantive safety course must be completed. Section 5 and onwards of the Firearms Act sets out the criteria that must be met for a license to be issued. Further, the Canadian Firearms Program, administered by the RCMP, employs continuous eligibility screening of all license holders to determine if they continue to meet licensing criteria (see: 2020 Commissioner of Firearms Report, RCMP). Courts can also prohibit individuals from possessing weapons under a variety of sections of the Criminal Code.

[16] The possession of weapons, then, and in particular firearms, is entirely discretionary and subject to review at any time.

[17] In the present case, several features lead me to the conclusion that it is not in the interest of public safety that the Respondent be permitted to own weapons.

[18] The circumstances of the Sig Sauer handgun’s discovery are concerning. Mr. Blok-Buxton was present in the Respondent’s residence to address a complaint. He saw the gun, with a loaded magazine next to it, on a table in the open. It was not trigger-locked or secured in any way. It was accessible to anyone who may have entered the residence.

[19] The photograph of the table, filed as Exhibit 1, belies any suggestion the gun was out only temporarily. It is part of a larger arrangement of equipment one might expect a police officer to carry. A holster, a folding knife, a short baton, rubber gloves. Had I asked any of the officers who testified to empty their duty belts I would likely have seen similar items.

[20] There was a suggestion made to the police witnesses that the Respondent may have had the gun out to clean it. They agreed it was possible. I reject that suggestion. There is no evidence the gun was about to be cleaned. I heard nothing about a cleaning kit being nearby. The gun was in a holster. The idea that it was out of storage only briefly for cleaning is further discredited by there being no open trigger lock in the vicinity. Had the gun been taken out of storage for cleaning, and had the Respondent intended to return it to storage immediately afterward, would there not have been an empty pistol case and open trigger lock found nearby? There wasn’t. According to the list of seized items there were two handgun cases found, but they were in the closet. There is no evidence to support the contention that the gun was only out of storage for cleaning.

[21] I also note that when first seen by police, the Respondent was leaving his residence. He was in the process of closing and locking the door when police ordered him to the ground. This is not the conduct of someone about to embark on cleaning his firearm. He was leaving his residence with a handgun and readily accessible ammunition out in the open. Counsel suggested that the Respondent locking the door showed his conscientiousness and responsibility. I disagree. On the contrary, it reinforces the notion that the Respondent was not showing the degree of responsibility and discipline required of gun owners.

[22] And then there is the wallet. It is a bifold wallet that can be opened to show two items at once. It had the Respondent’s firearms license in the bottom window. In the upper window was a card that no officer had ever seen before. That included PC Tilson, who has 30 years of experience and is the chief firearms officer for the Windsor Police Service. A closeup photograph of the wallet was filed as Exhibit 2. The card in question bears the RCMP coat of arms together with the words “Royal Canadian Mounted Police” and “Gendarmerie Royale du Canada”. It has the name “Phillip Michael Rodd” printed on it. Finally, it has what appears to be a signature and a handwritten date of “1/5/2008”. There are no other markings visible.

[23] I heard no evidence as to what this card actually is. While I should not speculate, I can take the surrounding circumstances into account in drawing conclusions.

[24] One of those surrounding circumstances is the Respondent’s words to Blok-Buxton when the gun was seen. He said, “Don’t worry about it, I’m a police officer”. It was suggested that he might have said, “Don’t worry about it, my brother is a police officer” but candidly that doesn’t make sense. Why would having a police officer in the family entitle him to possess a firearm? I also have the evidence from the building manager who said the Respondent had told him he was an Air Marshall. Both witnesses suggest that the Respondent holds himself out to be a member of law enforcement. The array of items on the table supports that contention. It is certainly a reasonable inference, if not a likely inference, that the card, placed as it was in a wallet with a license bearing his photograph, was intended to make the Respondent appear to be affiliated in some way with the RCMP.

[25] Counsel for the Respondent has argued that I should not attribute significant weight to the statements filed by the Crown as there has been no ability to cross-examine on them. I agree. While the Criminal Code allows me to consider all relevant evidence, it does not require me to accept all relevant evidence or accord each piece of evidence equal weight. As Justice Sopinka stated in Zeolkowski, supra, at paragraph 18, I must scrutinize any offered hearsay evidence to ensure it is credible and trustworthy before I accept it.

[26] Based on the evidence I have heard, I accept the statements of Blok-Buxton and McLean as credible and trustworthy. While they are hearsay, I have heard no evidence that would detract from their credibility or trustworthiness. Blok-Buxton’s statement was taken the day of the Respondent’s arrest. McLean’s was taken ten days later. While both expressed opinions on the credibility of the Respondent owing to past dealings with him, there was no evidence led of ongoing animus or any motive on their part to fabricate allegations. Blok-Buxton’s statement was entirely in line with what police found in the Respondent’s residence. His statement and McLean’s corroborated each other in the places where they overlapped. While it would have been preferable to hear from the witnesses directly, I accept their statements as accurate.

Conclusion

[27] Having considered all of the evidence called on this application, I find that the Crown has met its burden. The items seized from the Respondent by police on 1 September 2021 will be forfeited to His Majesty the King. Further, pursuant to s. 117.05(4)(b), there will be an order prohibiting the Respondent from possessing any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing for a period of three years.

Released: 7 February 2023 Signed: Justice S. G. Pratt