Court File and Parties

COURT FILE NO.: 89/20 DATE: 2022 02 16

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Respondent Ryan Morrow, for the Respondent

- and -

MICHAEL PENMAN Appellant Howard C. Rubel, for the Appellant

HEARD: January 12, 2022, by video conference

REASONS FOR JUDGMENT

[On appeal from the order of forfeiture and prohibition pursuant to s. 117.05(4) of the Criminal Code made by Justice A. Cooper of the Ontario Court of Justice at Milton on June 15, 2020]

F. Dawson J.

[1] On May 20, 2017 officers of the Halton Regional Police executed a warrant to search for and seize firearms, ammunition and related items believed to be in the appellant’s residence. The warrant was issued pursuant to s. 117.04 of the Criminal Code. As a result of the execution of the warrant the police seized five long guns, nine handguns, 92 magazines and thousands of rounds of ammunition, as well as some other items. The appellant subsequently voluntarily surrendered 10 more long guns, four more magazines and a quantity of ammunition to the investigating officer.

[2] The seizure led to an application before the hearing judge pursuant to s. 117.05 of the Criminal Code which resulted in a forfeiture order and an order prohibiting the appellant from possessing any weapon, prohibited device, ammunition or explosive substance for a period of five years.

[3] The appellant appeals on the basis that the trial judge made four errors which he submits resulted in an unreasonable verdict.

Factual Background

[4] The appellant and his wife were preparing their home for sale. They arranged to have parts of the home cleaned by a cleaning company. On May 17, 2017 two employees of the cleaning company, Taylor Robinson and Jessica Beckwith, attended the residence and provided cleaning services. However, the two women made up an excuse and left early, leaving some of their cleaning supplies behind. The women called their supervisor and explained that they left the home because they had become concerned about the appellant’s behaviour, his comments and due to observations they made while in the home. Their supervisor called the police.

[5] Ms. Beckwith and Ms. Robinson met with police officers later that day in a coffee shop and reported their observations and concerns. This led to the police attending at the appellant’s residence, where the officers retrieved the cleaning equipment left behind and had some conversation with the appellant about what they had heard.

[6] An occurrence report was prepared. The police also made certain checks and learned that the appellant was a licensed firearms owner. All this information made its way to Det. Cst. Sarah McCullagh, who became the officer in charge of the investigation.

[7] Video recorded interviews of Ms. Robinson and Ms. Beckwith were conducted. Det. Cst. McCullagh then obtained the warrant to search for and seize firearms, which was executed with the assistance of the tactical team.

The Evidence Before the Hearing Judge

[8] The evidence led by the Crown consisted of the testimony of Det. Cst. McCullagh and various exhibits introduced through her. That evidence included the general occurrence report prepared by Cst. Daniel Covato, the video recorded interviews of Ms. Robinson and Ms. Beckwith, transcripts of both interviews, numerous photographs of the appellant’s home and the seized items and various documents. Consequently, the Crown’s case included a significant amount of hearsay evidence.

[9] The defence case consisted of the testimony of the appellant and of Philip Quigley, a friend of the appellant who was in the home on May 17, 2017.

[10] As the appellant submits that the errors allegedly made by the trial judge resulted in an unreasonable verdict, a more detailed summary of the evidence is warranted.

[11] The occurrence report stated that on May 17, 2017 police officers met with Ms. Robinson and Ms. Beckwith before attending at the appellant’s residence. According to the report, the women advised the police of the following:

(1) When they arrived at the residence they could hear the appellant yelling, “Shut the fuck up. Don’t treat me like a child”. When the appellant opened the door, he told them that was how he and his wife spoke to each other. (2) The appellant and his wife followed them as they cleaned and were observed to be consuming alcohol and smoking marijuana. (3) When they were cleaning in the basement they observed an area with multiple ropes, pulley systems and nooses. (4) When the women were cleaning the stairs, the appellant began to rant that the room in the basement was for hanging people. He said he was going to hang Justin Trudeau and several other members of the Canadian government. (5) The appellant asked them if they wanted to be part of his group. He said he already had seven members and only needed 25. He told them they were worth 10 million dollars and that he could help them collect the money. (6) The appellant told the women he was aware of a conspiracy and was aware of the specifics. He said he knows that the police are “in on it”. (7) He continued to rant about hanging numerous people in the government. (8) The women were frightened. The appellant kept telling them to clean areas they had already cleaned. The women said they were going out for a cigarette so they could get out of the house and leave.

[12] The occurrence report indicated that record checks revealed that numerous firearms were registered to the appellant. It described the subsequent police attendance at the appellant’s home. It indicated that the appellant’s wife said the appellant was not home. However, the officers could hear heavy footsteps upstairs. The appellant then came downstairs and ushered the police out of the house. The police noted an overwhelming smell of marijuana in the home and that the front door was a fortified heavy wooden door. Marijuana was not legal at that time. The house was monitored by security cameras.

[13] The report described the appellant’s demeanour as appearing “to demonstrate a manic paranoia”. According to the report, the appellant kept repeating, “I love you my brothers, but I cannot tell you anything.” He also said, “All I can say is that no threats were made.” The appellant otherwise remained mostly silent and ushered the police off his property.

[14] The video recorded interviews of Ms. Robinson and Ms. Beckwith added further detail and clarified some things attributed to them in the occurrence report. The interviews were not under oath.

[15] In their videos the women indicated that there was also another male (Philip Quigley) in the home. The area of the basement where they saw the nooses contained a mat, a large mirror and had Chinese writing on the wall. The women took photos of the area. They said the appellant was ranting about hanging members of the government, including Justin Trudeau, spoke about a conspiracy and asked them to join a group. The appellant told them to disregard his wife’s instructions and to follow directions given by Mr. Quigley. While the appellant was generally polite to them, they were unnerved by his hovering over them and by his volatile behaviour towards his wife and friend.

[16] Ms. Robinson said that after talking to his wife the appellant told them he was “not psychotic” but that his wife was “fucking crazy, she doesn’t want to believe what I’m saying”. He also shared with them that his wife thought he was a psychopath but said again that it was his wife who was crazy. The women thought the appellant’s wife was trying to stop him from talking to them about conspiracy theories.

[17] The women said in their video interviews that the appellant expressed his view that there was no real law but that the government had fooled people into believing that there was. Ms. Robinson recalled that the appellant became increasingly agitated when he talked about hanging Justin Trudeau and government officials. She said he invited the women to come back to his home another time so he could tell them about the research he had done regarding the conspiracy.

[18] Ms. Beckwith said she did not feel the appellant had an intent to harm them. However, she thought he had “mental issues” and was concerned that, due to his volatility, the situation could become dangerous.

[19] In their videos the women clarified that while they had seen the appellant drinking alcohol they had not seen him smoking marijuana, but smelled it in the house. They had not seen the appellant’s wife drinking. They explained that Mr. Quigley had surprised them while they were taking photos of the nooses. When they said they were going outside for a smoke Mr. Quigley sought assurances that they were coming back.

[20] Det. Cst. McCullagh was able to contact the appellant by telephone before executing the search warrant. The appellant was not at home and would not disclose his location. She testified that the appellant became very agitated and had a “panic attack”. She testified that the tactical team had difficulty breaching the door to the appellant’s home as it was like a “castle door” with a wooden bar that went across the door on the inside.

[21] Det. Cst. McCullagh located a handwritten note in the appellant’s office amongst his papers. It was titled “Goals”. There were three numbered points below the title: (1) control the press; (2) corrupt the youth through sex and drugs; and (3) elect our own people to key positions at all levels of government.

[22] Det. Cst. McCullagh testified about the large number of firearms found in the home. Five long guns and nine handguns were seized. All the firearms were safely stored. Most were in the basement in a small purpose-built secure room with a lock on the door. Some firearms were displayed inside the small room. There were other locked safes within the room which contained firearms. A safe was also found inside the master bedroom, which contained a firearm and ammunition.

[23] Some of the long guns were assault style rifles. There was also a rifle designed to shoot long distances, described as a sniper rifle. There were numerous telescopic sights, 92 magazines and thousands of rounds of ammunition. Some of the firearms and other paraphernalia were in their original packaging and had never been used. A pair of handcuffs and a 150,000-volt stun baton were also found in the basement secure room.

[24] Det. Cst. McCullagh reviewed the paperwork seized in the search. She concluded that the appellant owned additional firearms. She spoke with the appellant’s counsel and soon after the appellant voluntarily surrendered 10 more long guns and additional magazines and ammunition.

[25] A small amount of marijuana was also found in the appellant’s home.

[26] On May 30, 2017 Det. Cst. McCullagh attended at the appellant’s residence to return an empty safe and some other property. She and her partner spoke with the appellant near his garage. The appellant was polite and told the officers that he did not refer to Justin Trudeau when he spoke with the cleaners. He said his reference was to Pierre Elliott Trudeau. He commented that he could not threaten or harm a dead man. He told the police he had stopped drinking and using marijuana and that he wanted the guns as he intended to open a security business.

[27] Det. Cst. McCullagh testified that during the conversation the appellant started to go off on another tangent. The appellant began to tell her and her partner how the banking system was corrupt. He said he had been watching YouTube videos on the subject by a person whom he named. She said the appellant offered to meet again with her and her partner to talk further about the findings from his research on such matters. As Det. Cst. McCullagh put it, the appellant “seemed very interested in different conspiracy theories involving the bank and the government and how they were hiding everything from the public.”

[28] Philip Quigley testified that he was a friend and a neighbour of the appellant. He and the appellant exercised together. He said he set up the rope and pulley system in the appellant’s basement to assist the appellant with stretching. Mr. Quigley said he is a licensed gun owner and testified that he attended shooting ranges with the appellant. He said the appellant was extremely safety conscious when it came to firearms.

[29] Mr. Quigley testified that he was at the appellant’s home on May 17, 2017 to assist with preparing the house for sale and to install new fire alarms. He said that he and the appellant had one beer each. He agreed the house smelled of marijuana, which he attributed to the appellant rolling a joint in an upstairs bedroom. He did not see the appellant smoking marijuana.

[30] Mr. Quigley testified that he never heard the appellant tell Ms. Robinson or Ms. Beckwith that he wanted to hang Justin Trudeau or other members of the government. However, he agreed that he was not present for all interactions between the appellant and the two women. When asked about political discussions he had with the appellant, Mr. Quigley said they had “entertained a few, I would say, maybe bizarre things politically.” When asked whether the appellant had expressed animosity towards the Canadian government Mr. Quigley gave a qualified response: “I would say its more global politics … the way the world works, not just necessarily Canada.” He agreed that the appellant had discussed flat earth theory with him.

[31] Mr. Quigley thought the cleaners left because he asked them to redo their work.

[32] The appellant also gave evidence. He said that by the time the cleaners arrived he and Mr. Quigley were almost finished their work and were having a beer. However, he denied drinking in front of the cleaners, emphasizing that he would not do that. He said he had smoked marijuana earlier in the day outside the house and that the smell had gotten into the house through an open window.

[33] The appellant denied following the cleaners around. He emphasized that they were lazy and said that Ms. Robinson spent her time flirting with Mr. Quigley. He characterized them as liars. He agreed that he had discussed political theories in front of the cleaners, including Freeman on the Land and his interest in the theory that Canada was a corporation and that Canadians were shareholders. He said he had not asserted that theory, but if he did so he would use a class action lawsuit with 25 plaintiffs claiming their shareholder value from the government. He repeatedly and emphatically denied that he spoke of hanging Justin Trudeau. He testified that he spoke about how Pierre Elliott Trudeau had increased the national debt and was guilty of treason. He testified that it was his opinion that hanging should be available as a penalty to be imposed by law for crimes committed by crooked politicians and gang members, and that hanging would have been appropriate for Pierre Elliott Trudeau had he been convicted of treason.

[34] With respect to firearms, the appellant said that he purchased guns because they were fun to shoot. He attended two gun clubs with shooting ranges. He did not hunt but was planning to start. He said he bought most of his firearms impulsively at the shooting range. He said the stun baton was a gift which he had never taken out of its box. He said he had handcuffs because he intended to start a security company.

[35] The appellant testified that the rope and pulley systems the women saw in his basement were in his “kung fu studio” where he exercised and used the ropes to stretch. He agreed the knots in the ropes looked like nooses. He denied that he had been belligerent to his wife but said he had been raising his voice when joking with Mr. Quigley. He said the “Goals” document was a note he made while watching a YouTube video and that the enumerated points were from the video and were not his goals.

[36] The appellant explained how he had built safe storage areas for firearms in his home and gave evidence about his safety training and his safe practices in relation to firearms. He said he had thousands of rounds of ammunition because he bought ammunition in bulk to save money.

The Hearing Judge’s Reasons

[37] The hearing judge delivered oral reasons after reserving judgment. The reasons occupy approximately 29 pages of transcript. The first 17 pages are devoted to a fulsome and accurate summary of the evidence. The appellant takes no issue with the accuracy of the hearing judge’s summary of the evidence, although he submits that the judge failed to take all of it into account.

[38] The hearing judge next devoted approximately eight pages of his reasons to the applicable legal principles, primarily by quoting extensively from decided cases and the Firearms Act, S.C. 1995, c. 39. Topics covered included the standard and burden of proof, the permissibility of relying on hearsay evidence, how hearsay evidence should be considered, the nature and interpretation of the legal test set out in s. 117.05 and related sections of the Criminal Code, and factors to be considered in reaching a decision.

[39] The hearing judge’s analysis occupies the last five pages of his reasons. Whether his verdict is unreasonable will be considered below. However, the hearing judge clearly made the following findings of fact:

(1) The appellant’s firearms and ammunition were all safely stored, and the appellant was properly licensed. (2) The appellant had no criminal record and had never been treated for mental illness. (3) The evidence of Det. Cst. McCullagh and the hearsay introduced through her was credible and reliable. (4) Philip Quigley did not hear the appellant tell the cleaners that he wanted to hang Justin Trudeau. However, Mr. Quigley also did not hear the appellant talking to the cleaners about Pierre Elliott Trudeau. He was not present for all interactions between the appellant and the cleaners. (5) The ropes and slip knots in the basement were for stretching and exercising but they looked like nooses. (6) When speaking about the appellant’s political views Mr. Quigley “chose his words very carefully”. (7) The appellant’s evidence was not credible and was rejected. (8) The appellant “harbours some conspiracy theories regarding the government of Canada and is seeking people to join his group to advance his goals.” (9) The written document titled “Goals” found in the appellant’s residence recorded the appellant’s goals. (10) Even if the appellant would not use weapons to hurt others himself, “he may incite others” to do so to advance his goals. (11) Based on the evidence “it is possible to conclude that he may entertain the notion of engaging in an armed insurrection against the government using his arsenal of weapons and ammunition.” (12) The appellant did say to the cleaners that he thought Prime Minister Justin Trudeau ought to be hanged. (13) The appellant’s testimony that he spoke only of Pierre Elliott Trudeau was rejected. (14) Therefore, the appellant’s recent behaviour included threatened violence against another person. (15) The appellant lacks the responsibility and discipline the law requires of gun owners.

The Grounds of Appeal

[40] The appellant submits that the hearing judge’s determination amounts to an unreasonable verdict having regard to four alleged errors:

i. The judge erred in preferring the hearsay evidence over the appellant’s evidence without any articulated basis; ii. The judge erred by reversing the onus of proof from the Crown to the appellant; iii. The judge impermissibly speculated that the appellant attempted to recruit individuals to form a conspiratorial group with stated goals against the government; iv. The judge misapprehended evidence by failing to consider the whole of the evidence.

[41] In oral argument submissions were advanced in relation to each of the four alleged errors. However, emphasis was placed on the alleged failure to articulate a basis for preferring the hearsay evidence to the sworn testimony led by the appellant.

ANALYSIS

[42] The appellant’s overarching submission, essential to the success of the appeal as presented, is that the verdict is unreasonable. This basis for allowing an appeal is found in s. 686(1)(a)(i) of the Criminal Code, which is made applicable here by the combined operation of ss. 117.05(9), 813 and 822 of the Criminal Code.

[43] The test to be applied to determine if a verdict is unreasonable is whether the verdict is one that a properly instructed jury acting reasonably could have rendered. A very concise statement of the governing principles is found in R. v. Li, 2013 ONCA 81, at para. 123, per Watt J.A.:

[122] A verdict may be unreasonable in either of two senses.

[123] A verdict may be unreasonable because it is a decision that no properly instructed jury, acting judicially, could reasonably have rendered: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4 and 44; R. v. Biniaris, 2000 SCC 15, [2001] S.C.R. 381, at para. 36; R. v. Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2. Illogical or irrational reasoning can also render verdicts unreasonable. In this sense, a verdict is unreasonable where the trial judge draws an inference or makes a finding that is:

i. plainly contradicted by the very evidence from which it is drawn or upon which it has been made to rest; or ii. demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge.

See Sinclair, at paras. 19 and 21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98.

[44] In applying this test a court must go beyond asking whether there is evidence to support the verdict. While the appellate court does not substitute its view for that of the original fact finder, the court must re-examine and to some degree consider the effect of the evidence: R. v. Yebes, [1987] 1 S.C.R. 168, 36 C.C.C. (3d) 417; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. However, the question is whether the verdict is reasonable, not whether it is justified: R. v. Corbett, [1975] 2 S.C.R. 275, at p. 282; R. v. Chacon-Perez, 2022 ONCA 3, at para. 73.

[45] Whether the verdict is that of a jury or a judge alone, the test remains the same. However, it has been said that when the appeal is from a judge alone the application of the test is somewhat easier as there will be reasons to review. Such cases will generally focus on whether the reasons are illogical or irrational, in the sense described in points i. and ii. quoted above from Li. See also R. v. C.P., 2021 SCC 19, at paras. 28-29. This has been the focus of the appellant’s submissions in this case in asserting four specific errors, to which I now turn.

[46] The first error alleged is that the trial judge failed to articulate any basis for preferring the hearsay evidence led by the Crown over the viva voce evidence led by the appellant. The appellant submits that the trial judge’s reasons do not demonstrate that he undertook the analysis or engaged in the scrutiny required to justify his preference for the hearsay evidence. The appellant points out that in R. v. Zeolkowski, [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, at para. 18, the court held that, while hearsay is admissible in such proceedings, in considering the weight of hearsay evidence the trial judge must scrutinize it to ensure that it is credible and trustworthy. The appellant submits that because the trial judge failed to articulate such scrutiny he did not engage in it, and the trial judge’s findings of fact cannot be upheld on appeal. The error, the appellant submits, contributes to a conclusion the verdict is unreasonable.

[47] I am unable to accept this submission. Although couched in terms of an unreasonable verdict, the appellant’s submission is really that the trial judge’s reasons are inadequate for appellate review. The appellant cites R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and Bruno v. Dacosta, 2020 ONCA 602, both cases dealing with the adequacy of reasons, in support of his submission. Those cases and others require a court to provide reasons which are sufficient to allow an appellate court to understand the logical connection between the verdict and the basis for the verdict. See, for example, R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 35.

[48] Whether a judge’s reasons are adequate must be considered against the background of the evidence, the submissions of counsel and the issues at the trial. I observe that whether the hearsay evidence was credible and reliable was an issue at trial which the parties made submissions on. The hearsay was admissible. The issue went only to the weight of the evidence. The resolution of the issue involved findings of both credibility and reliability based on a consideration of all the evidence.

[49] As stated in Bruno v. Dacosta, at para. 23, a reviewing court must review the record to determine whether the judge’s reasons are thereby rendered more comprehensible. In addition, and critically important, an appellate court reviewing the adequacy of reasons “must defer to the trial judge’s findings of credibility, absent palpable and overriding error”: R. v. J.J.B., 2013 ONCA 268, at para. 22. I observe that the same high degree of deference is required in relation to a judge’s findings of credibility when reviewing the record to determine whether a verdict is reasonable: R. v W.(R.), [1992] 2 S.C.R. 122, at para. 20; R. v. Burke, [1996] 1 S.C.R. 474, [1996] S.C.J. No. 27, at para. 5.

[50] The hearing judge was aware of the need to scrutinize the hearsay evidence to ensure that it was credible and trustworthy. He quoted from cases where that requirement was stated. At least one of the quotes the hearing judge included in his reasons referenced the decision of the Supreme Court of Canada in Zeolkowski and made that point. Later in his reasons, the hearing judge specifically stated that he found the hearsay to be credible and reliable. While the judge’s reasons could have been more pointed in explaining why he made that finding, I am satisfied that when his reasons are read as a whole against the background of the record, and with the required deference to his other findings of credibility, the logical pathway between the evidence and the judge’s conclusion on this point is sufficiently apparent to permit meaningful appellate review. His conclusion that the hearsay was credible and reliable was also reasonable.

[51] First, the trial judge disbelieved much, but not all, of the appellant’s evidence. The hearing judge had the advantage of seeing that testimony and it was open to him to accept some, none, or all of it. Some of the rejected testimony was inconsistent with the viva voce evidence given by Det. Cst. McCullagh whom the trial judge found to be credible. For example, the trial judge relied in part on Det. Cst. McCullagh’s evidence to support his finding that the appellant harboured conspiracy theories, which the appellant denied. The evidence of Det. Cst. McCullagh, the finding of the “Goals” note, and the contents of the video recorded evidence of the two cleaners were all quite consistent and capable of supporting that conclusion.

[52] It is apparent from the hearing judge’s reasons that he was aware of all of the evidence and of the conflicts in the evidence. There is no indication that he did not consider the evidence together to make his findings of fact, including his findings of credibility. As previously mentioned, he did accept some aspects of the appellant’s evidence. It is apparent, however, that the trial judge’s rejection of much of the appellant’s evidence was a significant factor in his determination that the hearsay evidence was credible and trustworthy.

[53] The trial judge’s rejection of much of the appellant’s evidence and acceptance of the hearsay evidence is also reasonable. As the respondent points out, the appellant’s testimony was inconsistent with the uncontested fact that the cleaners fled the house leaving some of their cleaning supplies behind. The appellant also repeatedly insisted that he referred to Pierre Elliott Trudeau and minimized his anti-government views, in a manner which the record reveals was quite capable of being viewed as contrived and self-serving. Det. Cst. McCullagh’s testimony was that the appellant seemed very interested in conspiracy theories regarding current events and offered to meet again to discuss them. This offered circumstantial support for the statements of the cleaners. The appellant’s own evidence also offered some potential support for the cleaners’ statements. He agreed he discussed political theories in front of them and thought that politicians who had been convicted of corruption should be hung.

[54] The cleaners’ statements were also consistent but not identical, in a manner that could be viewed as mutually confirmatory. Their statements were video recorded, enhancing the ability of the hearing judge to evaluate their evidence and assess their demeanour. Their video recorded statements were made in a police station during a police investigation. These were circumstances capable of enhancing the reliability of their statements as the solemnity of the situation would be apparent. There was no evidence of any prior relationship between the cleaners and the appellant or any evidence of a motive to lie on the part of the cleaners.

[55] In summary, the record contains evidence of several circumstances capable of supporting the credibility and reliability of the hearsay in both threshold and ultimate terms. It must be kept in mind that the evidence was admissible. We are talking about assessing the weight to be given to the evidence. The exercise of identifying particular hearsay dangers and considering whether there are adequate substitute safeguards to counter the absence of cross-examination that is required when the issue is admissibility under the principled exception to the hearsay rule, do not strictly apply here, although that approach may have led to clearer reasons.

[56] It would certainly have been preferable for the hearing judge to have explained specifically why he found the hearsay to be credible and trustworthy in the circumstances. However, I am satisfied that when his reasons are read in their entirety against the background of the record, how and why he reached his conclusion on this point is apparent, reasonable and supported by the evidence. Consequently, I reject this submission of error.

[57] The appellant next argues that the hearing judge reversed the onus of proof. This submission is based on a single sentence in the hearing judge’s reasons. At p. 27 of his reasons the trial judge said, “Even though the Crown did not call the two cleaners, it was open to the [appellant] to do so but it (sic) chose not to.”

[58] In my view, the appellant’s submission takes this sentence of the judge’s reasons out of context and fails to take into account the hearing judge’s reasons as a whole, including what he said about the burden and onus of proof earlier in his reasons.

[59] First, the context. The impugned line of the judge’s reasons is found in a brief paragraph where he says that after considering all the evidence and counsel’s submissions, he found the hearsay evidence to be credible and reliable. The hearing judge added that it was open to the appellant to have called the two cleaners, but he chose not to. That was an accurate description of what occurred at the hearing.

[60] I also observe that the availability for cross-examination of a declarant whose out-of-court statement is tendered is often taken into account as a factor in favour of threshold reliability when the admissibility of hearsay evidence is considered under the principled exception to the hearsay rule. Although admissibility was not the issue, the hearing judge was required to consider factors affecting the reliability of the evidence. The availability of the cleaners to testify falls within that purview. There is no indication that, when it came to his decision on the ultimate question at the end of the hearing, the hearing judge drew an inference in favour of the Crown or against the appellant from the appellant’s failure to call the cleaners to testify.

[61] I am not persuaded that the hearing judge reversed the onus of proof.

[62] The appellant’s third claim of error is that the hearing judge impermissibly speculated that the appellant attempted to recruit individuals to form a conspiratorial anti-governmental group. The appellant submits that despite the rejection of the appellant’s testimony that the “Goals” document did not represent his goals, “there were simply no established facts that would permit an inference that the document reflected the personally held goals of the appellant.”

[63] Again, I disagree. The hearing judge disbelieved the appellant’s evidence about the “Goals” document. That was a document found in the appellant’s possession which he admitted was in his handwriting. These were circumstances capable of supporting an inference he adhered to those ideas. That potential inference was strengthened by the cleaners’ evidence that the appellant asked them whether they wanted to become part of his group, and by Det. Cst. McCullagh’s evidence that the appellant was interested in conspiracy theories and offered to meet further with the police to discuss them. All of these circumstances were reasonably capable of supporting the hearing judge’s conclusion that the appellant “harbours some conspiracy theories regarding the government of Canada, and is seeking to have people join his group in order to advance his goals.”

[64] The fact that another judge may have drawn other inferences from the same evidence is of no assistance to the appellant. I am satisfied that the inference impugned was capable of being drawn. It cannot be said that the inference is clearly wrong, unsupported by the evidence or otherwise unreasonable. No palpable or overriding error has been demonstrated. Consequently, the hearing judge’s factual finding is to be accorded deference on appeal: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9.

[65] The appellant’s final allegation of specific error is that the hearing judge failed to consider all the evidence in reaching his decision. He acknowledges that this is a submission that the trial judge misapprehended the evidence by failing to take evidence into account and/or by failing to give proper effect to the evidence. The appellant notes that in R. v. Morrissey, [1995] O.J. No. 639 (C.A.), at para. 89, Doherty J.A. held: “An appellant will be in a much better position to demonstrate the unreasonableness of a verdict if the appellant can demonstrate that the trial judge misapprehended significant evidence.”

[66] The appellant makes a number of distinct submissions under this ground of appeal. In his factum the appellant commences with a submission that after finding that the “Goals” document reflected the appellant’s personal goals, the hearing judge engaged in speculation and conjecture when he said, at p. 29 of his reasons:

Even if he himself would not use weapons to hurt others as a real danger, he may incite others to do so in order to advance his goals. In the evidence before me, it is possible to conclude that he may entertain the notion of engaging in an armed insurrection against the government using his arsenal of weapons and ammunition.

[67] In his factum and in oral submissions the appellant contends that the trial judge never explained how he came to the conclusion that the appellant would proliferate an “armed insurrection”. The appellant further submits that the hearing judge failed to take into account or give proper effect to the absence of any evidence that the appellant had a mental illness, that he had no criminal record or history of violence and that he stored his firearms safely and always handled and used them in a safe manner.

[68] There are a number of problems with these submissions. First, I note that the trial judge specifically mentioned that the appellant had no history of being treated for mental illness, had no criminal record or history of violence, and followed safe practices. These were all relevant considerations which the judge’s reasons indicate he did take into account. However, these factors do not preclude the conclusion that the appellant was not a suitable person to possess firearms. The concerns which led to the trial judge’s conclusion related to the appellant’s threatening comments towards the Prime Minister and other political figures in combination with his belief in conspiracy theories in relation to the government of Canada.

[69] In terms of what the hearing judge said in the last quoted excerpt from his reasons, I am unable to accept that the conclusion is speculative or conjectural. The hearing judge was going further than he needed to, but in all the circumstances it was possible to infer that the appellant “may entertain the notion” of engaging in armed insurrection using his firearms. Given the nature of the test applied at a hearing under s. 117.05 of the Criminal Code and the danger the misuse of firearms pose, a finding by the hearing judge that the appellant “may entertain” such a notion was a relevant consideration. Not all fact finders may have gone as far as the hearing judge did on this record, but I am not persuaded the finding was unreasonable or speculative given the hearing judge’s other findings of fact.

[70] Returning to the appellant’s overarching submission that the hearing judge’s verdict is unreasonable, I again disagree. The reasonableness of the verdict must be determined having regard to the onus and burden of proof and the nature of the test to be applied at the hearing. The legal test to be applied pursuant to s. 117.05(4) is whether it is “desirable in the interests of the safety” of the person from whom the firearms and ammunition were seized or any other person, that the subject of the hearing should possess such items. This requires the hearing judge to determine whether there is a legitimate concern that the subject lacks the responsibility and discipline required of a firearms owner: R. v. Davidson, 2011 ONSC 249, at paras. 32-35; R. v. Day, [2006] O.J. No. 3187 (S.C.J.); R. v. Peacock-McDonald, 2007 ONCA 128, at para. 40. The burden is on the Crown to demonstrate such a concern on a balance of probabilities: R. v. Zeolkowski, [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, at para. 17; R. v. Vardomskiy, 2013 ONSC 4113, at para. 2; R. v. Bokhari, 2009 ONCJ 691. There is no requirement that the Crown show that the subject of the application will use their firearms in dangerous way: R. v. Biscope, [2001] O.J. No. 628 (S.C.J.), at para. 9; R. v. Morgan, [1995] O.J. No. 18 (O.C.J.), at para. 31. None of this represents an onerous standard.

[71] Here, the record could reasonably support the conclusion that the hearing judge reached: that the appellant advocated that Prime Minister Justin Trudeau and other government officials should be hung, that there were conspiracies operating which the government was hiding from the people, and that the appellant was interested in spreading his views to others. There was some evidence to support each of these conclusions. It was also clear that the appellant had numerous firearms, a considerable stash of ammunition and firearms paraphernalia, a stun gun and handcuffs. While there was conflicting evidence on significant points, it was open to the hearing judge to accept some evidence and reject other evidence leading to the result reached.

[72] Significantly, the important factual findings in this case were based on the hearing judge’s findings of credibility which are entitled to significant deference due to his advantaged position of having seen and heard the witnesses.

[73] Having reviewed the entire record, I am not persuaded the hearing judge’s conclusion allowing the application and making the orders of forfeiture and prohibition is unreasonable. I return to the concise statement of the test in Li. None of the hearing judge’s essential findings of fact are plainly contradicted by the evidence he drew upon to support them. None of his findings of fact are demonstrably incompatible with evidence that was neither contradicted by other evidence nor rejected by him.

Conclusion

[74] The appeal is dismissed.

F. Dawson J.

Released: February 16, 2022