R. v Kuleczka, 2023 ONSC 3876

COURT FILE NO.: SCA(P) 200/22 DATE: 2023 06 29

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HIS MAJESTY THE KING Reza Raeesi, for the Crown / Respondent Respondent

– and –

WOJCIECH KULECZKA Appellant Richard Fedorowicz, for the Appellant

HEARD: June 20, 2023

REASONS FOR JUDGMENT [On Appeal from the Judgment of His Worship Justice of the Peace Dulai, dated April 8, 2022]

J.M. WOOLLCOMBE J.

Introduction

1This is an appeal from a decision made following an application under s. 117.05 of the Criminal Code of Canada (the “Code”) for the disposition of seized property.

2On Thursday, September 9, 2021, the appellant gave his consent to police attending at his home to seize his firearms. They did so and obtained two firearms, magazines and ammunition, as well as Firearm PAL licenses.

3As a result, on April 8, 2022, a hearing was conducted under s. 117.05 of the Code. The Crown sought an Order pursuant to s. 117.05(4) both prohibiting the appellant from possessing firearms and that the seized items be forfeited.

4In support of its position, the Crown called the evidence of two police officers and filed as exhibits three occurrence reports. While the self-represented appellant did not testify, he filed as an exhibit an eight page package of documents respecting his mental health diagnosis and treatment.

5Following the hearing, the Justice released an oral decision. He recognized that the burden was on the Crown to establish on a balance of probabilities that there were legitimate concerns that the appellant currently lacked the responsibility and discipline required of a gun owner. After reviewing the evidence, he found that the Crown had met its burden. He imposed a one year weapons prohibition and ordered the seized items forfeited.

6The appellant appeals, advancing two arguments:

a. First, it is submitted that it was not reasonable for the Justice to infer from the evidence that there existed legitimate concerns that the appellant lacked the responsibility and discipline required of a gun owner. While the appellant concedes that there was a mental health history, it is submitted that the evidence as a whole did justify inferring from the existence of that mental health issue that there was a risk to the appellant or the public. Accordingly, the appellant submits that the orders made should be set aside as unreasonable.

b. Second, it is submitted that the Justice misapprehended the evidence and thus failed to consider the force of the letters provided by the appellant respecting his mental health. More specifically, it is submitted that the Justice failed to consider that over the long term of treating him, the appellant’s treating psychologist had indicated that he had never seen any violence or aggression on the part of the applicant. On this basis or the alleged misapprehension of evidence, it is submitted that a new hearing should be ordered.

7The Crown submits that the evidence supported the Justice’s conclusion and that the appeal should be dismissed.

Summary of relevant evidence

8At the hearing, the Crown led evidence relating to three occurrences respecting the appellant.

9The first occurrence was at 3:12 a.m. on September 6, 2021. The appellant contacted police and advised that an unknown female child was in his residence. He advised police that she would giggle and laugh when he questioned her as to who she was or where her parents were. He further advised that while the child had been in the residence, his landlord had called a pest company who attended at 12:00 a.m. to address a rodent issue. The appellant said that he had believed the child was possibly one of the employee’s children, but that she was still present when they left. He further advised that when he contacted police, the child ran from the residence and he had lost sight of her.

10Police attended at the appellant’s residence, where he described the child’s appearance and clothing in detail. After speaking to the landlord and reviewing security footage of the driveway, police concluded that there had been no pest control people or child. Police understood that the appellant was a TPS officer and “has documented occurrences of visual hallucinations”. When questioned by police, the appellant advised that he had hallucinated before and that it might have been another episode.

11The second occurrence was later that day, at 7:02 a.m. Police received an emergency call from the appellant. He was at a Petro Canada gas station and said that someone armed with a knife had stolen his Ford Explorer and was trying to leave the scene with three other males. He described them as armed with a “homemade pipe” gun and a black firearm being fired by them.

12Peel Regional Police Officer Crewe testified about police having been given a good description of what to expect before getting to the Petro Canada station. When they arrived at 7:10 a.m., it was immediately clear that the situation was de-escalated. They found the appellant’s Ford Explorer stationary, with no one in it. The appellant was inside the Petro Canada station. Police were able to find no evidence to confirm the information that the appellant had provided.

13The police determined that nothing substantiated the claims made by the appellant in his call to police. Officer Crewe said that the appellant had reported very specific information, with details, causing police to take the call seriously. Police information revealed that there was a probability of mental health conditions. They also learned about the call the appellant had made earlier that day. Officer Crewe said that they explained to the appellant their concerns. The appellant acknowledged to police that he did take medications, though the police could not confirm if he was off them or not. When he checked the occurrence report, Officer Crewe said that he understood that the appellant was diagnosed with anxiety and PTSD, not that he was taking medication.

14Under cross-examination, Officer Crewe agreed that the appellant had been coherent and able to communicate with police effectively. The officer said that there was no threat of bodily harm to anyone else, but if there had been one, it was to the appellant himself. The officer agreed that the appellant had shown no signs of suicidal ideations and had been calm.

15The officers formed the opinion that the appellant could not care for himself. They told him that they were apprehending him under s. 17 of the Mental Health Act and taking him to the Mississauga General Hospital. The appellant was very cooperative and cordial. At the hospital, he was assessed and placed on a Form 1 for a psychiatric assessment. Later that day, the appellant gave police consent to enter his home and seize his firearms and ammunition.

16On November 3, 2021, the appellant was served with a Notice of Firearms Disposition.

17The third occurrence was on January 16, 2022. At 12:21 a.m., police received a call from Janusz Chmielewski. He said that his friend, the appellant, had stated that his life needs to end. Police attended at the appellant’s home, but neither their knocks nor phone calls were answered. His vehicle was in the driveway and the cell phone GPS suggested he was in the home. Based on concerns about his well-being, they believed he was there and breached the door. The appellant was in the unit in good health.

18The appellant told police that Mr. Janusz’s concerns had been taken out of context and that he had never had thoughts of suicide. The appellant said he had regular appointments with two doctors, which he would continue. A list of medications was provided to police. The officers determined that based on the appellant’s goals and plans, consistent medication, possible misunderstanding of the comment and the lack of imminent threat to himself or others, the appellant should not be apprehended under the Mental Health Act. The Justice concluded that this incident was not relevant to his decision.

19After the completion of the Crown’s evidence, the transcript reveals that the appellant was unsure as to whether he wished to testify. He ultimately decided that he would, even though the Crown consented to the admission of his package of five letters without him testifying.

20After he was affirmed to give evidence, the appellant began as follows: “When the officers testified, have I shown any sign of aggression? The car was stolen, there was a possible firearm, calling to – needed help?” The Justice interrupted because the appellant appeared to be reading a script. The Justice told him that he could provide any relevant evidence in the document he had prepared, but that he was not permitted to testify by reading a statement. After further discussion, the appellant declined to testify.

21The letters provided by the appellant and filed as exhibit 4 include:

• An October 20, 2021 letter from psychiatrist Hollam Sutander of Homewood Health Centre indicating that the appellant was under his care in the Traumatic Stress Injury & Concurrent Program (Guardians) to treat military members, veterans and first responders experiencing PTSD. He opined that the appellant met the criteria for PTSD.
• A further letter of November 1, 2021 letter from Hollam Sutander of Homewood Health Centre indicating that the appellant was under his care in the Traumatic Stress Injury & Concurrent Program (Guardians) to treat first responders experiencing PTSD. He had been admitted September 21, 2021 and was projected to be discharged November 23, 2021.
• Two further November 15, 2021 letters from Hollam Sutander indicating that the appellant had recently been under his care for PTSD, having been admitted September 21 and discharged November 15, 2021. The appellant had abstained from alcohol and non-prescribed addictive substances. He successfully completed treatment, and his demeanour remained calm and without displays of aggressive behaviour or language.
• A November 23, 2021 letter from Stephen Swallow, a Ph.D. and C.Psych at Oakville Centre for Cognitive Therapy. He indicated that the appellant has been under his care for many years to address longstanding anxiety, depression and relationship issues. He had never shown any tendencies towards aggression or violence in any way. His painful emotions were reported to have been internalized and manifested in the form of low self-esteem and self-sabotaging behaviour. He was reported to use alcohol as a form of self-medication. The letter also indicated that the appellant had been treated at Homewood Health Centre and that Dr. Swallow would continue to work with him to focus on preventing a relapse with respect to PTSD and alcohol misuse;
• A further letter of January 13, 2022 letter from Stephen Swallow that the appellant, a 21 year veteran of the Toronto Police Service, had been under his care for many years for difficulties relating to severe anxiety, severe depression and relational issues. He wrote that it was his opinion that the appellant meets the criteria for Major Depressive Disorder and PTSD.

The legal framework

22Section 117.05(4) of the Code provides for an application for disposition of the items seized pursuant to section 117.04. Section 117.05(4) states:

(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 His 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.

23The purpose of s. 117.05(4) “is the protection of the public from the destructive force of firearms in the hands of persons not equipped morally, mentally, or emotionally to handle them”: R. v. Vardomskiy, 2013 ONSC 4113, at para. 10.

24Section 117.05(4) requires a determination of 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. The question is about the sufficiency of the evidence respecting the forfeiture and prohibition as of the date of the forfeiture hearing, not the date that the forfeiture application was commenced. All relevant evidence must be considered, which may include hearsay evidence. Hearsay evidence must be scrutinized to ensure it is credible and trustworthy before it is accorded weight. The Crown must prove on a balance of probabilities that there is a legitimate concern that the appellant lacks the responsibility and discipline required of a gun owner. There is no requirement for the Crown to show that the subject of the application will use their firearms in a dangerous way. This is not an onerous standard: R. v. Zeolkowski, [1989] S.C.J. 50, at paras.17-18; R. v. Peacock-McDonald, 2007 ONCA 128, at para. 40; R. v. Penman, 2022 ONSC 1061, at para. 70; Vardomskiy, at para. 2; R. v. Bokhari, 2009 ONSC 691, at para. 10.

Positions of the parties at the hearing

25Before the Justice, the Crown’s position was that the appellant appeared to have been hallucinating at the time he made the two September 6, 2021 police reports. The Crown submitted that the appellant had had acute episodes of hallucinations that led to police involvement and that these gave rise to reasonable safety concerns about him having firearms.

26The appellant’s position was that he had been diagnosed with PTSD and successfully engaged in a treatment program. He was diagnosed as being calm and not aggressive. He emphasized that Dr. Swallow had said he had shown no tendencies towards aggression or violence and said that he continued to work with him on a weekly basis. He submitted that he did not pose any threat to the public or to himself. While many of his submissions read more like unsworn evidence, his position that there was no evidence that he was violent or aggressive and that, instead, he was polite and cordial and not a risk.

The Reasons of the Justice

27The Justice recognised that under s. 117.04(5), the burden was on the Crown to prove on a balance of probabilities that there existed legitimate concerns that the appellant currently lacked the responsibility and discipline required of a gun owner.

28The Justice acknowledged the positive evidence about the appellant that was before him: that the appellant’s firearms were stored in a reasonable and secure manner, that there was no evidence that the appellant acted violently with respect to the firearms, that he has no criminal record and that there was no evidence of irresponsibility with respect to the firearms. He also recognized that the appellant had been a police officer with the Toronto Police Service, which he found was a positive aspect, given that officers are expected to have a high level of responsibility respecting firearm safety.

29The Justice then considered the appellant’s mental health, which caused him concerns. He addressed the letters provided from the doctors, written between October 2021 and January 2022 and the certificates of completed programs. He observed that one of the issues with the letters was that there had been no live evidence from the doctors and that the Crown had not had the opportunity to cross-examine on the letters to or ask the doctors any questions. He found that the letters had to be weighed accordingly.

30The Justice summarized that the letters indicated that the appellant had attended and completed programs. At the same time, they established that the appellant had mental health issues that he was facing and continued to face, including in respect of PTSD. He recognized that the appellant had been engaged in seeking treatment and help, which he viewed as positive. He continued:

…but I do have to view it in totality in that the concerns do become of mental stability. Mental health is fluid in that it can change from even moment to moment, day to day. There is concerns there that even your evidence, the letters and the Exhibit 4, have highlighted.

31The Justice continued, summarizing the evidence adduced by the Crown respecting the two occurrences on September 6, 2021, the appellant’s consent to the seizure on September 9 and the incident on January 16, 2022 (which, as I have indicated, he found was not relevant to his decision).

32Recognizing that what was relevant was any concerns as of the date of the hearing, the Justice expressed the following concerns about the two police calls made by the appellant on September 6, 2021:

It comes from the reported nature of those calls, the details, the specificity, the method in which information's being provided, brings about a certain response from first responders; an urgent, high-risk response to safety. The concerns that would potentially come from that response are something that I need to take into consideration, particularly when the evidence that has been given is — and even through your documents that this was something that you believe did occur. That it is potentially an hallucination or some other reason that this information was provided, it put the public into risk. It puts the public in significant risk, in my view.

The second concern comes from these three occurrences that were Exhibits One, Two and Three, is the potential response from you. If there is a perceived threat to you, the accessibility to firearms would only aggravate or increase that risk and in my view that is a risk that meets the test of that legitimate concern. And so based on what I have heard is that there is a legitimate concern to the safety of the public and that includes yourself, but it is not necessarily limited to yourself. It is the protection of the public, that the concern is having these weapons returned to you would exceed that legal threshold.

33Ultimately, the Justice held that there were legitimate concerns about the safety of the public and the appellant such that return of the weapons would exceed the legal threshold and so he ordered them forfeited. In assessing the prohibition order, the Justice determined that there was an ongoing risk and one that remained present, such that that there should be a one year prohibition order.

Analysis

i) Did the Justice unreasonably infer from the evidence that the appellant lacked the responsibility and discipline required of a gun owner?

34The appellant’s overarching position is that the trial judge unreasonably inferred that the appellant lacked the responsibility and discipline required of a gun owner. Put another way, it is suggested that the verdict reached was unreasonable because the inferences drawn were not available. While the appellant concedes that there was a mental health history, it is submitted that the evidence as a whole did not justify the inference to be drawn from the existence of a mental health issue that there was a risk to the appellant or the public.

35As explained by Justice Watt in R. v. Li, 2013 ONCA 81, at para. 122-123, a verdict may be unreasonable in either of two ways. First, it may be because no properly instructed jury, acting judicially, could reasonably have rendered it. Second, it may be unreasonable because it is the result of illogical or irrational reasoning. In other words, the decision maker drew inferences or found facts that were contradicted by the evidence from which they were drawn, or demonstrably incompatible with evidence that was neither contradicted nor rejected by the decision maker.

36The appellant submits that the Justice unreasonably jumped from fact that the appellant had mental health challenges, and had experienced a mental health crises, to a conclusion that his possession of firearms meant he was at risk to himself or the public. It is suggested that the Justice engaged in appropriate stereotypical reasoning about how people with mental health issues behave.

37I am not persuaded that this is a fair criticism of the reasoning process engaged by the Justice.

38To start, it must be noted that the Justice expressly recognized that there were many features of the evidence that supported a view that the appellant was responsible about his firearms:

• they were stored safely in a safe that was password protected;
• there was no evidence that they had ever been stored or used in a manner other than one that was responsible; and
• the appellant was a police officer for a significant period of time, which was telling of the level of responsibility as, in the Justice’s view, the threshold that is expected from officers is higher with respect to gun safety and responsibility; and
• there was an absence of evidence that the appellant had ever acted violently with respect to the gun and no evidence of any criminal record.

39It was when he turned to the issue of the appellant’s mental health, that he had concerns. The Justice’s concern, firstly, was with the fact that the appellant had experienced hallucinations. These were detailed and specific in terms of the information that they contained. Most concerning, the appellant appears to have hallucinated that his vehicle had been stolen and that there were people with firearms who were using them. Secondly, the Justice was concerned about the manner in which the appellant might respond to perceived threats if he had access to firearms and experienced hallucinations as he had before.

40In my view, the Justice made no error in inferring from the fact that the appellant had experienced such detailed and concerning hallucinations that his continued possession of firearms posed a risk of danger to the public. I do not see this the Justice’s analysis as stereotyping because the appellant had mental health issues. The evidence offered no explanation for or insight into the appellant’s episodes of hallucinations. There was no prognosis offered. There was certainly no evidence from which to conclude that they would not recur.

41The Justice could not and did not rely simply on the fact that the appellant had a history of mental health concerns. Clearly, there needs to be a reason why the particular mental health concerns led to an inference that it was not desirable for the appellant to have firearms. The reason “could arise from the person’s conduct with guns, or from their behaviour or mental state otherwise that gives rise to legitimate concern about their potential future behaviour if they did have access to firearms”: R. v. King, 2018 ONCJ 1589, at para. 19. As Wheeler J. noted at para. 22 of King, this may be because of “evidence of emotional or mental instability, evidence of irresponsible behaviour with guns, or some combination of the two…”.

42In this case, there was no evidence of any concerning behaviour on the part of the appellant relating to guns. But there was documented evidence of significant mental health issues that had caused high level police responses. There was, as the Justice recognized, a reasonable inference available that if the appellant perceived a risk to himself because of this sort of detailed hallucination, his possession of firearms could increase the risks to himself and to the public because it was completely unknown how he would respond. I see no error in this conclusion.

43Firearms are dangerous. Their possession by individuals who experience vivid and concerning hallucinations involving weapons and violence raises concerns as to how the person might react if experiencing hallucinations. This was a legitimate and appropriate concern in this case, despite the absence of any documented history of violence or mis-use of the firearms by the appellant in the past. Section 117.04(1) “is preventative in nature. Its primary purpose is the prevention of serious injury and death resulting from the use of firearms…”: R. v. Hurrell, [2002] O.J. No. 2819 (C.A.), at para. 31.

ii) Did the Justice misapprehend the evidence in the letters provided by the appellant?

44To succeed in a claim of a misapprehension of evidence, the appellant must demonstrate that the misapprehension of evidence was material and essential, rather than peripheral to the reasoning process leading to the finding of guilt. There must be a link between the misapprehension and the adverse result: R. v. Smith, 2021 SCC 16, at para. 2; R. v. Lohrer, 2004 SCC 80, at para. 7; R. v. Doodnaught, 2017 ONCA 781, at paras. 71-72; R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont.C.A.).

45In my view, the Justice fairly considered and weighed all of the evidence, including the content of the letters contained in Exhibit 4.

46First, it is of some significance that the authors of the letters, those who had treated the appellant and understood his mental health issues, were not called as witnesses. As the Justice correctly recognized, this meant that while the letters were admissible, the weight that should be accorded to them was affected by the fact that the Crown was not able to cross-examine the authors.

47Second, the Justice clearly was familiar with and considered the contents of the letters. He recognized that the appellant had been diagnosed with PTSD. He recognized that the appellant had been involved in long-term counselling and that he had recently completed a program. He appreciated that at the time the letters were written, the appellant was engaged in treatment and in seeking help, which he viewed as positive.

48Third, while the Justice did not specifically repeat the passage in Dr. Swallow’s letter that he had never witnessed the appellant being aggressive, he was not required to. It cannot have been lost on him that the letter said this. In his submissions, the appellant specifically referred to the November 23, 2021 letter from his psychologist and submitting that he had written that “I have shown no tendencies toward aggression or violence in any way and I’m continuing to work with him on a weekly basis”. Later, he noted, “Your Worship, there has never been any violence and the officers testified that there has never been any violence”, continuing that “the doctors clearly say I’m calm” and that with Peel Regional Police, “there was no hint of any aggressive behaviour and the officer testified to it”. Further he said that “no doctor has ever said that I pose any risk to myself or to anyone else”. He concluded that the letters showed he had never been a threat to anyone or of suicide and that the two incidents before the court had not involved violence. In my view the Justice was alive to and considered that the letters revealed an absence of history of violence. He was not required to repeat every piece of evidence or to demonstrate he had considered it, particularly when he observed that the weight to be accorded to the letters was affected by the absence of any testing through cross-examination.

49Finally, the reasons as a whole make clear that the Justice’s conclusion was not based at all on any suggestion that the appellant had ever demonstrated any actual violence. He knew that there was no history of violence. That was not what drove his conclusion. Nor could it. What was also important was that the Justice was satisfied that the hallucinations that the appellant had experienced, which the letters from the physicians left wholly unexplained, gave rise to concerns about his possession of firearms. It was clear from the evidence as a whole that the appellant believed what he had reported to police in his two calls. His unexplained detailed hallucinations about violence and firearms raised real concerns about what might happen were he to hallucinate again and have access to firearms. The Justice found, reasonably in my view, that the combination of having firearms and the potential for recurring hallucinations raised public safety concerns.

50I am not persuaded that the Justice materially misapprehended the relevant evidence. This ground of appeal must be dismissed.

Conclusion

51For the reasons set out, I find that the Justice’s conclusion that the evidence as a whole established on a balance of probabilities that it was not desirable in the interests of the safety of the appellant or members of the public that the appellant possess firearms was reasonable and not the result of any misapprehension of evidence. The appeal is dismissed.

Woollcombe J.