CITATION: R. v. Peacock-McDonald, 2007 ONCA 128
DATE: 20070227
DOCKET: C45998
COURT OF APPEAL FOR ONTARIO
LASKIN, MacPHERSON and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Paul Blais,
for the appellant
Respondent
- and -
CAROLINE ANN PEACOCK-McDONALD
Paul G. McDermott,
for the respondent
Appellant
Heard: February 19, 2007
On appeal from the decision of Justice A. J. Stong of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated August 31, 2006, dismissing an appeal from the forfeiture order of Justice L. E. Chester of the Ontario Court of Justice dated January 4, 2006.
CRONK J.A.:
1. Introduction
[1] This is an appeal from an order for the forfeiture of firearms made under s. 117.05(4) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] On September 14, 2004, two police officers attended at the appellant’s residence in response to her complaint concerning noise from her neighbours. Based on their dis-cussions with and observations of the appellant, the officers concluded that she was suicidal. Accordingly, they took the appellant to the hospital for the determination by a physician as to whether she should be detained under s. 15 of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”) for a psychiatric assessment.
[3] Within ten minutes of their arrival at the hospital, one of the police officers, Acting/Sergeant Allore, obtained a firearms licence that was in the appellant’s possession, together with the keys to her house and her firearms’ cabinet. There is no suggestion that these items were obtained unlawfully. Officer Allore then left the hospital to return to the appellant’s home to search for her firearms. The remaining police officer, Constable Hawley, was informed at about the same time that the attending physician intended to sign an involuntary admission form under the MHA (a “Form 1”) regarding the appellant, requiring her detention for the purpose of a psychiatric exam-ination. Officer Allore was not told of this decision before he left the hospital.
[4] Relying on s. 117.04(2) of the Code, Officer Allore attended and entered the appellant’s residence without a warrant to search for her firearms. He seized seven firearms in total, all of which were registered to the appellant and properly stored by her at the time of the seizure. Officer Allore then returned to the hospital where he learned of the Form 1 authorization for the appellant’s detention.
[5] Shortly thereafter, Officer Hawley and another police officer transported the appellant to a psychiatric facility for an evaluation. They arrived there about three hours after the search of the appellant’s home. The appellant was released from that facility less than forty-eight hours later.
[6] On October 12, 2004, Officer Allore applied under s. 117.05(1) of the Code for a hearing concerning the forfeiture of the seized firearms. At the hearing, the appellant argued that the requirements of s. 117.04(2) of the Code had not been met, with the result that the warrantless search could not be justified and no seizure of her firearms had occurred under s. 117.04(2). She claimed, therefore, that the application judge lacked jurisdiction to conduct the forfeiture hearing under s. 117.05(1) of the Code. She also submitted that the search was unreasonable in the circumstances and that it violated s. 8 of the Charter of Rights and Freedoms. The appellant’s arguments regarding s. 117.04(2) and her Charter challenge were heard together.
[7] The application judge, L.E. Chester J. of the Ontario Court of Justice, disagreed. He held that the preconditions to invocation of s. 117.04(2) of the Code had been satisfied and that no breach of s. 8 of the Charter had occurred. Further, because a lawful search had been carried out under s. 117.04(2), he concluded that he had jurisdiction to proceed with a forfeiture hearing under s. 117.05(1) of the Code. Accordingly, on January 4, 2006, he granted the forfeiture application. He allowed the appellant thirty days from the date of his order to transfer the ownership of the firearms to a lawful recipient, failing which the firearms would be forfeited to the Crown.
[8] The appellant appealed. On August 28, 2006, A.J. Stong J. of the Superior Court of Justice held that the search infringed the appellant’s rights under s. 8 of the Charter. However, he also held that the evidence of the firearms was admissible under s. 24(2) of the Charter and that the application judge had jurisdiction to conduct the forfeiture hearing. He dismissed the appellant’s appeal.
[9] The appellant now appeals to this court. She argues that the appeal judge erred: (i) by failing to hold that the application judge lacked jurisdiction to entertain the forfeiture application; and (ii) by finding that the test for a forfeiture order under s. 117.05(1) of the Code was met. For the reasons that follow, it is my view that the appeal must be dis-missed.
2. Relevant Statutory Provisions
[10] Sections 117.04(1) and (2) and ss. 117.05(1) and (4) of the Code state:
117.04 (1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon…and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon…the justice may issue a warrant authorizing a peace officer to search…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.
(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…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.
117.05 (1) Where any thing or document has been seized under subsection 117.04(1) or (2), the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.
(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…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…be prohibited during any period, not exceeding five years, that is spec-ified in the order, beginning on the making of the order.
[11] Section 8 of the Charter provides, “Everyone has the right to be secure against unreasonable search or seizure.”
3. Discussion
(1) Jurisdictional Challenge
[12] The appellant submits that on a plain reading of s. 117.05(1), a forfeiture hearing under that section may only be conducted where the firearms in question were validly seized with a warrant under s. 117.04(1) or without a warrant under s. 117.04(2). The appellant contends that neither section was engaged in this case.
[13] It is uncontested that no warrant was obtained here. Thus, s. 117.04(1) is inapplicable.
[14] For three reasons, the appellant maintains that s. 117.04(2) is similarly inapplicable and, therefore, that the application judge had no jurisdiction under s. 117.05(1) to conduct the forfeiture hearing. First, she submits that the preconditions for a warrantless search under s. 117.04(2) were not met in this case. Consequently, her firearms were not validly seized under the authority of that section.
[15] Second, the appellant argues that the appeal judge correctly concluded that the search violated s. 8 of the Charter.
[16] Finally, the appellant contends that “the [MHA] cannot be used in conjunction with s. 117.04(2) of the [Code]”, that is, recourse by the police to s. 117.04(2) of the Code is precluded where a person is detained under the MHA.
[17] I would reject these submissions for the following reasons.
[18] Warrantless searches are presumptively unlawful. However, s. 117.04(2) of the Code authorizes the search and seizure of weapons, without the necessity of a warrant, where:
(i) 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 in the possession of any weapon, or any other person, to continue to possess that weapon;
(ii) the grounds for obtaining a warrant set out in s. 117.04(1) of the Code exist; and
(iii) it is impracticable to obtain a warrant because of a pos-sible danger to the safety of the person in the possession of the weapon, or any other person.
[19] We are concerned here only with the third precondition, namely, whether it was impracticable in the circumstances for the police to obtain a warrant before searching for the appellant’s firearms because of a possible danger to the safety of the appellant or any other person arising from the appellant’s possession of the firearms.
[20] The appellant submits that once she was detained under the MHA, any “possible danger” to herself or others was negated because one of two events would then occur. First, she could be admitted to a psychiatric facility under the authority of a Form 1, thus removing the possibility of any immediate danger to herself or any other person arising from her possession of the firearms. Alternatively, she could be released following her examination by a physician, thereby establishing that she was not a danger to herself or others. In either event, two requirements for a warrantless search under s. 117.04(2) – a possible danger arising from the appellant’s possession of the firearms and the imprac-ticability of obtaining a warrant – would not be met. In this case, the first scenario applied, that is, the examining physician signed a Form 1 for the appellant’s detention. The appellant therefore argues that the police officers had sufficient time to obtain a warrant, no immediate possible danger arose from her possession of the firearms, and s. 117.04(2) of the Code could not be invoked to justify a warrantless search.
[21] I disagree. The appellant does not dispute that she was suicidal when the police took her to the hospital for an examination. The application judge accepted Office Allore’s testimony that when they arrived at the hospital, Officer Allore was concerned that the appellant would “shore herself up” and deny that she was suicidal, causing the hospital to release her. The application judge found that Officer Allore had “a specific concern” for the appellant’s safety because she was a high suicide risk and, further, that he had “a concern for the general public” because the appellant had firearms at her residence and it was uncertain whether she would be detained for a psychiatric assess-ment.
[22] The application judge reviewed the information concerning the appellant that was available to Officer Allore before the search, including the fact that there were clear indications that the appellant wanted to end her life and that she was making “concrete plans to do so”. He then held:
There was a possible danger to her own safety or the safety of others, her neighbours and also her family. It is not necessary that he believe actual danger, just a possible danger.
[Officer Allore] acted on the possibility that she might be released from hospital and that she could return directly to her residence. He did not consider, under the circumstances, a warrant to be practical. Under these circumstances, his beliefs that she was a danger to herself and, so, to the public was an honest and reasonable one. Reasonable, not only when viewed subjectively but when also viewed objectively.
[23] In the result, the application judge concluded that the preconditions for a lawful search under s. 117.04(2) of the Code had been satisfied and that no infringement of the appellant’s s. 8 Charter rights had occurred.
[24] The appeal judge reviewed the application judge’s conclusion that the police had acted in conformity with the terms of s. 117.04(2) of the Code but did not expressly indicate whether he accepted that finding. However, contrary to the application judge’s finding, the appeal judge held that a breach of the appellant’s s. 8 Charter rights had been established. He reasoned as follows:
Within 10 minutes of her arrival at the hospital the appellant was detained under the [MHA] for at least 72 hours of observation by the attending physician. The possibility of the appellant being a danger to herself or anyone else thereby abated.
I am satisfied that there was a breach of the appellant’s Charter rights. Even before a warrant could be obtained, [Constable] Hawley came into possession of the pertinent infor-mation that the appellant had been committed for observation under the [MHA] thereby negating the possibility of creating danger to herself or any other members of the public. Although he did not forward that information to [Officer] Allore, it is information attributable to [Officer Allore] in as much as the Crown is one and indivisible.
[25] With respect, this reasoning is flawed in two respects.
[26] First, a Form 1 authorization for the detention of a person under the MHA is not a detention “for at least 72 hours of observation” by a physician. Section 15(5) of the MHA authorizes the detention of a person in a psychiatric facility under a Form 1 signed by a physician for a period “not more than 72 hours”. Thus, the appellant’s detention was not for a period of “at least” seventy-two hours. To the contrary, the length of her detention was uncertain. She could have been released within minutes or hours of her initial detention at the hospital. This possibility ultimately materialized when the appellant was released from the hospital in less than forty-eight hours.
[27] Second, the detention of the appellant pursuant to the MHA did not have the effect of “abating” or “negating” the possibility of the appellant being a danger to herself or others for a period of seventy-two hours. As I have said, the appellant could have been released from the hospital at any time after her initial detention under a Form 1. In this important sense, therefore, a possible danger to the appellant’s safety and to the public persisted when Officer Allore conducted the search.
[28] Moreover, nothing on this record suggests that there was any realistic opportunity for the police to obtain a warrant in the time that elapsed between the appellant’s arrival at the hospital and the completion of the search carried out by Officer Allore. The Officer testified that the time required to obtain a search warrant for a residence could vary from “as little as four or five hours to two days or more sometimes of trying to confirm your grounds…and articulate it”. He also said that he did not know for sure whether the appellant was going to be assessed until he got back to the hospital after seizing her firearms and that, if she were released, it would be too late to seize them.
[29] In my view, when public safety issues are implicated, as in this case, the police should not be required to speculate upon the timing of the release from hospital of a person in the appellant’s position in the hope that they might secure a warrant for the seizure of firearms in the possession of the detainee before that release. Matters of public safety, when firearms are involved, should not depend on guesswork; nor are they a ‘race to the swiftest’.
[30] The appellant correctly points out that the Crown did not appeal the appeal judge’s finding of a s. 8 Charter breach. However, given the ultimate dismissal of the appellant’s appeal by the appeal judge, it was not open to the Crown to do so. I note that in its factum filed with this court, the Crown challenged the appeal judge’s conclusion concerning the appellant’s Charter challenge.
[31] Moreover, and more importantly, the appeal judge’s holding that the appellant’s s. 8 Charter rights had been violated rested on a flawed appreciation of the applicable provisions of the MHA and the consequences thereof for the appellant’s own safety and that of others. As a result, it is open to this court to assess the validity of that key holding.
[32] The evidence before the application judge clearly demonstrated that, at the time of the search, the appellant’s continued possession of the firearms posed a possible danger to herself and to others. The imminence of this existing possible danger was not diminished by the fact of her initial detention for medical examination under the authority of s. 15 of the MHA. Because the length of the appellant’s detention under the MHA was uncertain, I am not persuaded that it was practicable, having regard to public safety and the safety of the appellant, for Officer Allore to first seek a warrant before conducting a search of the appellant’s residence.
[33] Nor do I accept the appellant’s claim that detention under a Form 1 signed pursuant to the MHA precludes or suspends the authority of the police to conduct a search for firearms under s. 117.04(2) of the Code in a proper case.
[34] The test for the detention of a person under s. 15(1) of the MHA is predicated, in part, on a physician forming the opinion that the person in question is apparently suffering from a mental disorder of a nature or quality that “likely will result” in “serious bodily harm” to that person or another person or “serious physical impairment” of the potential detainee. This is a stringent standard that depends on the informed opinion of a physician as to the likelihood of harm or impairment following the examination of the person in question. In contrast, resort to s. 117.04(2) of the Code requires only a “possible danger” to the safety of the person in the possession of a weapon or to the safety of any other person, rendering the obtaining of a search warrant impracticable.
[35] Thus, the regime contemplated by the MHA employs a standard for detention and envisages a factual underpinning for detention than is significantly different than the standard for a warrantless search and seizure provided for under s. 117.04(2) of the Code. Given these different standards, the legal criteria for a Form 1 detention under the MHA may not be met in a given case, although the possibility of danger to the prospective detainee or to the public may exist, thereby justifying a warrantless search for and seizure of weapons in the possession of the prospective detainee. The appeal judge put it this way:
The jurisdiction of a police officer to conduct a warrantless search, even where it is carried out while the subject person is detained under the [MHA], is dictated by the facts giving rise to the evoking of the provisions of the Criminal Code.
Although the [MHA] allows a physician to involuntarily admit a person for observation, it remains that there is no guarantee that this will happen in every case. Inasmuch as [s.] 117.04(2) relates to ‘possible’ circumstances and not ‘probable’ circumstances, an arrest pursuant to the [MHA] does not in and of itself preclude the police from acting under [s.] 117.04(2) where the person is undergoing the initial assessment and is subsequently detained for further obser-vation any more than it precludes the police from acting under [s.] 117.04(2) where the person is undergoing the initial assessment and is subsequently released from the hospital.
[36] Accordingly, I agree with the application judge that, in all the circumstances, the preconditions to the invocation of s. 117.04(2) of the Code were satisfied. Thus, the search here was authorized under that statutory provision.
[37] I also agree with the application judge’s conclusion that there was no breach of s. 8 of the Charter in this case. The appellant’s s. 8 Charter challenge was predicated on the premise that s. 117.04(2) of the Code did not apply to justify the search in question. Section 8 of the Charter protects against unreasonable search and seizure. A search will be reasonable only if it is authorized by law, the law itself is reasonable, and the search is conducted in a reasonable manner: see R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.). I have already concluded that the impugned search was authorized under s. 117.04(2) of the Code. The appellant does not attack the constitutionality of s. 117.04(2). Nor is there any suggestion that the search was carried out in an unreasonable manner. Thus, there is no basis on which to conclude that the search of the appellant’s residence and the seizure of her firearms was unreasonable in the circumstances.
[38] It follows that the firearms in question were validly seized under s. 117.04(2) of the Code. This was sufficient to establish the application judge’s jurisdiction to conduct a forfeiture hearing under s. 117.05(1) of the Code. See for example, R. v. Merchant (1991), 1991 ABCA 115, 64 C.C.C. (3d) 316 (Alta. C.A.).
(2) Forfeiture Application
[39] The appellant argues that the application judge and the appeal judge applied the wrong test for a forfeiture order under s. 117.05(4) of the Code. Again, I disagree.
[40] The application judge expressly recognized that s. 117.05(4) requires the deter-mination of the sufficiency of the evidence relied upon to support a forfeiture order as at the date of the forfeiture hearing, rather than the date of the commencement of the forfeiture application: see R. v. Laframboise, [2002] O.J. No. 5291 (Ct. J.). He was also alive to the requirement established by s. 117.05(3) of the Code, that he consider all the relevant evidence at the forfeiture hearing.
[41] The appellant did not testify at the forfeiture hearing.
[42] The application judge considered all the relevant evidence at the forfeiture hearing, which consisted of the evidence of Officers Allore and Hawley, and documentary medical evidence, dating from after the seizure of the appellant’s firearms, tendered on behalf of the appellant. This evidence indicated that the appellant suffers from delusions and paranoia, that she believes that she is the subject of a police conspiracy, that she exhibits anger, and that she presents with poor insight and only “fair” judgment.
[43] The evidence before the application judge thus amply supported his conclusion that, as at the date of the forfeiture hearing, the conditions exhibited by the appellant when she was detained on September 14, 2004 continued to exist, such that it was not desirable in the interests of the appellant’s own safety or the safety of others that she continue to possess firearms. I see no error in the appeal judge’s decision to refrain from interfering with this conclusion by the application judge.
4. Disposition
[44] Accordingly, for the reasons given, I would grant leave to appeal and dismiss the appeal.
RELEASED:
“FEB 27 2007” “E.A. Cronk J.A.”
“JL” “I agree John Laskin J.A.”
“I agree J. C. MacPherson J.A.”