R v. Laxson

Court: Ontario Court of Justice

Citation: 2015 ONCJ 268

Before: Justice Sandra Bacchus

Heard: January 28, 2015 and April 7, 2015

Rulings Released: May 14, 2015

Counsel

For the Crown (Applicant): K. Nedelkopolous

For the Respondent: R. Sewani (Student—Downtown Legal Services)

INTRODUCTION

[1] The Crown applies pursuant to section 117.05 of the Criminal Code for an order disposing of articles seized by Officer Solomon Tenn pursuant to section 117.04 of the Code, and for an order prohibiting the respondent from possessing any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period not exceeding five years.

[2] The items in question constitute the following: one Ruger 22 caliber rifle; one Stevens Model 512 Rifle; one Lee Enfield Rifle; two long swords; 3 large knives and one old knife.

[3] These items had been safely stored by the respondent in a locked safe located inside the bedroom closet of his home. The closet door was locked with a padlock. All of the firearms were unloaded and protected with trigger locks.

[4] There was no ammunition located within the respondent's residence.

[5] The police were made aware of these items by the complainant Marry Emelyn Valdez during their investigation at the scene, and the respondent voluntarily turned these items over to the police for safekeeping.

[6] The Crown submits that if this court makes an order for disposition, such order should specify that the weapons in question be released to a third party named Eric Sholz who is a friend of the respondent.

[7] I learned during the course of these proceedings that this exchange has already occurred, and that sometime in early 2015, members of the Toronto Police Service with the consent of the Crown permitted the respondent to sell the seized articles to his friend Eric Sholz. I understand that at the time of these proceedings Mr. Sholz had the items in his possession.

[8] The Crown advises that a ruling from the court ordering disposition and prohibiting the respondent from possessing firearms for five years is necessary to ensure that the respondent does not buy these items back from Mr. Sholz. Mr. Sholz was not called as a witness in these proceedings.

[9] Further, the respondent's firearm's acquisition certificate is still in police possession and requires an order for disposition I am advised.

OVERVIEW

[10] On November 27, 2013, at approximately 3:45pm, Officers Domenchuk and Tenn attended 65 Forest Manor Drive, Apartment 1812 in the city of Toronto in response to a radio call for a suspected domestic assault.

[11] Once on scene the officers met Ms. Valdez in the management office of the building. Ms. Valdez advised that she lived in the unit with the respondent and that they had argued about her sister. Ms. Valdez advised that during the argument the respondent's voice was raised, that he called her names, and that he pushed a chair to the ground.

[12] Ms. Valdez advised that during the summer of 2013 the respondent began having a secret relationship with her sister. Ms. Valdez advised the police that during this relationship she witnessed the respondent grab and push her sister to the floor.

[13] Ms. Valdez also alleged that during this same incident the respondent also grabbed and pushed her to the floor and yelled at her 18 year old son Rocky who was present and witnessed this assault. Ms. Valdez advised that she feared for her safety in relation to both the present allegations and this prior incident.

[14] Ms. Valdez's sister and her son were not called as witnesses on this application nor were any statements from them filed in these proceedings.

[15] Ms. Valdez provided a signed statement to the police which was read into the record during these proceedings. In that statement Ms. Valdez advised that on November 27, 2013, the respondent was hitting her and would not let her leave the apartment and that he told her to get out but blocked the door. Further, Ms. Valdez advised that at some prior time the respondent threatened to 'chew her up and spit her out'.

[16] Officer Domenchuk testified that information received over the 911 radio call from the complainant included that the respondent had been yelling at Ms. Valdez and blocked the door.

[17] There was also evidence lead that Ms. Valdez advised police when they initially arrived on scene that she had not been assaulted or threatened on that day and that she was upset that the respondent was yelling at her and telling her to leave the apartment. Further, Ms. Valdez advised the police that the respondent had pushed her two or three days prior to November 27, 2013.

[18] There is no allegation or suggestion that the respondent used any weapons, or threatened to use any weapons or that Ms. Valdez had any concerns that the respondent might use a weapon. There is no allegation that Ms. Valdez received any injuries on this occasion or during the prior incident where she alleged the respondent was aggressive and abusive with her and her sister.

[19] When the police attended the apartment and spoke to the respondent on November 27, 2013, the respondent advised that Ms. Valdez was his ex-girlfriend and that they were very stressed with each other and had ongoing issues regarding how Ms. Valdez treated her sister. The respondent advised that he had knocked over a chair during the dispute and had picked it up and put it back. The officers noted when they attended the residence that nothing appeared out of place.

[20] Detective Scott Moore, the officer in charge, testified that the respondent told the attending officers that he was 'not feeling right', was feeling stressed, and wanted the police service to hold his guns for safekeeping. The respondent was arrested for assault on November 27, 2013.

[21] The respondent attended some form of psychological counselling and the assault charge was stayed for mental health diversion on November 26, 2014. No medical or psychological evidence pertaining to the respondent was lead during these proceedings.

ISSUES/THE LAW

[22] Section 117.05(1) of the Criminal Code grants a justice the authority to order forfeiture and/or disposition of items seized by the police where the items were seized with or without a warrant pursuant to s.117.04 of the Code.

[23] Where the police have not obtained a warrant the seizure of the items in question must be based on the officer's belief that there are reasonable grounds to believe that it is not desirable in the interests or the safety of the person in possession of the weapons or any other person, for that individual to possess weapons.

[24] The application for an order for the disposition of the thing seized must be made within thirty days after the date of the seizure, at which time a date for hearing will be fixed by the court. (section 117.05(1))

[25] A plain reading of the section reveals fundamental jurisdictional issues with this application.

[26] To begin, this application is dated July 7, 2014, approximately seven months outside the statutory requirement that the application be brought within 30 days of the seizure of the items.

[27] Based on this clear contravention of section 117.05 of the Criminal Code with regards to the timing of this application, this court does not appear to have jurisdiction to make the order sought.

[28] Aside from the technical problems with the application, I find there are substantial fundamental issues which militate against a finding that this court has jurisdiction to make the order sought pursuant to s. 117.05 of the Code; namely that the preconditions to an order, set out by s. 117.04 have not been met.

[29] As there was no search warrant obtained by the police in this case an essential precondition to the order pursuant to s. 117.05 is that the police have a reasonable belief that it is not in the interests of the safety of the individual or others for the individual to continue to possess the weapons. (Section 117.04(1))

[30] In addition, the applicant is required to establish that the circumstances are such that it was not by reason of possible danger to the safety of the individual or any other person, practicable to have obtained a warrant. (Section 117.04(2))

[31] The difficulty in this case is that there is no evidence that Officer Tenn believed there were reasonable grounds to seize the weapons. Officer Tenn testified that in seizing the weapons he was only holding them for the respondent for safe keeping as the respondent had requested. He testified that it was his view that the weapons were not being held pursuant to the Criminal Code, and he was unaware of whether the weapons had to be returned to the respondent's custody.

[32] Further, Officer Tenn testified that he believed that he would not have had grounds to seize these items without the consent of the respondent.

[33] Although, objectively speaking Officer Tenn may have had reasonable grounds to seize the weapons given the respondent's utterances that he was 'not feeling right' and that he wanted the police to hold them for safe keeping, there is no evidence from Officer Tenn or any other officer involved in seizing the weapons regarding their subjective belief that the seizure was necessary.

[34] A subjective belief is an essential component to finding that there were reasonable grounds.

[35] Further, there is no evidence that it would not have been practicable in the circumstances for the police to have obtained a warrant for the seizure given a possible danger for the safety of the respondent or any other person, also required by section s. 117.04(2). There was simply no evidence adduced in this respect.

[36] Certainly, there was nothing wrong in the police taking possession of the weapons in the manner and circumstance that they did, given the respondent's request and consent.

[37] However, irrespective of the initial agreement the police may have had with the respondent it was incumbent on them to ensure that the continued detention of these weapons was authorized by law, particularly if an application such as this for forfeiture and disposition was contemplated.

[38] In my view the preconditions to making an order pursuant to section 117.05(1) of the Code have not been met. I am not satisfied that there was a lawful seizure of the items in question and I find that this court has no jurisdiction to make an order pursuant to section 117.05(1).

[39] Given that I have heard the evidence and mindful of the requirement that reasons be provided as per section 117.05(5) of the Code, I will deal with the merits of the application on a hypothetical basis in the event I am in error with regards to the jurisdictional issue.

MERITS (HYPOTHETICAL)

[40] The test to be applied in determining whether an order for disposition in respect of section 117.05(4) of the Code should be made is whether there are legitimate concerns that the respondent lacks the responsibility and discipline that the law requires of a gun owner. It is the applicant's burden on a balance of probabilities to show that the respondent does not meet this standard. R v. Day, [2006] O.J. No. 3187 at para 36.

[41] The application judge is to consider the sufficiency of the evidence and the legitimacy of the concern as of the date of the forfeiture hearing as opposed to the date of the seizure. R v. Peacock-McDonald, 2007 ONCA 128, [2007] O.J. no. 712 at para. 40; R v. Mourtzis, [2015] O.J. No. 764 at para. 25.

[42] In this case there is no evidence that the investigating and arresting officer had concerns regarding the respondent's possession of the weapons. The complainant, who was aware that the respondent had these weapons, expressed no concern that the respondent represented a danger in relation to having these weapons.

[43] There is no evidence that the respondent in the course of the current or past allegations of assault or threatening behaviour referred to by Ms. Valdez, ever threatened to use a weapon of any sort, or that he is a present threat to Ms. Valdez.

[44] The allegations in relation to the alleged incidents of assault are highly disputable; there are inconsistencies in the account which appear to be more than trifling. Certainly, the Crown may have had great difficulty establishing the essential elements of the offense of assault alleged to have occurred on November 27, 2013, which ultimately appears to have involved knocking over a chair.

[45] There is no evidence of present or ongoing concerns regarding assaultive behaviour even though the respondent would not have been on any form of release since the assault charge was stayed November 26, 2014.

[46] There is no evidence of mental illness or any other evidence which suggests that the respondent presents an ongoing danger or safety concern.

[47] The respondent's actions in the manner in which he stored his guns and then sought to voluntarily hand them over to the police because he was 'not feeling right' are actions consistent with that of a responsible gun owner.

CONCLUSION

[48] Certainly, concerns about public safety will always arise where there is the potential that gun and weapons ownership may collide with issues of mental illness and potentially impair a gun owner's reason and therefore the safety of the community. However, there is nothing in the evidence presented in this application that supports any realistic basis for such a concern.

[49] Had I jurisdiction to make an order for disposition in this case, I would have declined to do so and the application would have been dismissed.

[50] Given my findings, the application is dismissed for want of jurisdiction.

May 14, 2015

Justice Sandra Bacchus

Footnotes

[1] The application refers to Officer Ajay Sidhu as the seizing officer; Officer Sidhu was not called in these proceedings. The Crown clarified that Officer Tenn took possession of the weapons in question.

[2] Detective Moore was called to 'correct' Officer Tenn's evidence regarding the parameters of police authority to seize weapons beyond the consent of the weapons owner. However, Detective Moore agreed that he was not present at the time of the arrest and therefore could not speak to reasonable grounds in this case.

[3] Reading between the lines the police agreement to have the weapons sold to a third party may have been an acknowledgment that they had no lawful basis to continue to detain the items without the respondent's consent.