Court File and Parties

Court File No.: Guelph-132426 Date: 2015-08-11 Ontario Court of Justice

Between: Her Majesty the Queen — And — Darius El Masry

Before: Justice of the Peace M A Cuthbertson

Heard on: March 3 and May 12, 2015

Reasons for Judgment released on: August 11, 2015

Counsel:

• M. Dolby for the Crown
• J. Fera for the accused

JUSTICE OF THE PEACE CUTHBERTSON:

1: THE BACKGROUND

[1] On 24 November 2013, the Guelph Police Service was notified by a person from another city that Mr El Masry was threatening self harm. This information originated from text messages sent by Mr El Masry to a friend who in turn discussed the issue with a third party. It was that third party who contacted the police.

[2] Mr El Masry was, by his own admission, in a depressed state on that occasion as his then girlfriend had advised him by text message that she had been unfaithful to him during their two year relationship.

[3] Upon receiving this information, he made a small cut (approximately one inch in length) in his left forearm with a knife. He also later admitted to police that when he was fifteen years old (about ten years earlier), he had acted in a similar manner while in a distraught state of mind.

[4] When the police arrived, they found him in his basement room with a blanket over his torso and/or arm. He expressed surprise that they were there and that he was not in danger of further harming himself.

[5] Constable Grant concerned about the cut on his arm and his state of mind had paramedics attend and take Mr El Masry to the Guelph General Hospital to be examined by a doctor and a mental health professional. Mr El Masry went by ambulance to the hospital, saw a doctor and a mental health professional and was released the same evening. No action resulting from his self-described state of depression was taken by the staff at the hospital. The wound was covered by a small bandage.

[6] Prior to Mr El Masry leaving for the hospital, the police officers spoke to him about the ammunition (about 650 rounds), empty ammunition boxes and magazines located in his bedroom. He advised the officers that he had firearms on the main floor of the residence. Upon being shown by Mr El Masry, the officers found a locked gun locker in the living room. Mr El Masry opened it upon request. In it were six long guns and four handguns. As well, four long guns without trigger locks or cables in two carrying bags and a bag containing magazines and about 430 rounds of ammunition were also located in the living room.

[7] Mr El Masry advised the officers that he had earlier been at the gun range for target practice and was about to clean the weapons and then properly store them away. They did not charge him with improper storage of any of the weapons or with any other offence.

[8] All of the weapons and the magazines in the residence were unloaded. Mr El Masry was properly licensed to own all of the weapons. He was cooperative with the police, at all times.

[9] None of the above is in dispute between the two sides.

[10] The officers, pursuant to section 117.04 of the Criminal Code, seized the weapons and other items (see Appendix A for an itemized list).

[11] The police then sought an application under section 117.05 (see Appendix B for The Law) to have Mr El Masry forfeit his weapons and not to possess any weapons for up to five years. It is this application which is the subject of this hearing.

[12] To decide this matter, I must determine on a balance of probabilities (standard of proof) whether there are legitimate concerns that Mr El Masry lacks the responsibility and discipline the law requires of gun owners (test). The standard of proof and test are as determined in R v Day, [2006] O.J. No. 3 (see paras 35 and 36) by Mister Justice Durno of the Superior Court of Justice.

[13] For the reasons which follow, I conclude that there is not a basis for an order of forfeiture and/or prohibition against Mr El Masry.

2: POSITIONS OF THE PARTIES

The Crown

[14] Ms Dolby argued that the four long guns not in the storage locker were improperly stored for up to a day, thereby showing Mr El Masry's lack of discipline as a gun owner.

[15] She also submitted that the two incidents of self harm by Mr El Masry and his depressive state on 23 November 2013 indicate a pattern that illustrates that he lacks the responsibility necessary to be in possession of firearms.

[16] She expressed concern as to whether Mr El Masry fully informed the psychologist with whom he consulted of the events of that night, including his cutting of his arm. She emphasized that Mr El Masry's multiple visits to the psychologist caused her concern as to whether there were ongoing mental health issues. She submitted that I should not place much weight on the report of December 8, 2014, prepared by Christopher Heap (Psychologist) as there were factual errors in it which may indicate that Mr El Masry was not honest with Mr Heap.

Defence Counsel

[17] Mr Fera submitted that the depressed state of Mr El Masry on the evening of 23 November 2013 was short lived and he did a foolish thing by cutting himself while morose. He provided two reports as exhibits by medical professionals including the above noted report of Christopher Heap and an earlier report from January 2, 2014 prepared by Jeannine Keogh who is a mental health counsellor.

[18] Mr Fera agreed that I should put less weight on the report of Mr Heap due to the acknowledged errors regarding Mr El Masry, in it. The document incorrectly stated that the weapons were seized by police due to a "false accusation made by my girlfriend that I was a threat to others or myself" and that Mr El Masry was employed as a Safety Officer at a rifle range.

[19] He also submitted that whatever Mr El Masry's mental state may have been on November 23, 2013, the two submitted reports show that at the time of their writing, the mental health professionals had no significant concerns about Mr El Masry's mental health.

3: ANALYSIS

The Credibility of the Witnesses

[20] During the hearing, evidence was presented by two police officers, Cst Grant and Cst Schleen. Cst Schleen presented non-controversial evidence on firearms issues and the state of the weapons when they were seized.

[21] Cst Grant, as the Investigation Officer, provided evidence as to the events in Mr El Masry's home on November 23, 2013. He used his notes which were made shortly after the time of the incident to refresh his memory. While he indicated he did have an independent memory of the events that memory did not fare well, in cross-examination. For example, the officer agreed that he may have made errors as to how and where the ammunition in Mr El Masry's bedroom was stored, whether a blanket was draped over Mr El Masry's torso or just his arm and whether the guns and ammunition in the living room were in the same bag. While I am satisfied that Cst Grant made a sincere effort to provide honest evidence, his admitted lack of memory of multiple details weakened the trustworthiness of his evidence.

[22] Mr El Masry also testified. His evidence was given in a straight forward manner. He was consistent in both examination-in-chief and in cross-examination. His memory of the events was strong. He did not embellish nor equivocate. I am satisfied that he provided honest evidence. I found him to be credible and his evidence to be trustworthy.

Issues to be Resolved

Did Mr El Masry Improperly Store the Four Long Guns Found in Bags in the Living Room?

[23] This question is important as it is the basis for Ms Dolby's expressed concern that Mr El Masry lacks discipline as a gun owner. Officer Grant stated that he did not know how long the four unsecured long guns in bags in the living room had been there. He advised that according to the information provided by Mr El Masry's roommates that Mr El Masry had gone to the gun range the day before but Cst Grant also stated that he had learned that Mr El Masry had actually been to the gun range on the day of the incident. The roommates were not called to provide evidence on this issue.

[24] Mr El Masry was adamant that he had attended the gun range for target practice on 23 November. He returned home, took the trigger locks off the guns he had used that day in preparation of cleaning them. He prepared some food, argued with his girlfriend via text messages and also texted his friend about cutting his arm. He went to his bedroom and changed into a pair of pyjama bottoms which he regularly wore while cleaning his weapons. It was his intention to then clean the four long guns and store them in the gun locker along with all of his other properly stored firearms. It was at this point when the police arrived.

[25] I accept Mr El Masry's testimony on this issue. As a result, I do not find that he improperly stored the four long guns. Therefore, there is no basis for the suggestion that he lacks discipline as a gun owner.

Does Mr El Masry Lack the Responsibility Necessary to be in Possession of Firearms?

[26] This question centres on the state of Mr El Masry's mental health. Relevant to the discussion is the point at which I should consider the status of his mental health. Should it be as of November 23, 2013 or some date thereafter? I rely on the findings of Wilson N, a Judge of the Ontario Court of Justice who considered this issue in R v. Laframboise, [2002] O.J. No. 5291. At para 6, Justice Wilson held that the proper time frame for a determination of the mental health of a defendant is at the time of the hearing not at the time of the allegations. At para 7, he considered a psychological report made several months after the incident in that matter.

[27] In this hearing, I have the benefit of three different involvements by mental health professionals with Mr El Masry. While no report was generated, I have the evidence of Mr El Masry that the mental health professionals who examined him at the Guelph General Hospital on November 23, 2013 took no action regarding his state of mind on that occasion. I accept his evidence on this point. In my view, that lack of action infers that those professionals had no significant concerns.

[28] Exhibit 3 is the report of Jennine Keogh (Mental Health Counsellor) of January 2, 2014. In that report, Ms Keogh notes that "During his initial assessment, Darius appeared to be low risk, as he denied experiencing any suicidal or homicidal ideations. Darius scored within the range of minimal-no symptoms of depression." From this report, I conclude that testing was done and he was not depressed at the time.

[29] Exhibit 4 is the report of Psychologist Christopher Heap of December 8, 2014. That report concluded by stating:

From a strictly clinical standpoint his responses on the 90 minute clinical interview conducted over two sessions and his assessment results do not show significant evidence that he is a threat to self or others…

[30] I reject the Crown's position that as nothing in Mr Heap's report indicates that Mr El Masry specifically told him about the cutting incident that the report is suspect. Not only does the report acknowledge that the concern for which Mr El Masry saw Mr Heap involved a gun collection and whether he was an alleged threat to others or himself but it is also clear that a psychological assessment to clarify the depth of Mr El Masry's depression was performed. Mr El Masry testified that he told Mr Heap that he cut his arm and I have no reason to disbelieve him. However, in my view, it is the interviews and assessment for depression which were done which are determinative. The results of the interviews and assessment were known to Mr Heap prior to him formulating his conclusions.

[31] As well, I draw no negative inference from Mr El Masry's further participation with Mr Heap after the report of December 8, 2014 was produced. His explanation was simply that he wanted to attend sessions with Mr Heap until the psychologist advised him that he had no further need to do so, just to make sure that he was mentally healthy. I accept his explanation.

[32] I agree with both counsel and do not put full weight on Mr Heap`s report. However, I do accept that it is the third indication over more than a year that Mr El Masry was not suffering from a significant mental health issue.

[33] I note that in Laframboise, that defendant had mental health issues prior to the incident which led to the hearing and subsequent to it. Despite the ongoing involvement of the psychologist (or psychiatrist) in that matter, Justice Wilson determined that an order of prohibition was not necessary, as Mr Laframboise's medical condition was controlled.

[34] While the concerns of the police when they found Mr El Masry had cut himself were understandable at the time, the cut of November 23, 2013 was minor and not life threatening. His earlier episode of similar behaviour was also not life threatening. No evidence was led that he threatened to harm anyone else.

[35] I note that Mr El Masry never threatened the use of any firearm against anyone, including himself. As well, no evidence was led that he has a criminal record.

[36] Mr El Masry testified that he is mentally healthy and happy with his life.

[37] Having considered the totality of the evidence and having considered the relevant case law, I find that there is no basis for me to be currently concerned about his mental well-being. Therefore, I reject the Crown's position that Mr El Masry lacks the responsibility necessary to be in possession of firearms.

Are the Seized Vests and Compound Bow of Concern?

[38] Mr El Masry testified that he used the compound bow for target practice only. He also testified that he used the two vests to store paint balls and other paraphernalia related to the sport of paint balling while playing that game. I accept his evidence and find that there is nothing of concern in his possession of these items.

Conclusion

[39] The Crown has not established on a balance of probabilities that Mr El Masry lacks the responsibility and discipline the law requires of gun owners. Consequently, I do not find that it is desirable in the interests of the safety of Mr El Masry or of any other person that he not possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive device or any such thing (see s. 117.05(4)).

[40] Therefore, I decline to make a forfeiture and/or prohibition order, against Mr El Masry. The application is dismissed.

Released: August 11, 2015

Signed: "Justice of the Peace M A Cuthbertson"

Appendix A: List of Weapons/Ammunition/Items Seized by Police

Weapons

• REM 700 .308 calibre s/n G6812981
• Carl s/n 392520
• Savage Mark II .22 calibre s/n 1906280
• Daniel Defense 5.56 s/n DD005369C
• Omni assault rifle s/n AR02292
• Unknown Make Rifle s/n PN5269
• Norinco m19 11A1 s/n BA36583
• Sig Sauer P22GR s/n UU 792355
• Jericho 941 s/n 42309566
• M&P Smith & Wesson s/n HAR7432
• Ruger 10-22 s/n 825-82014
• Rossi .38SPL .357MAG s/n 56R050936
• Mossberg pump action 12 Ga s/n U43261
• 16 Ga Sidesix shotgun unknown make s/n JW20001350408

Ammunition

• Leillie & Bellot .38 special – 80 rounds
• Remington buckshot, 2 boxes, approx. 50 rounds
• Blazer .22 long rifle, 4 boxes, approx. 200 rounds
• Blazer 9mm Luger, approx. 100 rounds
• .40 cal, blue cases, approx. 450 rounds
• .223, black cases, approx. 140 rounds
• Swedish 65X55, Winchester box, approx. 50 rounds
• Federal 20 .308, 3 rounds

Magazines for Weapons

• 8 handgun
• 12 rifle

Other Items

• Compound bow – Bowtech assassin
• 2 – Green and beige tactical vests

Appendix B: The Law

Section 117.05 of the Criminal Code states:

Application for disposition

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.

Ex parte hearing

(2) A justice may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person from whom the thing or document was seized in the same circumstances as those in which a summary conviction court may, under Part XXVII, proceed with a trial in the absence of the defendant.

Hearing of application

(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.

Forfeiture and prohibition order on finding

(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall

• (a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and
• (b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order.

Reasons

(5) Where a justice does not make an order under subsection (4), or where a justice does make such an order but does not prohibit the possession of all of the things referred to in that subsection, the justice shall include in the record a statement of the justice's reasons.