Court Information

Ontario Court of Justice

Date: March 22, 2018

Court File No.: Brockville 1911-998-17 0257

Parties

Between:

Her Majesty the Queen — Applicant

— And —

Rodney Wanye King — Respondent

Before the Court

Justice A. Wheeler

Heard on: March 2, 2018

Reasons for Judgment released on: March 22, 2018

Counsel

John O'Halloran — counsel for the Crown

Michael Davies — counsel for the defendant

Judgment

WHEELER, J.:

Application for Firearms Prohibition

[1] The Crown has applied for an order under s. 111(5) of the Criminal Code that the respondent, Rodney King, be prohibited from the possession of weapons for a period of five years. Section 111(1) states:

111 (1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

[2] Section 111(5) states:

(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.

Background

[3] Mr. King has a criminal record. In 2000 he was convicted of dangerous operation of a motor vehicle. In 2002 he was convicted on three counts of unauthorized possession of a prohibited or restricted weapon, contrary to s. 91(2) of the Criminal Code, and at that time a 10 year prohibition order was imposed under s. 110 of the Criminal Code.

[4] In addition to his criminal record, in 2011, Mr. King was found not criminally responsible on account of mental disorder (NCR) on charges of discharging a firearm with intent to wound or maim, possession of a firearm while prohibited, possession of ammunition while prohibited, and two counts of possession of a prohibited device (Tasers). The incident that gave rise to those charges took place in 2006, and was extremely serious. There had also been indications that all was not well with Mr. King prior to then.

[5] Mr. King's hydro was cut off for non-payment in 2003. In 2005, when Hydro One attempted to arrange for workers to attend at Mr. King's property to trim trees away from the hydro lines, Mr. King sent Hydro One a letter saying that the workers were not welcome on his property, and that he would call the police if they came on his property. As a result, Hydro One asked the police to attend with them. A police report from 2005, which was filed as part of the Crown's compendium of materials, indicates that when the officers attended and met with Mr. King, he told them that if Hydro One workers came on this property, he wanted them to be arrested. The report states:

Mr. KING made it very clear that if officers did not enforce this that they should get back up as there would definitely be a conflict when Hydro workers entered his property.

[6] The background to the incident that gave rise to the NCR findings is that Mr. King also did not pay his property taxes to the Township of Elizabethtown-Kitley, and in 2005, he attempted to have township employees charged with an offence for failing to accept a promissory note in payment of his outstanding taxes. As a result, the township took ownership of the property and sold it. Mr. King remained on the property despite orders from the Sheriff's Office to leave.

[7] When the new owners sought to attend the residence, police accompanied them to keep the peace. The new owners had to break a door to gain entry to the home. Although Mr. King had been speaking to police officers from a balcony, he was not immediately located when the police went into the home. They ultimately found him in a concealed room. While the police were trying to negotiate Mr. King leaving the home, Mr. King fired a shot from a 12-gauge shotgun with what is described in the materials as a "slug round." The shot narrowly missed one officer and hit another in the upper arm. He required surgery. Mr. King stayed inside after the shooting but did surrender to police after negotiations.

[8] The police seized the following items from the home:

• A shotgun.
• Several pellet pistols that appeared to be "real revolver-style guns."
• Small quantities of gun powder.
• What is described as "survivalist gear", including biohazard suits, gas masks, and a stockpile of food and water.
• Hundreds of rounds of various calibre ammunition and equipment used to reload ammunition (although corresponding weapons were not found).
• Two Tasers.

[9] Given the NCR findings, neither s. 109 nor s. 110 was applicable for a firearm prohibition order to be imposed at trial. Both of these provisions require that the person be convicted or discharged under s. 730 of an applicable offence.

[10] Mr. King is now subject to the jurisdiction of the Ontario Review Board. He is currently on a hospital detention order with various conditions, including: "refrain from having in his possession any firearm, ammunition or other offensive weapon, or being in the company of any person possessing a firearm other than a peace officer."

[11] There was a suggestion in the evidence on this application that at some point Mr. King attended at the Leeds County OPP detachment seeking to have his firearms returned to him. I have placed no weight on this aspect of the evidence. There is considerable ambiguity around the question of whether Mr. King was just seeking the return of other property and not his guns, and the record does not permit me to make a positive finding that he was actually trying to get his guns.

Section 111 of the Criminal Code

[12] Section 111 of the Criminal Code requires that the Crown establish, on the balance of probabilities, that it is "not desirable" that a respondent possess firearms. The Crown can rely on hearsay evidence, but "in considering its weight, the judge must scrutinize the evidence to ensure that it is credible and trustworthy": R. v. Zeolkowski (1989), 50 C.C.C. (3d) 566 (S.C.C.) at paras. 16-18.

[13] The meaning of "not desirable" was considered in R. v. Hurrell (2002), 166 C.C.C. (3d) 343 (Ont. C.A.) (leave to appeal granted, but notice of discontinuance filed April 26, 2004: [2002] S.C.C.A. No. 370). That case involved a constitutional challenge to s. 117.04(1) of the Criminal Code, which contained language similar to that found in s. 111 as a standard for issuing a warrant to search for and seize weapons, ammunition and the like. Although the Court of Appeal found that s. 117.04 was constitutionally deficient in other respects, it rejected an argument that the "not desirable" language was void for vagueness.

[14] Moldaver J.A. (as he then was), held:

[45] Turning to his second argument, the appellant submits that s. 117.04(1) is impermissibly vague because the word "desirable" is amorphous and injects a subjective criterion into the provision that could lead to the issuance of a warrant based on irrational or emotional rather than objective grounds. With respect, I disagree. The word "desirable" is not a free-standing criterion. It is an adjective firmly anchored to the objective concept embodied by the words "reasonable grounds to believe", which precede it, and the public safety concept contained in the words "the interests of the safety of the person, or of any other person", which follow it.

And further:

[48] Applying that reasoning to this case, I am satisfied that when the words "not desirable", which in my view simply mean "not advisable", are read in context, they can hardly be described as so subjective, vague and amorphous that they fail to provide an adequate basis for legal debate. The fact that language may be open to judicial interpretation does not render it impermissibly vague. Flexibility and vagueness are not synonymous: see Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code (1990), 56 C.C.C. (3d) 65 (S.C.C.) at 89, and French Estate v. Ontario (Attorney General) (1998), 38 O.R. (3d) 347 (C.A.) at 361; application for leave to appeal dismissed, [1998] S.C.C.A. No. 139 (QL), 133 C.C.C. (3d) vi). Moreover, because s. 117.04(1) is procedural and does not carry with it the threat of a criminal record or imprisonment, the need for precision is diminished: see French, supra, at p. 363. Finally, to the extent that the police or the issuing justice need a framework within which to assess the "non-desirability/public interest" component of s. 117.04(1), Parliament itself has provided guidance in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39. These provisions deal with the eligibility for holding a firearms licence and read as follows:

5(1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.

(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person, within the previous five years,

(a) has been convicted or discharged under section 730 of the Criminal Code of

(i) an offence in the commission of which violence against another person was used, threatened or attempted,

(ii) an offence under this Act or Part III of the Criminal Code,

(iii) an offence under section 264 of the Criminal Code (criminal harassment), or

(iv) an offence relating to the contravention of subsection 6(1) or (2) or 7(1) or (2) of the Controlled Drugs and Substances Act;

(b) has been treated for mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or

(c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person.

[49] For these reasons, I am satisfied that the impugned provision is not unconstitutionally vague. Accordingly, that aspect of the appellant's argument fails.

[15] The British Columbia Court of Appeal has held that the criteria set out in s. 5 of the Firearms Act are not exhaustive as to the circumstances in which a chief firearms officer may refuse to issue a licence, or as to when an order may be made under s. 111 of the Criminal Code. In other words, a licence can be refused under the Firearms Act, and a prohibition order can be justified under s. 111 even though none of the circumstances set out in s. 5(2) (a), (b) or (c) are present. See: British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343; Re Christiansen, 2006 BCCA 189.

[16] The language of s. 5 of the Firearms Act, S.C. 1995, c. 39 remains as set out in Hurrell.

[17] In R. v. Douglas, 2013 ONCJ 649, Green J. held:

48 I confess to having difficulty locating any materially greater legal clarity or direction in the words "not advisable" than I do in the words "not desirable". Neither expression of the legal standard fits comfortably with the adjudicative work normally conducted by criminal court judges. More immediately helpful is the guidance afforded by Durno J. in the more recent case of R. v. Day, [2006] O.J. No. 3187 (Ont. S.C.J.). As said at para. 36 of the Day case: "the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners". (See also, R. v. Morgan, [1995] O.J. No. 18 (Ont. Prov. Div.); R. v. Biscope, [2001] O.J. No. 628 (Ont. S.C.J.) and R. v. Shannon, [2005] O.J. No. 1653 (Ont. S.C.J.).)

[18] In R. v. Bokhari, 2009 ONCJ 691, Blacklock J. also relied on Durno J.'s decision in Day, as well as other cases, and held:

10 Under this approach a court does not have to be satisfied that, in fact, it is more likely than not that the respondent will, in fact, use his weapons to cause harm to a person. It is sufficient if there is a finding that there in fact exist legitimate concerns that the respondent lacks the responsibility and discipline the law requires of gun owners. It would appear that if such a state of affairs exists then given the inherent dangerous nature of firearms, it should be taken as following that the continued possession of such a person would pose the necessary danger to the possessor, or to other members of the public, that is contemplated by the legislation.

[19] I find that s. 111 requires that the Crown establish concrete reasons why firearm possession is not desirable for the person who is the subject of the application. The concerns have to be tied to the particular person. It would not be enough for the Crown to raise concerns about guns in general without evidence that shows that there are particular reasons why it is not a good idea for the respondent before the court to possess guns, whether those reasons 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. Furthermore, based on Hurrell, supra, I should start the analysis by asking whether any of the three criteria set out in s. 5(2) (a), (b) or (c) of the Firearms Act are present.

This Application

[20] As a person who has been found not criminally responsible on account of mental disorder, Mr. King has not been convicted or discharged under s. 730 of the offences that gave rise to the NCR findings. However, his actions in the incident that gave rise to the charges and the findings of NCR would fall under subsections 5(2) (b) and (c) of the Firearms Act. This is a strong indication that it is not desirable for him to possess firearms.

[21] Mr. Davies argued that in an application under s. 111 there must be some specificity about who would be endangered if the person had guns, at least to the level of a particular group of people whose safety would be endangered by the person possessing firearms. Mr. Davies also argued that in assessing whether the Crown has met its onus, I should consider the fact that, having been found NCR, Mr. King is under the jurisdiction of the Review Board and subject to conditions imposed in the Review Board's disposition.

[22] I disagree with the submission that the Crown must necessarily articulate a safety concern that relates to a specific or closely defined group. It seems to me that there is no fixed formula for how the Crown could discharge its burden under s. 111, and that it could be met by evidence of emotional or mental instability, evidence of irresponsible behaviour with guns, or some combination of the two. Again, the comments of Green J. in Douglas, supra, are helpful:

56 I begin with the obvious: firearms are dangerous. Their possession by persons who are unstable or disposed to physical anger, violence, intemperate behaviour or poor impulse control cannot be countenanced. In the language of s. 117.05(4), such persons' possession of firearms is "not desirable". In applying this provision one must not forget, as said analogously of s. 117.04(1) in R. v. Hurrell, supra, at para. 31, that it "is preventative in nature. Its primary purpose is the prevention of serious injury and death resulting from the use of firearms and other dangerous objects."

[23] I find that the Crown has amply met its burden in this case. Mr. King suffers from a significant mental illness. When untreated, that mental illness led Mr. King into conflict with various organizations or authorities, and ultimately resulted in him firing a gun in circumstances where it was incredibly lucky that he did not kill someone. Mr. King now takes medication to treat his illness and is subject to conditions imposed by the Ontario Review Board. However, he has no insight into his illness and has told his treatment team that if it were up to him, he would stop taking his prescribed medication. It is not possible to predict with any certainty who would be endangered if he had access to guns and his medication regime were to fail in some way, but it seems likely that it could be anyone whose actions do not align with Mr. King's views about how he should be able to conduct himself in the world.

[24] Mr. Davies also argued that I should consider the fact that Mr. King is subject to a "no firearms" condition imposed by Review Board as a reason to refuse the application for an order under s. 111. I agree that, in some sense, the s. 111 order would be superfluous since Review Board orders are placed on CPIC. However, section 111 requires me to determine whether the Crown has shown that it is not desirable in the interests of safety that Mr. King should possess firearms. The Crown is not required to meet a test of necessity, only a test of "not desirable". The fact that a s. 111 order might overlap with a condition imposed by the Review Board is not, in my view, a reason not to make the order under s. 111.

[25] Furthermore, I do not read the section as allowing for any discretion not to make the order once the statutory criteria are met. Section 111(5) states that if satisfied that the relevant circumstances exist, the provincial court judge "shall" make the prohibition order. Even if I did have the discretion not to make the order, I would be hard pressed to articulate a basis for refusing to do so on the facts before me.

[26] As requested by the Crown, the s. 111 order is made for a period of five years, the maximum allowed.

Released: March 22, 2018

Signed: Justice Alison Wheeler