Court File and Parties

Ontario Court of Justice

Date: 2019-04-23

Re: In the Matter of an Application for a Section 74 Reference for a Firearm Application of: James Montgomery

Before: Justice P.N. Bourque

Considered on: November 20, 2018 and April 23, 2019

Reasons released on: April 23, 2019

Counsel:

• L. Pasquino, counsel for the Crown
• K. Evans, counsel for the applicant James Montgomery

Reasons for Dismissing the Application

BOURQUE J.:

Overview

[1] James Montgomery was refused his application for a PAL licence (Gun licence) under the Firearms Act. The Notice of Refusal (Exhibit #1) is dated May 29, 2018. The Appendix setting out the information relied upon by the firearms officer and Reasons for Refusal are contained in some nine pages of the Appendix.

[2] The officer who authored the report and made the decision not to issue a licence gave testimony. He was extensively cross-examined by the defendant's counsel.

Steve Anstey

[3] ...is a police officer of some 17 years' experience. He is presently a York Regional Police officer but has been seconded full time to the Chief Firearms Office for some two years.

[4] It was his evidence that the defendant did not meet the criteria for possessing a firearms licence under sections 5(1) and 5(2) of the Firearms Act.

[5] In his decision, the officer was not relying upon a criminal record (there is only one finding of guilt and it is for a property offence) but on a series of 12 different occurrence reports between 2004 and 2015.

[6] In rejecting the application the officer stated as follows (in Exhibit #1):

Society demands and expects that those people in our society who are permitted to have firearms demonstrate a history of complying with the law and show good judgment and appropriate behaviour in their day to day lives.

... As noted above, licence eligibility is based on the criteria in section 5 of the Firearms Act. Section 5 of the ... Act directs a firearms officer to generally consider whether it is in the interests of public safety that an individual possess or have access to firearms with specific attention paid to whether the applicant has a history of criminal behaviour, violence or mental health concerns.

You have exhibited a consistent pattern of violent, unpredictable and irresponsible behaviour that leads to the conclusion that the risk to public safety is too great for you to be granted the privilege of holding a firearms licence. ...

The ... Act was created to protect and promote public safety. In considering the eligibility of an individual to hold a firearms licence, it is public safety that is of chief concern. Under Canadian law, firearms possession is a privilege, not a right.

[7] In this judgment I will not review all of these occurrences in detail. They are set out in Appendix A to these reasons.

[8] As I have related, in only one of these occurrences was there a finding of guilt and that was for a possession of stolen property on October 20, 2008. In all other matters the Crown either withdrew the charges or the applicant was acquitted after trial. In two occurrences (December 29, 2007 and August 4, 2008), while the charges were withdrawn, the applicant entered into peace bonds, one which included a firearms prohibition and the other included a weapons prohibition.

[9] In eight of the occurrences (April 10, 2004, May 7, 2004, December 29, 2007, August 4, 2008, June 5, 2010, August 14, 2011, April 27, 2013 and July 3, 2015) the applicant was involved in incidents where he either used a weapon, had a weapon on his person, or caused some bodily injury to another person, with or without the use of a weapon.

[10] In two of these occurrences he had enough alcohol in his system to register an "Alert" on the ASD (May 7, 2004) or to be visibly intoxicated (October 20, 2008). In both of these situations he was at some point in the proceedings in the driver's seat of an automobile.

[11] In three of the occurrences the applicant had possession of a knife (May 7, 2004 and October 16, 2011) or had possession of a knife while issuing a threat (December 18, 2007).

[12] In three of the occurrences (May 7, 2004, August 4, 2008 and October 16, 2011) the applicant was under an order or undertaking to keep the peace and be of good behaviour.

[13] Two of these occurrences were situations where the defendant was either in possession of illegal drugs (May 7, 2004) or was working in a place where an illegal grow operation was clearly visible to him (May 6, 2014).

[14] The officer was cross-examined extensively about these occurrences. The officer admitted that he looked at the occurrence reports and sometimes witness statements (including a witness statement of the applicant with regard to the May 6, 2014 incident). He noted in some situations simply that the charges had been withdrawn, or that there had been an acquittal after a trial. In two of the matters he noted either that the principal witness(es) had been uncooperative (August 14, 2011 and August 4, 2008) or in one instance the principal witness actually refused to come to court to testify (December 18, 2007). He admitted that in two of the occurrences the applicant could have been acting in self-defence (August 4, 2008 and April 27, 2013) but he believed that the applicant may have been able to take a different path other than just reacting in the fashion he did. For example, in the April 27, 2013 incident, he stopped for a car that was flashing its lights at him, and he also (after getting out and confronting the persons in the car and being cut with a knife) returned to his car, not to flee but to get a tire iron and cause damage to the other car before it sped away. The officer in that situation also remarked that the applicant gave a statement to the police where he indicated that he would retaliate further ("If I could prove it was him I would punch him out.").

[15] In all of these matters the officer in his viva voce evidence was not so much concerned as to the lack of a charge or a finding of guilt, but that it bespoke a person who was involving himself in situations where his response was a violent one.

[16] After reviewing the matters indicated by the officer and the source of his information, I cannot say that there was any serious defect in the evidentiary foundation or a defect in the logical processes used by the firearms officer. While there was always the potential that some other information if accepted could put these matters in a more favourable light for the applicant, the propensity to violent situations remained and was not shaken in any cross-examination. None of this record makes the firearms officer's decision unreasonable and note of the further information brought out in cross-examination would reveal that the assumptions of the firearms officer should be disturbed.

James Montgomery

[17] ...gave testimony. It was his assertion that he had no criminal record and had spent a lot of time as a bouncer. That he felt was the main explanation as to why he got into many fights.

[18] He stated that he did not want to be a bouncer anymore as it did not pay much money. He wanted to be involved in security (as a Brinks employee for example) in a position where he would have to carry a gun. He believed this was a better job prospect for him. There is absolutely no evidence that he has ever sought any other type of work, other than in some type of security. He also stated that he would want to use the licence for hunting, although it does not appear that he has ever been involved in any type of hunting in the past.

[19] He gave specific evidence about several incidents. With regard to the incident of April 27, 2013, he believed he was the victim. He never adequately explained why he stopped by the side of the road because a car flashed its lights at him. He also never adequately described why he kept a tire iron in the door of his car.

[20] With regard to the incident of May 6, 2014 (the fight with Gary Rosen at the Aurora Pet Cemetery), he never adequately explained why he only wanted to "talk" to him when he had information that Rosen had beaten a dog to death.

[21] With regard to the incident of August 4, 2008 when he cut a man with a knife, he decided to assist another person who was moving. He stated he cut the man while the man was sitting in his car because he believed the man had a gun. He admitted that he always carried a knife, but said it was only a small one, only four inches long, and he did it because it was useful and did not carry it for protection.

[22] With regard to many incidents, he clearly would confront people about grievances he had or grievances of others (in one case a woman who lived near him), usually in public places, and things would end up in a violent encounter. He was at pains to say that it was always another person's fault that things escalated and he was simply defending himself. There are several incidents where people either did not wish to complain to the police or indeed failed to attend court or indeed were not cooperative when they did attend. In three of the incidents I note they occurred after he sought them out (April 10, 2004, December 18, 2007 and July 3, 2015).

[23] Finally, with regard to the incident about the Rosen grow op, he insisted in the witness box that he did not know marihuana was being grown and when confronted with his words to the police (which clearly indicated that he was aware of what was going on) he said he only knew because the police had told him that. That in my opinion was not an accurate statement.

[24] In assessing his evidence, I find that he was not always direct in his answers to counsel. I find that he was stretching the truth when he asserted that he was never the aggressor in any of these incidents. In almost all of these incidents (i.e. the recovery of his property for example) he had a non-violent alternative, such as a call to the police or, in the case of the car incident, simply not stopping when another car flashed its lights at him. Even if he does not have criminal culpability for most (or indeed all of these incidents) he has a serious lack of judgment and insight in how these matters can become violent very quickly.

The Law

Section 5(1) of the Firearms Act:

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.

Section 5(2) of the Firearms Act:

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),

(iv) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or

(v) an offence relating to the contravention of subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis Act;

(b) has been treated for a 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.

[25] The possession and use of firearms in Canada is not a right or freedom guaranteed under the Charter but a privilege (R. v. Wiles, 2005 SCC 84). The purposes of the Act is to promote public safety.

[26] Section 75(2) provides that upon the hearing in this court "the burden of proof is on the applicant to satisfy the provincial court judge that the refusal to issue the licence was not justified." It has been held (in Canada (Attorney General) v. Henderson, 2011 ONCA 696) "the deferential standard of review to be applied by the provincial court to the Registrar's refusal is best described as one of reasonableness." (para. 37)

[27] As stated in Nikitczuk v. Ontario, 2006 ONCJ 406, "Was the firearms officer clearly wrong in arriving at his decision to refuse the applicant a licence?" and "Given all of the relevant evidence is the original decision of the firearms officer one that was reasonable?"

[28] It is clear that the evidence that I must consider is that which is relevant. I find that the firearms officer's reliance upon CPIC information, police occurrence reports and witness statements was appropriate and, subject only to the analyses I have performed above, they are clearly relevant. If an applicant can point to a specific piece of new evidence which casts doubt on some statements in the occurrence report then I can deal with that in assessing its overall weight. However, the fact it may contain hearsay does not affect its overall relevance.

[29] Section 5(1) of the Firearms Act is expansive and the officer must consider whether "if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm..." Section 5(2) refers to specific things that the officer "shall" consider. As set out in R. v. Curtis, I believe that while the events within the past five years are clearly of the greatest weight, I find that "there is no prohibition on considering the factors set out in 5(2) beyond the five year period..." That view has been held in other cases including R. v. Davidson, [2011] O.J. No. 1199.

The Reasonableness of the Officer's Decision

[30] It is clear that the firearms officer was alive to the notion that for many of these matters there could be legitimate defences which would result in an acquittal or a withdrawal of the many charges. He was, in my opinion, correctly looking at the number and type of occurrences and concentrating on the applicant's reactions to these various situations and the fact that such reactions led to violence and personal injuries. The officer refused to be drawn into a discussion suggested by the defence that his decision was based on just one matter, and since there was either an acquittal or withdrawal, then that matter could be disregarded.

[31] I believe it is indicative of the officer's approach in that he put most reliance upon the final two occurrences (May 6, 2014 and July 3, 2015). In the May 6, 2014 matter, the officer noted that the applicant was "training dogs" for a person who was running an illegal grow operation. When asked by the officers about this the following ensued:

Q. Have you been inside the residence?

A. Yes.

Q. What do you know about inside the residence?

A. Um, I'm thinking I'm needing a lawyer. I don't want to incriminate myself or himself. I just train the dogs.

Q. You mentioned not incriminating Gary. Why do you say that?

A. Well everyone knows what's in there at this point. ... I want to cooperate but I don't want to be a rat.

[32] I also note that the report contains pictures of the grow operation which would make it unmistakable that there was indeed a large grow operation.

[33] With regard to the incident of July 3, 2015, where he punched a man in the face causing facial fractures, the officer noted that there were several witnesses who described the applicant but the victim did not press charges with the words "everyone makes mistakes."

[34] Based on all of the evidence I am unable to come to the conclusion that the Firearms Officer was clearly wrong in arriving at his decision to refuse the applicant a licence. The officer at all times was aware that it was the duration and thrust of the applicant's violent behaviour, rather than his specific culpability in each occurrence that was the important factor. In that regard, even if he could have looked more charitably upon the applicant's behaviour in one or more of the occurrences, that did not prevent him from recognizing that the overall pattern of behaviour (which forms a predictor of future behaviour) was such that it was not desirable, in the interests of the safety of the public that the defendant possess a firearm.

[35] I find the decision was reasonable and I will not interfere with it.

[36] I will also state that there was nothing in the evidence of the applicant which caused me to doubt the reasonableness of the officer's decision. In fact, it is clear that the defendant is so lacking in any real insights into his behaviour that such concerns of the officer are still present to this day.

[37] The application is dismissed.

Released: April 23, 2019

Signed: Justice P.N. Bourque

Appendix "A"

April 10, 2004 – Robbery

On April 10, 2004 you attended the Price Chopper at 18075 Yonge Street, Newmarket in search of girlfriend's ex-husband, Chad DAY. You located him outside the front door and, after a brief conversation, you grabbed him and removed his jacket as you spun him around. You chased him into the store where a second jacket was removed in a brief struggle. DAY broke free and called police. You fled the scene taking both of DAY's jackets with you. Police attended and an investigation was commenced. The entire incident was captured on security cameras. You were subsequently arrested on April 29, 2004 and charged with Robbery.

On February 1, 2005 the charges were dismissed at Newmarket Court.

York Regional Police Occurrence #04-86709

May 7, 2004 – Drug Offence

On May 7, 2004, 8 days after you were released on the Robbery charge, you were sitting in a vehicle as driver at 2:48am in the commercial parking lot at 514 Davis Drive, Newmarket. There were two other people in the vehicle at the time. Police commenced an investigation and you were found to have been consuming alcohol and had care or control of the vehicle. A roadside test was performed and the result was an "alert". In the course of the investigation you were found to have a large folding knife in your pocket. You told officers you always carry the knife on you. You consented to a search of the vehicle and a quantity of marijuana and cocaine were located under the driver's seat and on the floor. Further, you were in possession of $685 cash on arrest. You were charged accordingly.

On August 18, 2004 the charges were withdrawn at the Newmarket Court.

York Regional Police Occurrence #2007-294519

December 18, 2007 – Utter Threats to Person

On December 18, 2007 you attended the Toys R Us at Upper Canada Mall, 17600 Yonge Street, Newmarket and confronted Steven DALE, the ex-boyfriend of your girlfriend's daughter. You believed that DALE had been talking about a previous fight between the two of you. In the course of the argument you revealed a "Rambo style" survival knife concealed in your waist band, pulling it out slightly and saying "I'm going to fucking kill you" and told him to come around the side of the building. DALE started to walk away and you stated "Where do you think you're going? Get the fuck back here, I'm going to cut your fucking throat." Inside the store the argument continued and the store owner intervened. He asked the two of you to go outside to argue. You stated "Let's go outside, I'll kick your fucking head in." DALE was able to hide in the shipping area and you eventually left once directed to by the store manager. Police were contacted by DALE at the end of his shift. You were subsequently arrested and charged with Uttering Threats, Weapons Dangerous to the Public Peace, and Carry Concealed Weapon.

On July 15, 2008 all charges were withdrawn as DALE refused to attend court.

York Regional Police Occurrence #2007-302045

December 29, 2007 – Assault Cause Bodily Harm

On December 29, 2007 at 12:42am, 11 days after you were arrested for Uttering Threats, you were at the Court House Bar at 465 Davis Drive, Newmarket. You were involved in an altercation with another patron of the bar and subsequently struck him in the head with a beer bottle. The victim of the assault was not cooperative with police initially however subsequently identified you by name. You were located at hospital receiving medical attention for a cut on your right arm. You were arrested and charged with assault causing bodily harm.

On March 13, 2008 at Newmarket Court you entered into a Recognizance to Keep the Peace under section 810 of the Criminal Code of Canada with conditions to "Not possess any firearms, crossbows, weapons, ammunition or explosives" for one year. The charge against you was subsequently withdrawn.

York Regional Police Occurrence #2008-195068

August 4, 2008 – Assault with a Weapon

On Monday, August 4, 2008 you were assisting your ex-girlfriend, Priscillia WALTERHOUSE, as she was having domestic problems with her boyfriend, Shane BELL. You attended her residence and found it to have been broken into and ransacked. While there BELL and a friend arrived and a violent altercation ensued. In the course of the altercation BELL was stabbed in the stomach and suffered a cut to his hand. Once injured BELL and his friend left the area. Police were called from a nearby cornerstore and an investigation was commenced. In the course of the investigation you freely admitted to using a glass to cut BELL in self defence. You were arrested and charged with Assault with a Weapon X@ and Weapons Dangerous.

BELL did not co-operate with the police investigation and was subsequently countercharged for his role in the altercation and with other domestic related charges against WALTERHOUSE.

On January 8, 2009 at Newmarket Court you entered into a Recognizance to Keep the Peace per section 810 of the Criminal Code with the condition "Not possess any weapons as defined by the Criminal Code" for a term of 12 months.

York Regional Police Occurrence #2008-261669

October 20, 2008 – Theft Over $5000/Impaired Operation

On October 20, 2008 you were observed by officers operating a motor vehicle suspected of being stolen. You attempted to evade officers and lost control of the vehicle striking a curb. The vehicle was located unoccupied, with the driver's door open at 228 Elm Road in the Town of Georgina. The front left tire was flat and off the rim. You were observed jumping fences nearby and were subsequently arrested. You were found to be very intoxicated. At the conclusion of the police investigation you were charged with Theft Over $5000, Possession of Property Obtained by Crime Over $5000, Dangerous Operation of a Motor Vehicle, Impaired Operation of a Motor Vehicle, Prowl by Night and Breach of Recognizance as you were at large on a recognizance relating to 2008-195068 with a curfew to be in your residence between 10pm and 6am except in the presence of your surety.

On February 6, 2009 you were convicted of Possession of Property Obtained by Crime over $5000 and were given a Conditional Discharge with 6 months Probation. You were acquitted of Impaired Operation and Dangerous Operation and all other charges were withdrawn.

York Regional Police Occurrence #2010-150496

June 5, 2010 – Assault

On June 5, 2010 at approximately 1:08am you were involved in a bar fight with a male not previously known to you. Witnesses reported you punched the male in the face 2-3 times, knocked him to the ground and kicked him in the face causing a broken nose. Police were called and investigated the incident. The male did not wish charges to be pursued, you were spoken to by police and cautioned regarding bar fights.

York Regional Police Occurrence #2011-241798

August 14, 2011 – Aggravated Assault

On August 14, 2011 you were at the Caprice Bar on Main Street, Newmarket. At approximately 2am you were ejected from the bar along with two other males after having had an altercation inside. You and a friend, Ryan YIU, followed the two males in a taxi to Ashton Drive, Newmarket where another fight began. You placed one of the males in a headlock and rendered him unconscious. YIU came over and began punching and kicking the unconscious male while his friend ran away. Police were contacted and an investigation was commenced. You were subsequently charged with Aggravated Assault as the victim sustained a fractured orbital bone, lacerations to his lips and facial swelling.

On May 15, 2013 you were found not guilty after trial. The victim and witness did not co-operate with the crown attorney once you were charged.

York Regional Police Occurrence #2011-307677

October 16, 2011 – Breach of Undertaking

On October 16, 2011 at 1:30am police were called to Caprice Bar at 185 Main Street, Newmarket as the manager recognized you and was aware you were prohibited from drinking alcohol. You were at large on a Promise to Appear and Undertaking given to an Officer in Charge with conditions including "to abstain from the consumption of alcohol or other intoxicating substances, or the consumption of drugs except in accordance with a medical prescription" in relation to the Aggravated Assault charge described in 2011-241798 above. Police commenced an investigation and you initially denied having consumed alcohol despite exhibiting signs of intoxication. A roadside breath sample test was administered and you registered a "fail" reading. You were subsequently arrested and charged with Fail to Comply with Undertaking. In the course of your arrest a large folding buck knife was located on your person and you were unable to account for why you were carrying it.

On May 7, 2012 the charge was withdrawn. For the period between the date of your release from custody, October 16, 2011 and the date of withdrawal of the charge you were prohibited from possessing firearms per the conditions of your Recognizance of Bail.

York Regional Police Occurrence #2013-113268

April 27, 2013 – Assault with a Weapon

On April 27, 2013 you were working at the Real Deal Boxing and Fitness in Aurora. There had been a change of ownership and you were tasked with staying late at the gym to protect the property. At 2:30am you left the gym and began to drive home. En route a car behind you signaled you to stop by flashing its high beams. You stopped your vehicle and began to walk back to the other car. An unknown male approached from the other vehicle and attacked you with a sharp object. You ran back to your car, retrieved a tire iron and ran back swinging at the male and the car. The car fled the scene having sustained damage to the passenger side door and mirror. You sustained 6-7 stitches in your right forearm. Police commenced an investigation. You provided a statement to police and were unable to provide the identity of your attacker. In the course of your statement you advised, in relation to a potential suspect, "If I could prove it was him I would punch him out." The incident remains unsolved.

York Regional Police Occurrence #2014-125964

May 6, 2014 – Trafficking – Cannabis

On May 6, 2014 an investigation was commenced in relation to 14378 Yonge Street, Aurora. A citizen wishing anonymity advised police that there was an extremely large "fortified" marijuana grow op on Gary ROSEN's property. The property was described as fenced, having a large number of dogs and surveillance equipment. They reported that ROSEN occupied the old Kennel Inn, was growing large crops of marijuana and transported them to Montreal to sell. They also stated ROSEN employed a male to guard the premise, who used to work at Real Deal Boxing and Fitness on Allaura Blvd.

On June 6, 2014 police executed a Controlled Drug and Substances Act Search Warrant at 14378 Yonge Street. There were 15-20 dogs on the property and Gary ROSEN was arrested. A fully operation indoor marijuana grow operation was located in the basement. 339 marijuana plants, numerous bags of dried marijuana and associated growing apparatus were seized. During the execution of the warrant you arrived at the property and were interviewed by police.

You stated that you were the dog trainer/caregiver employed by ROSEN. You had met one year prior when you were his personal trainer. You were not sure when you started working with the dogs part time. You reported making $10/hour. You admitted to having been in the house and in the basement of the house but would not divulge what was inside. You stated you didn't want to be a rat and were not forthcoming with your knowledge of the situation. You claimed you just work with the dogs and that "whatever else is going on in there is none of my business, I just take care of the dogs." You concluded your statement by saying "I'm not going to rat on him and be helpful to you. I'm not trying to waste your time but I'm not going to incriminate Gary. I'm not going to do that."

ROSEN was convicted on March 17, 2017 of Produce Cannabis (Schedule II), section 7(1) CDSA and received a firearms Prohibition for 10 years for non-restricted firearms and lifetime for restricted firearms. You were never charged in the investigation.

York Regional Police Occurrence #2015-183340

July 3, 2015 – Assault

On July 3, 2015 you attended the area of Tower Hill Road and Yonge Street, Richmond Hill and became engaged in a verbal argument with Gary ROSEN. The argument escalated and ended with you punching ROSEN in the face repeatedly while on top of him. Bystanders witnessed the assault and called police. You fled the area prior to their arrival. Police conducted an investigation and you were independently identified by witnesses as the suspect. ROSEN refused to co-operate with police stating "everyone makes mistakes." ROSEN sustained several facial fractures and required plastic surgery but continued to refuse to co-operate with police. No charges were laid in relation to the assault.