Court File and Parties

Ontario Court of Justice

Date: 2019-11-13

Court File No.: 3911-998-19C525-00

Between:

Alexander Robertson Applicant

— And —

Ontario (Chief Firearms Officer) Respondent

Before: Justice D.A. Kinsella

Heard on: May 31, 2019 and July 10, 2019

Reasons for Judgment released on: November 13, 2019

Counsel

Matthew Collins — counsel for the Crown

Alexander Robertson — on his own behalf

Judgment

KINSELLA J.:

Introduction

[1] This is an application brought by Alexander Robertson under s. 74 of the Firearms Act to review the decision made by the Chief Firearms Officer through his designate to revoke his firearms licence. Mr. Robertson is a gun owner. He has held a valid firearms licence for non-restricted firearms since 2001. He renewed this licence in February of 2007, February of 2012 and January of 2017.

[2] In January of 2019 the Area Firearms Officer, Paul Emon, received information which led him to conduct a review pursuant to section 70 of the Firearms Act. Based on his review he decided to revoke Mr. Robertson's licence on February 8, 2019.

[3] The burden of proof is on Mr. Robertson. Since this is not a criminal trial, that burden of proof is on a balance of probabilities. Mr. Robertson must show that the decision to revoke his licence was not justified.

[4] For the reasons to follow, Mr. Robertson's application is granted and, pursuant to s. 76 (c) of the Act, I cancel the revocation of his firearms licence.

The Legislative Scheme

[5] The nature of this hearing is somewhat unusual. It is neither an entirely new hearing nor is it strictly a review of the Chief Firearms Officer's decision. While I am required to consider the same criteria under section 5 of the Firearms Act considered by the Firearms Officer, section 75(2) allows me to hear evidence including evidence which happened after the Firearms Officer's decision (see Pogson v. Alberta (Chief Firearms Officer) [2005] A.J. No. 281.)

[6] The standard to be applied in this type of hearing has been discussed at length by various courts. There are two potential approaches depending on the circumstances of the reference. If the evidence before me is substantially the same as that considered by the firearms officer, then I must simply ask myself if the decision of the firearms officer was reasonable. I am not permitted to reverse the decision just because I might have decided differently. The decision of the Chief Firearms Officer is to be given deference. I should only interfere with that decision if I conclude that it was "clearly wrong" (see R. v. Dumont 2002 NBQB 338, at paragraph 50.)

[7] If, however, there is substantially different evidence before me than was before the Chief Firearms Officer, the approach taken will be different. Under these circumstances, the appropriate approach is as follows:

i. I must first examine the firearm officer's decision to see if it was reasonably made and, if so, give it deference;

ii. I should then examine the new evidence to see whether it is significant enough to undermine the factual assumptions or inferences drawn by the firearms officer; and

iii. If I conclude that this is the case, I am entitled to interfere even though the original decision was reasonable.

(see Fillion v. Saskatchewan (Chief Firearms Officer) [2013] S.J. No. 166; Karatopis v. Ontario (Chief Firearms Officer) [2014] O.J. No. 6137)

Applicant's Evidence at the Hearing

[8] Mr. Robertson testified that he had served in the Canadian Military for thirty-nine years, retiring from active service in 2007 as a Lieutenant-Colonel. He saw active duty in Bosnia, Afghanistan, and Rwanda among others. As a result of things that he experienced during his military service, he now suffers from Post Traumatic Stress Disorder ("PTSD"). He was diagnosed with PTSD in 2013.

[9] Mr. Robertson is an avid gun enthusiast. He uses non-restricted firearms to hunt. During his military career he was qualified as a small arms weapons' instructor and range instructor. He now runs a Gentlemen's Hunting Club in Maxville, ON and the rules for that club were filed as Exhibit 3. He testified that he follows all the laws governing the storage of weapons.

[10] Mr. Robertson acknowledged using alcohol to manage his PTSD. That led to his being charged with operation of a motor vehicle with a blood alcohol concentration in excess of 80 mg in May of 2018. He pled guilty to that charge on July 3, 2018. That is his only criminal record.

[11] Mr. Robertson admitted that there were a few incidents which brought him into contact with the police between October of 2017 and September of 2018. Except for the May 2018 incident, all those incidents were mental health-related. Those incidents, which formed the basis for the Firearms Officer's decision to revoke the licence, were summarized both in the application as well as in a summary that was filed as Exhibit 4.

[12] Mr. Robertson did not substantially dispute the facts contained within that summary, with one exception, that being the incident of September 1, 2018. The summary alleges that the police were called to Mr. Robertson's residence as he was requesting to be taken to the hospital. Mr. Robertson had drunk alcohol to the point of blacking out. The summary suggests that he told the officers who responded that he had "suicidal thoughts on a daily basis."

[13] Mr. Robertson testified that he did in fact have a significant flashback that led him to drink excessively. He has what he refers to as a protocol to provide him with assistance in that type of situation. He developed that protocol in May of 2018. That protocol included the following:

• calling support persons, 2 of whom are friends of his from the military whom he also hunts with;
• if they were not available, he was to call health professionals;
• if the health professionals were not available, he was to call the health crisis line;
• finally, if none of those options were available, he was to go to the hospital.

Unfortunately for Mr. Robertson, none of those options was available and so he called the police to take him to the hospital.

[14] The only issue that he disputes is that he told the police that he had daily suicidal thoughts. Mr. Robertson says that he had only expressed passive suicidal ideation, which he distinguished from active suicidal thoughts. He testified that he thought suicide was a cowardly act and would never resort to that.

[15] Mr. Robertson had been seeing medical personnel to assist him with his PTSD and associated alcohol abuse; however, in May of 2018, after being charged with the impaired driving offence, Mr. Robertson sought additional assistance. He entered the Operational Stress Injury Clinic ("OSIC") run by the Royal Ottawa Hospital. This program provides services to veterans, active military members, and eligible members of the Royal Canadian Mounted Police.

[16] Mr. Robertson filed a letter from that clinic, signed by the clinic's social worker as well as Clinical Director, who is a psychiatrist. That letter, dated March 18, 2019, was filed as Exhibit 1. He also filed a letter from Dr. Leclair, who is Mr. Robertson's mental health and addiction physician. That letter, dated February 26, 2019, was filed as Exhibit 2.

[17] Both letters confirm that Mr. Robertson has been fully compliant with his medication and appointments. Dr. Leclair's letter confirms Mr. Robertson's evidence that he had been sober since September of 2018. The letter from the OSIC confirmed Mr. Robertson's testimony that his PTSD symptoms had improved, and that further improvement was expected.

[18] Both letters state that, in the opinion of the authors, Mr. Robertson does not present a risk to himself or others regarding his possession of firearms.

[19] Mr. Robertson presented his testimony in a direct and candid manner. He did not hesitate in answering any of the questions put to him in cross-examination. He readily acknowledged facts that might not necessarily be favourable to him.

Respondent's Evidence at the Hearing

[20] Constable Paul Emon testified. He is the Area Firearms Officer for the East Region and acts as the Chief Firearms Officer's designate.

[21] He testified that one of the ways in which he receives information which may be relevant to a firearm licencing issue is through a system called Firearms Interest Police ("FIP"), which is a notification system. Certain police calls, including calls for service under the Mental Health Act ("MHA"), should generate an automatic notification to his office. For reasons he was not aware, he did not receive a FIP notification for the September 1, 2018 incident until the first week of January 2019.

[22] Once he received that notification, he reviewed the reports summarized as part of Exhibit 4. The first incident he considered occurred on October 5, 2017. The police were dispatched to a medical centre after Dr. Leblanc, Mr. Robertson's doctor at the time, decided to issue a Form 1 under the MHA to have him admitted to the hospital. It was reported that he was suicidal and acting aggressively. Mr. Robertson did not want to go the hospital but, after speaking with the police for about 20 minutes, he did go in the ambulance voluntarily. He was taken to the Ottawa General Hospital.

[23] As a result of this incident, Mr. Robertson's firearms licence was placed under administrative review. Mr. Robertson was asked to provide a medical form, which he did. That form, prepared by Dr. Leblanc, is filed as Exhibit 5. In that form, Dr. Leblanc reported that he was treating Mr. Robertson for PTSD and alcoholism for ten years. The doctor also reported that Mr. Robertson had been assessed by a psychiatrist who believed the "risk of firearm possession [is] minimal." As a result of this form, the Firearms Officer did not take any steps to revoke Mr. Robertson's licence as, in Constable Emon's words, Mr. Robertson was given the "benefit of the doubt."

[24] Constable Emon also reviewed an incident from January 9, 2018 where police were called to a motor vehicle collision. Mr. Robertson was found sitting behind the driver's wheel of a vehicle in a ditch. He admitted to police that he had consumed alcohol after the accident. He was taken home and no charges were laid.

[25] The final two reports reviewed by Constable Emon included the driving incident from May of 2018 and the mental health act call from September 1, 2018.

[26] Constable Emon, upon reviewing all this information, concluded that it was no longer in the interests of public safety that Mr. Robertson keep his firearms licence. He concluded that the three incidents, which occurred after the review which was engaged by the October 2017 report, demonstrated that Mr. Robertson had been unable to bring his mental health and alcoholism under control. Constable Emon advised Mr. Robertson of his decision on February 8, 2019.

Analysis

[27] In my view, the medical reports filed as Exhibits 1 and 2 during this hearing amounts to substantially different evidence than what was before Constable Emon.

[28] The first question I must answer is: was Constable Emon's decision made reasonably? I conclude that it was. Constable Emon understood his role, the relevant legislation, and reviewed all the materials available to him. There is no evidence that he considered irrelevant facts in coming to his conclusion. It is true that the information that Constable Emon relied on to trigger this review was four months old at the time he received it. While it was open to Constable Emon to seek further medical information, he was not obligated to do so. It is not this court's role to "'micro-manage' the Chief Firearms Officer's exercise of discretion" (see R. v. Bernardo [2013] O.J. No. 5939 at paragraph 21.)

[29] The next question, then, is whether this new evidence is significant enough to undermine the factual assumptions or inferences drawn by the firearms officer? I conclude that it is. Although he had been under a doctor's care for a decade, in May of 2018 Mr. Robertson came to the realization that he required further help. That help came from the Royal Ottawa Hospital's OSIC, a clinic devoted specifically towards treating military and police personnel who have a PTSD diagnosis. He also followed up with a psychiatrist, Dr. Leclair, for both his alcoholism and PTSD.

[30] Both reports filed from the medical personnel demonstrate that Mr. Robertson does in fact have his alcoholism and PTSD under control. He has been abstinent since September of 2018 and has continued to progress with his mental health regime. He has, as the report from OSIC says, shown "clinically significant change."

[31] In his testimony, Constable Emon testified that the doctors' reports filed on this application did not change his view that Mr. Robertson's licence should be revoked. He said that the thought of giving someone back his licence only to have him kill himself weighed heavy on him. He also noted that doctors had in the past sometimes got it wrong.

[32] Constable Emon's position is understandable. No one wants to make a decision that might put the health or life of someone in jeopardy. Decisions seen with the benefit of hindsight are often regretted. Every decision comes with some element of risk attached.

[33] In this case, however, I am satisfied that the evidence before me establishes that any risk posed by Mr. Robertson's possession of firearms is extremely low. He has struggled with PTSD and alcoholism for years and has never engaged in any behaviour, verbal or otherwise, which suggests that he would use a firearm to harm himself or others. While he does admit to making comments which he describes as passive suicidal ideation, none of these comments included any specific threats to harm himself using firearms. Furthermore, he has been fully compliant and responsive to medical treatment offered by personnel who specialize in the treatment of PTSD.

[34] As such, I conclude that I am entitled to interfere with the decision of the Chief Firearms Officer to revoke Mr. Robertson's licence even though that decision was reasonable at the time it was made. Therefore, pursuant to s. 76 (c) of the Act, I cancel the revocation of his firearms licence.

November 13, 2019

Signed: Justice D.A. Kinsella