Ontario Court of Justice
Date: 2019-12-13 Location: Newmarket
Between:
Her Majesty the Queen
— AND —
Nikolas Eno
Applicant
Firearms Revocation Reference
Section 74 Firearms Act
Evidence and Submissions Heard: 13 December, 2019
Delivered: 13 December, 2019
Counsel:
- Mr. Gregory Elder — counsel for the Crown
- Mr. Edward Burlew — counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Eno appeals the revocation of his firearms license. The matter was referred to this court pursuant to s 74 of the Firearms Act S.C. 1995 c 39 (FA). A hearing was held and both parties called evidence. On this reference, the burden of proof is on the applicant to show that the revocation of the license was not justified – FA s 75(3). As explained in R v Edwards [2012] O.J. No 5518 (CJ), the standard of review of this administrative decision is reasonableness.
Reasons for Revocation
[2] Mr. Eno pleaded guilty to possession of child pornography contrary to s 163.1(4) of the Criminal Code. He was sentenced to custody for 90 days followed by a probation for 3 years. The court also imposed a s 161 order containing numerous restrictions including a prohibition on attending a public park or public swimming area where persons under the age of 16 years are present or might reasonably be expected to be present. There is a further prohibition on attending a daycare centre, school ground, playground or community centre. Those restrictions are subject to an exception when he is in the direct and immediate presence of an adult over 21 years of age or a family member.
[3] DC Anstey is designated as the Area Firearms Officer (AFO) for this region. He reviewed Mr. Eno's firearms license post-conviction and ordered that the license be revoked. He did so for the following reasons:
Mr. Eno pleaded guilty to an offence related to violence and exploitation of children – R v Sharpe 2001 SCC 2.
During the investigation he told the police that he's had a long-standing sexual interest in children and that over time he was unable to control his impulses.
The inability to control impulses towards criminal conduct related to violence is inconsistent with gun ownership which requires adherence to strict legal standards and regulation.
The court's concern for public safety was reflected on sentence in a custodial sentence, a probation for the maximum term and a 161 order for 10 years.
[4] The evidence on this hearing otherwise shows that Mr. Eno was a responsible gun owner, in full compliance with all regulations up to the point of the revocation.
The Submissions of Counsel
[5] Mr. Burlew submits that a revocation for this offence cannot be based on a general policy – R v Peter-Paul 2013 NSPC 73. The safety of the public is the focus of the s 5(2) FA criteria. The AFO did not interview the applicant or family members and friends before making his decision. He did not have the benefit of seeing the psychological report filed on sentencing. He seems to have focused entirely on the offence. The evidence is plain that in relation to firearms, Mr. Eno has abided with every legal requirement. He does not pose a threat to public safety in that regard.
[6] The Crown notes that the test on this review asks whether the AFO's decision was reasonable. Even if this court would come to a different decision on the issue of revocation, if the decision at issue was reasonable the application must be dismissed.
[7] The Crown submits that the fact the accused's firearms weren't seized on arrest or pursuant to bail is not determinative as the presumption of innocence applied. A s 110 order was available given the violence inherent in the offence, but the fact that the sentencing court did not make that order is not determinative where the court imposed numerous other restrictions for the purpose of public safety. A sentencing judge and a firearms officer have different roles even if they consider similar criteria. Here the concern for public safety, particularly in regards to children that arises from the offence, is reflected in the sentence and ancillary orders imposed. The evidence on this hearing revealed further cause for concern when it was revealed that the psychiatric report filed on sentence included reference to the applicant having thought about killing himself with a firearm in the past. The Crown submits that the AFO's decision was reasonable and remains so.
Analysis
[8] I agree with the applicant that to automatically apply a license revocation to all cases involving this offence without a review of the individual circumstances would not be consistent with the decision-making role conferred upon the AFO by the Firearms Act. I also agree that the evidence shows Mr. Eno has been a responsible firearms owner. The revocation of his license does not stop him from engaging in hunting or target shooting as he continues to be able to engage in those activities whenever a person with a license is present. On his evidence, he typically hunted and visited the range with his father, family and friends who are all licensed so the requirement of having a licensed owner present may provide for public safety, but have little practical impact on his activities.
[9] Mr. Eno is very candid about the personal issues that led him to commit the child pornography offence. He doesn't recognize the violence against children inherent in the offence, but I note that his counselling pursuant to his probation has not yet commenced. He will likely gain further insight through that process. The fact that he's been forthright about his issues and has complied with a probation ordered assessment and is willing to engage in counselling all bode well for his rehabilitation. However, it is still just months into a three year probation order and a 10 year 161 order. Mr. Eno hasn't had time to take the counselling that might diminish the safety risk that led to those restrictions and there hasn't been a significant period of compliance and good conduct that would assist his argument that the risk no longer remains.
[10] The AFO engaged in an individualized assessment that included not just the offence, but the fact that in this case the accused has had a long-standing sexual attraction to children that he has been unable to control. That escalated to the point where he committed a serious criminal offence. The ongoing risk the accused poses towards children is reflected in several aspects of sentence including the very restrictive 161 conditions. Even with the accused's compliance to date with firearms regulations, the AFO applied the FA s 5 criteria and determined that it was necessary in the interest of public safety to revoke Mr. Eno's firearms license. I find that decision considered the proper criteria and was objectively reasonable. Even in light of the further evidence heard on this application, the decision remains reasonable.
Conclusion
[11] The application is dismissed.
Delivered: December 13, 2019.
Justice Joseph F. Kenkel