Court File and Parties

Date: January 30, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Louis Banks

Before: Justice T. Lipson

Reasons for Judgment released on: January 30, 2020

Counsel:

• P. Woods for the Crown
• The applicant Louis Banks on his own behalf

Lipson J.:

Ruling on Firearms Reference Hearing

[1] A firearms officer for the Province of Ontario refused to issue a firearms licence to Mr. Banks. He is appealing that decision. As the applicant, Mr. Banks bears the burden of proof on a balance of probabilities to persuade the court that it should order the Chief Firearms Officer to issue a licence pursuant to section 76 of the Firearms Act.

[2] At the hearing, the Crown called Detective Constable Ryan Dance, the firearms officer who refused Mr. Banks' application for a firearms licence. Mr. Banks testified on his own behalf.

[3] Ryan Dance is a Detective Constable with the Guns and Gangs Unit of the Toronto Police Service. He has been employed as a police officer for twelve years and was designated by the Minister of Community Safety and Correctional Services as a firearms officer with authority to perform certain powers, duties and functions of the Chief Firearms Officer. He served in this capacity for approximately one year from June 28, 2018. He dealt with Mr. Bank's application to purchase and possess restricted and non-restricted firearms. That application was filed on September 5, 2017. Detective Constable Dance refused Mr. Banks' application for a firearms licence pursuant to section 68 of the Firearms Act.

[4] In reaching his decision, D.C. Dance relied on police records concerning any occurrences involving Mr. Banks and the police as well as CPIC information regarding any criminal record. He never interviewed Mr. Banks or his family members or persons in the community such as past employers.

[5] In his reasons for the refusal, D.C. Dance relied heavily on 2015 police reports and notes concerning an alleged assault by Mr. Banks in a Walmart store. He reviewed witness statements that described Mr. Banks as having slapped, punched and physically controlled his wife in the store while in the presence of his two children. The applicant was arrested and charged with assault.

[6] D.C. Dance was aware that the charge against Mr. Banks was dismissed when he decided to refuse a licence. He wrote at page 6 of his decision, "I understand that you were not convicted for this offence however the entirety of the investigation and the witness statements are compelling".

[7] At the hearing, D.C. Dance was provided with the reasons for judgment from the trial and given an opportunity to review the judgement.

[8] Mr. Banks had entered a plea of not guilty and had a trial in the Ontario Court of Justice. Several witnesses were called by the Crown and were subject to cross-examination. His wife testified that there was no assault. The trial judge found as a fact that Ms. Banks was entirely believable and that no assault had been committed. This was after a full trial on the merits.

[9] Despite that judgment from a court, D.C. Dance did not alter his original opinion, choosing to continue to rely on the reports and pre-trial witness statements. The Crown originally supported the approach taken by D.C. Dance but then wisely resiled from that position in closing submissions.

[10] As a matter of fundamental policy in the administration of criminal law, it must be accepted that an acquittal is the equivalent to a finding of innocence. This is particularly so when an acquittal results after a full trial on the merits and a specific finding by the court that no crime took place.

[11] D.C. Dance also relied on a police occurrence from July 2017. Someone had reported that there was a loud argument taking place involving Mr. Banks and his wife. Police investigated and received some information that the two had been arguing over finances. There was no allegation of assaultive or threatening behaviour and no charges laid.

[12] D.C. Dance noted that neither Mr. Banks nor his wife "cooperated with their investigation". The officer acknowledged that Mr. Banks had the right to remain silent but stated in his decision, "however, your uncooperative nature with police interactions calls into question your ability to abide by laws and regulations". This was a sweeping and baseless conclusion on the part of the officer. D.C. Dance also stated in his decision that there had been a "history of violence" between Mr. Banks and his wife. That statement was also without any evidentiary foundation.

[13] The Firearms Act sets out specific mandatory criteria in determining whether a person is eligible to hold a licence. None of those criteria apply to Mr. Banks. He has not been convicted of any of the enumerated offences set out in the Act, has never been treated for any mental illness associated with violence or attempted violence and does not have a history of behaviour that includes violence against any person.

[14] The investigation into this matter by D.C. Dance was incomplete and his decision to refuse the licence seriously flawed.

[15] The applicant does have a conviction in 2018 for refuse to provide a breath sample. Interestingly, Detective Constable Dance did not rely on that conviction as a reason to refuse Mr. Banks a licence. The Crown now does.

[16] Mr. Banks is 48 years of age. He is married with two young children. His only criminal conviction was in 2018 for refuse to provide a breath sample. His wife is employed at the Toronto General Hospital where she is a blood analyst. Mr. Banks has an education in accounting and finance. He is starting a scooter business. He wishes to have a firearms licence for recreational purposes. He also wishes to apply for employment at Brinks where possessing a firearms licence is necessary. Mr. Banks successfully passed the Canadian Firearms Safety Course and the Canadian Restricted Firearms Safety Course in June 2017.

[17] In his submissions, Crown counsel acknowledges that the factual assumptions drawn by D.C. Dance are not supported by the evidence. Instead, the Crown argues that this court should affirm the refusal by the firearms officer because of Mr. Banks' 2018 conviction for refuse to provide a breath sample. This conviction, it is submitted, demonstrates an inability on the part of Mr. Banks "to comply with the conditions of a licenced activity."

[18] Public safety is, of course, the overarching concern which guides the determination whether to grant a firearms licence. Section 5(1) states as much. Section 5(2) requires the chief firearms officer consider convictions or discharges within the previous five years for certain offences involving offences for violence, threats, criminal harassment as well as under the Controlled Drugs and Substances Act. Refusing to provide a breath sample is not an enumerated offence in section 5(2). Mr. Banks does not have a history of behaviour that includes violence or threatened or attempted violence against another person. There is no evidence that he has been treated for a mental illness of any kind including any associated with violence or threatened or attempted violence against any person.

[19] I have reviewed the reasons of Justice Gage for convicting Mr. Banks for refuse to provide a sample of his breath. The offence occurred in May 2017. Mr. Banks was also charged for impaired operation but was found not guilty of that offence. The refuse sample offence involved a finding that Mr. Banks refused to comply with the instructions of the police to provide a single suitable sample. The court found that Mr. Banks, despite being given numerous opportunities, wilfully failed to provide a proper sample into an intoxilyser.

[20] Any criminal conviction, including a drinking and driving offence such as this, will be of concern in a firearm application. However, there is nothing in Justice Gage's reasons for conviction that raises the kind of public safety concern that should significantly impact the decision whether to issue Mr. Banks a licence. Aside from the conviction for refuse sample, there is no other criminal record. No Highway Traffic Act record was tendered in evidence. There are no other infringements of any legislative scheme, criminal or otherwise, which can be said to demonstrate "an inability to comply with the conditions of a licenced activity". If there was any kind of history, even a minor one, Mr. Banks might be in a different situation. However, a sole conviction in 2018 for refuse to provide a breath sample does not, of itself, amount to a proper basis for refusing to grant a firearms licence.

[21] For the above reasons and pursuant to section 76 of the Firearms Act, I direct the chief firearms officer to issue Mr. Banks a licence, registration certificate or authorization as was requested by Mr. Banks.

Released: January 30, 2020

Justice T. Lipson