ONTARIO COURT OF JUSTICE

DATE: April 4, 2022 COURT FILE No.: 21-38100049

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TIMOTHY JOSLIN

Before: Justice Angela L. McLeod

Firearms Application Reference

Heard: September 27, 2021, and February 16, 2022

Counsel: HANIEH AZIMI, counsel for the Crown SAM GOLDSTEIN, counsel for the accused

McLeod J.:

OVERVIEW

[1] This is a reference to a Provincial Court Jurist pursuant to the provisions of the Firearms Act, S.C. 1995, c.39, An Act Respecting Firearms and other Weapons, (hereafter the Firearms Act).

[2] Timothy Joslin’s firearms licence (#11055848) was scheduled to expire in December 2020. He applied to renew his firearms licence in November 2020. On January 4, 2021, his application was refused by firearms officer Michael McNeil, pursuant to section 68 of the Firearms Act.

[3] The reason for refusal was noted as “Failure to meet the eligibility criteria under section 5 of the Firearms Act, in particular, Subsection 5(1) – not in the interests of the safety of that or any other person.” See Exhibit #1.

[4] The firearms officer conducted an “investigation that reviewed and balanced all of the following information”:

(1) CPIC – CANADIAN POLICE INFORMATION CENTRE; (2) FIP – FIREARMS INTEREST POLICE; (3) CFIS – CANADIAN FIREARMS INFORMATION SYSTEM; (4) PARTNERED NICHE RECORDS MANAGEMENT SYSTEMS; (5) PIP – POLICE INFORMATION PORTAL; (6) OTHER RECORDS MANAGEMENT SYSTEMS; (a) CPIC – CRIMINAL RECORD OF JOSLIN, TIMOTHY (i) 2006-04-20 DRIVE WHILE ABILITY IMPAIRED (ii) 2010-12-15 DRIVE WHILE ABILITY IMPAIRED (iii) 2017-04-11 CARE OR CONTROL OVER 80; DRIVE DISQUALIFIED

[5] Mr. Joslin referred the matter to this court.

[6] The sole issue for this court to determine is whether the applicant has established that the Chief Firearms Officer was ‘not justified’ in refusing his application.

FIREARMS ACT

[7] The salient sections of the Firearms Act read as follows:

s. 5(1) PUBLIC SAFETY - 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) CRITERIA - 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, or (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;

(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.

(3) EXCEPTION – Notwithstanding subsection (2), in determining whether a non-resident who is eighteen years old or older and by or on behalf of whom an application is made for a sixty-day licence authorizing the non-resident to possess firearms that are neither prohibited firearms nor restricted firearms is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge may but need not have regard to the criteria described in subsection (2).

References to Provincial Court Judge – ss. 74 to 76

s. 74(1) Subject to subsection (2), where

(a) a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import,

(b) a chief firearms officer decides under section 67 that a firearm possessed by an individual who holds a licence is not being used for (i) the purpose for which the individual acquired the firearm, or (ii) in the case of a firearm possessed by an individual on the commencement day, the purpose specified by the individual in the licence application, or

(c) a provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for the purposes of this Act, the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides.

Limitation period – s. 74(2)

74. (2) An applicant or, holder may only refer a matter to a provincial court judge under subsection (1) within thirty days after receiving notice of the decision of the chief firearms officer, Registrar or provincial minister under section 29, 67 or 72 or within such further time is allowed by a provincial court judge, whether before or after the expiration of those thirty days.

Hearing of reference – s. 75(1)

75. (1) On receipt of a reference under section 74, the provincial court judge shall fix a date for the hearing of the reference and direct that notice of the hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or the holder of the licence, registration certificate, authorization or approval, in such manner as the provincial court judge may specify.

Evidence – s. 75(2)

75. (2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.

Burden of proof – s. 75(3)

75. (3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.

Where hearing may proceed ex parte – s. 75(4)

75. (4) A provincial court judge may proceed ex parte to hear and determine a reference in the absence of the applicant or holder in the same circumstances as those in which a summary conviction court may, under Part XXVII of the Criminal Code, proceed with a trial in the absence of the defendant.

Decision by provincial judge – s. 76

76. On the hearing of the reference, the provincial court judge may, by order, (a) confirm the decision of the chief firearms officer, registrar or provincial minister; (b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or (c) cancel the revocation of the licence, registration certificate, authorization or approval of the decision of the chief firearms officer under section 67.

SUMMARY OF THE FACTS

[8] The only evidence called was that of the firearms officer who issued the refusal.

[9] The officer based his refusal upon a number of sources, including the applicant’s criminal record and MTO records, specifically for drinking and driving convictions. His rationale was that the applicant demonstrated a disregard for the rules of safety, including not wearing a seat belt, which gave rise to a concern about following safety rules for firearms. Additionally, he concluded that the applicant had a “history or pattern of behaviour, problems with alcohol, alcohol abuse issues, issues with following the law, poor judgment, a 30-year history of convictions and suspensions.” Ultimately, he concluded that the applicant would be a “risk to public safety”, should his firearms licence be renewed.

POSITION OF THE PARTIES

[10] The Crown submits that the firearms officer was correct in concluding that impaired driving is an act of violence or a threat of violence. The Crown argues that an impaired driver is “sitting behind a loaded gun” and the threat of violence is “to the members of the public including the accused”.

[11] The Crown’s submission stands on a finding that impaired driving is an act of violence; however, more generally that it is not in the public safety to issue a firearms licence to Mr. Joslin.

[12] The standard of review is one of reasonableness, and deference must be afforded to the officer’s decision. The Crown referred to the case of Henderson v. Canada (Attorney General), 2011 ONCA 696, as follows:

35 However, having done that, s. 75(3) of the Act directs the provincial court to decide, in light of the facts it has found, if the applicant has satisfied it that the Registrar’s refusal was “not justified”. That is, the applicant must do more than show that, given the facts found, the decision was wrong. Rather, the provincial court must be satisfied that the refusal was not justified. In my view this reflects the legislative intent that the provincial court accord deference to the Registrar’s decision. I say this for several reasons.

36 The first is the particular language of the Act. The pertinent definition of “justification” in Black’s Law Dictionary, 8th ed., is “a lawful or sufficient reason for one’s acts or omissions.” That is, a decision is not justified if there is no sufficient reason for it. As well, the Supreme Court of Canada has linked the deferential standard of reasonableness to the concept of justification. In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, the court describes the qualities that make a decision reasonable and makes clear that justification is a key aspect of reasonableness. Thus I think the language of s. 75(3) of the Act directs the provincial court to apply a deferential standard of review to the Registrar’s decision itself. The provincial court is to test that decision against the facts it has found. It is not to determine if it agrees with the decision, but whether it has been satisfied by the applicant that the decision is not reasonably defenceable. This mandates deference.

37 A deferential approach is also supported by the undoubted specialized expertise of the Registrar in administering the complex firearms registration regime. That regime encompasses both the legislation and the relevant subordinate legislation, including S.O.R./98-462. In addition, the nature of the questions of law that arise for the Registrar is compatible with a standard of deference. As in this case, where the question is the meaning of “variant” in the relevant Order in Council, these questions are within a very specialized area of the legal system and have limited general application.

[13] The Crown also referred to the case of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, as follows:

15 In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.

83 It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171 (F.C.A.), that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.

99 A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74; Catalyst, at para. 13.

100 The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.

[14] The firearms officer is permitted to consider information outside of the five-year period specified in s. 5(1) of the Firearms Act. R. v. Davidson, 2011 ONSC 249

[15] In Davidson, supra, the court affirmed the test to be applied when refusing or revoking a licence:

32 The Appellant submits that a revocation requires evidence of a criminal conviction or violence, threatened violence or mental illness. He relies on R. v. Urchuk, [2004] B.C.J. No. 1075 (B.C. Prov. Ct.)) for the proposition that there must be evidence of “a substantial possibility, based on fact, that the safety of the respondent of another will be at risk if he is allowed to have guns.” He also relies on R. v. Hurrell, [2002] O.J. No. 2819 (Ont. C.A.), which upheld the constitutionality of s. 117.04(1) of the Criminal Code.

33 I note that although Dawson and Durno JJ. disagreed on how the timeframe set out in s. 5(2) of the Firearms Act affects the decision maker’s consideration of the evidence, they both agreed on the proper test to be applied when refusing or revoking a licence. At para. 49 of Ball, supra, Durno J. stated: The legislation is designed to preclude persons from possession firearms, if to permit them to do so would compromise public safety. I agree with the test set out by Fairgrieve J. in R. v. Morgan, [1995] O.J. No. 18 (Ont. Prov. Ct.), that it is “sufficient if there is a legitimate concern the [licence holder or applicant] lacks the responsibility and discipline the law requires of gun owners.”

34 Dawson J. adopted this test in Curtis, supra, and it was also accepted in Spadidakis, supra, Corrigan, supra, and Hanna, supra. In the context of proceedings under the Firearms Act a review of the case law has revealed no other competing test. There are conflicting articulations of the proper test in the context of firearms applications under s. 117.05 and s. 111 of the Criminal Code. In forfeiture proceedings under the Criminal Code, the British Columbia courts have applied a more restrictive test as noted in R. v. Urchuk, supra.

35 Ontario Courts, however, have rejected this approach and adopted the same test that is applied in proceedings under the Firearms Act. 4 In R. v. Bokhari, [2009] O.J. No. 5975 (Ont. C.J.), Blacklock J. stated at para. 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.

[16] Justice Beaudoin further held that:

70 In my view, it was appropriate for the Hearing Judge to consider the Appellant’s behaviour towards persons in authority, and I note his factum bears an unusual cover page. In lieu of a plain cover, the Appellant has affixed a photograph of a police officer in full “SWAT” gear. When I questioned the Appellant about this, he described the photo as being “the face of reason” and suggested that it was a satiric comment.

71 The Hearing Judge properly concluded that the Firearms Officer had conducted a thorough investigation and did not simply base her Decision on the historical knowledge of the Appellant but had satisfied herself that the behaviours and attitudes that were problematic when the Appellant was a young man had remained constant into his adulthood and up to the date of the Hearing.

72 The Hearing Judge noted the Appellant’s behaviours in the Brink’s compound in 2004 and that these demonstrated a continuing inability to control his emotions. She was also troubled by his threats of formal complaint and civil litigation levelled at those with whom he disagrees and that he had no concept of the impact of his actions on the individuals targeted. She noted that Special Constable Couturier uncovered the fact that the Appellant had lied on his application for his position at Brinks.

73 Having determined that the temporal scope of the inquiry went beyond five years, I am satisfied that the Hearing Judge’s conclusions were reasonable. In my view, a revocation at law does not require a criminal conviction, threatened violence or a mental illness. A firearms officer and the reviewing provincial judge are entitled to consider anything about the background or conduct of the applicant that is relevant to the applicant’s safety, the safety of others or public safety. I repeat the test as set out in R. v. Bokhari, supra: 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.

74 Having regard to that test I cannot conclude that the Hearing Judge’s decision is clearly wrong.

[17] The test had been earlier articulated in R. v. Curtis, [2004] O.J. No. 4088 (ONSC):

6 These provisions place emphasis on the safety of the applicant and the public. As noted by Justice Durno in Ball, Re, [2003] O.J. No. 2471 (Ont. S.C.J.) [hereafter D.L.B.], at para. 48, there is nothing in the legislation that restricts the areas of concern to the misuse of firearms. In D.L.B. the Court adopted (at para. 49) the test described by Justice Fairgrieve in R. v. Morgan, [1995] O.J. No. 18 (Ont. Prov. Div.), under the previous legislative scheme. A licence may be denied or revoked if there is a legitimate concern that the applicant or licence holder “lacks the responsibility and discipline the law requires of gun owners”.

[18] The burden is on the applicant on a balance of probabilities to establish that a firearms licence should issue to him, that the refusal to issue the licence was not justified. R. v. Morgan, [1995] O.J. No. 18, R. v. Curtis, Joshi v. Canada (Attorney General of Ontario), 2021 ONSC 2161.

[19] The defence submissions were very brief. Mr. Goldstein submits that the firearms officer lost jurisdiction by determining that impaired driving is an act of violence. Mr. Goldstein further submits that once jurisdiction is lost this court can then substitute its own decision.

[20] Mr. Goldstein agrees that the firearms officer was permitted to consider information outside of the 5 year range.

ANALYSIS

[21] The burden in a reference hearing is on the applicant to satisfy the jurist that the refusal was not justified.

[22] The standard of review was clearly summarized in R. v. Mason, 2008 NBPC 19, wherein Justice Brien wrote at paragraphs 22 - 26:

22 On examination of the Act, it is clear that a reference hearing is distinct from an appeal, the latter being reserved for other courts following a reference hearing. As to the nature of the hearing and the standard of review, the authors of Annotated Firearms Act and Related Legislation Butterworths 2006, citing several cases from various courts, note at p. 140-1: The hearing is not a pure hearing de novo. It is the decision of the firearms officer and not the overall question of eligibility that is to be referred to the provincial court judge. The hearing is also not a pure appeal, as reference is clearly intended to proceed upon an amplified record given the requirement to hear evidence. This allows the provincial court judge to hear new evidence and to make fresh assessments of credibility. The process is also not directly analogous to judicial review, as judicial review is concerned with errors of law, and the role of the provincial court judge on a reference hearing is as to the ‘justification’ of the decision of the firearms officer, which implies an analysis of the merits of the decision, pursuant to subsection 75(3) of the Firearms Act

23 Further on the authors observe the caselaw as holding as follows: Where the evidence before the provincial court judge is substantially the same as the evidence considered by the firearms officer, the standard of review should be reasonableness simpliciter and the applicant required to show that the firearms officer was “clearly wrong”.

24 The court in Dumont arrived at the same position stating at para 50-51: In my opinion, the Provincial Court Judge must weigh the chief firearms officer’s decision by applying the reasonableness simpliciter test that the Supreme Court of Canada used in Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982 The use of this test has significant legal implications and determines the authority of the Provincial Court Judge at a reference hearing. The standard of reasonableness simpliciter and the clearly wrong test are closely akin

25 As to the weight to be given to the chief firearms decision the court observed at para 55,56 and 59 as follows Therefore, the reviewing judge must not ignore the initial decision. He must weigh it. He must show deference for the conclusion reached by the chief firearms officer, particularly if he is considering basically the same evidence as was the chief firearms officer. Barring any compelling evidence, the chief firearms officer’s decision will be deemed justified. Intervention by the Provincial court judge is only allowed in those cases where it is demonstrated that the chief firearms officer acted unreasonably ”Justified” means that a reasonable person could come to the same decision on the basis of the evidence, even if that person did not necessarily agree with the decision. It is not a matter of substituting one’s own decision for that of the first decision-maker.

26 Applicant’s counsel raised the issue as to the breadth of the eligibility provision of s. 5(1) of the Act in particular what constitutes “the interests of the safety of that or any other person”. He argues that ss 5(2) limits the criteria for interests of safety.

27 The court in Dumont provides a response which in my opinion is instructive and correct stating at para 20.: Upon reading the relevant legislative provisions, I find that the chief firearms officer has very broad discretionary powers when deciding whether it is ‘desirable’ (subsection 5(1)) that the person possess or not a firearm. While the chief firearms officer ‘shall have regard” to the criteria listed in subsection 5(2) of the Act, these are neither restrictive nor exclusive”

[23] I am considering the same evidence as that which was considered by the firearms officer; no further evidence or amplification was proffered.

[24] As noted above, the applicant must show more than the firearms officer’s decision was wrong, he must show that it was not justified.

[25] The underlying purpose of the legislation is public safety. The firearms officer’s decision to refuse the renewal was founded in a concern over public safety. That decision is entitled to great deference.

[26] In all of the circumstances, I find that that the refusal was justified. As in Joshi, supra, para. 15, “it was rational, properly connected to the statutory underpinnings of the application, transparent, intelligible and logical. The outcome was arrived at based on clearly articulated and intelligible reasons and a rational chain of analysis. The conclusion follows logically from the evidence and the reasoning process.”

[27] Again, it must be recognized that in a reference hearing the court does not decide whether the court agrees with the decision, but rather whether it was justified on the evidence. It may or may not have been the decision which I would have made, but I cannot say it is clearly wrong or unreasonable.

[28] The decision was not simply based upon a determination, as articulated by the Crown and not by the Officer, that impaired driving is an act of violence. The Officer’s decision was based upon the ‘statutory underpinnings of the application’.

[29] The decision of the Chief Firearms Officer is confirmed.

Released: April 4, 2022. Signed: Justice Angela L. McLeod