Court File and Parties

Court File No.: Pembroke 20-1559 Date: 2022-05-13 Ontario Court of Justice

Between:

Her Majesty The Queen, Applicant

— And —

Stephen Clouthier, Respondent

Before: Justice J.R. Richardson

Heard on: March 31, 2022 Reasons for Judgment released on: May 13, 2022

Counsel: Caitlin Downing, for the Crown The defendant Stephen Clouthier, on his own behalf

RICHARDSON, J.:

[1] Is it not desirable in the interests of safety that an otherwise law-abiding responsible gun owner who suffered what appears to be a transitory period of psychosis in November 2020 be subject to a firearms prohibition and forfeiture in 2022? That is the issue I must decide in this case.

[2] By Application dated November 26, 2020, Constable Erin Corriveau applies for an Order pursuant to section 111 of the Criminal Code prohibiting Mr. Clouthier from possessing firearms and forfeiting his firearms to the Crown.

[3] This matter came on before me for hearing on March 31, 2022. Mr. Clouthier represented himself.

Constable Erin Corriveau

[4] Constable Corriveau is a member of the Ontario Provincial Police. She has been so employed since April 2001. She testified that on 8 November 2020 she received a call to assist an ambulance with an agitated man. She and Sgt. Kobylecki attended. They spoke with Mr. Clouthier, his daughter Angela and her husband Bill. Mr. Clouthier was taken to the hospital. Police followed. He was cooperative. Constable Corriveau described his emotional state as agitated and somewhat confused. He thought the military police were after him. He thought they were spying on him; he seemed to be “in his own world” and he was hearing voices. He thought grenades were being thrown. He thought he was being shot at. His daughter and her husband advised that Mr. Clouthier had never been in the military. Mr. Clouthier also went to his mother’s house and shut off her electricity. He advised that he did so in order to protect his mother and his father. He did this even though his father had been deceased for over 10 years.

[5] His daughter advised Constable Corriveau that Mr. Clouthier had been under some stress. His daughter and her husband had moved some distance away from him. I later heard evidence that they had moved from Pembroke to Kemptville.

[6] Mr. Clouthier was cooperative and quiet. Constable Corriveau indicated that Mr. Clouthier was not apprehended under the Mental Health Act because he went to the hospital voluntarily. He would have been apprehended if he had not gone voluntarily.

[7] Constable Corriveau and Sgt. McDonald attended again on November 23, 2020. They attended because Nancy Lounsbury, a Crisis Worker with Community Mental Health, called Police to express concerns about Mr. Clouthier. They also received information that Mr. Clouthier’s firearms had been returned to his residence. Constable Corriveau called Mr. Clouthier’s daughter Angela who advised that Mr. Clouthier had spent 10 to 12 days in hospital. The doctor told Angela that Mr. Clouthier could return home and he could also have his firearms back.

[8] Constable Corriveau was directed by her superior, Sgt. McDonald, to seize Mr. Clouthier’s firearms and apply for a Prohibition Order. She arranged to meet Angela at the residence. Once there, she noted that Mr. Clouthier was confused about what was taking place. Constable Corriveau believed that Mr. Clouthier was still in a paranoid state. She seized seven long guns. Constable Corriveau described Mr. Clouthier’s demeanour on November 23 as upset and angry. He did not want to give his guns back.

[9] In cross-examination, Constable Corriveau confirmed that it is standard practice for Community Mental Health to call Police if they have a concern. She confirmed that it was her understanding that the police do not have to apply for a warrant in order to seize guns in these circumstances. She stated that on November 23 she filed a report to a justice in relation to the seized firearms. She also stated that another concern voiced by Ms. Lounsbury was that Mr. Clouthier was not taking his medications. She indicated that she received this information second-hand from Sergeant McDonald.

Angela Gigaz

[10] The Crown filed a witness statement from Angela Gigaz. Although Ms Gigaz (and her husband Bill Gigaz) were present and able to testify, they were not called by either the Crown or Mr. Clouthier.

[11] Ms Gigaz is Mr. Clouthier’s daughter. In her statement Ms. Gigaz indicated that:

a) On November 8, 2019 she received a call from Paul Clouthier who is Mr. Clouthier’s brother and Paula Clouthier, who is Mr. Clouthier’s sister. They asked her to come to Pembroke because “something wasn’t right with Dad”. They reported unusual behaviour on the part of Mr. Clouthier while he was attending at his mother’s house. Ms. Gigaz agreed to rush to Pembroke immediately and she met her husband Bill there. Bill had been hunting at the Family Hunt Camp in Mackey Ontario. b) Bill Gigaz arrived at Mr. Clouthier’s residence first. He texted his wife to indicate that Mr. Clouthier was agitated and hearing voices. They tried for several hours to get Mr. Clouthier to agree to go to the hospital and when that was not successful, they called 911. When the police arrived they asked about Mr. Clouthier’s guns and his Possession and Acquisition License (PAL). Because Bill had a PAL, he took the guns and Mr. Clouthier’s PAL for safekeeping. c) Once at the hospital they waited over five hours to be seen and ultimately left without any diagnosis, testing, medication or follow-up plan. The doctor indicated that he felt that Mr. Clouthier was suffering from psychosis and recommended that Mr. Clouthier have blood work to rule out an infection, and have a brain scan to rule out the possibility of a stroke. Mr. Clouthier declined to consent to this treatment and the doctor felt that he could not force Mr. Clouthier to consent, nor did he have grounds to detain Mr. Clouthier in hospital. d) While waiting at the hospital Mr. Clouthier told his daughter that he felt isolated due to COVID-19. e) On November 9, 2020 Mr. and Mrs. Gigaz returned to Mr. Clouthier’s home to try to convince him to go back to the hospital to have the tests that the doctor had suggested completed. She indicated that they spent the entire day trying to convince him, without success. f) On November 9 she noticed the same type of agitation as she witnessed the previous day. Mr. Clouthier was upset because his wife had passed away in 2017, his brother had passed away in 2019, Ms Gigaz and her family relocated to Kemptville in 2020 and in November 2020 his mother took a fall and required surgery. In addition, he was having a tough time dealing with the isolation caused by COVID-19 lockdowns. He was concerned that his mother was going to pass away because she was 96 years old and had been declining in health over the past year. g) On November 10, 2020 Mr. and Mrs. Gigaz returned to Mr. Clouthier’s home to again try to convince him to go back to the hospital and have the tests done. They were not successful in doing so. They took him to do some banking. Mr. Clouthier’s sister and brother stopped over to talk and they reported that Mr. Clouthier was acting similarly to how they noticed in the days prior to November 8. They concluded that it was time for him to go back to the hospital and they called 911 once again. Police and Ambulance attended. h) Mr. Clouthier remained in the Pembroke Hospital until November 11 when he was transferred to the Queensway Carleton Hospital in Ottawa, where he was admitted. Because Ms. Gigaz was not listed as Mr. Clouthier’s “next of kin”, she was not given information concerning his progress. She only had “overall wellness discussions” with the social worker. i) On November 16, 2020, Ms. Gigaz received a call from the social worker at the Queensway Carleton Hospital who reported that Mr. Clouthier would soon be released from hospital with a referral to follow-up at Renfrew County Community Mental Health. Ms. Gigaz was advised that Mr. Clouthier was being discharged without restrictions to his driver’s license. Ms. Gigaz asked the social worker if Mr. Clouthier could have his guns back. The social worker advised she would speak to the doctor and advise prior to discharge. j) On November 17, 2020 Ms. Gigaz spoke with the social worker and was told that Mr. Clouthier had presented well that morning and it was determined that he would be released that day at 10 AM. Ms. Gigaz was asked to pick him up and take him back to Pembroke. Ms Gigaz asked if there were any restrictions and she specifically asked about Mr. Clouthier’s firearms. The person she spoke to said there were no restrictions and Mr. Clouthier could have his firearms returned to him. k) On November 23, 2020 Ms. Gigaz received a call from Constable Corriveau. Constable Corriveau indicated that Police wished to attend and obtain Mr. Clouthier’s guns because they had received a call from Renfrew County Community Mental Health. Ms. Gigaz indicated that she “pleaded” with Constable Corriveau to allow her and her husband to obtain the guns as opposed to the police seizing them. Constable Corriveau advised that she would ask her superior. Constable Corriveau called back and indicated that the police would confiscate the firearms but then hand them over to Bill Gigaz for safekeeping. Constable Corriveau asked Ms. Gigaz to come to Pembroke in two hours. Once they arrived, they were advised that the police would confiscate firearms and keep them in police custody pending a court application. l) Ms Gigaz advised that between November 2020 and January 2021, her relationship with her father was strained. He distrusted her because she had contacted police. As at the date of her statement (May 2021), she indicated that she had repaired her relationship with her father. m) Mr. Clouthier’s mother did pass away suddenly in February 2021.

[12] Ms. Gigaz and her family have been in regular touch with Mr. Clouthier and she has seen a “noticeable improvement” in Mr. Clouthier since November 2020. She opined that “he is in a much better place mentally than November 2020”. She indicated that fishing and hunting are Mr. Clouthier’s passions; they are what bring him joy and happiness and allow him to get out with his siblings and other family members.

Stephen Clouthier

[13] Mr. Clouthier represented himself and testified on his own behalf.

[14] He did not feel that his firearms should have been seized again on November 23 and he did not believe that the Police should have been permitted to take this action without a warrant.

[15] He stated that he was not on any medications.

[16] He stated that he spent eight days at the Queensway Carleton Hospital.

[17] He filed a report from Queensway Carleton Hospital pertaining to his November 2020 hospital stay, which was made an exhibit. The report noted the following:

a) Mr. Clouthier was suffering from “Psychosis NOS [1] ”. The secondary diagnosis was “possible mild cognitive impairment”. b) When Mr. Clouthier was admitted on November 11, 2020, he felt that his daughter was ruining his life by wanting to take away his guns. He heard demons saying that they would kill him. He described being closed in and trapped like a rat. c) When he was seen on November 16, 2020, he asked the doctor if he was being kept in hospital because he had a criminal record for running a yellow light. He was concerned that he was going to lose his house, his vehicles and his culture. He denied saying that he heard demons. d) On November 18, more noticeable improvement was clear. At that point he was no longer certifiable under the Mental Health Act. Mr. Clouthier indicated that he was willing to follow-up with Renfrew County Community Mental Health. e) He was discharged on November 19. It was noted that at the time of his discharge he was pleasant and cooperative. His speech was normal. He denied thoughts of harming himself or others and did not express concerns about returning home. He presented as “somewhat guarded.” The doctor noted that there may “in fact be an underlying psychosis however it was not severe enough to necessitate him being forced to take medication against his will and he had no desire to take medication voluntarily”. Mr. Clouthier promised to be more open and communicative with his family.

[18] At the time of the hearing Mr. Clouthier was 68 years of age. He indicated that he was still driving. He lives alone. He does not have a family doctor. He has regular contact with his family, which includes his daughter and son-in-law and her family, his siblings and their broader families. Prior to his retirement, he worked as an electrical contractor between 1985 and 2017. He stated that hunting is a big part of his life. He hunts primarily moose and partridge and occasionally deer. He has a family hunt camp near Mackey Ontario where he goes several times a year with other members of his family to hunt and fish. Hunting has been part of his life since he was a boy. He went hunting last year even though he could not carry a gun. When asked if he was depressed, he replied “not really” although he admitted to some unease with the process and he admitted to being hopeful with respect to getting his firearms back. He indicated that he did not believe the military was after him, nor did he believe that electricity was trying to hurt him. He denied that he desired to hurt himself or anyone else.

[19] In cross-examination, he stated that he has not seen a psychiatrist since he departed Queensway Carleton Hospital. He also stated that he is not had any further mental health assessments. He stated that he had some contact with Community Mental Health, whom he hoped would support him through this Application. He did not see a need to continue to be involved with Community Mental Health as a patient. He was of the view that the doctor did not want him to take any medications. He stated he did not need assistance from Community Mental Health; he added if he needed assistance he knew where to go.

[20] Mr. Clouthier appeared guarded when he testified. I find that he was not doing so because of a mental illness, or in an effort to hide a mental illness. Rather, Mr. Clouthier is a very private individual who was concerned about the lack of privacy with respect to his medical condition and his medical records. Although he did not indicate so, I have no doubt that he is also concerned with the stigma which unfortunately afflicts those who have mental health problems.

Some Gaps in the Evidence

[21] Despite the fact that trustworthy and reliable hearsay evidence is admissible in applications of this nature [2], there are some gaps in the evidence. I did not hear any detailed evidence with respect to the specific concerns of Nancy Lounsbury, or anyone else at Community Mental Health, other than a vague reference to the fact that she reported that Mr. Clouthier was not taking his prescribed medication. I was never advised what, if any, medication Mr. Clouthier was actually prescribed. Although Mr. Clouthier maintained that he has continued to have regular contact with Community Mental Health, I did not hear any evidence from anyone associated with that agency as to the specifics of Mr. Clouthier’s ongoing mental illness, if any, or the treatment regime that was thought to be necessary.

Summary

[22] In summary, on the facts of this case, Mr. Clouthier experienced a period of psychosis in November 2020. The cause of the psychosis has never been determined. He was hospitalized for that psychosis and released. His firearms were originally given to his son-in-law for safekeeping. When he was released from hospital, his guns were returned to him. There was then a complaint that Mr. Clouthier was refusing to take his prescribed medication and this complaint led the police to seize Mr. Clouthier’s firearms and seek the prohibition order.

[23] At no time was there any allegation that Mr. Clouthier was behaving dangerously, recklessly, carelessly or irresponsibly in relation to his firearms.

[24] Mr. Clouthier was under a great deal of stress at the time the firearms were seized from him. His wife had recently passed away as had one of his siblings. His mother was declining. His daughter and her family moved two and a half hours away from him. He was isolated due to COVID-19.

Submissions

[25] The Crown submitted that Mr. Clouthier lacked the responsibility and discipline required of a gun owner. The Crown was concerned that Mr. Clouthier had not participated in further Mental Health assessments since he was discharged from hospital. The Crown submitted that because Mr. Clouthier had not taken any steps to address his mental health problems, the situation remained the same as it was in November 2020. Therefore, the Crown argued, on the balance of probabilities, Mr. Clouthier should not be entitled to possess firearms or his possession acquisition license.

Assessment

[26] Section 111(1) of the Criminal Code states:

A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

[27] Section 111(5) states:

Where, at the conclusion of a hearing of an application made under subsection [1], the provincial court judge is satisfied that the circumstances referred to in that subsection exist provincial court judge shall make an order prohibiting the person from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the date on which the order is made.

The Meaning of “Not desirable in the interests of safety”

[28] In R. v. Hurrell [3], the Ontario Court of Appeal considered a constitutional challenge to section 117.04 of the Criminal Code. In the course of doing so, Justice Moldaver (as he then was) of the Court ruled on the meaning of “not desirable” in that section. At paragraph 48, Justice Moldaver observed that “the words “not desirable”…. simply mean “not advisable”. He then went on to note:

Finally, to the extent that the police or the issuing justice need a framework within which to assess the “non-desirability/public interest” component of s. 117.04(1), Parliament itself has provided guidance in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39. These provisions deal with the eligibility for holding a firearms licence and read as follows:

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

(b) has been treated for 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.

[29] In R. v. Day [4], Justice Durno of the Superior Court of Justice stated “the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners”.

[30] In R. v. Bokhari [5], Justice Blacklock, relying on Day, observed:

Under this approach the court does not have to be satisfied that, in fact, it is more likely than not that the respondent will, in fact, use weapons to cause harm to a person. It is sufficient if there is a finding that there in fact exists legitimate concerns that the respondent lacks the responsibility and discipline the law requires of gun owners. It would appear that if such a state of affairs exists then given the inherent dangerous nature of firearms, it should be taken as following that the continued possession of such person would pose the necessary danger to the possessor, or to other members of the public, that is contemplated by the legislation. [Emphasis mine]

[31] In R. v. King [6], Justice Wheeler found, citing Bokhari and Day, that:

I find that s.111 requires that the Crown establish concrete reasons why firearm possession is not desirable for the person subject of the application. Concerns have to be tied to the particular person. It would not be good enough for the Crown to raise concerns about guns in general without evidence that shows that there are particular reasons why it is not a good idea for the respondent before the court to possess guns, whether those reasons arise from the person’s conduct with guns, or from their behaviour or mental state otherwise that gives rise to legitimate concern about their potential future behaviour if they did have access to firearms. [Emphasis mine]

[32] Justice Wheeler noted further “It seems to me that there is no fixed formula for how the Crown could discharge its burden under s.111 , and that it could be met by evidence of emotional or mental instability, evidence of irresponsible behaviour with guns, or some combination of the two.” [7]

[33] The case law is also clear that the relevant time for the test is the time of the hearing, not the time that the application is made. [8]

The Principles Applied to the Facts of this Case

[34] Following this test, I find that at the time the application was made, there was evidence of emotional or mental instability on Mr. Clouthier’s part. I find, however, that at the date of the hearing, there was no evidence of continuing emotional or mental instability. The fact that Mr. Clouthier has declined to undergo follow-up mental health assessments, in the circumstances of this case, does not render a transitory mental health problem into a permanent and ongoing one.

[35] I find that the Crown has not discharged its burden of proving on the balance of probabilities that it is not desirable in the interests of the safety that Mr. Clouthier should possess any firearms. To borrow from Justice Wheeler’s language in King, the Crown has not established “concrete reasons” why Mr. Clouthier’s possession of firearms is “not desirable”. To borrow Justice Blacklock’s language in Bokhari, I find that there are not “legitimate concerns” that Mr. Clouthier lacks the responsibility and discipline the law requires of gun owners.

[36] I say this for the following reasons:

a) There is no evidence that the psychosis that Mr. Clouthier was experiencing in November 2020 has recurred since his discharge from hospital. The evidence establishes that Mr. Clouthier was suffering from some sort of transitory psychosis, which appears to have been a stress reaction to a number of circumstances, including the recent death his wife and one of his siblings, the decline in the health of his mother, the grief associated with his daughter and her family’s relocation two and a half hours away from where he lives, and the general sense of isolation that he was experiencing as a result of various COVID-19 lockdowns. While I agree that there would have been concrete reasons and legitimate concerns about Mr. Clouthier’s gun ownership and possession at the time that this matter arose, those concerns have now evaporated. I note as well that Mr. Clouthier’s mother passed away – something that surely would have been a stressful or triggering event for him -- after his release from Queensway Carleton and there was no reported relapse in his condition. b) There is no evidence that he required ongoing psychiatric care following his release from Hospital. There is a vague reference to Mr. Clouthier not taking prescribed medications, but no evidence as to what, if any, medications he was prescribed. c) Mr. Clouthier’s November 2020 stay at the Queensway Carleton Hospital was not in response to actual violence, attempted violence or threatened violence. At its highest, Mr. Clouthier heard voices and displayed symptoms of paranoia which he acted upon by cutting off his mother’s electricity. There is no evidence of violence or threats of violence towards anyone. d) Mr. Clouthier does not have a criminal record. e) Mr. Clouthier has never been subject to a weapons prohibition order. f) There is no evidence that Mr. Clouthier has difficulty with the use of drugs or alcohol. g) There is no evidence of Mr. Clouthier has ever exhibited any violent or threatening behaviour. h) There is no evidence that a physician has determined that Mr. Clouthier should not have access to firearms. i) Mr. Clouthier’s firearms are long guns which he uses for hunting. He has hunted all his life. It is a family activity he engages in. j) There is no evidence that Mr. Clouthier resorted to his firearms during the psychotic episode that he suffered from. k) There is no evidence that Mr. Clouthier has ever acted irresponsibly, recklessly or dangerously in relation to his firearms. l) There is no evidence that the manner in which Mr. Clouthier’s firearms were stored was unsafe.

[37] For these reasons, the Application is dismissed and the Police are directed to return Mr. Clouthier’s firearms to him.

Released: May 13, 2022 Signed: Justice J.R. Richardson

Footnotes

[1] NOS means “Not otherwise specified”. [2] See R. v. Zeolkowski, [1989] 1 SCR 1378. [3] (2002), 166 CCC (3d) 343 (ONCA) at paragraph 48 [4] [2006] OJ No. 3187 (SCJ) at paragraph 36 [5] [2009] ONCJ 691 at paragraph 10. [6] [2018] ONCJ 190 [7] King, supra, at paragraph 22 [8] R. v. Peacock-McDonald (2007) ONCA 128 at paragraph 40, see also R. v. Douglas [2013] ONCJ 649 at paragraph 57.