ONTARIO COURT OF JUSTICE

CITATION: Re Revocation of firearms licence pursuant to ss. 74 to 76 of the Firearms Act, 2023 ONCJ 90

DATE: February 27, 2023

COURT FILE No.: 22-28102132

IN THE MATTER OF a reference, pursuant to s. 74 of the Firearms Act,

in relation to the revocation of Blair Rankin-Wilson’s firearms licence

Before Justice P.K. Burstein

Heard on January 5, 2023

Reasons for Judgment released on February 27, 2023

C. Sell.................................................................................................... counsel for the Crown

Blair Rankin-Wilson...................................................................................... self-represented

BURSTEIN J.:

[1] Blair Rankin-Wilson (“Mr. Wilson”) was the holder of a firearms licence which he had obtained on August 29, 2018. On February 25, 2022, he pleaded guilty before a judge of this Court to two charges of harassing telecommunications in relation to his former intimate partner and her new boyfriend. He was granted a conditional discharge and placed on probation for a period of 18 months. Despite the Crown’s request for an order prohibiting Mr. Wilson from possessing firearms, the sentencing judge declined to prohibit Mr. Wilsons from possessing firearms either pursuant to s. 110 or as part of the 18-month probation order that was imposed.

[2] Nevertheless, as the disposition of those criminal charges involved Mr. Wilson being placed on probation in relation to an offence against an intimate partner, it triggered an investigation by the Office of the Chief Firearms Officer of Ontario (“CFO”) into whether Mr. Wilson’s firearms licence should be revoked because of the safety concerns set out in s. 5 of the Firearms Act. On March 16, 2022, pursuant to s. 70(1) of the Firearms Act, the CFO revoked Mr. Wilson’s firearms licence. The reasons for that decision were set out in Appendix A to the Notice of Revocation which was ultimately served upon Mr. Wilson.

[3] As is his right, Mr. Wilson sought judicial review of that revocation decision, pursuant to ss. 74 to 76 of the Firearms Act. At the review hearing before me, I heard testimony from Mr. Wilson and from Area Firearms Officer (“AFO”) Teeft, the CFO’s designate responsible for investigating Mr. Wilson and for preparing the licence revocation decision.

The legal framework for hearing and deciding a s. 75 Firearms Act application

[4] In Canada, the privilege of owning and possessing a firearm is regulated by the Firearms Act. Possession of firearms is also controlled by provisions of the Criminal Code. To lawfully possess a firearm, a civilian must be granted a licence pursuant to the Firearms Act. Decisions as to whether a civilian should be granted, or allowed to maintain, a firearms licence are made either by the “Registrar” or by “a chief firearms officer” appointed under the Act. Chief firearms officers, in turn, are assisted in the discharge of their statutory duties by a complement of area firearms officers (“AFOs”) working throughout the territorial jurisdiction.

[5] When a chief firearms officer notifies a licencee of a decision to revoke their firearms licence, the licencee is entitled to apply to a “provincial court judge” for a review of that decision, pursuant to ss. 74 to 76 of the Firearms Act. The nature of that hearing is prescribed by the contents of s. 75 of the Act:

Evidence

(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

(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.

[6] According to s. 76 of the Act, at the conclusion of the reference hearing, 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 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 or the decision of the chief firearms officer under section 67.

[7] The presentation of evidence at the reference hearing before me was not intended to have me decide whether the CFO correctly decided that Mr. Wilson’s firearms licence should be revoked under the Firearms Act. Rather, the focus of the s. 75 hearing was whether the CFO’s revocation decision is “justified” in light of that evidence. Courts have held that the scope of review contemplated by s. 75 of the Act is somewhat unique. Though not intended as a fresh consideration of the appropriateness of the firearms licence, the s. 75 hearing is more than simply an appeal of the legal correctness of the CFO’s revocation decision.

[8] The nature of a s. 75 judicial review has been described by the Ontario Court of Appeal in Henderson v. Canada, 2011 ONCA 696 as follows (at paras. 35 and 38):

… 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….

… The provincial court's task is not to assess the process used by the Registrar about which it may know very little. Rather, it is to evaluate the Registrar's decision in the context of the facts it has found to decide if the applicant has satisfied it that the decision does not fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, at para. 47. It is in this sense that the provincial court should apply a standard of reasonableness….

[9] The deference owed on judicial review of a CFO’s decision does not extend to the “facts” referred to in that decision. A s. 75 reviewing court is obliged to make its own findings of fact based on the evidence presented to it at the review hearing. Unlike at a criminal trial, the evidence presented at a s. 75 review hearing may include hearsay, so long as that hearsay is credible and trustworthy. Even if admissible, however, the weight to be attributable to hearsay evidence may vary depending on its apparent degree of reliability: R. v. Zeolkowski, [1989] 1 S.C.R. 1378. For example, third, or fourth, hand hearsay recorded in a report may be inherently more suspect than testimony about information relayed directly from a witness to an event. Equally, in the context of a s. 75 review application, contradictory direct evidence (which a court chooses to accept) may serve as a basis for discounting the putative value of competing hearsay information on the same point.

[10] Courts have also held that, where the evidence presented at the s. 75 hearing is substantially the same as the evidence considered by the CFO, the deferential standard should limit judicial interference to cases where the CFO’s decision was manifestly wrong. On the other hand, where the evidence presented at the s. 75 hearing has materially undermined the basis for the CFO’s decision, the need for deference to that decision is weakened.

[11] As I will explain more fully below, the evidence presented at the reference hearing satisfied me that the CFO’s revocation decision was predicated upon conclusions which, in view of the evidence I heard, resulted from material misapprehensions of the facts. Accordingly, I am persuaded that the CFO’s decision was not entitled to any deference. Having regard to the facts established by the evidence presented to me at the reference hearing, I am satisfied that the CFO’s revocation of Mr. Wilson’s licence was not justified.

The evidence presented on Mr. Wilson’s s. 75 Application

[12] AFO Teeft was called by the Crown to testify at the reference hearing before me. I learned that she has been a police officer for 32 years but has been seconded to the CFO as an AFO. The testimony of AFO Teeft amounted to her confirming what she had written in the revocation decision she had prepared on behalf of the CFO, a copy of which was attached as Appendix A to the Notice of Revocation. The CFO’s revocation decision is encapsulated in the following few paragraphs of Appendix A:

Reasons for Revocation of a Licence

I have determined that it is not in the interest of public safety that you continue to hold a firearms licence. In reaching this decision, I have conducted an investigation that reviewed and balanced all of the following information. I have relied on my training and experience as a firearms officer, and specifically my knowledge relating to issues of public safety.

The specific reasons with respect to my decision under section 70 of the Firearms Act to revoke your firearms licence are as follows:

You have recently exhibited behaviour that has caused public safety concerns with you being in possession of firearms.

You were arrested in 2020 for Criminal Harassment. A review of your history shows a pattern of Criminal Harassment since 2016 with the same victim and people associated with her. You have been described on more than one occasion as being possessive and as having anger issues. Your more recent arrest, resulted in a conditional discharge starting 2022-02-25 and ending 2023-08-24 with conditions not to associate with victims.

Society demands and expects that those people in our society who are permitted to have firearms demonstrate a history of complying with the law and show good judgement and appropriate behaviour in their day to day lives.

The Firearms Act provides a firearm officer the authority to refuse to issue a licence or revoke a licence if it is determined the holder is not eligible to have a licence. As noted above, licence eligibility is based on the criteria in section 5 of the Firearms Act. Section 5 of the Firearms Act directs a firearms officer to generally consider whether it is in the interest of the public safety that an individual possess or have access to firearms with specific attention paid to whether the applicant has a history of criminal behaviour, violence, or mental health concerns.

I have considered the material before me and believe that at this time, while bound by the recent court action you are no longer a suitable candidate to hold a firearms licence. You need to demonstrate a pattern of behaviour that would be favourable to you to have the privilege of possessing a firearms licence.

Based on all of the above, it is my opinion that it is not desirable in the interests of individual or public safety that you be the holder of a valid firearms licence. Accordingly, your Possession and Acquisition Licence (PAL) is hereby revoked.

[13] During her examination by the Crown at the reference hearing, AFO Teeft was shown copies of the police occurrence reports to which she had referred in arriving at her decision to revoke Mr. Wilson’s firearms licence. Those reports were also entered as exhibits on the reference hearing. The reports related to three incidents in which the police had been called to investigate Mr. Wilson’s aggressive behaviour towards Leahra Thompson, his former girlfriend. Two of the incidents had occurred in 2016. Neither of those previous incidents had resulted in any criminal charges being laid against Mr. Wilson.

[14] The third incident mentioned in the CFO’s revocation decision dated back to August of 2020. That incident resulted in Mr. Wilson being charged with criminal harassment in relation to both Ms Thompson and her new boyfriend, Zachary Abela. The Crown ultimately withdrew the initial charges of criminal harassment and proceeded with lesser charges of harassing telecommunications, contrary to s. 372 of the Criminal Code. On February 25, 2022, the Crown accepted Mr. Wilson’s guilty plea to the harassing telecommunications charges. The judge of the Ontario Court of Justice who sentenced Mr. Wilson on those two counts of harassing telecommunications determined that it would not be contrary to the public interest to grant Mr. Wilson a conditional discharge and then placed him on probation for 18 months with a term that Mr. Wilson remain away from Ms Thompson or Mr. Abela. The sentencing judge declined to include a term in the probation order requiring Mr. Wilson to not possess any weapons. Moreover, the sentencing judge also rejected the Crown’s application for a s. 110 firearms prohibition. The judge determined that, considering the psychological opinion evidence provided by Mr. Wilson, the facts underlying the harassing telecommunications charges did not support a conclusion that his continued possession of firearms posed a risk to public safety.

[15] Despite knowing Mr. Wilson had not been convicted of criminal harassment and had instead received a conditional discharge for the harassing telecommunications charges, AFO Teeft never sought out a transcript of the February 25, 2022, proceedings. Despite her belief as an experienced police officer that it was very common for the Crown to seek some form of weapons prohibition as a consequence of any domestic incident, AFO Teeft never contacted the Crown’s office to inquire why no such order had resulted from the February 25, 2022, proceedings.

[16] Had AFO Teeft made those additional investigative inquiries, she would have discovered that the sentencing judge had declined to include a term prohibiting Mr. Wilson from possessing weapons in the probation order. AFO Teeft would also have discovered that the sentencing judge had expressly rejected the Crown’s request for a s. 110 firearms prohibition. The transcript of that proceeding would have revealed that the sentencing judge had determined that there were no public safety concerns associated with his continued possession of firearms given the misconduct that the Crown had actually advanced and given the psychological opinion that Mr. Wilson did not suffer from any mental disorder and was not a risk to others.

[17] A transcript of Mr. Wilson’s sentencing hearing on February 25, 2022, revealed material differences between the facts acknowledged by the Crown at that hearing and those noted in AFO Teeft’s summary of the August 2020 police report:

Facts agreed upon by the parties in court	Details from police occurrence report as summarized in CFO decision
Mr. Wilson was in “on-and-off relationship” with Leahra Thompson (“LT”) from 2015 to about June, 2020	Mr. Wilson was in “on-and-off relationship” with Leahra Thompson (“LT”) since 2015 that ended in 2020
LT started dating Zachary Abela (“ZA”) in June, 2020	LT started dating new male and this caused Mr. Wilson to become jealous
Emails passed back and forth between ZA/LT and Mr. Wilson, some of which involved taunting Mr. Wilson	N/A
Mr. Wilson created a fake online profile for LT on some dating websites proposing sexual encounters with others	Mr. Wilson created a fake online profile for LT on some dating websites which included LT’s home address and work address
The fake dating profiles induced unknown males to contact LT and one male to actually attend at her residence	Through the fake dating profiles Mr. Wilson caused an unknown male to actually attend at LT’s residence
Coincidentally, someone created a fake dating profile for Mr. Wilson causing him to receive various messages from unknown males	N/A
Following police involvement, all of the fake dating profiles were taken down	N/A
There was no further communication between LT/ZA and Mr. Wilson from August 13, 2020 [through to proceedings on February 25, 2022]	N/A
N/A	Mr. Wilson’s actions caused both LT and ZA victim to fear for their safety

[18] Mr. Wilson testified in support of his application to set aside the licence revocation. Using the CFO’s reasons for decision as a guide, he recounted what had happened in respect of each of the three incidents referred to therein. Although he provided some qualifications to the versions contained in each of the reports referenced in the CFO’s decision, he essentially conceded that he had behaved inappropriately in relation to Ms Thompson on each of those occasions. However, he adamantly denied ever having been assaultive or threatening towards her, a fact confirmed by what the occurrence reports said his former girlfriend had told the police on the two occasions in 2016.

[19] Mr. Wilson also provided me with the psychological reports that had been provided to the sentencing judge on February 25, 2022. In the psychologist’s expert opinion, Mr. Wilson did not suffer from any diagnosable mental illness and was not a risk to others. The psychologist had also indicated that Mr. Wilson was clearly remorseful for what he had done to Ms Thompson, and that Mr. Wilson had demonstrated a “level of insight” which suggested a low risk to others. As I have noted above, it was because of this psychologist’s expert opinion that the sentencing judge had found Mr. Wilson’s “risk of recidivism [was] very low” and, thus, that it would not be contrary to the public interest to grant him a conditional discharge for the harassing telecommunications offences and that it was not necessary in the interests of public safety to prohibit him from possessing firearms.

Analysis and findings

[20] At the hearing before me, Mr. Wilson testified in a polite and respectful manner. Despite the emotional nature of some of the topics, he never once lost his temper, not even when being challenged by the Crown. I generally accept Mr. Wilson’s evidence on the reference hearing.

[21] There was, however, one aspect of Mr. Wilson’s cross-examination which initially caused me some concern He was asked about the content of some emails he had sent to Ms Thompson back in August of 2020. In one of those emails, he had talked about “dusting” anyone who she and her new boyfriend sent his way. The reference in Mr. Wilson’s emails to him dusting people immediately followed him saying that he keeps “a loaded piece ready for company”. When asked in cross-examination, Mr. Wilson denied that he wrote those things as a threat to shoot anyone. Eventually, however, Mr. Wilson acknowledged that what he had written was extremely inappropriate and explained that he had been provoked into that response by communications he had received from his ex-girlfriend and her new boyfriend, communications which were not referred to in the CFO’s decision or in the police report entered as an exhibit at the reference hearing. I note that those provocative emails were mentioned in the facts presented to the sentencing judge on February 25, 2022.

[22] Although Mr. Wilson’s responses to that line of questioning was concerning, it did not serve to discredit the rest of Mr. Wilson’s evidence. I am satisfied from his evidence that he had not actually meant to use his firearms nor to actually cause harm to anyone. That he was never charged by the police with threatening, even though the police had the emails in question, helps confirm that fact. That the Crown at the sentencing hearing did not seek to rely upon this information in support of its s. 110 application further confirms that fact. Indeed, at no point during her interactions with the police did Ms Thompson ever profess a fear that Mr. Wilson would use his firearms to harm her or anyone close to her. It is also significant that, having seen the references to those emails in the police report, AFO Teeft did not consider that information worthy of mention in the CFO’s reasons for revocation. Put simply, I find that Mr. Wilson’s emails, when considered in light of all the evidence presented at the reference hearing, did not amount to a credible or real threat of causing harm to anyone. In the circumstances of this case, I am satisfied that these emails would not justify the revocation of his firearms licence.

[23] As the CFO’s decision indicates, it was Mr. Wilson’s “recently exhibited behaviour” in relation to Ms Thompson and Mr. Abela which gave rise to the public safety concerns that supposedly justified the revocation of his firearms licence. The CFO’s reliance upon the information contained in the police occurrence report relating to that incident led to a conclusion on the public safety issue which was both misinformed and uninformed.

[24] During the course of the reference hearing, I expressed concerns that the CFO’s reliance upon the criminal proceedings flowing from the August 2020 allegations of misconduct gave rise to issue estoppel in relation to the factual and legal determinations which had already been made by a judge of this Court in those proceedings. The judge in those proceedings had decided that it was not necessary “in the interests of safety” to make any orders preventing Mr. Wilson from possessing firearms as a consequence of his admitted misconduct.

[25] The doctrine of issue estoppel provides that a factual issue decided in one proceeding must be accepted and not relitigated in another proceeding unless the earlier decision is set aside on appeal. The purpose of the doctrine is to ensure fairness, avoid inconsistent verdicts and maintain the principle of finality: R. v. Mahalingam, 2008 SCC 63 at paras. 2 and 38. As explained by the Supreme Court of Canada in Mahalingam (at para. 45), issue estoppel protects "the integrity and coherence of the justice system as a whole [emphasis added]." The doctrine also protects "the related institutional values of judicial finality and economy," which are "essential to preserving confidence in the justice system [emphasis added]": Mahalingam, at para. 46. The policy reasons underlying the existence of the issue estoppel doctrine seem equally applicable to reference hearings conducted by judges of the same court responsible for disposing of most of the criminal charges which ultimately serve to trigger licence revocations under the Firearms Act. In R. v. Guerin, [2003] O.J. No. 4823 (at para. 28), Keast J held that the doctrine of issue estoppel applied to bar the Crown and CFO from advancing a factual and legal position in relation to a prior criminal conviction which had not resulted in a firearms prohibition.

[26] In the criminal context, there are three requirements that must be met for the doctrine of issue estoppel to apply. First, the issue must have been decided in favour of the accused in the prior proceeding, that is, the finding must be logically necessary to the previous decision: Mahalingam, at para. 53; R. v. Punko, 2012 SCC 39 at paras. 7-8. This is a factual issue to be decided when the application of the doctrine is raised by a party at the subsequent hearing: Mahalingam, at paras. 26 and 52. Whether the issue was resolved in the accused's favour on the basis of a positive factual finding, or a reasonable doubt does not matter for the purposes of the doctrine: Mahalingam, at paras. 22-23 and 28; R. v. Grdic, [1985] 1 S.C.R. 810, at p. 825. Second, the determination of the issue must have been final. Issues determined at trial are final, unless set aside on appeal: Mahalingam, at para. 55. Third, there must be mutuality, that is, the parties must be the same in both the earlier and the subsequent proceedings: Mahalingam, at para. 56.

[27] In this case, it seemed that all three of the doctrinal requirements for issue estoppel to apply had been met. First, the issue to be decided at this hearing – namely, whether “it is desirable in the interests of safety” to prohibit Mr. Wilson from possessing firearms because of his harassing telecommunications offences in relation to his former girlfriend – was exactly the issue which was decided by the judge who sentenced him for those offences on February 25, 2022. The legislative threshold which governed the sentencing judge’s decision on this issue was framed in the Criminal Code using the identical wording as the threshold which determined whether it was appropriate for the CFO to revoke Mr. Wilson’s firearms licence under the Firearms Act; namely, “whether it is desirable in the interests of the safety of the person or of any other person”. This was clearly by design. Before it was enacted as a separate piece of legislation approximately 25 years ago, the firearms regulatory regime was embedded within the Criminal Code. The separation of the firearms regulatory regime into its own legislation was intended to improve its administration. It was not intended to create new legislative distinctions between the provisions of the Firearms Act and the related firearms provisions left as part of the Criminal Code. Indeed, the Firearms Act and the Criminal Code each continue to incorporate many of the definitions and procedures which are set out in the other: see, for example, ss. 2, 4, 5, 6, 7 and 12 of the Firearms Act and ss. 84, 86, 99, 100, 101, 103, 104, 105, 106, 107, 114, 116, 117.01, 117.011, 117.03, 117.07, 117.09 and 117.12 of the Criminal Code. Indeed, the Firearms Act specifically adopts relevant findings and decisions made during the course of criminal prosecutions as determinative of the “public safety” issue in s. 5 of the Act.[^1] Accordingly, it seems obvious that Parliament intended the phrase “desirable in the interests of the safety of that or any other person” to have the same meaning in both ss. 110 of the Criminal Code and s. 5 of the Firearms Act.

[28] In deciding whether to grant the Crown’s application for a prohibition order under s. 110 of the Criminal Code, it was “logically necessary” for the sentencing judge to determine whether the misconduct which gave rise to the harassing telecommunications charges made it desirable in the interests of public safety to prevent Mr. Wilson from possession firearms. It was also necessary for the sentencing judge to determine whether Mr. Wilson suffered from any mental illnesses which might give rise to such concerns or, alternatively, whether his behaviour since August of 2020 suggested otherwise.

[29] As for the other two doctrinal requirements for issue estoppel, the sentencing judge’s decision on the s. 110 issue arguably became “final” as a result of the Crown having chosen to not appeal. And, third, the parties on this reference are the same as the parties involved in the sentencing proceeding when the judge decided there were no safety concerns justifying any order prohibiting Mr. Wilson from continuing to possess firearms.

[30] The application of the issue estoppel doctrine in this case would have meant that the principal ground for the CFO’s decision to revoke Mr. Wilson’s firearms licence was without any reasonable foundation. The sentencing judge had already determined that the misconduct giving rise to Mr. Wilson’s harassing telecommunications offence did not justify prohibiting him from possessing firearms out of a concern for anyone’s safety. On this basis alone, I would have allowed Mr. Wilson’s application to set aside the CFO’s licence revocation.

[31] Further research into the scope of the issue estoppel doctrine revealed that the Ontario Court of Appeal’s decision in R. v. Thompson, 2014 ONCA 43, prevents the application of the issue estoppel doctrine to determinations made during a sentencing proceeding. In Thompson, the accused had argued that a judge’s decision to dismiss and allegation he breached his conditional sentence estopped the Crown from later alleging that the accused had possessed the contraband which had been the basis of that breach allegation. Relying on the Supreme Court of Canada’s decision in R. v. Punko, supra, the Court of Appeal held that determinations made during the course of a sentencing proceeding cannot give rise to the operation of issue estoppel in a subsequent criminal proceeding (at paras. 61-64):

First, revocation proceedings at their core are sentencing proceedings in which the offender is neither charged with an offence nor in jeopardy of further conviction on proof of further criminal conduct. The revocation hearing may be regarded as a continuation of sentencing proceedings where proof of a breach is analogous to the proof of aggravating facts: McIvor, at para. 12. Findings of fact made by a sentencing judge under s. 724(2)(b) cannot found an issue estoppel: Punko, at para. 19. It would seem incongruous to permit findings made in some sentencing proceedings to serve as a foundation for the operation of the doctrine, yet deny the same status to others.

Second, Mahalingan makes the point that the operation of issue estoppel in criminal cases falls within a narrow compass responsive to the unique characteristics of criminal trials: Mahalingan, at paras. 2 and 17. It would be inimical to such a restrictive scope to expand the doctrine to the circumstances revealed here.

Third, to permit CSO revocation proceedings to found the doctrine of issue estoppel would not be consistent with the policies that underlie the doctrine and its purposes.

Public confidence in the integrity of the judicial system is threatened whenever two tribunals render inconsistent verdicts. Undoubtedly, applying issue estoppel in this case eliminated the possibility of any inconsistency between the CSO revocation and criminal trial determinations. But we must remember that consistency is not the exclusive yardstick by which we gauge the integrity of judicial decisions. We need also consider whether eliminating potential inconsistency -- by displacing the full determination of factual issues -- would undermine public confidence in the judicial system: Lucido, at p. 347 Cal. 3d.

Although the procedural circumstances of this case are somewhat different from those present in Thompson, the Court of Appeal’s reasons explain why issue estoppel cannot apply to any determination made as part of the sentencing process[^2]. So, despite the identical wording of the issue to be determined on this reference, the sentencing judge’s determination of the s. 110 application in Mr. Wilson’s favour does not estop the Crown from arguing again now that the facts of those offences made it “desirable in the interests of safety” to prevent Mr. Wilson from possessing firearms.

[32] While the decision in Thompson says the Crown cannot be legally estopped from relitigating the same issue at this reference hearing, the abuse of process doctrine provides me with residual judicial discretion to prevent relitigation of an issue in circumstances which would bring the administration of justice into disrepute. The relationship between this residual abuse of process doctrine and the doctrine of issue estoppel was explained by Abella J. in Toronto v. Canadian Union of Public Employees, 2003 SCC 63:

29 It is clear from the above that American non-mutual issue estoppel is not a mechanical, self-applying rule as evidenced by the discretionary elements which may militate against granting the estoppel. What emerges from the American experience with the abandonment of mutuality is a twofold concern: (1) the application of the estoppel must be sufficiently principled and predictable to promote efficiency; and (2) it must contain sufficient flexibility to prevent unfairness. In my view, this is what the doctrine of abuse of process offers, particularly, as here, where the issue involves a conviction in a criminal court for a serious crime. In a case such as this one, the true concerns are not primarily related to mutuality. The true concerns, well reflected in the reasons of the Court of Appeal, are with the integrity and the coherence of the administration of justice. This will often be the case when the estoppel originates from a finding made in a criminal case where many of the traditional concerns related to mutuality lose their significance.

35 Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, [1994] 1 S.C.R. 601, at p. 616), and as "oppressive treatment" (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007:

... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of [page102] oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.

37 In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis in original.]

42 The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court's process. (See Doherty J.A.'s reasons, at para. 65; see also Demeter (H.C.), supra, at p. 264, and Hunter, supra, at p. 536.)

43 Critics of that approach have argued that when abuse of process is used as a proxy for issue estoppel, it obscures the true question while adding nothing but a vague sense of discretion. I disagree. At least in the context before us, namely, an attempt to relitigate a criminal conviction, I believe that abuse of process is a doctrine much more responsive to the real concerns at play. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. Whether it serves to disentitle the Crown from proceeding because of undue delays (see Blencoe, supra), or whether it prevents a civil party from using the courts for an improper purpose (see Hunter, supra, and Demeter, supra), the focus is less [page106] on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice. In a case such as the present one, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put its case forward, for example. When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle.

49 While the authorities most often cited in support of a court's power to prevent relitigation of decided issues in circumstances where issue estoppel does not apply are cases where a convicted person commenced a civil proceeding for the purpose of attacking a finding made in a criminal proceeding against that person (namely Demeter (H.C.), supra, and Hunter, supra; see also Q. v. Minto Management Ltd. (1984), 46 O.R. (2d) 756 (H.C.), Franco, supra, at paras. 29-31), there is no reason in principle why these rules should be limited to such specific circumstances. Several cases have applied the doctrine of abuse of process to preclude defendants from relitigating issues decided against them in a prior proceeding….

51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[33] Although the Ontario Court of Appeal in Henderson warned against assessing “the process” employed by the CFO to arrive at a decision, in the circumstances of this case, I am satisfied that allowing the Crown to relitigate the identical “public safety” issue that was already decided against it on February 25, 2022, would amount to an abuse of the court’s process. I arrive at that determination not simply because of the similitude of the issue already decided, but also because of the CFO’s utter disregard for that prior litigation.

[34] Had AFO Teeft engaged in the simple investigative step of requesting a transcript of the February 25, 2022, court proceedings in relation to the harassing telecommunications offences, she would have discovered that the sentencing judge had already determined the public safety issue in Mr. Wilson’s favour. If, after reviewing the transcript of that proceeding, AFO Teeft had still sought to question or disregard the judge’s public safety conclusion, AFO Teeft could then have sought reliable new evidence aimed at demonstrating that the judge’s determination of the public safety issue had been misguided. The Firearms Act specifically contemplates wide-ranging inquiries by a CFO to reliably determine whether it is contrary to public safety to allow a civilian to possess firearms:

56(2) Without restricting the scope of the inquiries that may be made with respect to an application for a licence, a chief firearms officer may conduct an investigation of the applicant, which may consist of interviews with neighbours, community workers, social workers, individuals who work or live with the applicant, spouse or common-law partner, former spouse or former common-law partner, dependants or whomever in the opinion of the chief firearms officer may provide information pertaining to whether the applicant is eligible under section 5 to hold a licence.

AFO Teeft made none of the inquiries suggested by s. 56 of the Act. There was nothing in the CFO’s decision nor in the evidence at the reference hearing suggesting that the sentencing judge had made the public safety determination based on material misrepresentations or on a set of facts which has since been proven to be false or unreliable. In the absence of any rational reason for disregarding the sentencing judge’s determination on the identical issue, the principle of finality requires the Crown to respect that finding. The Crown’s cavalier disregard of the sentencing judge’s unfavourable decision on the same issue risks bringing the administration of justice into disrepute.

[35] Furthermore, the information which AFO Teeft purported to extract from the initial police report relating to the August 2020 incident was materially different from the facts advanced by the Crown in support of its s. 110 application for a firearms prohibition. When the Crown urged the sentencing judge to find that Mr. Wilson’s continued possession of weapons was not desirable in the interests of public safety, the Crown had access to the same police report that is now being relied upon by the CFO (and Crown) in this proceeding. At no point during that earlier sentencing proceeding did the Crown contend that the police report’s additional information was reliable enough to support its request for a firearms prohibition. Had the Crown attempted to do so during that earlier proceeding, Mr. Wilson would have had the opportunity to contest the reliability of the police report’s hearsay information either by cross-examination or by presenting competing evidence. Instead, despite its intention to ask the sentencing judge for a firearms prohibition order, the Crown in that earlier proceeding accepted the facts presented to, and relied upon by, the sentencing judge. Were the Crown to have appealed against the sentencing judge’s s. 110 determination, it would undoubtedly have been precluded from presented the additional contents of the police report as “fresh evidence” given that those contents were readily available to it at the first instance. The principle of fairness must now prevent the Crown and CFO from relying upon a police report’s untested second or third hand hearsay in relation to a matter which the Crown has already unsuccessfully litigated in court.

[36] Finally, the record before me showed that the CFO misapprehended and failed to consider material information regarding the “public safety” issue -- information which was clearly spelled out during the February 25, 2022 proceedings. In both her written decision and her testimony, AFO Teeft professed to rely upon suggestions in the police reports that Mr. Wilson suffered from some undiagnosed mental illness. However, the expert psychological opinion evidence which was accepted and relied upon by the sentencing judge showed that Mr. Wilson did not suffer from any mental illness and, further, that he did not suffer from any psychological condition which rendered him a public safety risk. Once again, having failed to make any inquiries about the February 25, 2022, proceedings, AFO Teeft was completely unaware of those facts. Similarly, the fact that the sentencing judge had determined that it would not be contrary to the public interest to grant Mr. Wilson a discharge for the behaviour being relied upon by AFO Teeft as the basis for the licence revocation should not have been ignored by AFO Teeft in assessing the risk of harm which could reasonably be attributed to Mr. Wilson’s harassment of his former girlfriend.

[37] For all of those additional reasons, I am satisfied that in the particular circumstances of this case it would amount to an abuse of process to allow the CFO and the Crown to relitigate the identical public safety issue relating to Mr. Wilson’s continued possession of firearms. To be clear, had AFO Teeft approached the proposed relitigation of the issue fairly and comprehensively, there would not likely have been the same concern. However, in light of her dismissive approach to the sentencing judge’s prior determination of the identical public safety issue, the administration of justice would be brought into disrepute were I to endorse AFO Teeft’s disregard of my judicial colleague’s prior determination.

[38] While the CFO’s revocation decision was focused on the behaviour that resulted in Mr. Wilson’s conditional discharge for the harassing telecommunications charges, the CFO’s decision did refer to two earlier incidents in 2016 where Mr. Wilson was alleged to have engaged in aggressive or harassing behaviour towards Ms Thompson. Neither of the 2016 police reports suggested that Mr. Wilson had ever been assaultive or threatening towards Ms Thompson. More importantly, those two occurrence reports date back to a time before Mr. Wilson had even been granted his firearms licence (on August 29, 2018). Those reports were readily available to the CFO when the CFO determined that it was not contrary to public safety to grant Mr. Wilson a firearms licence. In the same way that those two reports were readily accessed and considered by AFO Teeft in considering whether public safety required revocation of Mr. Wilson’s licence, so too must they have been considered by the AFO (on behalf of the CFO) who granted Mr. Wilson the firearms licence in the first place. Those two reports did not raise sufficient concerns to justify a denial of Mr. Wilson’s firearms licence in 2018. They could not then justify revoking his licence in 2022. There is even less concern now in 2023.

[39] Lastly, it is worth noting that the CFO’s decision to revoke Mr. Wilson’s firearms licence based on public safety concerns was issued on March 16, 2022. As a result of Mr. Wilson having filed this application to review that decision, the legal consequences of his licence revocation have been legislatively suspended; that is, despite the alleged public safety concerns expressed by AFO Teeft in March of 2022, Mr. Wilson has been allowed to maintain possession of his firearms until this reference hearing (and any subsequent appeal) is completed.[^3] When combined with the fact that the CFO’s public safety concern related to an event which transpired almost 18 months before the revocation decision and the fact that the sentencing judge determined that event did not justify a finding that it was “desirable in the interests of safety” to prevent Mr. Wilson from possessing firearms, I am fortified in my determination that the decision to revoke Mr. Wilson’s firearms licence is not justified.

Conclusion

[40] Based upon the evidence presented to me at the reference hearing, I am satisfied that Mr. Wilson’s behaviour towards his former girlfriend, Ms Thompson, was not nearly as ominous as what was portrayed in the CFO’s decision. Most importantly, the repute of the administration of justice compels me to respect the determinations already made by my judicial colleague on February 25, 2022; namely, that the true facts underlying the resulting criminal charges did not justify a firearms prohibition in the interest of public safety. When considered as a whole, the evidence at the reference hearing shows that the revocation of Mr. Wilson’s firearms licence is not justified. Pursuant to s. 76(c) of the Firearms Act, I therefore cancel the revocation of Mr. Wilson’s firearms licence.

Released: February 27, 2023

Signed: Justice P.K. Burstein

[^1]: It is worth noting that Parliament likely has the constitutional authority to legislatively override the application of issue estoppel to the provisions in the Firearms Act should it so choose. It has not.

[^2]: The Court of Appeal’s decision in Thompson seems to have overtaken the earlier decision of my colleague, Keast J., in Guerin.

[^3]: Were there a pressing concern about public safety, it would have been open to the AFO to apply for a warrant to seize Mr. Wilson’s firearms, pursuant to the Criminal Code. No such warrant has ever been sought.