Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 09 06 COURT FILE No.: Hamilton 4711 998 24 47104788

IN THE MATTER OF AN EX PARTE APPLICATION PURSUANT TO S. 110.1 OF THE CRIMINAL CODE

Before: Justice Davin M.K. Garg

Heard on: September 4, 2024 Reasons for Decision released on: September 6, 2024

[Redacted]................................................................................... appearing for the Applicant

GARG J.:

Overview

[1] The Criminal Code was amended in December 2023 to expand the availability of emergency orders that prohibit a person from possessing firearms. These amendments were part of a package that also increased penalties for certain firearms offences. As an emergency order, the court aims to schedule the hearing the same day that the application is brought. The application must be heard by a provincial court judge.

[2] This application was brought under s. 110.1 of the Criminal Code. There are common elements between s. 110.1 and other pre-existing routes to issue a prohibition order. The key difference is that “any person” can apply for an emergency order under s. 110.1, whereas other provisions require the applicant to be a peace officer or firearms officer. An emergency order under s. 110.1 can only last for 30 days. I am not aware of prior applications in Ontario that have been brought under this section.

[3] After hearing from the applicant, I granted the emergency order under s. 110.1(3) to prohibit the subject from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. I now provide the written reasons for my decision. The unredacted version of these reasons is located within the sealed court file.

Participants

[4] The section contemplates the application being brought ex parte and without notice to the person against whom the order will be made (who I will refer to as “the subject”). The ex parte approach is an exception to the strong presumption of affording anyone affected by a court order the opportunity to be heard before the order is made: see Re Application pursuant to s. 4 of the Prevention of and Remedies for Human Trafficking Act, 2017, 2021 ONCJ 499 at para. 15. The section also does not require notice to the Crown or the Attorney General. Nor does the section provide a mechanism to grant the Crown standing at the hearing. It does not contain the language of other provisions where the judge shall hear evidence presented “by or on behalf of” the applicant (e.g., s. 111(1)).

[5] The hearing therefore occurred without the subject present. While an Assistant Crown Attorney was present in the courtroom, the Crown did not have standing and did not participate, other than to offer suggestions on how to serve the eventual order on the subject. The Crown did not question the applicant nor make submissions on whether to make the emergency prohibition order.

Additional Orders

[6] I will start with the additional orders to help explain the redactions in the public reasons. In addition to the emergency prohibition order, the applicant sought orders under ss. 110.1(2), 110.2, and 110.3 of the Criminal Code.

Private hearing: s. 110.1(2)

[7] Section 110.1(2) allows the hearing to occur in private, also known as in camera, if the presiding judge considers that it is necessary to protect the applicant’s security or anyone known to the applicant.

[8] I allowed the hearing to proceed in private. [The rest of paragraph 8 is redacted]

Sealing order: s. 110.2

[9] If the emergency prohibition order is granted, the judge can prohibit access to and disclosure of any information relating to the order. To make this sealing order, the judge must consider it necessary to protect the applicant’s security or anyone known to the applicant.

[10] I granted the sealing order for the same reasons that I ultimately granted the emergency prohibition order. All application materials, including the unredacted version of these reasons, were placed in a sealed packet. The sealing order is temporary. Its expiration is governed by ss. 110.2(2) and 110.2(3).

Redaction order: s 110.3

[11] If the emergency prohibition order or sealing order are granted, the judge can direct the redaction of any information that could identify the applicant. The test to make the redaction order is the same as for the sealing order. Information that could identify the applicant or related persons is redacted from the prohibition order, any related orders, and the original application. The original materials are placed in the sealed packet.

[12] I granted the redaction order for the same reasons that I ultimately granted the emergency prohibition order. My public reasons have also been redacted accordingly.

Emergency Prohibition Order

[13] The statutory provisions do not specify or prescribe a written application. Although a hearing is required, it is unclear what form of evidence is required to establish the grounds for the order. The discretion would seem to lie with the presiding judge. At this hearing, the applicant filed a written application and then testified before me under oath.

Law

[14] The test to make an emergency prohibition order is governed by a combination of ss. 110.1(1) and 110.1(3). Hearsay evidence is admissible: R. v. Barnes, 2011 ONCJ 419 at para. 23. The judge must be satisfied that:

• the applicant “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” a firearm or related items (s. 110.1(1)); and
• an order should be made without delay to ensure the immediate protection of any person (s. 110.1(3)).

If the statutory criteria are satisfied, then the judge “shall” make the order.

[15] The “not desirable in the interests of safety” test is not new. It mimics the tests for:

• issuing warrants to seize a firearm under s. 117.04 and making dispositions under s. 117.05;
• imposing prohibition orders without seizure under s. 111; and
• issuing licence revocations and reviewing revocation decisions under ss. 74 to 76 of the Firearms Act, S.C. 1995, c. 39.

For example, s. 117.05(1) stipulates that if a firearm has been seized under s. 117.04, a justice can order that the firearm be forfeited upon finding that “it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess” a firearm.

[16] Relevant principles can be gleaned from the jurisprudence dealing with these related provisions. In R. v. Vardomskiy, 2013 ONSC 4113 at para. 52, the test under s. 117.05 was described as follows: “it is more likely than not that there are in fact legitimate concerns indicating that the [subject] currently lacks the responsibility and discipline required of a gun owner” (see also R. v. Bokhari, 2009 ONCJ 691 at para. 8). To make the order, I do not need to find that the subject has done anything wrong, has misused firearms, plans to misuse their firearms, or is mentally ill: R. v. Petre, 2018 ONSC 396 at para. 3.

[17] Adapting ss. 110.1(1) and 110.1(3) to the application before me, to issue the order I needed to be satisfied that:

• the applicant believed, on the basis of safety concerns, that it would not be desirable for the subject to possess firearms;
• the applicant’s belief was reasonable; and
• the order was required without delay to ensure anyone’s immediate protection.

Application

[18] After hearing from the applicant, I was satisfied that the statutory criteria had been met.

[19] [Paragraph 19 is redacted]

[20] [Paragraph 20 is redacted]

[21] [Paragraph 21 is redacted]

[22] [Paragraph 22 is redacted]

[23] [Paragraph 23 is redacted]

[24] [Paragraph 24 is redacted]

[25] [Paragraph 25 is redacted]

[26] [Paragraph 26 is redacted]

[27] [Paragraph 27 is redacted]

Conclusion

[28] I granted the emergency prohibition order under s. 110.1(3) and the additional orders under ss. 110.1(2), 110.2, and 110.3. Under s. 110.1(4), I directed that the court serve the subject by sending the prohibition order electronically to his email address and in hard copy to his residence by registered mail.

Released: September 6, 2024 Signed: Justice Davin M.K. Garg