ONTARIO COURT OF JUSTICE
DATE: January 14, 2025
BETWEEN:
HIS MAJESTY THE KING
— AND —
MELISSA DUPREE
Before Justice Berg
Released on January 14, 2025
DECISION ON CROWN APPLICATION PURSUANT TO SECTION 117.05 Criminal Code
S. Reynolds....................................................................... counsel for the Crown/Applicant
B. Samson................................................................................. counsel for the Respondent
Berg J.:
[1] On June 13, 2024, officers of the Ottawa Police Service attended the home of Melissa Dupree and her family where four long guns were seized without a warrant. The seizing officer, Constable Brett Price prepared a Return to a Justice on June 27, 2024. That form clarifies that he seized the firearms in question without a warrant because it had not been practicable to obtain a warrant beforehand. The reason for the seizure was that Mr. Price had reasonable grounds for believing that it was not desirable in the interests of the safety of Ms. Dupree that she should possess those weapons due to possible danger to herself. The Return to a Justice has places where it can be indicated if there were concerns about the safety to other persons should Ms. Dupree maintain possession of the guns. These sections were left blank.
[2] The Crown seeks an order pursuant to s. 117.05 Criminal Code for the disposition of these weapons. Furthermore, should I grant that order, the Crown also seeks an order prohibiting Ms. Dupree from possessing such weapons, etc., for a period of up to five years. Ms. Dupree is opposed to the disposition of her property and wishes to have the firearms returned to her. She has no criminal record or charges outstanding before the courts. She was in legal possession of the seized firearms and they were properly stored when located by the police on June 13.
[3] I will now summarize the events that led up to the seizure of the firearms. This summary is based on the various exhibits that were adduced at this hearing. On June 13, the Ottawa Police Service had been notified that a psychiatrist from the Montfort Hospital had been doing a virtual session with Ms. Dupree. The doctor became concerned during the course of that session that she was a high risk for suicide and, therefore, he was issuing a Form 1 Mental Health Act. The police were also informed that Ms. Dupree was a member of the Canadian Armed Forces and that she had firearms in her residence. It appears that the doctor had placed his call to the paramedical services who then contacted the police for assistance.
[4] As the police were en route to the Dupree residence, they obtained further information. They learned that the doctor had become concerned when she told him that she had been researching ways to end her life such as overdosing or hanging. They also were told that she had stopped taking her medication for depression, trauma disorder, and anxiety a week earlier. The police were also very concerned to learn that Ms. Dupree had apparently told the psychiatrist that she did not wish to surrender her firearms.
[5] The police and ambulance services arrived at the home. It is a rural property, a working farm of some fifty acres with the house set well back from the road, and with outbuildings and wooded areas. They did not approach at first but attempted to contact Ms. Dupree on the three phone numbers that they had for her. She did not answer. A decision was then made to call for further police units to attend and, in effect, contain the property. A bit later, Ms. Dupree’s husband, Chris Dupree, walked down the driveway from the direction of the house and approached the police. He was then interviewed by members of the police Negotiator Unit. A while later, members of the Tactical Unit searched the house and the outbuildings. Ms. Dupree was not there. A nearby dwelling, that of Ms. Dupree’s parents-in-law was also searched to no avail. The police then began to search the wooded areas in the vicinity. Meanwhile, the firearms were located in a gun safe and seized.
[6] When Chris Dupree was interviewed, he told the police that his wife had had mental health issues for a long time but had been getting worse over the previous week. She had confided in her psychiatrist about this and the doctor had then started the chain of actions that led to the police attending. It was noted that Mr. Dupree was not otherwise very cooperative with the police and took the position that the situation was being blown out of proportion.
[7] Prior to the police approaching the house, Ms. Dupree had written and signed a note indicating that she was capable of making her own decisions relative to her mental health and did not want anyone else doing so; the text of that note is appended to this decision. She then, it seems, had taken a go-bag, which, given her volunteer work for an emergency response organization, was always ready, and went into the woods. The Dupree children were not present as it was a school day.
[8] After approximately nine hours in the woods, she came out and approached the police who were still looking for her. I will here quote from the Investigative Action of one of the officers.
At 2115 hrs. Melissa walked into the yard from the west bush. She presented in good health and apologized for causing such a scene. She was informed about the Form 1 issued by her doctor and although she was upset with her doctor she was cooperative with police and agreed to go to hospital.
[9] The police took Ms. Dupree to the Montfort Hospital pursuant to the Form 1 Mental Health Act and she was assessed by a psychiatrist (not her doctor) while there. That assessment was conducted within hours of the events to which I have just referred. The Psychiatry Consultation notes generated as a result of the assessment have been filed as an exhibit at this hearing. Those notes establish the following:
- Ms. Dupree is 45 years of age, living with her husband and two teenaged sons. She is a member of the military but has been on sick leave since October 22 due to mental health issues and was being followed by a psychiatrist, Dr. Kang.
- Her psychiatric diagnoses are anxiety/depression and PTSD. It is remarked that “No history of previous admissions or suicidal attempts.”
- No substance abuse was noted.
- She had stopped taking her medication two weeks previously due to side effects. “She admitted having increasing passive suicidal ideation in the past few days (ex.: wondering how many pills she should take to have an overdoes). She was advised to discuss this with her psychiatrist at a routine appointment scheduled for the following day.
- Under the heading ‘Impression and Plan’, the consultant psychiatrist concluded that Ms. Dupree was not actively suicidal at present.
The evidence before me is that Ms. Dupree was then discharged from the hospital on the morning of June 14 within an hour of being assessed by psychiatrists. There is no evidence that she has been hospitalized since then or that it has been felt necessary by anyone to seek a Form pursuant to the Mental Health Act.
[10] Ms. Dupree testified at this hearing. I find that she was both credible and reliable. She explained that she had ceased taking her medication due to the side effects and had been discussing this issue with her psychologist, Dr. Jennifer Newman. She had begun a different type of therapy but that would take three to four weeks to take effect. She told the psychologist that she thought it would be smart to consult as well with Dr. Khan, her psychiatrist, as well as her primary care provider in the interim. She had a scheduled telephone consult with Dr. Khan the next day: June 13. Dr. Khan and the primary care doctor are both military personnel.
[11] She did consult with Dr. Khan as scheduled. However, it seems that the doctor became concerned about Ms. Dupree, a concern that she did not think warranted. She terminated the phone call and went and informed her husband. They then began to do some housework. Eventually, they realized that there was a significant police presence near their house including a drone. It was at that point that she wrote the note that is appended below. She continued to do housework. The police then began to approach the house.
[12] Ms. Dupree testified that she suffers from depression and anxiety due to certain incidents that occurred during her military career. She was expecting the police to attend at her house after she terminated the call with the doctor, however, she was anticipating a couple of officers and a social worker for a wellness check. That was not who showed up. As she explained, “the approach of uniformed and armoured people coming to my home put me into a flight of the fight and flight.” She grabbed the go-bag and fled into the woods. She was there for nine and a half hours. The only weapons she took with her were a hunting knife and a pocket knife. It was her evidence that she took those with her due to the presence of coyotes, foxes, and bears in the woods. She left her cell phone in the house because she knew that the police would be able to track it if she took it with her.
[13] She testified that she decided to come out of the woods due to her concern about her youngest son. The police had still not located her. She came out of the woods and approached a constable. She explained that she was fine and then told him that she was carrying two knives. He asked her to put them on the hood of his vehicle and she complied. She also cooperated when he told her that she had to go see a doctor and, as I have already mentioned, she was taken to the Montfort Hospital after being allowed to change her clothes.
[14] There was no psychiatrist available in the Emergency Department that night and so she had to be held there under guard until the morning. She was not given any medication. Then at roughly 07:00 or 08:00 hrs, she was seen by a psychiatrist; I have already reviewed that doctor’s report. During her testimony, Ms. Dupree advised that she was discharged quickly after that. It was her evidence that she did not have any suicidal thoughts on the day of the incident. During cross-examination, she explained that she had looked up lethal dosages of medications and had herself thought this was troubling and that was why she had discussed it with the psychiatrist. She was adamant that she had not been thinking of acting on the information she had found online.
[15] Ms. Dupree has continued meeting with the psychologist, Dr. Jennifer Newman, since this incident. The session most recent to the date of this hearing (November 15) was November 12, 2024. The doctor’s Session Note for that date, which along with several others was entered as an exhibit, notes that this was Ms. Dupree’s twentieth session. No safety concerns were referenced in that Note nor were any mentioned in the Notes for the sessions held on August 9, 21, September 5, 19, October 3, 17, and 30.
[16] The Session Note for September 5 makes reference to the events that led up to the seizure of the firearms. Dr. Newman notes, as early as this date, that “Melissa continued to deny any experiences with depressive mood since the last session and further denied any thoughts of death/suicide. No other safety risks were identified. It is writer’s opinion that melissa is coping well and has demonstrated good insight/judgement with regard to this very challenging situation.”
[17] In the Session Note for October 3, there is a reference to Ms. Dupree’s family doctor referring her to the Operational Service Injury Program at the Royal Ottawa Hospital for a new psychiatrist. That program is for military veterans and RCMP officers. Ms. Dupree testified on November 15 that she had been accepted into the OSI program and was awaiting to be assigned a psychiatrist.
[18] She has not recommenced taking the medication that she stopped a week or so before the June 13th incident. However, she has been following a hormone replacement therapy which she describes as “unbelievable, 180 difference …. Miracle.”
[19] The defence provided me with a letter from a volunteer organization within which Ms. Dupree has grown into a leadership role. Importantly, the letter details the efforts that she has expended at that organization since the events of mid-June. These are “September: Operation Wildrose, serving as a Public Information Officer; November, Heavy Equipment Operator Proficiency Development to refine her skills.”
[20] Three character letters were filed as exhibits by the defence. Beyond establishing that Ms. Dupree is well-socialized and not isolated in the community, two of the letters make explicit reference to the psychological issues she faces. My point here is that Ms. Dupree is open about her mental health challenges with those close to her.
[21] Her lawyer asked her about why she had the firearms in question. One, a shotgun, she testified, was to hunt turkey. Another, a .22 calibre, was to protect the farm animals. A third long gun belonged to a military friend who was posted out of the country. She was holding it for him but did not have the combination for its trigger lock. The fourth weapon was a BB-gun.
[22] Ms. Dupree was asked during cross-examination about the letter she had written (see appendix) and whether it would be appropriate in some circumstances for a person to be taken to hospital against their will. Sensibly, she answered “Yes, I would hope so.”
[23] The defence also called Ms. Dupree’s husband, Chris Dupree, to the stand. He, too, has a military background. He testified that he had noticed fluctuations in his wife’s temperament in the period leading up to June 13 but attributed them to the onset of menopause. He was aware that she had been on medication for mental health issues, specifically PTSD arising from her time on active military service. He was also aware at the time that she had ceased taking it but had not been concerned. He recounted how his wife had advised him that morning about the conversation with the psychiatrist and how it was likely that the police would attend to check on her. He recounted that they had decided to cooperate with the police knowing that they would likely require her to go to the hospital.
[24] Ms. Samson asked Mr. Dupree about his wife’s state of mind since June 13.
Since there’s been a change in the medications and stuff, she stabilized quite a bit, especially, you know, with the hormone replacements and stuff like that. There’s no mood swings or – definitely a significant reduction in irritability.
Beyond these changes for the better, there has not been any significant change in their family life.
[25] He became aware after the fact that she had looked up lethal dosages of medication. However, he had not been concerned because of his trust in her and the fact that she had not displayed signs or symptoms of being suicidal. He noted that it is not uncommon for people who have served in the military to develop mental health issues and to display such behaviours as part of the their process of recovery. He stated categorically “I had no concern that she would harm herself or anybody at any other time.” He has no concerns at all about his wife at the present time. He was a credible and reliable witness.
[26] This present application was brought by the Crown pursuant to s. 117.05 Criminal Code which deals with the disposition of things seized pursuant to s. 117.04.
117.05 (1) Where any thing or document has been seized under subsection 117.04(1) or (2), the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.
(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.
(4) Where, following the hearing of an application made under subsection (1), the justice finds 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 any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall
(a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and
(b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order.
[27] Thus, the test that I must apply in this case is that articulated by sub-section (4). To be clear, that test concerns itself with the situation at the time of the hearing, not at the time that the concern of the police crystalized (see, for example, R. v. Peacock-McDonald, 2007 ONCA 128 at para. 40; R. v. Kuleczka, 2023 ONSC 3876 at para. 24).
[28] As expressed by Blacklock J. of this Court in R. v. Bokhari, [2009] O.J. No. 5975 at para. 12, the question a Court must consider in s. 117.05(4) is:
Am I satisfied, after reviewing the evidence in its totality, that it is more likely than not that there are in fact legitimate concerns indicating that the Respondent currently lacks the responsibility and discipline required of a gun owner?
See, too, R. v. Vardomskiy, 2013 ONSC 4113 at para. 52; R. v. Davidson, 2011 ONSC 249 at para. 35.
The Crown does not have to prove that Ms. Dupree actually will use the firearms in a fashion dangerous to the public; the burden on the Crown is not that high (see, for example, R. v. Kuleczka, 2023 ONSC 3876 at para. 24).
[29] I must decide the present application by analyzing whether it is ‘not desirable’ that Ms. Dupree possess firearms. What does this mean? Blacklock J. in Bokhari used the term ‘legitimate concerns’ in explanation but does not really elucidate the meaning of the former term. Preferable is the approach of Justice Melvyn Green of this court in R. v. Douglas, 2013 ONCJ 649 where he examines the decision of Moldaver J.A. [as he then was] in R. v. Hurrell, 2002 ONCA 45007, [2002] O.J. No. 2819. At paragraphs 48-49 of Douglas, Green J. writes:
I confess to having difficulty locating any materially greater legal clarity or direction in the words ‘not advisable’ than I do in the words ‘not desirable’. Neither expression of the legal standard fits comfortably with the adjudicative work normally conducted by criminal court judges. More immediately helpful is the guidance afforded by Durno J. in the more recent case of R. v. Day, [2006] O.J. No. 3187 (S.C.J.). As said at para. 36 of the Day case: ‘the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners’. (See also, R. v. Morgan, [1995] O.J. No. 18 (Prov. Div.); R. v. Biscope, [2001] O.J. No. 628 (S.C.J.) and R. v. Shannon, [2005] O.J. No. 1653 (S.C.J.).)
However, R. v. Hurrell, supra, remains of practical utility through its endorsement of certain regulatory criteria as properly applicable to the risk-assessment analysis inherent in the Crown’s application. As said by Justice Moldaver at para. 48:
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.
Since the decision in Hurrell, the Firearms Act has been amended and now includes the following further factors that must be considered:
(d) is or was previously prohibited by an order — made in the interests of the safety and security of any person — from communicating with an identified person or from being at a specified place or within a specified distance of that place, and poses or could pose a threat or risk to the safety and security of any person;
(e) in respect of an offence in the commission of which violence was used, threatened or attempted against the person’s intimate partner or former intimate partner, was previously prohibited by a prohibition order from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition; or
(f) for any other reason, poses a risk of harm to any person.
[30] None of these Hurrell factors are operant in the present case. Beyond the bald fact that Ms. Dupree is being treated as an outpatient for PTSD, depression and anxiety, there is nothing in the evidence before me to suggest that she has been a threat to herself or others. In fact, there is strong evidence from her husband, whom I find has his wife’s and children’s best interests firmly in view, that she was not nor is not posing a risk of harm to any person on June 13 or since that date. The medical evidence arising from the psychiatric assessment conducted hours after the police intervention as well as the psychology reports referred to earlier lead me to the same conclusion.
[31] The purpose of an application such as that before this Court is “the protection of the public from the destructive force of firearms in the hands of persons not equipped morally, mentally, or emotionally to handle them” (Vardomskiy, supra, at para. 10; see, too, Hurrell, supra, at paras. 31ff.; Kuleczka, supra, at para. 23). The evidence before me establishes that Ms. Dupree does not fall into that category of person. The Crown’s application for the disposition of the firearms is denied as is the related request for an order of prohibition. It is my understanding, therefore, that the aforementioned weapons are to be returned to her.
[32] One final comment. I do not wish it to be taken that I am second guessing the psychiatrist who commenced the events of June 13. That doctor was not called to testify and I am not aware of what policies govern his actions upon being confronted by the information that he had about Ms. Dupree that day. All I can say is that the analysis that I have just completed is a legal one and not governed by medical policies, ethics, or standards.
Released: January 14, 2025
Signed: Justice Berg
Appendix: The note left by Ms. Dupree
Melissa Dupree, of over 16 years of age and capable of making health decisions of my care refuse to be forced to a medical facility. If I have been deemed incapable, I, in my rights, request a tribunal review of my ability to consent to health decisions. I do not consent to any health decisions made by anyone else, other than myself.
I understand there may be health concern [sic] but my acknowledgement and awareness of my mental health struggles are grounds to prove my clear capacity to be the sole person to make those decisions.
(signed) (signed)
Melissa Dupree witness Chris Dupree
13 June 2024