Court File and Parties
COURT FILE No.: 4711-998-24-47106538
DATE: 2025-05-02
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
CLINT ROGERS
Before Justice Fergus Odonnell
Reasons for Judgment on a Firearms Prohibition and Disposition Application
Criminal Code sections 111 and 117.05
Counsel:
Mr. I. Osowski .................................................................................................... for the Crown
Mr. C. Rogers ............................................................................................. on his own behalf
Fergus Odonnell J.:
Clint Rogers is a gun aficionado, licensed gun owner and licensed gunsmith. This is an application by the Crown to prohibit Mr. Rogers from possession of firearms and to dispose of his firearms as a result of two non-criminal incidents involving Mr. Rogers, one in May 2024 and the other in November 2024. Mr. Rogers opposed the application, representing himself.
I heard from three witnesses, namely Constable Nolan Pink, who was one of the responding officers on the second incident and from Mr. Rogers himself and his wife Sandra.[^1] Mr. and Mrs. Rogers have been married for almost nine years, but they have known each other since they were children. Mr. Rogers is now fifty-five years old. He has no criminal record.
Early 2024 was truly awful for Mr. Rogers. Over the span of two weeks three people close to him died, including his father and one of his sons, after which Mr. Rogers tried to kill himself by an overdose of prescription pills. He sent his wife a text, which she read as a suicide note, and she fortunately got home in time to find him. He subsequently saw his family doctor and was prescribed anti-depressants.
In the fall of 2024, things were still going badly for Mr. Rogers. In addition to those three deaths of people very close to him, he had now lost his job, there was a lot of stress between him and his wife and they were planning to separate. He was away for a day, which according to his wife was not uncommon, but when it stretched to two days and he then sent her a message saying that he loved her and to give his property to his kids, she got worried and called the police, who pinged his phone and unsuccessfully searched for him around the pinged location. When they were reporting their unsuccessful efforts to Mrs. Rogers, she received a text from Mr. Rogers saying he needed help and giving his location as "beach". Constable Pink attended an area Mrs. Rogers identified as being a common hang-out for Mr. Rogers and found him in his truck"slumped" over the steering wheel. He also had a vertical cut down his arm, which was bleeding, with blood pooling on the floor. Constable Pink applied a tourniquet and EMS attended to take Mr. Rogers to hospital, where he stayed for a few weeks as a result of serious kidney failure, from which he continues to have some side effects. Mrs. Rogers testified that she was aware from the doctor, from Mr. Rogers's GP and from the lab results that the kidney failure had been caused by something Mr. Rogers ingested having been spiked. Mr. Rogers testified that it was something he had drunk at a party that evening that was spiked without his consent and that numerous other party-goers had also become ill as a result.
Mrs. Rogers agreed that her husband's absence in November was not from any sort of suicidal crisis similar to what happened in May, but because of their looming separation. She had, after his prolonged absence, perfectly understandably jumped to a conclusion about Mr. Rogers perhaps engaging in self harm again, in light of the spring incident.
Constable Pink testified that Mr. Rogers told him at the beach that he had cut himself and also that he had consumed $700 worth of crack cocaine. Constable Pink understandably seized Mr. Rogers's Possession and Acquisition Licence (PAL) from him because he was aware of Mr. Rogers's May attempt at suicide and considered the November incident to have been a second attempt at suicide, except with the degree of severity increasing from the first attempt to the second apparent attempt. On the basis of what was known to Constable Pink at that time, which was less information than is now before the court, his beliefs were entirely justified.
Mr. Rogers agreed in his testimony that he had cut himself, but that the effect of the spiked liquor and its interaction with his anti-depressants left him in a state where he said he was in and out of consciousness because of his kidney failure. He had not consciously tried to kill himself in November, he said. Mrs. Rogers described her husband at the hospital the following day as being delirious still. Mr. Rogers said that, notwithstanding whatever he said to Constable Pink or what Constable Pink took from his utterances, he had not in fact bought any cocaine, that his blood tests showed negative for cocaine and that while he had indeed taken $700 out of the bank while he was away from home, that that was money he was going to use to move north in light of his looming separation from Mrs. Rogers, where he would start a new life tracking, which was one of his skills. He said he still had about $650 of that $700 on him when he returned home. His message to his wife was simply for her to give his property to his boys as he was heading out for that new life up north, not because he intended to kill himself. He said that he assumed he had made the cut to his wrist, but that he was basically incoherent at that time as a result of the kidney failure.
Mr. Rogers testified that guns have been part of his life and his family life for generations, reaching back to his grandfather in World War II, to his father, to his own engagement with guns from around the age of eight years old, engagement in cadets, the reserves, the armed forces and sniper training and reaching forward to the present day when all five of his sons are gun aficionados, as are various of his neighbours and friends. As a gunsmith, he has about a dozen clients who are members of the Hamilton Police Service who use his services for their personal firearms, along with a handful of RCMP officers who do likewise. He is training an apprentice as a gunsmith. He and his family and friends shoot a couple of times a month at a gun club and they hunt frequently, providing his family with about five months' worth of food and also donating food and pelts to others.
Mr. Rogers provided letters from his personal doctor and from St. Joseph's Hospital. The former letter referred to Mr. Rogers's physical condition and his depression and the latter made reference to treatment for substance dependence. Mr. Rogers says he no longer drinks and has come off the anti-depressants in light of the interaction between them and whatever he consumed at the party during the November event. Although the St. Joseph's hospital letter focuses on substance dependence, Mr. Rogers outlined how he had been provided with a series of drug-free techniques to deal with his mental health challenges. Mr. Rogers also provided two letters from friends and neighbours who have known him for about a decade, outlining his expertise, responsibility and reliability in relation to all matters gun-related.
A peculiar feature of this application is that Mr. Rogers advised the court (and it did not seem to be disputed), that he has remained in possession of several long guns and very large amounts of ammunition over the course of the past year, even though he told the Crown of this as long ago as December 2024 and despite the fact that the Crown and police were reminded of this fact on a recent previous court appearance. Although it is not entirely clear how the firearms currently in the possession of the police were seized, it would appear that it was either not by a search of the property or if there was a search that the search was not thorough enough to locate that armoury.
I certainly appreciate Mr. Rogers's confusion about how the Crown and police are seeking to restrain him from possessing firearms because he is a potential danger to himself or others while ignoring the fact that he has actually remained in possession of a significant majority of his firearms throughout the process, despite that being known to the authorities for a long time and with no warrant having been obtained for their seizure, even to this day. I, too, find that confusing.
In one sense, however, it is irrelevant to the decision I have to make. The decision I have to make is whether or not the Crown has demonstrated on a balance of probabilities that Mr. Rogers's possession of firearms creates a danger to himself and/or others in all the circumstances. That decision must be based on all of the relevant evidence and, while one could read the authorities' failure to act on Mr. Rogers's continued possession of the other weapons as demonstrating that they do not actually perceive him to be a risk, it could just as likely, or probably more likely, simply reflect a "broken telephone" situation or simple but serious human oversight, in which relevant information has not been acted on by a person who should have acted on it or has not been passed on by someone to another person who should have acted on it. As I am satisfied that the Crown's application is made entirely in good faith, that is that the Crown genuinely believes there is a risk here that satisfies the test set out in the Criminal Code, I view it as more likely that this information was shared with the authorities by Mr. Rogers but simply was never acted upon, as concerning as that is.
In another sense, however, Mr. Rogers's continued possession of these other weapons is at least "not entirely irrelevant". From the time of his mental breakdown in May of 2024, as a result of three closely-timed deaths, through whatever happened in November 2024, Mr. Rogers has remained in possession of that store of long guns and there is no suggestion at all that he has, in either incident, made use of them, although they were clearly easily accessible to him and would have been alternative methods for him to kill himself if he were so inclined to take that way out. But he did not.
As I have noted, the legal test in this case is fairly straightforward:
a. Section 111 of the Criminal Code gives the court power to prohibit a person from possessing firearms, ammunition, explosives and other weapons or devices in certain circumstances. According to s. 111(1) the question is whether it is"not desirable in the interests of [Mr. Rogers] or of any other person that [Mr. Rogers] should possess any such thing."
b. Unlike a criminal trial, where the standard of proof is proof beyond a reasonable doubt, which is a very, very high standard since it involves labelling a person as a criminal and exposing them to sanctions including loss of liberty, the standard of proof on this application is proof on a balance of probabilities.[^2] In other words, has it been shown as 50.1 per cent likely that Mr. Rogers's possession of weapons is contrary to his or the public interest. Realistically, the question is whether Mr. Rogers's mental health challenges make it too risky for him to continue to be allowed to possess firearms.
c. The burden of proof lies on the party alleging Mr. Rogers's possession of firearms would be unsafe, that is, on the Crown. In the vernacular, if the Crown cannot prove that their argument is stronger than Mr. Rogers's argument, the Crown's application fails.
d. The application does not involve any allegation by the Crown that Mr. Rogers is a bad person or that his character makes him unfit to be a gun owner. Mr. Osowski for the Crown went out of his way to make it clear that he takes no such position, but to the contrary recognizes Mr. Rogers as an upstanding citizen, with a good work ethic, no conflict with the criminal law and excellent standing in the community. Rather, the question is whether or not, in light of Mr. Rogers's challenges over roughly the last year, it is safe for him to be in possession of firearms, etc.
e. The application is forward looking, that is, it must look at whether a prohibition order is justified in the present[^3] and future tenses, not the past tense. It is not a question of whether or not Mr. Rogers's possession of firearms, etc. in May or in November would have been wise, but a future projection. However, the events of the past twelve months are highly relevant to predicting the future or, put another way, assessing safety and risk in the future. As Mr. Rogers noted a few times in his evidence and submissions, predicting the future is impossible. That is true, in terms of there being no guarantee of what will happen in the future. However, the task before me involves looking at probabilities: is it more or less probable that Mr. Rogers's access to firearms, etc. will create a risk to him or others?
This determination of future risk is not what judges do most of their time. For the most part, judges are tasked to determine what has happened in the past, based on evidence of particular facts that are determinable through various forms of evidence. To a certain extent, judges' sentencing decisions look forward, for example in assessing whether a convicted offender requires specific deterrence, but sentencing is also largely a backward looking task: what did the offender do, what was his moral responsibility when he did it and what was the effect on his victims.
The closest comparator for an application like this may be the bail hearing, in which a judge or justice of the peace must look at a person's past (in the bail setting, an alleged offender) and make a future determination of what risk a defendant would likely pose to society if he or she were released pending trial. However, in keeping with Mr. Rogers's comments, none of us has a crystal ball. Instead, we must make a prediction based on all of the known facts. This is one of the most difficult and fraught decisions in the criminal law process because there are unquantifiable risks if some people are released and different but troubling risks if people are unjustifiably detained and it is impossible to say with absolute certainty that a given person is or is not a risk or will or will not continue not to be a risk. It is all a matter of risk analysis and balancing of interests involving liberty and security and sometimes life and death. It is not a task undertaken lightly.
There is room for reasoned debate about where the bounds of reasonable bail lie in any given case and there is room for reasoned debate about how the bail system should be structured. Sadly, there is also often a maelstrom of ignorant, ill-informed, ill-considered and irresponsible invective by public figures --who should know better-- about the shortcomings of the court system when it comes to bail. Similar criticisms might be made in relation to applications like this one, except that these applications are far, far less frequent.
Today's application, however, carries the same risk profile, same uncertainty and same lack of guarantees as a bail hearing, albeit in a context where Mr. Rogers is in no way accused of criminal wrongdoing. Just as a bail hearing asks"is it safe to release Mr. X?", this application asks"Is it safe for Mr. Rogers to possess firearms in light of what happened over the past year?", although, the more accurate question in light of the wording of the Criminal Code is: "Has the Crown proved that it is unsafe for Mr. Rogers to possess firearms?"
In doing his or her job, any responsible justice of the peace or judge presiding over a bail hearing will always have lurking in the back of his or her mind a concern about "getting it wrong" and about the potentially tragic or even fatal consequences of "getting it wrong". Caution, but not paralysis, is a good characteristic for any judicial official. Our institutional memory is long when it comes to cases where a person was released on bail and proceeded to commit grave, sometimes fatal, offences. Very recent local memory includes a case with an absolutely heartbreaking outcome resulting from offences by a repeat offender released on bail. The "safest" response to such concerns might be seen as to "lock them all up" or, in firearms prohibition applications, to deny anyone with any history of depression, suicidal ideation or mental health challenges the privilege of firearm ownership. However, just as bombastic protestations to "lock them all up" in bail hearings would not only involve ignoring the law and result in imprisoning before trial huge numbers of presumptively innocent people for whom bail is appropriate, an overly cautious approach in firearms prohibition applications would likewise disrespect the law of Canada and disadvantage owners who do not objectively appear to be a risk.
But these are human processes. As I have noted, history shows that people who are reasonably determined to be good candidates for bail do sometimes go on to reoffend while on bail, sometimes in horrific ways. History also shows that people who are dealing with mental health issues sometimes do go on to engage in self harm or in serious injury to others or worse. Last week's tragedy in Vancouver may be an example of just that. The best society can expect is that the decision-makers in bail applications and applications like this approach the matter with a sense of the seriousness of the occasion and apply the legal standards set out by Parliament in light of the most reliable appraisal they can make of the evidence presented by the parties. Neither the bail decision nor this decision ever comes with any guarantee. The risk of a bad outcome is always present.
In the present case, it is clear that Mr. Rogers tried to commit suicide in May 2024 after the death of his father, son and another person close to him and that he took a course of anti-depressants in response to the depression underlying that attempt. Nobody disputes that. What happened in November is less clear. Constable Pink perceived what happened in November as a second suicide attempt, by a different method, perhaps a combination of Mr. Rogers ingesting drugs and also attempting to slit his wrist. On the information available to Constable Pink in that moment, those were perfectly reasonable conclusions. However, Constable Pink did not have the benefit of Mr. Rogers’s information about the party, the spiked liquor, the alcohol-antidepressant interaction, his toxicology screens and so on. Constable Pink can only be correct, however, that the cut to Mr. Rogers's arm was an attempt at self-harm, but that leaves open the question of whether that behaviour was actually a consequence of delirium brought on by an involuntary ingestion of tainted alcohol and the drug interaction, rather than a conscious choice of self-harm, that is, whether the slitting of the arm was externally induced. Mr. Rogers was a credible witness and his evidence about the tainted alcohol toxicity is supported by his wife and by their reference to hospital records, but his assertion that his direction to his wife to give all his things to his sons was just because he was moving rather than because he was suicidal does not make perfect sense since if he was moving north to engage in a tracking existence, he would have needed some of those things. That being said, just as the cut to his arm may have been the product of delusional behaviour during his kidney failure, so may his utterances and it would be unrealistic to parse them too closely. To the extent that the November incident may have been a conscious or wilful second suicide attempt, Mr. Rogers did resile from it when he called his wife.
There are strengths and weaknesses in the evidence. Constable Pink testified that Mr. Rogers told him he had spent $700 on cocaine in the two days he was away from home and I have no reason to disbelieve him on that. Mr. Rogers, however, denies having done that and seems to suggest there is some confusion involving the money he took out of the bank and something Constable Pink may have misunderstood (perhaps something Mr. Rogers said in his delirium).
Neither the Crown nor Mr. Rogers has called any medical witnesses, although Mr. Rogers presented a letter from his family doctor and from the addictions clinic at St. Joseph's Hospital. While the letter refers to addictions counselling and refers to the availability of concurrent mental health treatments if required, Mr. Rogers's description of what he learned from the St. Joseph's counselling reflects techniques that would be valuable in dealing with both substance dependence and mental health challenges. He says that he has benefited from those sessions and applies the techniques learned in dealing with his ongoing emotional challenges.
Mr. Rogers is fifty-five years old. He appears never to have had any involvement with the law, other than as a gunsmith for various police officers' personal firearms. He has a commendation three years ago from the chief of police for Hamilton for his assistance in saving an elderly person who might otherwise have drowned in his car. The materials before me, both the evidence and the documents, suggest a person with a strong work ethic, a history of engagement with his neighbours and community and an inherited passion for firearms and hunting that serves also as a source of income and subsistence. Both Mr. Rogers and Mrs. Rogers came across very powerfully as salt-of-the-earth types of people, who left no concern on my part for their honesty. There is always a risk in cases of this nature, however, that people so closely connected to the issue, i.e. the firearms enthusiast Mr. Rogers and his devoted spouse, may see Mr. Rogers's mental health status more optimistically than it truly is, but on the record before me I really have nothing more than the speculative possibility of that happening rather than anything upon which I can pin a sense of that being an active risk here. Both of them have testified, each in their own words, as to how Mr. Rogers still has grief issues to deal with but has benefited from his counselling at St. Joseph's Hospital and has acquired mechanisms to handle things when they might otherwise become overwhelming. Mrs. Rogers testified to having her husband back, that he is a different man from who he was in the darkest times.
It is a good thing for judges to have a tiny person on their shoulder, whispering occasionally in their ear"but what if you're wrong?" Caution and restraint and balance should always be part of the judicial toolkit. Ultimately, however, caution and prudence cannot be allowed to become paralysis and the horrific imaginings of "what if...?" cannot change the judge's role, which is to decide each issue before him or her based on the legal test, the burden of proof, the standard of proof and the evidence, however incomplete, that is put before them in a particular case.
In the present case, I understand entirely Constable Pink's concern and the Crown's caution.[^4] The little person on my shoulder has asked a few times"but what if you're wrong? What if it all ends up horribly?" When I look at the history here, however—the awful combined losses underlying Mr. Rogers's suicide attempt in May, the uncertainty in light of the imperfect evidence of whether or not there was a second wilful suicide attempt in November, the evidence from Mr. Rogers and Mrs. Rogers of the progress he has made in counselling, his current condition and the coping methods he has learned through counselling and even balancing in the inherent dangerousness of firearms being in someone's possession if that person is mentally unstable—I find myself unable to say, on the record as it stands before me, that the Crown has shown that it is more likely than not that Mr. Rogers being in possession of firearms or other weapons would pose a risk of harm to himself or others.
I add that Mr. Rogers has spent almost his entire life around guns and dealing with issues of gun safety in various roles and on a seemingly constant basis. Whatever issues he may have had, none of them in any way involved firearms and none of them involved injury or risk to other persons or any sort of mental health issues beyond grief and depression. There is no indication of any sort of paranoid ideation or sense of persecution or any higher-order mental health issues that would suggest he is a risk to others. The key focus of concern appears to be his handling of grief and depression, which are areas that, on the record before me, he appears to have under control.
Although this is not determinative to my decision, I do wonder if imposing a firearms prohibition on Mr. Rogers—a person whose very existence is inextricably intertwined with firearms, gunsmithing, training, target shooting, hunting, subsistence and tracking and whose family, friends and neighbours share similar engagement—I wonder if removing his access to that engagement and community would actually be more harmful to him than any risk of self-harm, which, as I have noted does not appear to have been made out on the record before me.
Accordingly, the Crown's application for a prohibition order under s. 111 of the Criminal Code is dismissed. That being the case, the issue of disposition of any weapons seized or in Mr. Rogers's possession becomes moot.
Released: 2 May, 2025
[^1]: The rules of admissibility are relaxed on hearings of this nature and some of the evidence included, for example, medical records and utterances by doctors that were not placed before me or who did not testify but that were within the knowledge of Mr. and/or Mrs. Rogers. See: See R. v. Zeolkowski.
[^2]: See R. v. Zeolkowski.
[^3]: See R. v. Douglas, 2013 ONCJ 649.
[^4]: In the words of Justice M. Green of this court in R. v. Douglas, 2013 ONCJ 649, at paragraph 56: “I begin with the obvious: firearms are dangerous. Their possession by persons who are unstable or disposed to physical anger, violence, intemperate behaviour or poor impulse control cannot be countenanced.”