R. v. Zeolkowski, [1989] 1 S.C.R. 1378

Her Majesty The Queen Appellant

v.

Gary Zeolkowski Respondent

indexed as: r. v. zeolkowski

File No.: 20395.

1989: March 15; 1989: May 18.

Present: Wilson, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for manitoba

Evidence -- Admissibility -- Firearm prohibition hearing -- Provincial court judge to hear "all relevant evidence" -- Whether or not rules of evidence apply to firearm prohibition hearing -- Criminal Code, R.S.C. 1970, c. C‑34, s. 98(4), (6).

A police officer made application in provincial court, pursuant to s. 98(4) of the Criminal Code, for an order prohibiting respondent from possessing any firearms or ammunition or explosive substances. Prior to the calling of any evidence, counsel for the respondent requested a general ruling as to the admission of hearsay evidence. The "custom" in Manitoba provincial courts had been to permit hearsay testimony at hearings on applications for a firearm prohibition. When the judge ruled that evidence at a firearm prohibition hearing was to be limited to what would be admissible at a criminal trial, counsel for the Crown, who had intended to rely on hearsay evidence as to threats made by respondent, called no evidence and the application was dismissed. The ruling as to admissibility was upheld on appeal by the Crown, first by the Court of Queen's Bench, and then by a majority of the Court of Appeal.

Held: The appeal should be allowed.

Hearsay evidence is admissible at a firearm prohibition hearing under s. 98(6) unless such a result is precluded by the words "all relevant evidence". The provincial court judge's role in such hearings is to confirm the existence of the reasonable grounds which led the peace officer to launch the application, as proved on a balance of probabilities. It was not intended that the provincial court judge strictly apply the rules of evidence.

The expression "all relevant evidence" means all facts which are logically probative of the issue. The rules of evidence as to admissibility signify that the fact is relevant and that it satisfies auxiliary tests and extrinsic policies. Parliament, by using the phrase "all relevant evidence", required only that the evidence at the firearm prohibition hearing be relevant; it did not address the question of exclusionary rules. The effect of the exclusionary rules is left to the provincial court judge as part of the whole body of evidence on which the provincial court judge determines whether reasonable grounds exist. Frailties in the evidence are a matter of weight.

Cases Cited

Referred to: R. v. McWhirter (1982), 1982 CanLII 5350 (NS CA), 51 N.S.R. (2d) 181; R. v. Cardinal (1980), 1980 ABCA 42, 52 C.C.C. (2d) 269; R. v. Anderson (1981), 1981 CanLII 3219 (ON SC), 59 C.C.C. (2d) 439; Unterreiner v. The Queen (1980), 1980 CanLII 2891 (ON SC), 51 C.C.C. (2d) 373; R. v. Dhillon (1981), 1981 CanLII 3221 (BC SC), 64 C.C.C. (2d) 483; R. v. Krieger, Sask. Prov. Ct., February 2, 1984, unreported; Duguay v. Houle, Que. Sup. Ct., September 24, 1985, unreported; R. v. Linder (1980), 5 W.C.B. 86; Re Creusot (1987), 1987 CanLII 4970 (SK PC), 62 Sask. R. 112; Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 98(4), (5), (6), (7), (9), (10), (12), 104(6), 178.12, 443, 457.3, 690, 745.

Criminal Law Amendment Act 1977, S.C. 1976-77, c. 53.

Authors Cited

Cross, Sir Rupert. Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths, 1985.

Driedger, Elmer Abram. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Hawley, Donna Lea. Canadian Firearms Law. Toronto: Butterworths, 1988.

Scarff, Elizabeth. Evaluation of the Canadian Gun Control Legislation: Final Report. Ottawa: Solicitor General Canada, Programs Branch, Research Division, 1983.

Thayer, James B. "Presumptions and the Law of Evidence," 3 Harv. L. Rev. 141 (1889).

Wigmore, John Henry. Wigmore on Evidence, vol 1. Revised by Peter Tillers. Boston: Little, Brown & Co., 1983.

APPEAL from a judgment of the Manitoba Court of Appeal (1987), 1987 CanLII 6978 (MB QB), 46 Man. R. (2d) 40, [1987] 3 W.W.R. 739, dismissing an appeal from a judgment of Schwartz J. (1986), 1986 CanLII 4786 (MB QB), 44 Man. R. (2d) 123, [1986] 6 W.W.R. 698, dismissing an appeal from a ruling of Stefanson Prov. Ct. J. Appeal allowed.

J. G. B. Dangerfield, Q.C., for the appellant.

M. J. Manko, for the respondent.

//Sopinka J.//

The judgment of the Court was delivered by

SOPINKA J. -- This appeal is from the decision of the Manitoba Court of Appeal affirming the decision of Schwartz J. in the Court of Queen's Bench. Schwartz J. in turn affirmed the decision of Stefanson Prov. Ct. J. who dismissed an application to prohibit the respondent from possessing firearms.

The issue in this appeal is whether hearsay evidence is admissible at the hearing of an application under s. 98(6) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C. 1985, c. C-46, s. 100(6)).

The hearing before Stefanson Prov. Ct. J. arose out of the following incident. On January 28, 1985, Sergeant Edward Koch of the Winnipeg Police Department made an application pursuant to s. 98(4) of the Criminal Code for an order prohibiting the respondent from possessing any firearms or ammunition or explosive substances. Joanne Zeolkowski, the respondent's wife, had informed the officer that the respondent had threatened her, and that she believed that the respondent would use the weapons against her.

The hearing of the application commenced on May 17, 1985. Prior to the calling of any evidence, counsel for the respondent requested a ruling on the nature of the evidence which the court would permit during the hearing; in particular, counsel sought a general ruling to prohibit witnesses from testifying as to facts based on hearsay information. This request was prompted by: the Crown's intention to call Sergeant Koch to testify as to what the respondent's wife had told him, rather than calling Joanne Zeolkowski herself to testify; and the "custom" in Manitoba Provincial Courts of permitting hearsay testimony at hearings on applications for a firearm prohibition.

After considering the written argument submitted by both counsel, Stefanson Prov. Ct. J. ruled that hearsay evidence was inadmissible, in that evidence at a hearing under s. 98(6) is limited to that which would be admissible at a criminal trial. When the hearing recommenced, the Crown called no evidence, and Stefanson Prov. Ct. J. dismissed the application. On appeal by the Crown to the Court of Queen's Bench, Schwartz J. held that Stefanson Prov. Ct. J. had made the correct ruling on admissibility.

On further appeal, the majority of the Court of Appeal concluded that the ordinary rules of evidence should not be relaxed. Notwithstanding that the respondent was not faced with a criminal charge or punishment, his rights might be affected by a firearm prohibition order. Absent a clear direction to the contrary, the general rules of evidence apply in a judicial proceeding. The majority was of the view that the term "all relevant evidence" does not invite the conclusion that Parliament intended the rules of evidence to be relaxed or varied in a hearing under s. 98(6).

Monnin C.J.M. dissented. The Chief Justice was of the view that s. 98 constitutes gun control legislation which is designed to minimize the risks and dangers resulting from the free and uncontrolled use of firearms. In his opinion, the only requirement in s. 98(6) is that the evidence be relevant to the issue to be determined. Thus, hearsay evidence is admissible. In this regard, Monnin C.J.M. approved the reasoning of the Supreme Court of Nova Scotia, Appeal Division in R. v. McWhirter (1982), 1982 CanLII 5350 (NS CA), 51 N.S.R. (2d) 181.

Sections 98(4) and 98(6) state:

98. ...

(4) Where a peace officer has reasonable grounds to believe that it is not desirable in the interests of the safety of any person that a particular person should possess any firearm or any ammunition or explosive substance, he may apply to a provincial court judge for an order prohibiting that particular person from having in his possession any firearm or any ammunition or explosive substance.

(6) At the hearing of an application made pursuant to subsection (4) the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order of prohibition is sought and where, at the conclusion of the hearing, the provincial court judge is satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person against whom the order of prohibition is sought or of any other person that the person against whom the order is sought should possess any firearm or any ammunition or explosive substance, the provincial court judge shall make an order prohibiting him from having in his possession any firearm or any ammunition or explosive substance for any period of time, not exceeding five years, specified in the order and computed from the day the order is made.

These subsections create one of the prohibitions to the possession of firearms available under s. 98. Section 98 is part of the firearm control scheme created under the Criminal Code. A brief overview of the relevant procedures in that scheme follows.

Section 104 sets out the general procedure by which a person may apply to a firearms officer to obtain a firearms acquisition certificate. It sets out the information that a firearms officer may look to, and the criteria which that officer must consider, in deciding whether it is "desirable in the interests of the safety of the applicant or of any other person" that a certificate be issued. If requested to do so, the firearms officer must refer his or her decision to a provincial court judge for confirmation or variation (s. 104(6)).

Both a s. 98(4) application and a s. 104(6) reference require that a hearing be held before a provincial court judge, and that notice of that hearing be given to the subject of the application or reference (s. 98(5)). As set out above, s. 98(6) describes the hearing held on a s. 98(4) application. Similarly, s. 98(7) describes the hearing to be held on a s. 104(6) reference. The provincial court judge may proceed ex parte to hear and determine the application or reference (s. 98(9)).

An appeal may be taken from the decision of the provincial court judge in the application or reference (s. 98(10)). Breach of a prohibition order made pursuant to s. 98 is an offence (s. 98(12)).

Section 98 was enacted as part of the Criminal Law Amendment Act 1977, S.C. 1976-77, c. 53. This legislation added Part II.1 (Firearms and Other Offensive Weapons) to the Criminal Code. This Part sets out a code of requirements governing all aspects of behaviour respecting firearms and other offensive weapons (see R. v. Cardinal (1980), 1980 ABCA 42, 52 C.C.C. (2d) 269 (Alta. C.A.) at p. 273). While firearms have been regulated in some form in Canada since 1892, the amendments of 1977 were intended as a more comprehensive approach to protecting the public from firearm misuse (Hawley, Canadian Firearms Law, at p. 2). In my opinion, Lane Co. Ct. J. accurately stated the purpose of the legislation in R. v. Anderson (1981), 1981 CanLII 3219 (ON SC), 59 C.C.C. (2d) 439, at p. 447:

The recognized intent of s. 98 as a whole is to remove, or to prevent the acquisition of firearms from those members of the population who have committed offences, or who it may be reasonably anticipated may commit an offence.

The pre-emptive prohibition created by s. 98(4) and (6) is in keeping with this purpose. As the results of a review of Canada's gun control legislation indicate, the prohibition can be useful, particularly in recurring domestic or neighbourhood confrontations (Scarff, Evaluation of the Canadian Gun Control Legislation: Final Report, at p. 60). It is also relevant to note that the subject of such a prohibition is not accused of an offence. Neither does the application of the section affect the subject's liberty interests.

While the purpose of the prohibition provisions is clear, the courts have found that the nature of the hearing created is less clear. Disagreement on this point has been the basis for much of the division on the issue of whether hearsay evidence is admissible under s. 98. In Unterreiner v. The Queen (1980), 1980 CanLII 2891 (ON SC), 51 C.C.C. (2d) 373 (Ont. Co. Ct.); R. v. Dhillon (1981), 1981 CanLII 3221 (BC SC), 64 C.C.C. (2d) 483 (B.C. Co. Ct.); R. v. Krieger (unreported February 2, 1984, Sask. Prov. Ct.); and Duguay v. Houle (unreported September 24, 1985, Que. Sup. Ct.), hearsay was ruled admissible in a reference hearing under s. 98(7). In R. v. Linder (1980), 5 W.C.B. 86 (Ont. Co. Ct.), and most recently, in Re Creusot (1987), 1987 CanLII 4970 (SK PC), 62 Sask. R. 112 (Sask Prov. Ct.), hearsay was ruled inadmissible in an application hearing under s. 98(6). In R. v. Anderson, supra, Lane Co. Ct. J., in an obiter comment, stated at p. 449: "I agree that the ordinary rules of evidence should apply...." The appellate courts which have considered this issue are also divided, with a majority of the Manitoba Court of Appeal in the present case finding hearsay testimony to be inadmissible, while the Nova Scotia Supreme Court, Appeal Division in R. v. McWhirter, supra, held such evidence to be admissible. I might also note that this disagreement may inhibit resort to s. 98; the vagueness of the procedural guidelines concerning the conduct of the hearing has been identified as engendering some reluctance to use the pre-emptive prohibition (Scarff, supra, Executive Summary, at p. 11).

Counsel for both the appellant and the respondent referred to other provisions in the Criminal Code in an attempt to draw a parallel between those proceedings and a firearm prohibition hearing. Particular reference was made to the procedure on application for: a peace bond (s. 745); dangerous offender status (s. 690); judicial interim release (s. 457.3); a search warrant (s. 443); and a wiretap authorization (s. 178.12). None of those proceedings is directly analogous to a s. 98(6) hearing; therefore, the evidentiary requirements under those provisions cannot be determinative of the issue.

Section 98(4) enables a peace officer acting on reasonable grounds to apply to the provincial court judge for an order prohibiting a particular person from possessing a firearm. Clearly, the peace officer is not required to act solely on the basis of evidence that would be admissible at a trial (see Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at p. 745; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 279). At the hearing of the application pursuant to s. 98(6), the provincial court judge must be satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person or of others that the subject of the prohibition application should possess a firearm. The provincial court judge thus confirms the existence of the reasonable grounds which led the peace officer to launch the application. In my opinion, it was not intended that the provincial court judge strictly apply the rules of evidence. The provincial court judge must simply be satisfied that the peace officer had reasonable grounds to believe as he or she did: in other words, that there is an objective basis for the reasonable grounds on which the peace officer acted.

It is also relevant to note that the burden which the applicant bears at the hearing is not that of proof beyond a reasonable doubt, but simply proof on a balance of probabilities. In R. v. McWhirter, Hart J.A., for the court, took note of this reduced standard in reaching the conclusion, at p. 186, that "...although these proceedings arise under the Criminal Code Parliament did not intend that they be conducted in the manner of a criminal trial". I agree with this conclusion.

Accordingly, I am prepared to hold that hearsay evidence is admissible at a firearm prohibition hearing under s. 98(6) unless such a result is precluded by the words "all relevant evidence". The meaning of "all relevant evidence" was the principal basis upon which the majority of the Court of Appeal rested its decision. In my opinion, this expression means all facts which are logically probative of the issue. The general rule of evidence is that all relevant evidence is admissible (R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 40; Cross on Evidence (6th ed. 1985), at p. 49). This general rule is subject to certain exceptions, such as the rule against hearsay evidence. Thus, the general rule is "... that unless excluded by some rule or principle of law, all that is logically probative is admissible" (Thayer, "Presumptions and the Law of Evidence," 3 Harv. L. Rev. 141 (1889), at p. 144). To state this general proposition more positively, "Admissibility signifies that the particular fact is relevant, and something more -- that it has also satisfied all the auxiliary tests and extrinsic policies" (1 Wigmore, Evidence, para. 12 (Tillers rev. 1983), in Cross on Evidence, supra, at p. 58). By using the phrase "all relevant evidence" (emphasis added), Parliament did not address the question of exclusionary rules; it did not require "something more" at a firearm prohibition hearing. The effect of the exclusionary rules is left to the provincial court judge as part of the whole body of evidence on which the provincial court judge determines whether he or she is satisfied that the reasonable grounds exist. Frailties in the evidence are a matter of weight. In the case at bar, for example, the judge should properly consider what weight, if any, is to be given to the hearsay evidence. In doing so the judge should take into account the explanation, if any, for not making the best evidence available. The Crown bears the burden of proof at a s. 98(6) hearing and I agree with the observation of Killeen Co. Ct. J. in Unterreiner v. The Queen, supra, at p. 378 that in considering its weight, the judge must scrutinize the evidence to ensure that it is credible and trustworthy.

I am confirmed in this view as to the meaning of "all relevant evidence" by the use of the identical phrase in s. 98(7). Section 104 requires that the firearms officer consider all information that "... may reasonably be regarded as relevant to the application ..." in reaching the decision to issue or refuse a firearms acquisition certificate. Clearly the firearms officer must consider information that may not be admissible under the ordinary rules of evidence. It would be incongruous if, having obtained that information, only those parts of it that could meet the test of the rules of evidence could be put before the provincial court judge at a s. 98(7) hearing. Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation (Driedger, Construction of Statutes (2nd ed. 1983), at p. 93); in the present case, the identical phrase is used in two adjacent subsections within the same section of the Criminal Code. As well, the determinations being made at a s. 98(7) reference and a s. 98(6) hearing are, in essence, the same. In both proceedings, the provincial court judge is examining the basis for the decision made by the peace officer or the firearms officer as to whether the respondent should possess or continue to possess a firearm.

Accordingly, the appeal is allowed and the matter is remitted to the provincial court judge to be dealt with according to law.

Appeal allowed.

Solicitor for the appellant: The Department of the Attorney General, Winnipeg.

Solicitors for the respondent: Manko, Shypit & Associates, Winnipeg.