COURT FILE NO.: 11-30150AP
DATE: JUNE 14, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
(ON APPEAL FROM HONOURABLE JUSTICE DIANNE NICHOLAS)
BETWEEN:
BORIS VARDOMSKIY
Appellant
– and –
HER MAJESTY THE QUEEN
Respondents
Solomon Friedman, for the Appellant
Moiz Karimjee, for the Respondent
Heard on March 6, 2013
REASONS FOR judgment
B. Abrams, J.
Nature of the Appeal
[1] This appeal arises from the decision of Her Honour, Judge Dianne Nicholas (hereinafter “the Hearing Judge”), in the Ontario Court of Justice, dated May 2, 2012, wherein the Crown sought an Order pursuant to section 117.05(4) of the Criminal Code prohibiting the Appellant from possessing firearms, as well as for the things seized on March 4, 2011, to be forfeited to the Crown.
[2] At the hearing of the Crown’s application, the sole issue for the Hearing Judge to decide was: Did the Crown prove on a balance of probabilities that there were in fact “legitimate concerns indicating that the Respondent [Appellant] currently lacks the responsibility and discipline required of a gun owner”.[^1]
[3] In the result, the Hearing Judge made an Order for two years under section 117.05(4) of the Criminal Code prohibiting the Appellant from possessing firearms as well as forfeitures (or legal transfers) of all firearms seized from his residence on March 4, 2011.
[4] The Appellant contends that the Hearing Judge erred in both law and fact in determining this sole issue. Specifically, the Appellant asserts that the Hearing Judge:
a) Erred in law by shifting the burden of proof;
b) Erred in law by misinterpreting the legal test for a section 117.05 hearing;
c) Erred in her consideration of the evidence by:
i) drawing adverse inferences that were unsupported by the evidence, to which the Appellant was not given a chance to respond; and
ii) placing undue weight on demeanour evidence; and
d) Erred in law by failing to provide sufficient reasons.
Legislative Framework
[5] Section 117.04 of the Criminal Code provides for the issuance of a warrant to search and seize firearms, ammunition, etc., where a justice is satisfied on reasonable and probable grounds that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the firearms, ammunition, etc.
[6] Section 117.05 provides for an application for disposition of the items seized pursuant to section 117.04.
[7] The statutory test for determining the disposition of such items is outlined in section 117.05 (4):
(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interest of the safety of the person from whom the thing was seized or 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 anything seized be forfeited to Her Majesty, or otherwise be disposed of;
(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, an explosive substance, or 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.
[8] The decision of the Provincial Court Judge may be appealed by the person against whom the Order was made to the Superior Court in accordance with the Summary Conviction Appeal procedure in part XXVII of the Criminal Code.
[9] The right to appeal under section 117.05 operates like the right to appeal prohibition Orders under section 111 of the Criminal Code. Section 111(8) reads:
111(8) Where a Provincial Court Judge makes an order under subsection (5), the person to whom the order relates, or the Attorney General, may appeal to the Superior Court against the order.
[10] The purpose and object of section 117 of the Criminal Code 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.[^2]
[11] Pursuant to section 117.05(9), Provisions for a Summary Conviction Appeal in the Criminal Code, except sections 785 to 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsections (7) or (8), with such modifications as the circumstances require and as if each reference in that Part to the appeal Court were a reference to the Superior Court.
[12] By virtue of section 822 of the Criminal Code sections 683-689 apply, with the exception of 683(3) and 686(5), with such modifications as the circumstances require.
[13] Pursuant to section 686(1)(a), on the hearing of an appeal against a conviction, the court of appeal may allow the appeal where it is of the opinion that:
i. the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;
ii. the judgement of the trial Court should be set aside on the ground of a wrong decision on a question of law; or
iii. on any ground there was a miscarriage of justice.
[14] The Crown contends that the legislative framework is important in this appeal specifically as it relates to who bears the onus. If the Appellant demonstrates that the trial Judge committed an error of law alone, the appeal would be granted, unless the Crown convinced the Court, pursuant to section 686(1)(b)(iii), that no substantial wrong or miscarriage of justice has occurred. If no error of law is found, then the onus is on the Appellant to show that the decision was unreasonable or that there was a miscarriage of justice.
Background
[15] The Appellant was born on July 4, 1989, in Moscow, in the former Soviet Union.
[16] He came to Canada at two or three years of age and grew up in Ottawa.
[17] At the material time of these events, the Appellant was attending the University of Ottawa, where he was enrolled as a full-time student in Geology. One of his courses was Ecotoxicology (BIO4146), taught by Dr. Jules Blais.
[18] At no time did Dr. Blais ever witness any inappropriate or disturbing behaviour or conduct by the Appellant. Moreover, Dr. Blais did not receive any complaints from any other students or staff members regarding the Appellant.
[19] The Appellant has no criminal record. He has never been charged with a criminal offence. Prior to March 3, 2011, he had never had any contact with the police. Further, the Appellant has no history of mental illness or psychiatric treatment.
[20] By all accounts, the Appellant is a productive, law abiding, pro-social individual.
[21] Between January 31, 2009 and February 1, 2009, the Appellant successfully completed a Canadian Firearms Safety Course (“CFSC”) and Canadian Restrictive Firearms Safety Course (“CRFSC”).
[22] Each course had both an instructional component and two examinations, one written and one practical. The Appellant excelled in both courses, scoring 100% and 98% on the CFSC exams and 92% and 96% on the CRFSC.
[23] The Appellant also acquired a firearms range membership card through a local shooting club, the Eastern Ontario Handgun Club (“EOHC”).
[24] In order to join the EOHC, the Appellant completed an additional safety course, which he passed successfully.
[25] The value of the Appellant’s firearms collection was calculated at approximately $15,000.00. It is uncontested that the Appellant took firearms safety very seriously. To that end, the Hearing Judge found:
“The materials seized were stored properly. Vardomskiy’s firearms licences as well as eleven firearms registration certificates were also seized...There is no question that defence is correct in submitting that he complied with the law to the letter. He appears to be ‘a conscientious, safe and responsible target shooter and gun collector’ in the manner the items were purchased and stored.”[^3]
[26] On February 18, 2011, the Appellant wrote a midterm exam at the University of Ottawa on Ecotoxicology. On page two of the exam the Appellant wrote: “this girl in front of me is behaving in a wanton manner, almost slut/whore like. Despicable!”
[27] On page three of the exam the Appellant wrote: “TAP RACK BANG”.
[28] On page three of the exam, in Russian, the Appellant wrote: “this is a fucking exam...etc”. On page one of the exam, in German, the Appellant wrote: “oh shit...etc.”
[29] The examination was initially graded by a female teaching assistant. The teaching assistant contacted Dr. Blais to report that she found the markings on the Appellant’s exam to be very disturbing.
[30] Upon reviewing the Appellant’s examination, Dr. Blais brought the matter to the attention of the University administration, who consulted with the Ottawa Police Service (“OPS”). As a result, Detective Chris Tessier of the OPS was called in to investigate.
[31] It is conceded that the University took no disciplinary action whatsoever against the Appellant. He was not issued a trespass notice. He was not expelled. He was not suspended. Moreover, he was allowed to register in courses for the next semester.
[32] Dr. Blais agreed that he tried to encourage the Appellant. Indeed, Dr. Blais recognized that the recent events “were hard on him too”.
[33] Within half an hour of the University contacting the OPS, seven police officers in full tactical gear from the guns and gangs unit descended on the campus. Detective Chris Tessier removed the Appellant from class and questioned him in a bathroom. Detective Tessier noted that the Appellant was “polite and cooperative.” His manner was “calm and collected”. The Appellant did not act angrily or violently. He displayed no paranoid, suicidal or homicidal intentions.
[34] During this encounter, Detective Tessier confronted the Appellant about the meaning of “TAP RACK BANG”. The Appellant denied that it was a firearms related reference.
[35] During his testimony, the Appellant admitted that he had not been candid with Detective Tessier on this point.
[36] The Appellant was not arrested. Rather, Detective Tessier released the Appellant with the understanding that he would attend at the Appellant’s house to determine the manner in which his firearms were stored.
[37] Detective Tessier conceded that this was the first public safety warrant that he had ever drafted. Moreover, he conceded that his approach could be characterized as “better safe than sorry”.
[38] Detective Tessier agreed that it would have been helpful to have a psychiatric opinion or assessment of the Appellant to determine whether or not he posed a threat to public safety in preparation for drafting the warrant.
[39] Detective Tessier conceded that the laws of firearms storage are complicated and can be difficult to apply and interpret, even for an expert in the area. Nevertheless, all of the firearms kept at the Appellant’s home were stored beyond the legal requirements. Further, all of the ammunition seized was locked in a safe, which exceeded the legal standard.
[40] In the circumstances, no charges of unlawful use or careless storage of firearms or ammunition were laid in this case.
[41] It is uncontested that parliament has not sought to impose a limit on the number of firearms a licenced individual can possess. Further, there is no limit on the amount of ammunition a licenced individual can possess.
[42] The Appellant retained Dr. Jonathan Gray, a forensic psychiatrist, to provide an expert opinion on the Appellant’s mental health and suitability to possess firearms, in preparation for the initial hearing.
[43] Dr. Gray was provided with a complete copy of the Crown’s disclosure, as well as access to the Appellant’s previous counselling records with the University of Ottawa.
[44] The following five questions were posed to Dr. Gray regarding the Appellant’s mental health:
(i) Does Mr. Vardomskiy suffer from any psychiatric condition or disorder?
(ii) Is Mr. Vardomskiy in need of psychiatric treatment?
(iii) Does Mr. Vardomskiy present with suicidal or homicidal ideation?
(iv) Is Mr. Vardomskiy a danger to himself or others?
(v) Is there, in your psychiatric opinion, any reason why it would not be desirable in the interest of the public safety for Mr. Vardomskiy to possess firearms?
[45] Dr. Gray’s response to these questions were as follows:
[46]
(i) There is no evidence to support any psychiatric condition or disorder regarding Mr. Vardomskiy. His reactions are well within the range of normal and are expectable.
(ii) As Mr. Vardomskiy does not suffer from any mental illness, he does not require continued psychiatric treatment.
(iii) Mr. Vardomskiy does not display suicidal or homicidal intentions. He did not make specific threats on the examination paper or at any time in the past.
(iv) Mr. Vardomskiy does not present a danger to himself or others.
(v) Given the conclusions reached on the above four issues, there is no reason why it would not be desirable in the interest of public safety for Mr. Vardomskiy to possess firearms. Mr. Vardomskiy has, in the past, safely used his firearms in the legitimate hobby of target shooting. There are no risk factors to future violence to cause a public safety concern with Mr. Vardomskiy getting access to his weapons.
[47] Notably, Dr. Grey’s evidence stood alone, uncontradicted.
Issue
Did the Hearing Judge err in law by shifting the burden of proof?
[48] Counsel agree that the leading Ontario case on the test under section 117.05 is R. v. Bokhari, supra. The approach of Blacklock, J. in Bokhari has been endorsed by this Court (sitting on Appeal) in R. v. Davidson.[^4]
[49] Courts have equated the test for an Application for forfeiture of items seized under section 117.05 to the test of a Crown Application for a prohibition Order under section 111 of the Criminal Code.[^5]
[50] In the hearing of an Application pursuant to section 117.05, the burden of proof rests on the Applicant or the Crown.[^6]
[51] The standard of proof is not the ordinary standard of “proof beyond a reasonable doubt”. Rather, the standard is “the balance of probabilities”.[^7]
[52] In Ontario, the test for a Court hearing a section 117.05 Application requires the Justice to address the following question:
“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?”[^8]
Standard of Review
[53] When appealing an error of law, the standard of review is one of “correctness”.[^9]
[54] The Appellant contends that during the initial hearing, it is not the role of the Respondent (Appellant) to justify his or her possession of firearms. Rather, having obtained the appropriate licences, he or she should be allowed to possess them, unless the Crown can prove that the firearms should be taken away.[^10]
[55] In short, the Appellant contends that what is “on trial” is whether the Crown’s evidence at the hearing establishes objectively reasonable grounds to confirm the peace officer’s forfeiture application under section 117.04.[^11]
[56] The Hearing Judge began her Judgment by correctly identifying that it is the Crown who bears the onus on a balance of probabilities, where she said:
“Crown bears the onus of establishing on a balance of probabilities that there are legitimate concerns, which arise from the evidence before me, that he currently lacks the responsibility and discipline of a gun owner.”[^12]
[57] The Hearing Judge then went on to say:
“...that is not the issue before me; rather that issue is whether he is a responsible and disciplined gun owner and whether it is in the public interest for this man to have in his home those weapons and ammunition”.[^13]
[58] Up to this point, the Hearing Judge appeared to have a clear grasp of the sole issue before her and who, as between the two parties, bore the legal onus.
[59] However, in reference to Dr. Gray’s report, the Hearing Judge commented:
“My role is to assess public safety[^14] and the alarm bells are not diminished by this expert report.”[^15]
[60] It appears at this juncture that the Hearing Judge began to shift the burden of proof. Query whether the Hearing Judge was adverting to the need for the Appellant to prove, through the tendering of the expert report, that he is a person who should be entitled to keep his firearms and ammunition?
[61] The shifting burden becomes more apparent as the Hearing Judge reaches what is effectively the analysis portion of her decision, as we read in paragraphs 12 and 13. Beginning in paragraph 12, the hearing Judge focuses her reasoning on the deficiencies in the Appellant’s case, where she said: “Nothing persuaded me in his own evidence that his thought process has improved”[^16]. And further that: “I am far from persuaded given the large quantity[^17] of weapons and ammunition in that home...”[^18] Moreover, “There is little proof of his professed regular attendance at a rifle range.”[^19]
[62] Finally, the Hearing Judge arrived at the penultimate statement of the legal test, where she said “There is a fairly low threshold to be met and he has failed to do so. It is not in the public interest or him to possess these or any weapons. The application is granted.”[^20] (Emphasis added).
[63] The Appellant contends that when read cumulatively, the Hearing Judge’s reasons show that she placed the burden of proof on the Appellant. Most telling is her closing sentence, where she said: “There is a fairly low threshold to be met here and he has failed to do so.” (Emphasis added).
[64] The Crown contends that on Appellant review, this Court should not engage in a word-by-word analysis. Rather, this Court should undertake an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components.[^21]
[65] The Crown included in its materials the decision of Rothstein, J., for a unanimous Supreme Court, wherein the Court said:
“Rowells, J.A. was correct that failure by a Trial Judge to apply the correct standard of proof in assessing evidence would constitute an error of law. The question is how much failure may be apparent in the reasons of a Trial Judge. Obviously, in the remote example of a Trial Judge expressly stating an incorrect standard of proof, it will be presumed that the incorrect standard was applied.”[^22]
[66] While the Hearing Judge correctly stated the test in paragraph 1 of her reasons, she expressly stated the opposite at the conclusion of her reasons, which was the incorrect standard of proof. Accordingly, it will be presumed that the incorrect standard was applied.
[67] In the circumstances, the Crown further contends that whether the correct standard was expressly stated or not, the presumption of correct application will apply unless it can be demonstrated by the analysis that the incorrect standard was applied.
Analysis
[68] With respect, the Hearing Judge’s misstatement of the correct standard of proof was not made in isolation. Rather, the cumulative effect of the Hearing Judge’s reasons led her to the incorrect conclusion, as she expressly and unequivocally stated it.
[69] Firstly, the Hearing Judge said that nothing persuaded her in the Appellant’s own evidence that his thought process had improved. Secondly, on more than one occasion, the Hearing Judge commented on the large quantity of weapons and ammunitions in the Appellant’s home, noting that she was not persuaded that he should be in possession of the items. At one point, the Hearing Judge said: “It must be remembered that we are not dealing with a gun or two. I believe the collection was referred to as an arsenal by police and eleven weapons were registered to him.”[^23] Thirdly, the Hearing Judge commented on there being little proof of the Appellant’s professed regular attendance at a rifle range. Moreover, earlier in her decision she said: “He referred to frequent attendances at the shooting range with friends, yet no supporting evidence other than a membership as I recall was provided. I have an underlying concern about the reality of that large number of weapons and ammunition in that family home.” [^24] Fourthly, the Hearing Judge commented on the fact that neither of the Appellant’s parents or his brother appeared at the hearing.[^25] All of which resulted in the conclusion: “There is a fairly low threshold to be met here and he has failed to do so.” (Emphasis added)
[70] In the result, the Hearing Judge expressly stated an incorrect standard of proof at the conclusion of her reasons. Moreover, as demonstrated by the analysis leading up to her errant conclusion, the Hearing Judge shifted the onus of proof from the Crown to the Appellant, which constitutes an error of law.
[71] As the Crown earlier conceded, if the Appellant demonstrates that the Hearing Judge committed an error of law, the appeal would be granted unless the Crown convinced the Court pursuant to section 686(1)(b)(iii) of the Criminal Code that no substantial wrong or miscarriage of justice has occurred. Accordingly, the Crown bears the onus of demonstrating that there was no miscarriage of justice.
[72] The Crown contends that it is important to note that we are not dealing with liberty interests of the Appellant. As both the Ontario Court of Appeal and the Supreme Court of Canada have said, the liberty interests of individuals are not engaged by the s.117 process.[^26]
[73] The Crown asserts that most of the case law dealing with the nature of the error of law contemplated by section 686(1)(a)(iii) arise in the context of the curative proviso, which brings about an assessment of the nature and seriousness of the error. There are essentially two classes of errors which have been identified by reviewing Courts and which have led to a proper application of the proviso. The first category is that of “harmless” errors or errors of a minor nature having no impact in the verdict. The second category encompasses “serious errors”, which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing Court concludes that there was no substantial wrong or miscarriage of justice.[^27]
[74] The Crown contends that if there was an error of law, it is minor, having no impact on the verdict. In the alternative, even if the error was not minor, the evidence adduced at the hearing was so overwhelming that that the reviewing Court can conclude that there was no substantial wrong or miscarriage of justice.
[75] I find that the Hearing Judge, having expressly stated an incorrect standard of proof, which was preceded by her analysis that shifted the burden of proof to the Appellant and was exacerbated by irrelevant considerations, such as the number of firearms owned by the Appellant, when taken together fails squarely within the second category of serious errors.
[76] To that end, the Appellant relies on the decision of the Supreme Court in R. v. Trochym, where the Court said:
“The instant case is one that falls squarely within the second category of serious errors that would justify a new trial unless the properly adduced evidence is so overwhelming that a conviction is inevitable, or would invariably result. This standard should not be equated with the ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errors reflects a higher standard appropriate to Appellate review. The standard applied by the Appellate Court, namely that the evidence against an accused is so overwhelming that conviction is inevitable, or would invariably result, is a substantially higher one that the Crown prove its case ‘beyond a reasonable doubt’ at trial.”[^28]
[77] The Appellate contends that Courts in Ontario and elsewhere have outlined numerous factors for a Justice to consider when hearing a section 117.05 Application. While no factor is determinative, some factors are negative and militate towards allowing the Crown’s Application. Others are positive factors in favour of denying the Crown’s Application.
[78] Certain negative factors that could have supported the Crown’s Application are as follows:
(a) Does the Respondent (Appellant) suffer from a currently uncontrolled medical condition?[^29]
Answer: No. There was no such evidence before the Court.
(b) Does the Respondent (Appellant) have propensity for violence?[^30]
Answer: No. There was no such evidence before the Court.
(c) Was the Respondent (Appellant) ever seen to act violently?[^31]
Answer: No. There was no such evidence before the Court.
(d) Does the Respondent (Appellant) have a criminal record?[^32]
Answer: No. There was no such evidence before the Court.
(e) Is there any evidence, medical or otherwise, that the Respondent suffers from a psychiatric disorder, mental illness, or has expressed suicidal thoughts?[^33]
Answer: No. Regardless of the Hearing Judge’s views of the Appellant’s comments, there was no evidence called by the Crown to refute Dr. Grey’s medical opinion regarding the absence of any psychiatric disorder, mental illness, or suicidal thoughts.
(f) Is there evidence that the Respondent (Appellant) used firearms unsafely or discussed unsafe or illegal practices?[^34]
Answer: No. Indeed, the Hearing Judge came to the opposite conclusion.
(g) Is the Respondent (Appellant) involved in illegal activities?[^35]
Answer: No. There was no such evidence before the Court.
[79] Certain positive factors that could undermine the Crown’s Application include the following:
(a) Is there evidence that the Respondent (Appellant) was “cautious and careful” with guns?[^36]
Answer: Yes. The Hearing Judge found as a fact:
“There is no question that Defence is correct in submitting that he complied with the law to the letter. He appears to be a conscientious, safe and responsible target shooter and gun collector in the manner the items were purchased and stored”.[^37]
(b) Has the Respondent (Appellant) gone beyond the “strict requirements” of the law in the storage of his or her firearms?[^38]
Answer: Yes, based on the testimony of Detective Tessier and the express findings of the Hearing Judge.
(c) Has the Respondent (Appellant) passed “with flying colours” the test required to obtain the firearms in question?[^39]
Answer: Yes, see paragraph 22 above.
(d) Is the Respondent (Appellant) a member of a shooting club with an increased educational standard?[^40]
Answer: Yes, see paragraphs 23 and 24 above.
(e) Is there a current positive psychiatric report before the Court?[^41]
Answer: Yes, with inference to the report and evidence of Dr. Grey.
(f) Does the psychiatric report state that there is no reason why the Respondent (Appellant) should not be permitted to possess firearms?[^42]
Answer: Yes, with inference to the report and evidence of Dr. Grey.
(g) Where there is an alleged threat, is it vague or clear? Can it be construed in another manner other than suggested by the Crown?[^43]
Answer: Yes. There was no finding of an alleged threat made to anyone in particular.
(h) Where a disturbing statement has been made, has the Respondent (Appellant) made an attempt to withdraw it or explain that it was made in a moment of anger.[^44]
Answer: Yes. Whether he was believed or not, the Appellant gave evidence and apologized for his insensitive and immature markings on his exam paper.
Held
[80] Having found that the Hearing Judge erred in law, as articulated above, I find it unnecessary to consider the additional grounds of appeal raised by the Appellant.
[81] Further, having regard to the factors articulated in the decided cases as set out above, the properly adduced evidence was not so overwhelming that the order sought by the Crown was inevitable, or would invariably have resulted. Accordingly, the decision to grant the s.117.05 Order cannot stand. It is, therefore, set aside.
[82] The Court orders that the matter be sent back for a new hearing, before a different Judge of the Ontario Court of Justice. Having done so, in considering the factual matrix of the case before Durno, J. in R. v. Day [2006] O.J. No. 3187, a decision of this Court, parenthetically
one wonders whether the Crown can discharge the burden in this case, assuming that the same evidence is placed before the Court.
The Hon. Mr. Justice Brian Abrams
Released: June 14, 2013
COURT FILE NO.: 11-30150AP
DATE: JUNE 14, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BORIS VARDOMSKIY
Appellant
– and –
HER MAJESTY THE QUEEN
Respondent
REASONS FOR decision
Abrams J.
Released: June 14, 2013
[^1]: Reasons for Judgment at para 1, pursuant to the test in R. v. Bokhari, 2009, ONCJ691 [^2]: R. v. Lovatt, [1998]O.J. No. 2325(Ont.Ct.Gen.Div) at para. 4 [^3]: Reasons for Judgment at para. 4. [^4]: R. v. Davidson, 2011 ONSC 249, 2011ONSC249 [^5]: R. v. Bokhari, supra at para. 8 [^6]: R. v. Bokhari, supra at para.11 [^7]: R. v. Zeolkowski, [1989] 1 SCR 1378 at para. 17 See also R. v. Bokhari, supra at para. 11 [^8]: R. v. Bokhari, supra at para. 12 [^9]: R. v. Davidson, supra at para.14 [^10]: R. v. Urchuk, 2004 BCPC 129, 2004BCPC129 at para.13 [^11]: R. v. Zeolkowski, supra at para. 16 [^12]: Reasons for Judgment at para.1 [^13]: Reasons for Judgment at para. 5 [^14]: Query also whether the Hearing Judge conflated the public interest test with the notion of public safety. [^15]: Reasons for Judgment at para. 7 [^16]: Reasons for Judgment at para. 12 [^17]: Clearly an irrelevant consideration. See paragraph 41 above. Parliament has not sought to impose a limit on the number of firearms that a licenced individual can possess. [^18]: Reasons for Judgment at para.13 [^19]: Again, whether or not the Appellant proved his professed regular attendance at a rifle range is an additional irrelevant consideration. In para. 5 of the Reasons for Judgment, the Hearing Judge found the Appellant to be an “avid collector to say the least”. An avid gun collector may never attend at a firing range, but that has no bearing on his or her meeting the requisite standard set by section 117 of the Criminal Code. [^20]: Reasons for Judgment at para. 13. [^21]: R. v. Gagnon, [2006] S.C.J. No. 17 (SCC) at para. 19. [^22]: F.H. v. McDougall, [2008] SCJNo.53(SCC) at para. 54. [^23]: Reasons for Judgment at para. 7 – Query why “it must be remembered” when the number of firearms owned by the Appellant is an irrelevant consideration, in any event. [^24]: Reasons for Judgment at para. 11- Again, all irrelevant considerations. [^25]: Reasons for Judgment at para. 13. Was there some inference to be drawn that the Appellant’s Family members were unsupportive? If so, to what end was this at all relevant? [^26]: R. v. Hurrell, [2002] OJ 2819 (Ont.CA) at para. 31 See also the decision of R. v. Zeolkowski, supra at para. 13. [^27]: R. v. Kahn, [2001] S.C.J.No.83(SCC) at para. 26 [^28]: R. v. Trochym, [2007] 1 S.C.R. 239 at para. 82 [^29]: R. v. Laframboise [2002]O.J. No.5291 at para. 8 [^30]: R. v. Dagenais [2009]S.K.P.C.113 at para. 109 [^31]: R. v. Day supra at para. 39 [^32]: R. v. Day supra R. v. Loiselle, (May 10, 2011) unreported (Ont.CTJ) at para. 3 [^33]: R. v. Dagenais, supra at para. 107 [^34]: R. v. Bokhari, supra at 23 [^35]: R. v. Bokhari, supra at para. 19 [^36]: R. v. Day, supra at para.39 [^37]: Reasons for Judgment, para. 4 [^38]: R. v. Loiselle, supra at page 3 [^39]: R. v. Loiselle, supra, para. 3 R. v. Tsapoitis [1999] OJ. No. 1913 at para. 16 [^40]: R. v. Loiselle, supra at para 3. [^41]: R. v. Dagenais, supra at para. 8. R. v. Laframbois, supra at para. 8 [^42]: R. v. Laframbois, supra at para. 8 [^43]: R. v. Laframbois, supra at para. 8 [^44]: R. v. Rajpal [2005] OJNo. 3235 Ont. Ct.J. at para. 9