COURT FILE NO.: CR-13-10000078-00MO

DATE: 20131108

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Jason Gorda, for the Crown/Respondent

Respondent

• and -

DANIEL BALOFSKY

Self-Represented

Applicant

HEARD: November 4, 2013,
at Toronto, Ontario

Michael G. Quigley J.

Reasons For Ruling

Re: Certiorari, Mandamus and Contempt

[1] The applicant, Daniel Balofsky, holds a degree in business administration and is a Chartered Accountant. He is in the business of providing accounting and business advice. However, Mr. Balofsky has other less prosaic interests as well. He is also an aficionado of guns and legally authorized to possess firearms, including restricted firearms. He is one of a number of citizens who have had recourse to the courts in the last few years in their efforts to obtain long term authorizations to be able to transport firearms generally, and not merely between permitted and specifically designated locations. This application arises in connection with that pastime and in furtherance of that objective.

[2] On this application, Mr. Balofsky seeks an order of certiorari quashing the decision of Justice of the Peace Wassenaar who declined to issue a private summons and prosecution against the Chief Firearms Officer for Ontario (CFO), Officer Chris Wyatt of the Ontario Provincial Police. Mr. Balofsky tried to commence a private prosecution under the pre-inquiry procedure in s. 507.1 of the Criminal Code charging the CFO with disobeying a court order, based on his alleged failure to comply with the September 21, 2012 order of Khawly J. to issue a long term firearms transportation authorization to Mr. Balofsky.

[3] On that date, following several earlier hearing dates, Khawly J. ordered the CFO to issue an authorization under s. 19 of the Firearms Act to Daniel Balofsky permitting him to transport firearms in his vehicle. The CFO is willing to comply with Justice Khawly’s order, but only if that transportation authorization is made subject to the conditions that the CFO and the Crown claim that Khawly J. stipulated in his reasons. Khawly J.’s reasons for judgment are actually reported, and they can be found sub. nom. R. v. Balofsky, [2012] O.J. No. 6212. However, the applicant claims that order was made without conditions, and that the CFO has committed an offence by failing to issue the firearms transport authorization unconditionally.

[4] In addition, Mr. Balofsky says that the failure of the CFO, the Registrar, the Minister of Community Safety and Correctional Services and the Attorney General, to comply with that order and issue or require the CFO to issue the open-ended general authorization that he seeks, amounts to contempt in the face of a plain and unambiguous court order. Consequently, he calls upon me to make findings of contempt against the CFO, the Registrar, the Minister of Community Safety and Correctional Services and the Attorney General of Ontario.

Summary of the background facts

[5] It all started in September 2011 when Mr. Balofsky submitted an application to the CFO for an authorization to transport restricted firearms as stipulated under section 19 of the Firearms Act (the “Act”)[^1] and Regulation SOR/98-206.[^2] That section governs the transportation and use of prohibited and restricted firearms. It stipulates in part as follows:

19. (1) An individual who holds a license authorizing the individual to possess prohibited firearms or restricted firearms may be authorized to transport a particular prohibited firearm or restricted firearm between two or more specified places for any good and sufficient reason.

[6] Amongst the reasons specified in that section that can serve as the foundation for a firearms transportation order, those that are relevant here are where the particular firearm is being transported for use in target practice, or a target shooting competition under specified conditions, or under the auspices of a shooting club or shooting range that is approved under section 29 of the Act. The firearm may also be transported if the individual changes residence, wishes to transport it to a person authorized under the Act to register or dispose of it, wishes to transport the firearm for repair, storage, sale, exportation or appraisal, or wishes to transport it to a gun show.

[7] In his application, Mr. Balofsky requested a general authorization to be allowed to transport firearms in his vehicle to any and all approved gun clubs in Ontario and to any ranges, gunsmiths, verifiers and border crossing points, all without specificity. He says that it is oxymoronic to suggest that further specification of these locations is required because he says that by definition, each of those locations is specific and the CFO will know which gun clubs in Ontario are approved under s. 29. Equally, he says that the certified ranges, gunsmiths and verifiers must also be known to the CFO. He says that the border crossing points are known to the CFO and to all of us who live in Ontario as well. However, his request for such a gun transportation authorization was denied by the CFO under the Firearms Act.

[8] As a result, the matter came before Justice Khawly of the Ontario Court of Justice as a reference for review on a hearing conducted under ss. 74 and 75 of the Act. Those sections require the provincial court judge to hear evidence and review the reasons for the CFO’s refusal to issue the authorization. The burden to show that decision was wrong or unjustified is on the applicant. After conducting the reference hearing, s. 76 stipulates that the provincial judge may:

(a) confirm the decision of the chief firearms officer, Registrar or provincial minister;

(b) direct the chief firearms officer or Registrar to issue a license, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting ranges; or

(c) cancel the revocation of the license, registration certificate, authorization or approval or decision of the chief firearms officer under section 67.

The decision and order of the provincial court judge arising out of a reference conducted under section 75 of the Act is appealable to the Superior Court in the relevant province or territory.

[9] In this case, after conducting that hearing and receiving the evidence of Mr. Balofsky and the CFO, Khawly J. issued an OCJ “form order.” That order was for the CFO to provide Mr. Balofsky with an authorization to transport.

[10] However, when Khawly J. made that order, he did not write it out to indicate what its terms might be. Neither did he write out an endorsement on the back of the record as is common in this court stipulating a decision and the reasons for it. He simply checked off a box on the generic pre-printed OCJ order form under the section dealing with the "Order Made." That line, which is checked off, simply states that the CFO is directed “to issue the authorization sought.” Although the form of that pre-printed order does allow for additional endorsements, with a box to be checked if there are any, the endorsements box was not checked and the endorsements section was left blank.

[11] It is on this basis that the applicant contends that the CFO has been directed by Justice Khawly to issue an authorization that contains no conditions whatsoever, but rather that would permit him to have and transport firearms in his vehicle at all times, in the form of the authorization that he initially sought. That would be a general and open ended authorization that specifies no particular guns to which the order applies, no particular gun clubs or ranges as the places between which guns may be transported, and no specific gunsmiths, verifiers or specific border crossing points between which Mr. Balofsky would be permitted to transport his restricted firearms.

[12] Even if the final order does not reflect it, however, a review of the transcript from that last hearing plainly shows that Justice Khawly's order was intended to be subject to the conditions he referred to and described during the course of stating his reasons. As I have noted, those reasons are reported. Indeed, and ironically given what Mr. Balofsky claims Khawly J. decided, in the decision two months ago in Henkel v. Ontario (Chief Firearms Officer), 2013 ONSC 5430, Justice Leitch of this court refers to that particular reported decision of Justice Khawly and two others as demonstrative of “the repeated refusal of the Ontario Court of Justice to grant expansive ATT requests.”

[13] In his reasons, Khawly J. stipulated a number of requirements. For example, since Mr. Balofsky was not a member of a gun club, except in British Columbia, he indicated that Mr. Balofsky was to provide the names of the specific gun club or clubs in Ontario to which he claimed to have unlimited access as a guest, and as well, was to provide evidence of that open ended status as an invitee. He was also to provide the names of any particular gunsmith or verifier that he would be going to with any of his restricted firearms. Nevertheless, while the imposition of those conditions by the judge is plain on the face of the judge's reasons for granting the order sought by Mr. Balofsky, those conditions were not included in the order itself, either explicitly or by implication, nor were they incorporated by reference in any way. The order itself purports to be bare and unrestricted.

[14] Consequently, given the allegedly clean and unconditional nature of the order that was granted, Mr. Balofsky says that the CFO was legally obliged to issue the authorization that he has been granted, and that he was required to do so without reference to the names of any specific gun clubs or specific firearms because the "application sought" by Mr. Balofsky simply referred to all approved gun clubs, ranges, gunsmiths, verifiers and border crossing points, without specificity.

[15] The CFO refused to issue such an unconditional authorization. That is not surprising because he takes the position that there were conditions stipulated in the reasons of Khawly J, and that those conditions necessarily form part and parcel of the substance of that order, on its face, and on the face of the record. In fairness to the CFO, it should be acknowledged that he indicates that he is only too willing to issue a firearms transportation authorization to Mr. Balofsky, but only if it is subject to the conditions stipulated in the reasons for judgment of the provincial court judge. On the other side of the dispute, Mr. Balofsky does not accept that there are any limitations to the order to which he is entitled, so he refuses to provide Mr. Wyatt with the names of specific gun clubs, ranges, verifiers, examiners or border crossing points.

[16] As a result of that standoff, Mr. Balofsky took steps to lay a private information against Officer Wyatt under the pre-inquiry provisions in s. 507.1 of the Criminal Code. The applicant says that the CFO must be charged with disobeying a court order under s. 127 of the Code because he refuses to issue the firearms transport authorization on an unconditional basis. However, when the applicant sought to commence that private prosecution against the CFO, his request was denied by Justice of the Peace Wassenaar. After a pre-inquiry hearing held earlier this year, Justice of the Peace Wassenaar reserved and then later provided reasons for her decision on March 6, 2013. It is that decision and those reasons that have given rise to the commencement of this application.

[17] Based on her review of the decision of Khawly J., and all of the documentation filed, Wassenaar J.P. concluded that process could not issue against the CFO because the applicant, Daniel Balofsky, had failed to establish any evidentiary basis that the CFO had committed the alleged offence.

[18] I am asked to send back that decision by way of certiorari and an order of mandamus telling the Justice of the peace to issue the process commencing the charge of disobeying a court order against the CFO. In addition, Mr. Balofsky also seeks orders of contempt against the Attorney General and various other people for their alleged bias against gun ownership and for failing to force the CFO to issue the order sought to Mr. Balofsky. Finally, he asks for the costs of obtaining the transcripts.

The test for review by certiorari

[19] The scope of review on an application for prerogative relief such as this is very limited. R. v. Russell, 2001 SCC 53 shows that my jurisdiction on a judicial review by way of certiorari is limited to considerations of whether the Justice of the Peace exceeded her jurisdiction. As a reviewing court, I am not permitted to overturn the decision of the justice of the peace merely because she may have committed an error or reached a conclusion that is different than the conclusion that I might have reached had I been hearing the matter. Rather, in order for me to issue an order of certiorari quashing her decision and mandamus commanding Justice of the Peace Wassenaar to permit the private prosecution of that CFO to continue, Mr. Balofsky must demonstrate that she committed jurisdictional error.

[20] That inquiry requires a brief examination of what the role is that is played by the judge or justice presiding over a pre-inquiry hearing held under section 507.1 of the Criminal Code. That provision is of recent origin. In enacting it, Parliament has created a proceeding for private prosecutions that places the onus on the informant to establish that a summons or warrant should be issued to compel an accused person to attend before a justice in order to answer to a criminal charge.

[21] As the Crown notes, the process involves a judicial balancing of the right of the private informant to seek justice with the right of the potential accused to not be called upon to respond to some charge without the presence of just cause. The procedure in section 507.1 was created in order to provide greater scrutiny to private prosecutions at an earlier stage in the proceedings. It is thereby intended that the pre-inquiry judge will serve a gate keeping type of function, in order to prevent frivolous and vexatious prosecutions from proceeding.

[22] After providing the notification to the Attorney General as stipulated by the section, a justice of the peace may only permit charges to be laid under these private prosecution provisions of the Code if he or she is satisfied after hearing the evidence of the witnesses that a case has been made out. That is, before issuing process, the justice must determine that the private information is not only valid on its face, but also that evidence has been presented that discloses a prima facie case of the alleged offence. Whether a prima facie case will be established depends upon whether there is some evidence against the defendant relative to each of the essential elements of the offence that is alleged.

[23] The jurisprudence under s. 507 in its previous language, and the purpose of the new legislation, both provide important guides to its interpretation. Consequently, a justice of the peace will exceed her jurisdiction and commit jurisdictional error if she makes an error of law that goes to jurisdiction or if she fails to consider the whole of the evidence in determining whether there is some evidence against the defendant relative to each of the essential elements of the alleged offence.

[24] Returning to core principles, however, as long as the justice of the peace considers all of the evidence in the course of exercising her discretion, her decision that the evidence provides an insufficient basis upon which charges could proceed is not reviewable on certiorari. In R. v. Deschamplain, 2004 SCC 76, Fish J. (dissenting, but not on this point) provided a helpful summary regarding the limits that apply to my review on certiorari. In that case it was relative to the duties of a preliminary inquiry judge, but the principles remain apposite even here where the justice of the peace has a broader range of discretion:

The governing principles are well established. The decision of the justice to commit or to discharge is not appealable. It is, however, reviewable on certiorari, but only for excess of jurisdiction. An error as to the sufficiency of the evidence is not reviewable on certiorari except where it results in a committal to trial in the absence of any evidence capable of supporting a conviction. Nor is the failure of the justice to explicitly advert to relevant and admissible evidence, whether wrongly excluded or properly admitted. In some instances, errors of this sort may be appealed as errors of law: see, for example, sections 675, 676, 691 and 693 of the Criminal Code. At the preliminary inquiry, however, they are neither appealable nor reviewable on certiorari.

[25] The offence of disobeying a court order is described in section 127 of the Code. It is important to note that the provision only applies to the extent that no other punishment or mode of proceeding is expressly provided by law to address the particular circumstances of the alleged offence, but there is no suggestion here that there is any other punishment or process provided for the disobeying of this particular order. As such, there is no suggestion here that the information put before Khawly J. was facially invalid.

[26] Consequently, that leaves the elements of the offence to be considered. In determining whether there was some evidence against the defendant before the Justice of the Peace relative to each of the essential elements of that alleged offence, I note that there are simply two elements. The actus reus of the offence of disobeying a court order under s. 127 of the Code is not difficult to comprehend. In the absence of a lawful excuse, or any other provision being applicable, the simple action of refusing to issue the transportation authorization in the face of Khawly J.’s order would presumably be adequate to establish the actus reus of the offence in this case of disobeying an order of the court.

[27] However, the mens rea element must also be present. It requires a specific intention on the part of the CFO to disobey that order. The CFO can only be prosecuted if the Justice concludes on the whole of the evidence before her that he not only disobeyed that order, but also had the mental element, the intention to not comply and the knowledge that failing to comply was a breach of the law.

[28] Finally, relative to the applicant’s claims of contempt against the CFO as well as various other public officials, I note that the existence of this offence does not take away from the power of the court to control its own process through the mechanism of contempt, and that it does not supersede the inherent power of a court of justice to punish summarily for contempt committed in the face of the court.

Analysis

[29] Mr. Balofsky's case is premised on the proposition that there were no conditions included in the order issued by Khawly J. and consequently that the CFO was and is required to issue an unconditional firearms transportation authorization. It is his position that the CFO has been directed by the court to issue an authorization with no conditions, an open-ended authorization to have firearms in his vehicle at all times.

[30] In support of the additional claims of contempt raised before me, the application record includes the scurrilous correspondence sent from an obviously riled MPP, Randy Hillier, to both the Attorney General and the Minister of Community Safety and Correctional Services about allegedly failing to enforce the law in this case by requiring the CFO to carry out “an unconditional order from an Ontario judge.” Mr. Hillier admonishes the Attorney General to see to it “that the administration of public affairs is in accordance with the law.” He delivers a written tongue-lashing to the Minister of Community Safety and Correctional Services for permitting the CFO to “unduly harass law-abiding citizens,” like Mr. Balofsky, admonishing her to “work swiftly to correct the consistent failings that seem to have overwhelmed Ontario’s Chief Firearms Office.” That conduct is what is claimed to support the applicant’s request for contempt orders against those public officials.

[31] If the underlying premise to Mr. Balofsky’s case is incorrect, however, then there would be no basis for any private prosecution of the CFO to be commenced under the pre-inquiry process or otherwise because there would be basis to conclude that the CFO had or was continuing to disobey a court order. Not surprisingly, taking account of Justice Khawly's reasons together with the order made under section 76 of the Firearms Act, the CFO has refused to issue such an order.

[32] It is interesting, relative to the issue of jurisdiction, that Mr. Balofsky did write to Justice Khawly after the initial order was made and this process had been commenced. The judge replied in a letter dated March 6, 2013. The judge stated that he regarded himself as being officially functus in this case, which he said meant that Mr. Balofsky would have to pursue other avenues of redress at that point, but it is significant in my mind that he also did continue that "as the matter was a reference, if the Crown agrees to bring this matter before me, then he can assist you in doing so."

[33] Based on that correspondence, it seems that Justice Khawly would have been and perhaps continues to be willing to have the parties back before him to clarify the intendment of his order. Presumably, he would be still. But that would probably not have been a solution that would have appealed to Mr. Balofsky, given his determination to force the issuance of an unconditional order. That is not a solution that suits Mr. Balofsky because despite his protestations that he simply wants to have a simple unconditional order enforced, it was plain from his materials and the reasons that Khawly J. gave that he has more important objectives to achieve.

[34] Mr. Balofsky and his fellow aficionados of firearms reject that there should be any limitations on their ability to transport their restricted firearms in their vehicles, essentially wherever and whenever they want to. That is why he remains so insistent that the order issued by Khawly J. was unconditional. That is why he is adamant to bring this private prosecution against the CFO of the province for failing to comply with that allegedly unconditional order. Indeed, Khawly J. recited in his reasons some of the history that bears out that point:

Mr. Balofsky was previously issued an LTATT in November 2010 for a period of five years. It required him to maintain his membership at Silverdale Gun Club, an Ontario-based club. It allowed him to transport said restricted firearms only to approved gun clubs and ranges in Ontario. Yet within weeks the membership expired and was not renewed.

While Mr. Balofsky then joined a gun club in British Columbia, any reasonable person would have reached the conclusion that this was a violation of the LTATT. It seems to this Court that Mr. Balofsky purposely let his membership lapse to see what the CFO would do while fully intending to launch a challenge, were the suspension of his authorization to follow. However, things did not turn out that way. (my emphasis)

[35] In the end, Mr. Balofsky’s choices were (i) to ignore the internal revocation of his LTATT and continue to transport his firearms as if it were in force, and wait to see what happened, or (ii) he could request a new LTATT in the terms he did here and if it were to be denied owing to him not belonging to a gun club in Ontario, then he could challenge that decision. That is what happened leading to the refusal of the CFO to issue him a new authorization, and that in turn led to the hearing before Khawly J. In turn, the CFO’s decision not to issue an unconditional authorization after that review is what has led to the attempt to launch a private prosecution against the CFO and ultimately to this certiorari application owing to the J.P’s determination not to issue that process.

[36] Nevertheless, and regardless of that history and what his or his colleagues’ motivation may be, there is a simple question before this court. That is whether Justice of the Peace Wassenaar exceeded her jurisdiction when she declined to issue process against the CFO at the instance of this applicant under section 507.1 of the Criminal Code. It is only if I find that she did exceed her jurisdiction that I may intercede and send this matter back to her with an order that process be commenced, and the onus to establish that she did exceed her jurisdiction rests solely on Mr. Balofsky.

[37] The essence of Mr. Balofsky’s dispute with the decision of Wassenaar J.P. can be found at paragraphs 54 through 57 of his factum. There he alleges that the Justice of the Peace improperly focused her attention solely on the submissions of the Attorney General’s representatives, to the point where he claims that she failed to consider the allegations and evidence that he put before the court. He says that she did not make any consideration or determination regarding the sufficiency of his allegations and evidence, especially having regard to the pre-printed court order form that was signed by the judge, which Mr. Balofsky claimed before me was “some evidence” which would have supported the charges he sought to have issued against the CFO. This leads to his profound disagreement with her statement that “…in this court’s opinion, there is no evidence for process against Mr. Chris Wyatt.” As such, Mr. Balofsky claimed that it was jurisdictional error for the Justice of the Peace to entertain and weigh the evidence and in that way to effectively collaterally attack what he claims was the unconditional nature of Justice Khawly’s court order.

[38] However, I find that position and line of argument cannot succeed. It is a position that must be rejected on the basis of the entire record that was before me. It is plain to me on the entire record before this court that the applicant’s request for certiorari and mandamus against the Justice of the Peace for failing to issue process against Mr. Chris Wyatt, the CFO of Ontario, must fail. The reasons are plain and obvious.

[39] First, I would observe that it is part of the obligation of the Justice of the Peace to engage in a limited weighing of the evidence that was presented before her. That limited weighing of evidence is required to permit her to determine whether there was some cogent evidence available that could support each of the elements of the offence of disobeying a court order: see R. v. Arcuri, 2001 SCC 54.

[40] It is evident to me from the decision of Wassenaar J.P. that she did just that. Just as the judge would do at a preliminary inquiry in determining whether to commit an accused for trial, so too the justice here must consider all of the evidence that was tendered at the hearing and engage in a limited weighing in determining whether to issue process. If the evidence is inadequate in its totality to make out or establish a prima facie case, then the process may not legally issue against the accused.

[41] Commencing at page 3, line 15 of the March 6, 2013 transcript of her reasons, the Justice acknowledges having read through all of the relevant documentation. She considered it all. She stated

… I have read through all of the documentation and I read the judgment from Justice Khawly in relation to what he felt needed to happen. It seems clear to me that he expects you to comply with the requirements. (my emphasis)

[42] Based on that review of all of the documentation, and not simply the order standing alone, it appears to have been evident to the Justice of the Peace that Justice Khawly was concerned to make sure that Mr. Balofsky would only be granted a firearms transportation authorization to go to a particular gun club, one from which he would not be turned away. Khawly J. wanted the transport to be between specific places. That is not surprising since it is plainly required on the words of the statute. He wanted a specific gun club mentioned, although left it open-ended. He was more than happy to have more than one gun club mentioned. If Mr. Balofsky had listed a number of specific gun clubs where it could be verified that he was welcome to attend as a guest, or a number of specific gunsmiths and verifiers, this would also have been acceptable.

[43] These points are plain on the face of the reasons of Khawly J. given when he reviewed the reasonableness of the prior decision of the CFO. He states in part as follows:

He [ie. the CFO] was prepared to grant an LTATT without the requirement of an Ontario-based membership with the caveat that unlimited guest access in a specific Ontario-based club be a condition of the authorization. In my view, that power is not beyond what Parliament had contemplated. It meets the requirement of both good and sufficient cause within the context of public safety.

In similar fashion, the authorization should include the transport to gunsmiths or verifiers. Logically, it is in the public interest in terms of safety that firearms are in proper working order. It is nonsensical to deny such authorization on the basis of infrequency as the CFO has done.

In light of my comments above and pursuant to section 76 of the Act, I am making an order to the CFO to authorize a long-term authorization to transport to Mr. Balofsky, as I have outlined it. I am asking Mr. MacDonald [counsel to the Canadian Firearms Office] to sit down with CFO personnel and with Mr. Balofsky to draft said authorization. It would list as well one named gunsmith or verifier (my emphasis).

[44] The point that is evident in Wassenaar J.P.’s reasons, as it was in the reasons of Khawly J, is that before Mr. Balofsky could be granted the authorization he sought, he must provide the names of specific gun clubs where he may attend with his restricted firearms as a guest to permit that status to be verified, and he must provide the name of whatever specific gunsmiths and verifiers he intends to go to with his firearms. What appears to have been inadequate to Khawly J, and inadequate I would note to the Justice of the Peace, is the notion that no specific names needed to be provided.

[45] Further, at page 4 of the transcript, the Justice of the Peace notes that the CFO wrote a number of letters to Mr. Balofsky. The CFO indicated his willingness to issue the transportation authorization, if the applicant would only provide the specific names of the gun clubs to which he intended to transport his restricted firearms, or the gunsmiths or verifiers he intended to use to service his firearms and continue to verify their compliant status. The Justice of the Peace noted one letter from the CFO to Mr. Balofsky dated December 18, 2012 that stated in part as follows:

When you provide to us the name of a gunsmith, the address of that gunsmith, and that gunsmith’s hours of operation, we will be pleased to issue a Long Term ATT allowing you to take your registered restricted firearms there when you need to. Similarly, when you provide us with the name, address, and hours of operation of the verifier to whom you wish to take your registered restricted firearms, we will issue you a Long Term ATT allowing you to take your guns to that person.

[46] Wassenaar J.P. continued that having read all of that correspondence, it seemed very clear to her that there was willingness on the part of the CFO to issue the Long Term ATT which Mr. Balofsky wished to receive, if he would only provide the documentation that was required. She then continued:

So, in this court’s opinion, there is no evidence for process against Mr. Chris Wyatt. So that is the end of the matter here.

If you feel you have issues, you need to return them to Judge Khawly, sir, because he has said so. If there is a problem, you bring it back to me [ie Khawly J.].

[47] Mr. Balofsky says that the judge made jurisdictional error by stating that there was “no evidence for process against Mr. Chris Wyatt”, on the basis that the bald unconditional order that was issued by Khawly J without regard to his reasons constitutes such evidence, but I reject that line of argument.

[48] Looking at the elements of the offence, there does seem to be evidence of the actus reus of the offence insofar as the order of Khawly J. stipulates that the firearm transportation order is to be issued by the CFO, and it is admitted that it was not. It has still not been issued. So it is plain that there was an order made by the court, and it has not been obeyed.

[49] However, Mr. Wyatt can only be found guilty of an offence that he failed to obey that order of Justice Khawly by failing to issue the firearm transportation authorization that Mr. Balofsky wants to receive if he had the specific intention of disobeying Justice Khawly’s order. Contrary to Mr. Balofsky’s submissions, however, the evidence is entirely the opposite. The evidence is that the CFO had every intention of obeying the order made by the judge, and the evidence is that Justice Khawly did impose conditions when he granted Mr. Balofsky’s request to receive the firearm transportation order. Even if his failure to check off the box without averting to the conditions that he had clearly indicated on the record were meant to accompany the order amounts to a technical error, that does not permit his order to be regarded as bare and unconditional. It is not bare and it is not unconditional.

[50] The order is issued based on the reasons provided by the judge. In the absence of reasons, the order would be invalid because it would not be possible to determine the basis upon which the order was granted, and that is a requirement which is clear in our law. Decision-makers are required to give reasons for their decisions, reasons that permit those affected to know why the particular decision or order was made and to permit those decisions to be subjected to appellate review.

[51] For Mr. Balofsky to argue before this court as he argued before Justice of the Peace Wassenaar, that the order issued by Justice Khawly was without conditions is, frankly, misleading and disingenuous. On any full and fair reading of the entire proceedings, it is evident that the order was issued on a conditional basis. It is unreasonable and nonsensical to have regard to that order without taking account of the reasons that outline the conditions it was plainly intended to include. As such, the CFO could not have the prerequisite criminal intent to disobey an order of the court when he was willing to issue the order, but insisted that those conditions be included in any order that would issue where he honestly and reasonably believed that order to have been conditional.

[52] It is for this reason that there was no jurisdictional error in Justice of the Peace Wassenaar’s statement that there is no evidence for process against Mr. Chris Wyatt. That statement is correct because it is a statement that she makes on the entirety of the evidence, not just one particular piece, as Mr. Balofsky would have it. As such there is no foundation to grant Mr. Balofsky the remedies he seeks, either the certiorari and mandamus, or the findings of contempt he seeks against the CFO, the Registrar, the Minister of Community Safety and Correctional Services, or and the Attorney General of Ontario.

[53] I have considered as well whether it is open to me to correct the technical error that exists in the order of Khawly J. and that has given rise to these proceedings and those before Justice of the Peace Wassenaar. I considered that on the basis that the technical mistake of the order not including the conditions that were obviously intended is an error of law on the face of the record that may be corrected within the general supervisory jurisdiction of superior courts of record. However, I have concluded that the more prudent course is to resist that temptation.

[54] The most obvious and simple solution to the problem, given the inconsistency between the judge's reasons for his order and the actual order that was issued would be to have the matter return to Justice Khawly to have him clarify whether his order is unconditional, simply because of a box checked on the pre-printed form order and notwithstanding his reasons which appear to indicate the contrary, or whether it was intended to incorporate the conditions he articulated in his reasons. Given that his decision emerged from a reference, I expect that Justice Khawly might consider he was not functus to at least that limited extent, but that is a determination that he alone can make.

Conclusion

[55] In conclusion, it is inappropriate to grant certiorari, or to issue an order of mandamus requiring that the Justice of the Peace issue process under s. 507.1 of the Code. Not only is there no jurisdictional error which could be the foundation for such a prerogative remedy, but there is no evidence of an offence which could have given rise to the issuance of process under that provision. The application is dismissed.

Michael G. Quigley J.

Released: November 8, 2013

COURT FILE NO.: CR-13-10000078-00MO

DATE: 20131108

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

DANIEL BALOFSKY

Applicant

REASONS FOR JUDGMENT

Michael G. Quigley J.

Released: November 8, 2013

[^1]: Firearms Act, S.C. 1995, c. 39.

[^2]: Regulation SOR/98-206; Authorizations to Transport Restricted Firearms.

[^3]: 2013 ONSC 5430, released September 10, 2013.

[^4]: See: Johnson v. Ontario (Chief Firearms Officer), 2011 ONCJ 567 (O.C.J.) and R. v. Minuskin, [2009] O.J. No. 6441.

[^5]: R v. Russell, 2001 SCC 53, [2001] S.C.J. No. 53 at para. 19.

[^6]: R. v. Grinshpun, [2004] B.C.J. No. 2371 (B.C.C.A.), leave to appeal dismissed [2004] S.C.C.A. No. 597, at para. 34.

[^7]: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 25 and R. v. Manassari, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28. See also R. v. Magno (2006), 2010 C.C.C. (3d) 500 (Ont. C.A.) and R. v. Plaha, 2008 ONCA 96.

[^8]: 2004 SCC 76, [2004] S.C.J. No. 73.

[^9]: See R. v. Clement (1981), 61 C.C.C. (2d) 449 (S.C.C.); Re Gerson (1946), 1946 51 (SCC), 87 C.C.C. 143 (S.C.C.).

[^10]: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

[^11]: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30. See also R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 25.

[^12]: Firearms Act, above, s. 19(1) stipulates that the transportation permitted is between two or more specific places. one of those are provincially approved shooting ranges and gun clubs as set out in s. 29. Further, s. 58(1) permits the CFO to “attach any reasonable condition that it considers desirable in the particular circumstances and in the interests of the safety of the holder or any other person.”

[^13]: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.