R. v. LeClair, 2015 ONSC 3056

CITATION: R. v. LeClair, 2015 ONSC 3056

COURT FILE NO.: CR-14-426-00AP

DATE: 2015 May 14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ERIC LeCLAIR

Appellant

A. Scott, for the Crown

L. MacLauchlan, for the Appellant

HEARD: April 24, 2015 at Napanee

TAUSENDFREUND j.

appeal decision

1This is an appeal of a firearms prohibition hearing in the Ontario Court of Justice before Justice S. J. Hunter on November 13, 2014. The Order prohibited the Appellant/LeClair under section 111(5) of the Criminal Code of Canada from possessing weapons and ammunition for two years.

BACKGROUND

2On July 18, 2014, the police received information that the Appellant, then age 37, had been drinking all day, had numerous firearms at his residence and had expressed his intention to kill himself.

3The police attended at the Appellant’s residence and found him to be highly intoxicated and distraught. They located firearms in the residence. All were properly stored. He was apprehended without incident under the Mental Health Act and transported to a hospital for a psychiatric assessment. On the way to the hospital, the Appellant asked to borrow the constable’s rifle in the cruiser so that he could kill himself.

4At the accused’s residence, the police seized 16 firearms.

5The Appellant was discharged from hospital 36 hours later.

6At the hearing, Justice Hunter heard the following additional evidence:

a. At age 16, the Appellant had taken a firearms safety course and had obtained a license to possess firearms;

b. He had a 22 year history of hunting with his father, without incident.

c. He had never been charged with a firearms offence.

d. The Appellant had a history of contact with the police relating to his alcohol abuse:

• May 2002 – police contacted by Appellant’s brother-in-law reporting the Appellant as a “missing person” after an argument with his family. The Appellant surrendered himself to the police and was found to be intoxicated by alcohol.

• September 2002 – the Appellant was charged with mischief to property when he closed a bar door causing the glass to break. At the time, he was intoxicated by alcohol.

• December 2004 – Police were called to the hospital where the Appellant then was a patient. The report was that he was fighting with the nursing staff who were trying to restrain him. He was under the influence of alcohol and had broken glass in his hand in an attempt to slit his wrists.

• December 2012 – Appellant charged with impaired care and control of a vehicle. He had been sleeping in the passenger seat of a running vehicle and was later convicted of that charge.

e. The Appellant has no criminal history of violence, threatening or misuse of a firearm.

7After discharge from the hospital in June 2014, the Appellant:

• sought assistance from his family physician and was given a two month prescription of anti-depressants;

• stopped consuming alcohol and acknowledged that alcohol is a depressant;

• obtained a referral to a counsellor and attended three sessions and stated he would be return to counselling if he felt it was needed;

• had returned to work, relieving the financial stress in his life;

• as recommended by his counsellor, he made frequent trips to his father’s grave site; and

• has taken steps to have his driver’s licence reinstated.

8The Appellant lives with his 76 year old mother and provides domestic services for her.

9He is employed as a welder, working full-time hours plus overtime and evening shifts.

ANALYSIS

10Section 111 of the Criminal Code provides in part:

111. (1) A peace officer, … may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance … where the peace officer … believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance … for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.

(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.

11The Appellant conceded at the initial hearing and on this appeal that the police had reasonable grounds to have apprehended him for his own safety. However, the Appellant states that the evidence at the hearing did not support the finding that it was then presently in the interests of the Appellant and the public that he be prohibited from possessing weapons and ammunition as detailed in section 111 of the Criminal Code.

12I remind myself that the standard of review of this Order does not permit me to reverse that Order unless it is clearly wrong. As the Appellate Court in this instance, I must not retry the case and should show deference to the lower court’s finding.

13The judge hearing the application in the first instance must determine whether there is an objective basis for the reasonable grounds upon which the officer acted in initiating the application. The Court is to examine the basis for the decision made by the peace officer and if satisfied and that the circumstances at the time of the application continued to exist, the court shall make an Order prohibiting the person from possessing the weapon detailed in section 111(5) of the Criminal Code. The threshold for such a decision is not proof beyond a reasonable doubt, but proof on a balance of probabilities.

R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.J. No. 50 at paras. 16, 17 and 18

14Justice Hunter considered the Appellant’s lengthy history with alcohol and mental health issues. He recognized his obligation to consider the circumstances in the present case, per s. 111(5) of the Criminal Code and R. v. Jordan, [1995] B.C.J. No. 1586 at para. 12.

15As the date of the hearing and as detailed above, the Appellant had addressed some aspects of the issues that had resulted in his apprehension. Yet Justice Hunter still had concerns. I refer to the Reasons of Justice Hunter at pgs 22-23:

… Of concern in terms of the present tense to address … the case of R v. Jordan, [1995] B.C.J. No. 1586, he was taking counseling, he missed his last appointment. His response to that is, I don’t intend to take any more counseling, I don’t need it, and if I do, I’ll call the counselor and go back. He was taking the issue with his alcohol use to the Alcoholics Anonymous; he’s now not doing that. He didn’t do that, in fact, after the incident in June of this year, despite the fact that it’s quite obvious that alcohol consumption continues to be a serious and ongoing problem for Mr. LeClair, one which I believe he has not properly addressed. … There is a serious concern that Mr. LeClair is still in need of counseling, both with respect to his mental health, and with respect to his consumption of alcohol. …

My serious concern is for the welfare of Mr. LeClair. It does not appear that he has threatened to harm anyone else, but in the context of the privilege to possess a firearm, comes the responsibility to do so safely. Sometimes one cannot exercise the objectivity necessary to assess that on their own when you’re too close to the issue.

… if Mr. LeClair continues on a path of reconciliation and rehabilitation that in the future he will be able once again to enjoy the use of firearms. In my view, the present situation is one in which it is not in the best interest of the public and/or Mr. McClair to do so.

16I cannot conclude that Justice Hunter’s decision was clearly wrong.

17Appeal dismissed.

Honourable Mr. Justice W. Tausendfreund