R. v. Seville, 2017 ONSC 627
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
PHILLIP SEVILLE Defendant/Appellant
Caitlin Downing, for the Crown
Scott Murray, for the Defendant/Appellant
HEARD: January 25, 2017
On appeal from the Decision of the Honourable R. Fournier of the Ontario Court of Justice, dated November 13, 2015.
Ray, J.
Introduction
1The defendant appeals the decision of Justice Fournier dated November 13, 2015 in which he made a prohibition order pursuant to s 117.04 C.C.C., an order for forfeiture of the defendant’s shotgun and shells pursuant to s 117.05 C.C.C., and a one year prohibition of possession of a firearm pursuant to s 111 C.C.C. on the grounds:
a. described in s. 830 C.C.C.;
b. the hearing judge erred in not considering the financial cost to the appellant of the forfeiture of his property;
c. That the hearing Justice erred in ordering forfeiture in the absence of any judicial or proper grounds upon which forfeiture would be appropriate;
d. That the hearing justice erred in making a firearms prohibition order in the face of there being, on the totality of the evidence, no or insufficient grounds for the making of such order;
e. That the hearing justice erred in placing the onus on the defendant to lead evidence as to his fitness as at the date of the hearing;
f. That the hearing justice erred in concluding that as of July 2015 the defendant was found on a balance of probabilities that he was not fit to have weapons;
2The Crowns application under s. 117.05 C.C.C. dated February 23, 2015 set a hearing date for March 17, 2015. It is not clear from the record why it did not proceed that day or how it came before OCJ Waugh on September 1, 2015. On that date, the defendant sought and obtained an adjournement because he had just come into possession of medical documentation. In any event the hearing was adjourned to November 13, 2015 before Fournier J.
3Since the one year firearms prohibition imposed by Fournier, J. has now expired, there is currently no legal prohibition against the defendant from owning and possessing a firearm.
Evidence before the Hearing Judge
4The evidence before the hearing from the two witnesses and the documentary evidence included the following:
a. On 18 February 2015, the police received a call to attend 109 Lorne Place in the Township of Laurentian Hills regarding a potential risk of suicide. A member of a Facebook group for military members had contacted the police because she believed that the Defendant was suicidal based on comments he had made in the group. The Facebook posts consisted of the following statements:
i. “Having a bad day.. Any one else”;
ii. “I’m getting scared.. .Hid all my keys for my rifles but have started looking for them”;
iii. “Tks for the support But after 28 years of this life in the army I m done”;
iv. Never fails a course .. But fails everything else in life .. You do the math ..”;
v. “There is nothing to call about”;
vi. “I’m just a soldier.. Who had. Enough.
b. Upon police arrival, the house was in darkness with loud music playing. They made contact with the defendant through the basement window. He was extremely agitated and very upset at the fact that the police were present on his property. Sgt. McDonald used de-escalation techniques at least ten times. He was of the opinion that the defendant was prepared to physically fight the attending officers. Sgt. McDonald described the defendant as being “very much on like a roller coaster ride, which is consistent with someone who has been consuming alcohol, in my experience. So he would calm down for a bit and then he could become very enraged and very upset again”. The defendant was “very combative” and making gestures such as adjusting his neck, clenching his fists, moving back and forth.
c. The officers noted that the defendant appeared intoxicated as there was a strong odour of alcoholic beverage on his breath, his eyes were glossy, he was unsteady on his feet and had to be prevented from falling over, his speech was slurred; he wasn’t dressed appropriately for the weather; there were up to 16 empty Keystone Light beer cans present and the Defendant admitted to having consumed all the beer that day.
d. Police requested the defendant attend Deep River Hospital for a mental health assessment in light of the statements made on Facebook which included a statement regarding him looking for the keys to his guns, that he was a soldier that had just had enough, and the totality of the circumstances including the defendant’s degree of impairment and combative stance. Sgt. McDonald’s training has indicated that when someone is consuming alcohol they are ”upwards of six times more likely to commit suicide”.
e. The defendant attended the hospital and spoke with Dr. Ouellet. While interacting with the doctor, the defendant continued to become upset. He was initially upset, uncooperative and combative with the doctor. He was not physical with anyone.
f. After the initial assessment, Dr. Ouellet informed Sgt McDonald that “he was of the opinion that Mr. Seville should be Form l’ed”. The doctor then canvassed with Sgt. McDonald his opinion of how the defendant would take such information. Sgt. McDonald was concerned about the hospital’s ability to cope with a hostile patient. Dr. Ouellet then informed the defendant to which the Defendant became upset. Dr. Ouellet then suggested to give the option of letting the defendant sleep it off at the hospital which the defendant did not agree with. Ultimately, Dr. Ouellet indicated that he would be willing to allow the Defendant to return to his home as long as there were not any firearms in the house as the defendant was a low risk for suicide. Sgt. McDonald “didn’t think that was wise” and noted that he believed that the defendant’s combativeness upset the doctor. The Deep River Hospital doesn’t routinely deal with mental health assessments. Cst Spital indicated that he believed that if the Defendant had returned to the house without the firearm having been secured there would have been a risk to his safety.
g. Cst. Spital attended the defendant’s residence and seized a shot gun and four shells located where the defendant had initially interacted with police. The house was left unlocked and the defendant had indicated to the police that he never locks his door. The shot gun was located in the basement about 10 feet from the armchair and the shot gun shells were located within arm’s reach of the chair. There was a trigger lock on the gun and the keys for it were in a bowl on the kitchen table. The defendant had a possession and acquisition licence.
h. The defendant was held at the hospital to reduce his level of intoxication and was returned to his residence approximately 3 hours later.
i. Several medical records for the defendant were submitted to the Court by the defendant. The medical records indicated the defendant’s alcohol consumption patterns, that he was low risk for suicide, that he was suffering from chronic pain and depression, that he would frequently stop using medication, and that he had trouble sleeping. The medical records which came from the defendant showed he was continuing to be treated for depression, alcohol abuse, and anxiety. He continued to be diagnosed as a low suicide risk. The several references to the defendant’s legal proceedings concerning his firearm made it clear that they were all aware that he had been prohibited from having a firearm; although there are no comments expressing safety concerns. The last medical record was dated June 11, 2015- presumably in anticipation of the hearing before Waugh J. No further medical reports were obtained for the hearing in November before Fournier J.
Hearing Judge’s Decision
5The hearing judge in his brief decision of November 13, 2015 found as follows:
a. In February, 2013, it was a very low point for the defendant. He was depressed. He was drinking a lot. There was evidence of very excessive drinking. The quantities were significant. He wrote things on his facebook (the evidence was that the words used were very dark - - reference to guns and failure- which prompted a call to the police).
b. The defendant continues to be depressed. This is indicated in the reports. Fairly major depression.
c. Dr. Ouelett came to the view in February, 2013 when he was apprehended that while he was at low risk for suicide, he should not be returned home if there were weapons there. The defendant agreed. The weapons were seized.
d. The onus is on the Crown to establish on the balance of probabilities that he is not fit to have weapons. This they clearly have done as of February, and July, 2013. From that point on “I have no other evidence on which to base a decision”. “The only information I have is that”.
e. On a balance of probabilities I find the defendant having a weapon presents risk to the public and to himself. The weapon seized will be confiscated, forfeited to the Crown and disposed of as they see fit.
Standard of Review
6The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.1 The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness.2 The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion.3 The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact.4
Position of the Parties
7The defendant’s contention is that the hearing judge used a “common sense test” rather than balance of probabilities; and that he shifted the onus to the defendant. He also contends that there was no evidence before the hearing judge to support his finding.
8The Crown’s position is that the hearing judge correctly assessed the evidence, and that the test “’whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners” was easily met by the evidence.5 She contends that it was open to the judge to conclude on the evidence that the defendant continued through November 13, 2013 to have a low risk of suicide (but not no risk) and that the risk factors such as chronic pain, sick leave, and alcohol abuse continued from February, 2013.
Legal Principles
9The applicable legal principles include the following:
a. The test for an Application of Forfeiture of items seized under s. 117.05 CCC is the same as the test on a Crown Application for a Prohibition Order under s. 111 of the Criminal Code.6
b. The determination of the sufficiency of the evidence to support a forfeiture order is the date of the forfeiture hearing, rather than the date of the commencement of the forfeiture application.7
c. The test is ‘balance of probabilities’ rather than ‘beyond a reasonable doubt’; and is framed as: 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 [the individual] currently lacks the responsibility and discipline required of a gun owner.8
d. The court has the jurisdiction to order that the seized firearm be permitted to be transferred, subject to the approval of the Chief Firearms Officer, instead of ordering forfeiture to the Crown.9
Analysis
10It is not for me to assess the evidence before the hearing judge to decide if he was correct. I may have decided the case differently. However that is not the test on an appeal of this kind. The review is only to determine if there was evidence before the hearing judge on which he could decide as he did. While I have concerns about the hiatus in the evidence from June until November, I am satisfied that it was open to the hearing judge to conclude on the evidence before him that a pattern had taken place over several months from which he could infer that as at the hearing date, there continued to exist legitimate safety concerns. The defendant’s risk of suicide was low but not non-existent; and he continued to suffer from alcohol abuse, chronic pain and depression. The records make it clear that the defendant had been undergoing long term treatment; and that it was ongoing.
11The hearing judge was clear in his reasons that the onus fell squarely on the Crown. Comments during an exchange with counsel when he declined the defendant’s offer to give evidence make that clear. That did not prevent the defendant from giving evidence- which actually he did in the form of the medical records he obtained and filed before the hearing judge.
Disposition
12The prohibition period ended in November, 2016. Counsel advise that the firearm has not been destroyed. Under the circumstances, since there is no prohibition against the defendant having a firearm, it should be returned to him. If there are other obstacles that I am unaware of, then the defendant is to be given 60 days to sell or convey the firearm, subject to compliance with the relevant legislation concerning the sale or transfer of firearms.
13Otherwise, the appeal is dismissed.
Honourable Justice Timothy Ray
Released: January 26, 2017
CITATION: R. v. Seville, 2017 ONSC 627
COURT FILE NO.: CR-15-209-AP
DATE: 2017-01-25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
PHILLIP SEVILLE Defendant/Appellant
REASONS FOR JUDGMENT
Ray, J.
Released: January 26, 2017
Footnotes
- Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.(SCC)
- R v. Shepherd, 2009 SCC 35, 2009 S.C.C 35, para 20.
- R v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.J. No. 30 (SCC).
- R. v. Gagnon 2006 SCC 17 at paragraphs 10 and 19 (SCC)
- R v. Day, [2006] OJ No 3187 (SCJ)
- R v. Davidson, [2011] OJ No 1199 at paras 23-30 (SCJ).
- R v. Peacock-McDonald, 2007 ONCA 128, [2007] OJ No 712 at para 40 (CA).
- R v. Vardomskiy, 2013 ONSC 4113 para 56; R v. Day, [2006] OJ No 3187 (SCJ) para 36
- R v. Davidson, [2011] OJ No 1199 (SCJ) para 80.