Court File and Parties
COURT FILE NO.: 19-30085 DATE: 2019/07/16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – DARCY SIMSER Appellant
COUNSEL: Moiz Karimjee, for the Crown Self, for the Appellant
HEARD: June 19, 2019
On appeal from the decision of the Honourable Mr Justice Rommel Masse of the Ontario Court of Justice on March 14, 2019.
REASONS on appeal
MARANGER J.
[1] On March 14, 2019 Justice Rommel Masse of the Ontario Court of Justice confirmed the decision of a Chief Firearms Officer Fournier dated January 29, 2019 revoking the firearms licence of Darcy Simper. This is an appeal of that decision.
Background to appeal
[2] The following are the relevant facts leading up to this appeal:
- Darcy Simser is 21 years of age, he was born November 18, 1997.
- On January 29, 2019 Chief Firearms Officer Fournier (CFO) revoked Darcy Simser’s firearms license, a license he had held since April 15, 2016.
- Mr. Simser referred the matter to a Justice of the Ontario Court of Justice for a reference hearing on the revocation of his license.
- The hearing took place on March 14, 2019 before Justice Rommel Masse.
- The CFO testified about 5 incidents that caused him concern about the behaviour of Mr. Simser, which resulted in the license revocation. Mr. Simser also testified about the 5 incidents. They were said to have occurred on April 3, 2012, August 16, 2012, February 17, 2017, April 21, 2018 and August 5, 2018.
- I would summarize the incidents as follows:
- April 3, 2012: Mr. Simser was 14 years old and was involved in a fight at school, it started off as a prank, it appears as though he was the instigator, the complainant received minor injuries. The matter was dealt with through the youth court diversion program.
- August 16, 2012: Mr. Simser was 14 years old, based on a police occurrence report it was alleged that there was an attempted break-in, the explanation proffered at the hearing was that they were playing “Nicky Nicky nine door” or ring doorbells and run away from residences.
- February 17, 2017: Mr. Simser was 19 years of age, he failed to stop his snowmobile when ordered to so by the police, he collided with the police sled while in the process of evading them. The police had to use force to stop his snowmobile. He had been drinking. He was charged with driving while ability impaired, dangerous operation of a motor vehicle, assault a police officer with a weapon, flight while pursued by a peace officer, and assault with intent to resist. The matter was resolved by way of a plea of guilty to assault with intent to resist arrest and flight while pursued by a police officer, Mr. Simser received a conditional discharge and 18 months’ probation.
- November 19, 2017: Mr. Simser was drunk at a bar and got into a fight with the doorman and the security guards. When the police arrived he was bleeding from the nose and mouth. Security did not suffer any injuries. They advised the police that they did not want to pursue the matter.
- April 21, 2018: Mr. Simser was with a group of his friends when another individual was assaulted. Both sides were intoxicated no charges were laid as the police deemed the fight consensual. Mr. Simser was a bystander.
- August 5, 2018: Mr. Simser got into a fight with a friend at an outdoor event in Tweed. Security tried to break up the fight and the police who were on site intervened. The complainant had a bite injury. Charges were withdrawn and he was given a peace bond.
Standard of review of OCJ Justice at Reference Hearing respecting Firearms Officer’s Decision
[3] The Firearms Act, S.C. 1995, c. 39 sections 74(1) to 76 sets out the reference hearing process and the standard of review.
[4] A Justice of the Ontario Court of Justice presides over a reference hearing and makes findings of fact after hearing all of the relevant evidence by or on behalf of the CFO, registrar, and the applicant or license holder. The onus then falls on the applicant to satisfy the presiding judge that based upon the evidence found, the refusal or the revocation of the license was not justified. The standard would be one of reasonableness of the decision based upon the judges own findings of fact. Deference to the decision is mandated. Henderson v. Canada, 2011 ONCA 696, paras. 37-38, R v. Vivares, 2016 OJ No. 21, para. 25.
[5] A firearms officer and the reviewing Ontario Court Justice are allowed to consider anything about the historical conduct of the Appellant that is relevant to his safety or the safety of others. It is sufficient if there is a finding that there in fact exist legitimate concerns that the individual lacks the responsibility and discipline the law requires of gun owners: R v. Davidson, [2011] OJ No. 1199.
Standard of Review SCJ
[6] The standard of review in this case is one of reasonableness. The Superior Court must ask if based upon the findings of fact of the Ontario Court of Justice, was the CFO’s decision to revoke the license unreasonable?
Use of Youth Police Records/Diversion
[7] In this particular case the CFO and the reference judge in his findings of fact relied on occurrence reports/and records (including a diversion program) that concerned the conduct of the appellant when he was a youth.
[8] The Crown on behalf of the self–represented Appellant, raised the issue of whether some or all of these records should have been ruled inadmissible or for that matter ever accessed by reason of s. 118 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA) which states:
Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act.
[9] Access to the police records/occurrence reports are permitted under section 119(1)m of the YCJA; it stipulates an exception for someone acting under the Firearms Act. Furthermore, they are records that are not time limited under S. 119(2) of the YCJA as that section does not specify police records or occurrence reports.
[10] The information relied upon by the firearms officer, at least that information that did not involve any kind of criminal allegation appears to have been accessible and admissible.
[11] In this case, however, the incident that took place on April 3, 2012 resulted in the appellant being placed in a diversion program, which goes beyond a police record and was an incident whose admissibility and usage was suspect on account of s. 118 and 119 of the YCJA.
[12] The Crown suggested on the appellant’s behalf, that this was arguably an error of law that would allow the court to consider disentitling the Chief Firearms Officer and the reference Judge to the standard of review of reasonableness and deference created by the governing jurisprudence. It was suggested that the unique facts of this case take it outside of the standard of review set out by the Ontario Court of Appeal in the cases of Henderson and Vivares.
[13] While worthy of consideration, I do not accept that proposition, at best the remedy here would be to excise the evidence that was inadmissible and determine the issue of reasonableness on the basis of the admissible evidence.
[14] While I do not necessarily agree with the ultimate decisions of the firearms officer and the reference judge, I cannot find that they were unreasonable in all the circumstances.
[15] Furthermore, the reasonableness of the finding remains intact even if it was only supported by the facts/incidents that took place while the Appellant was an adult.
[16] This is an unfortunate situation, the appellant presented as an honest young man who can no doubt change and mature in the coming years.
[17] The case seems tailor made for some type of remedial behavior program which would allow for the restoration of the firearms licence over time. That matter, I suppose, is best left with Chief Firearms Officer Fournier.
Mr. Justice Robert L. Maranger
DATE: July 16, 2019