COURT FILE NO.: 32/20
DATE: 20210322
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SANJIVE JOSHI
Appellant
– and –
ATTORNEY GENERAL OF ONTARIO
Respondent
Brendan van Niejenhuis and Dragana Rakic, for the Appellant
Daniel Guttman, for the Respondent
HEARD: October 1, 2020
REASONS FOR DECISION
STEWART J.
Nature of the Appeal
[1] Sanjive Joshi appeals from the decision of the Honourable Mr. Justice P. Downes of the Ontario Court of Justice made on a Reference under s. 74 of the Firearms Act, S.C. 1995, c.39 (the “Act”) confirming a refusal by the Chief Firearms Officer of Ontario, through his designate Area Firearms Officer Constable Ryan Dance, to renew Joshi’s licence to possess restricted and non-restricted firearms.
[2] Joshi argues that the decision of the Firearms Officer was fundamentally flawed and unreasonable and that the Reference Judge erred in upholding that decision.
[3] The Respondent Attorney General of Ontario (“AG”) takes the position that the decision of the Firearms Officer to reject Joshi’s application in the interests of public safety was reasonable and that the Reference Judge made no error in upholding that decision. In particular, the AG maintains that the principles enunciated by the Supreme Court of Canada in Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 (“Vavilov”) were properly addressed and the Reference Judge’s conclusion that the decision of the Firearms Officer satisfied all criteria for reasonableness should not be disturbed.
Firearms Regulation Legislative Framework
[4] The Act contains a detailed scheme designed to protect the public against the misuse of firearms. In Henderson v. Canada (Attorney General) (2011), 2011 ONCA 696, 108 O.R. (3d) 290 (C.A.), the Ontario Court of Appeal described this scheme as “rather unique”.
[5] Section 68 of the Act requires the Firearms Officer to refuse to issue a licence if the applicant is not eligible to hold one. The requirements for eligibility to hold a firearms licence are set out in s. 5 of the Act. The overriding consideration in determining eligibility is the interests of public safety. In its decision in Henderson, the Court of Appeal described the nature of the hearing before a Registrar (or Firearms Officer) as follows:
The application to the Registrar is simply a form containing basic information about the firearm. The Registrar is not required to hold a hearing, nor offer the applicant any other way to provide information or make submissions, before deciding to issue the registration certificate or refuse the application. If the application is refused, the Registrar is required to provide the applicant with both the decision and reasons that include the nature of the information relied on. The applicant can then refer the matter to the provincial court.
[6] In this case, while applying Henderson in the making of his decision to deny the issuance of a licence to Joshi, the Firearms Officer stated the overriding consideration:
The Firearms Act was created to protect and promote public safety. In considering the eligibility of an individual to hold a firearms licence, it is public safety that is of chief concern. Under Canadian law, firearms possession is a privilege, not a right.
[7] As mentioned above, pursuant to ss. 74 (1) and (2) of the Act where a Firearms Officer or the Registrar refuses to issue or revokes a licence that applicant for the licence may refer the matter to a provincial court judge. Pursuant to s. 75 (2), at the hearing of the Reference the Reference Judge is required to hear all relevant evidence, including hearsay evidence, presented by or on behalf of the Chief Firearms Officer, Registrar or provincial minister and the applicant.
[8] At the hearing of the Reference, the applicant has the burden to satisfy the Reference Judge on a balance of probabilities that the refusal to issue the licence was not justified.
[9] The applicant on such a Reference is entitled to adduce such evidence as may be relevant and is not restricted to argument upon information that was before the Firearms Officer at the first instance.
[10] At the Reference hearing, although an extensive right is provided to an applicant to call evidence, the decision of the Firearms Officer is to be afforded deference. In R. v. Vivares, 2016 ONCA 1, MacPherson, J.A. quoted from Henderson, as follows:
The starting point for the analysis... is recognition that the Registrar of Firearms has specialized expertise in administering a complex firearms registration regime. A Registrar’s decision is entitled to deference and is reviewed on a reasonableness standard: see Henderson v. Canada (Attorney General), at paras. 37-38.
The Decisions
[11] As referred to above, the Firearms Officer found that it was not desirable in the interests of public safety that Joshi be issued a licence.
[12] In making this decision, the Firearms Officer stated:
In the interest of public safety, I will not be issuing a firearms licence. You do not have any criminal convictions; however, you have been arrested and charged for violent acts on three separate occasions. These incidents are too compelling to disregard. The incidents range in date from 2009 to 2017. The most recent involved your current wife M.L.. The allegations were that you had been abusive towards her. When asked about the past incidents you denied any wrongdoing. You advised that you were happily married to your wife and that you have never had any type of counselling. I cannot dismiss all of these incidents as not occurring. You have received two court orders in the form of a common law peace bond and an 810-peace bond. Even though the charges were withdrawn by the court, in these instances you still had to be bound by a court order to ensure you did not have any further incidents.
Based on the incidents above, I believe there would be a real concern for public safety if you were to be re-issued a firearms licence….I am refusing your application on the constellation of facts that have occurred over the years. One incident may not cause a licence to be revoked or a licence refused, however a number of incidents paints a different picture and causes concern. The Firearms Act states that the refusal to issue a firearms licence need only be based on a balance of probabilities that there is concern for public safety. Even though there is no evidence of you acting irresponsibly with firearms in the past, I believe that your past actions combined with firearm ownership creates a concern for public safety.
[13] Joshi sought a referral of this decision to a Reference before a Reference Judge as the Act permits.
[14] At the Reference hearing the Reference Judge heard evidence from the Firearms Officer and heard submissions from the parties. Joshi did not call any additional evidence, despite being entitled to do so, in order to support his argument that the decision of the Firearms Officer was not justified. In particular, neither Joshi’s spouse nor any of the persons involved in three previous allegations of assaults or the circumstances of the entering into two peace bonds by Joshi were called by him to testify at the Reference hearing. Similarly, no additional evidence to clarify or qualify the information before the Firearms Officer was adduced by Joshi at the hearing before the Reference Judge.
[15] The Reference Judge rejected Joshi’s argument that the Firearms Officer’s decision was not justified or was flawed in allegedly not adhering to the approach required by Vasilov. In so doing, the Reference Judge concluded as follows:
It is the applicant’s burden to establish on the review that the decision of the firearms officer was “not justified”: Firearms Act s. 75(3). In my view the refusal was justified. Vavilov directs reviewing courts to “consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was reasonable”. The decision of the Firearms Officer to refuse Mr. Joshi’s license satisfies all of the Vavilov reasonableness requirements: it was rational, properly connected to the statutory underpinnings of the application, transparent, intelligible and logical. The outcome was arrived at based on clearly articulated and intelligible reasons and a rational chain of analysis. The conclusion follows logically from the evidence and the reasoning process.
The applicant has not met his burden to establish that the decision of the Firearms Officer was not justified.
[16] Joshi now appeals to this Court from the decision of the Firearms Officer to deny him a licence to acquire and possess firearms as upheld on the statutory Reference.
Issues and Discussion
[17] The basic chronology leading up to Joshi’s application to renew his licence to acquire and possess firearms is not in dispute. The following is a summary of that chronology.
[18] In 1998, Joshi was issued a licence to acquire and possess restricted and nonrestricted firearms. Joshi’s licence was renewed on application in February 2005 and September 2012.
[19] Joshi’s firearms licence expired on July 28, 2018. At that time, Joshi was facing outstanding charges under the Criminal Code of Canada (R.S.C., 1985, c. C-46) arising from allegations, including allegations of domestic violence, made by his spouse. The terms of his bail precluded Joshi at that time from applying to renew his licence.
[20] The charges against Joshi arising out of his spouse’s allegations were withdrawn on October 4, 2018. Accordingly, Joshi was no longer subject to any bail condition that prevented him from applying for a firearms licence.
[21] Two months later, on December 3, 2018 Joshi applied to renew his firearms licence. His application was apparently supported by his spouse who also signed the application.
[22] In his reasons for refusing the issuance of a licence, the Firearms Officer noted that, although Joshi did not have an actual record of criminal convictions and had never had his licence revoked for cause, he did have before him information concerning not only the criminal charges Joshi faced in 2018 but also police occurrence reports of incidents involving Joshi in 2007 and 2009.
[23] One police report related to an allegation made in September, 2007 by Joshi’s former spouse. According to the Synopsis for a Guilty Plea included in the police file concerning the allegation, the complainant and her new husband had an argument with Joshi during which Joshi had become angry and had thrown boxes and holiday ornaments at the complainant. As a result of the allegations, Joshi was charged by police with assault under the Criminal Code. In December, 2007 the charge was withdrawn and Joshi entered into a peace bond for a period of 12 months.
[24] An additional police report reviewed by the Firearms Officer related to allegations made in November 2009 by a woman who worked in the same office location as Joshi and with whom he had been involved in an intimate relationship. As a result of allegations made by this woman to the police, Joshi was charged under the Criminal Code with assault and three counts of uttering threats. In early 2011, Joshi entered into a s. 810 peace bond and the criminal charges were correspondingly withdrawn.
[25] The most recent police report reviewed by the Firearms Officer arose from the allegations made to police by Joshi’s spouse in August 2017. These allegations resulted in the laying of several criminal charges against Joshi. In order to secure his release on bail, Joshi entered into a recognizance of bail that included a condition that he not apply for an authorization, licence, or registration certificate for any weapons. By letter dated September 27, 2018 Joshi’s spouse advised the Crown Attorney that she did not wish to co-operate or have any further involvement in the trial of the criminal charges brought against Joshi. On October 4, 2018 all charges against Joshi were withdrawn.
[26] On February 27, 2019, the Firearms Officer advised Joshi that he was concerned about these incidents that had led to his being arrested and charged in relation to domestic assaults. Joshi denied that any assaults or threats had ever occurred or that he had committed any criminal acts. Joshi invited the Firearms Officer to contact his spouse to interview her but the Firearms Officer declined to do so.
[27] The Firearms Officer concluded that Joshi was not eligible to hold a licence and refused his application. Although the Firearms Officer noted that Joshi had not faced charges that had resulted in any criminal convictions, he nevertheless did observe that Joshi had been arrested and charged for acts of domestic violence on three separate occasions. The Firearms Officer concluded that Joshi’s application should be refused based upon the constellation of facts that had occurred over the years as revealed in the police files which contained details of the nature of his history of police contacts, charges and peace bonds.
[28] In explaining his decision, the Firearms Officer also stated that he had provided the option to Joshi of withdrawing his application. This would have allowed Joshi to re-apply sooner than after the expiry of 5 years following a refusal to issue a licence. This also would have allowed Joshi more time to demonstrate conduct that did not attract police involvement and thereby improve his chances of having his next application approved. Joshi refused to withdraw his application.
[29] Joshi pursued his entitlement to a Reference under the Act. For reasons outlined above, the Reference Judge upheld the decision of the Firearms Officer.
[30] Joshi argues that the Reference Judge erred in relying on a different chain of analysis than that relied upon by the Firearms Officer. It is submitted on Joshi’s behalf that the reasoning applied by the Firearms Officer was fundamentally flawed and that the outcome reached was unreasonable on the evidentiary record that was before the Firearms Officer. Joshi further argues that the Reference Judge erred in relying on a different chain of analysis than that relied upon by the Firearms Officer and his conclusion that the decision of the Firearms Officer was reasonable was thereby inconsistent with the requirements of Vavilov.
[31] Joshi argues that the Firearms Officer erred by relying exclusively on written hearsay in unsworn police occurrence reports. However, it is clear from his reasons for decision that the Firearms Officer relied on the “constellation of facts” that had occurred over the years which included the entering into of the two peace bonds by Joshi associated with the resolution of some charges referred to in the police occurrence reports.
[32] In my opinion, the Firearms Officer did not place undue weight on the police occurrence reports. Further, the decisions in cases relied upon by Joshi (R. v. Piper, 2019 BCPC 70; R. v. J.L, [2002] OJ No. 5826 (OCJ); and R. v. Bishop, [1995] OJ No. 2449 (OCJ)) do not preclude consideration by a Firearms Officer of police occurrence reports nor do they serve to require Firearms Officers to further investigate the contents of such reports by contacting and interviewing witnesses. As stated by the Reference Judge:
I disagree with the Applicant’s submission that, because they resulted in withdrawal of the charges, these incidents cannot reasonably contribute to the factual foundation for refusing the license. Viewed cumulatively and in light of the circumstances of each one, they are relevant pieces of information about the applicant and, in my view, they were fairly and reasonably considered by the Firearms Officer in coming to his decision.
[33] I also agree with counsel for the AG that the Firearms Officer did not err in considering the third set of charges in his decision. With respect to this issue, the Reference Judge explained:
It is not accurate to say that the third allegation was shown to be unfounded or recanted by the applicant’s spouse. The letter she wrote to the Crown was not a denial. On the contrary, it was a claim of a lack of memory of the details. These allegations were serious, and in my view, it was reasonable for the Firearms Officer to consider them and the prior two incidents in their totality in determining whether it was in the interest of public safety to issue the applicant a license.
[34] While the fact that the first two sets of charges were outside the five-year period specified in 5(2)(c) of the Firearms Act is relevant, it does not preclude their consideration. As stated by Beaudoin, J. in R. v. Davidson:
The statutory regime grants firearms officials and reference judges with a vast amount of discretion to revoke or deny firearms licences. They may revoke firearms licences for any “good and sufficient reason” and may refuse to grant a licence when in the “interests of safety”. This broad discretion is necessary given the wide range of possible circumstances that may arise in a given case. An interpretation of the Act which hinders the exercise of this discretion by imposing temporal limits on the consideration of evidence flies in the face of the Act’s purpose and could result in harmful and tragic consequences.
[35] In his decision, the Firearms Officer recognized that the Appellant denied all of the charges and that the charges did not result in any convictions but that the Appellant had enter into a peace bond with respect to two of the sets of charges.
[36] In concluding that issuing a firearms license to Joshi was not compatible with public safety the Firearms Officer relied heavily, but not exclusively, on the cumulative effect of the three sets of charges against Joshi and also upon the associated peace bonds that were entered into by him. This was recognized by the Reference Judge who stated:
The heart of the decision to refuse the applicant’s licence was the cumulative impact of being criminally charged with offences of violence on three separate occasions, two of which were resolved by the applicant entering into a peace bond.
[37] The Reference Judge rejected Joshi’s argument that the Firearms Officer improperly relied on charges that had been withdrawn. The Reference Judge found it was reasonable for the Firearms Officer to take these into account as part of the informational basis for making his decision. I agree.
[38] It is also argued on Joshi’s behalf that the Reference Judge’s decision is inconsistent with Vavilov because, in addition to the above, the Reference Judge provided information about the nature and effect of a peace bond in his decision that is not found in the Firearms Officer’s decision and therefore does not follow the approach prescribed by the Supreme Court of Canada in the Vavilov case.
[39] In my view, nothing in Vavilov prohibits a Reference Judge, who may hear and consider all relevant evidence at the Reference, from setting out the precise legal significance of an instrument (for example, the entering into of a peace bond) that had been appropriately been relied on by the Firearms Officer. This is especially so given the unique legislative framework that governs the issuance of a firearms licence which remains under Canadian law a privilege, not a right.
[40] A fair reading of the reasons of the Reference Judge shows that he did not apply a different chain of reasoning to the facts before him, the same facts as were before the Firearms Officer. His conclusion that the decision of the Firearms Officer was reasonable is fully supported by those facts.
Conclusion
[41] Accordingly, I see no basis upon which it has been shown that the decision of the Firearms Officer ought to be interfered with, or the judgment of the Reference Judge ought to be reversed.
[42] For these reasons, the appeal is dismissed.
Released: March 22, 2021
COURT FILE NO.: 32/20
DATE: 20210322
ONTARIO
SUPERIOR COURT OF JUSTICE
SANJIVE JOSHI
Appellant
– and –
ATTORNEY GENERAL OF ONTARIO
Respondent
REASONS FOR DECISION
Stewart J.
Released: March 22, 2021