COURT FILE NO.: 23-11406251, 24-11400781
DATE: 2024/11/28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Sherwin Durant
Appellant
Moiz Karimjee for the Crown
Sherwin Durant, Self-Represented
HEARD: November 25, 2024
REASONS FOR DECISION ON APPEAL ANNE LONDON-WEINSTEIN J.
[1] Mr. Durant appeals from the decision of Brunet J. on February 16, 2024, in the matter of an application under s. 74 of the Firearms Act, S.C. 1995, c. 39.
[2] In March of 2023, Mr. Durant applied for a firearms licence. In the personal history section of the application form, he responded affirmatively to the question:
Do you know if you have ever been reported to the police or social services for violence, threatened or attempted violence, or other conflict in your home or elsewhere?
[3] A criminal background check was then conducted. The firearms officer assigned to the file discovered two police reports that were adverted to by Brunet J. Several occurrences outlining interpersonal conflict with others and/or concerning behaviour were identified with only the most serious or recent occurrences being specifically identified.
[4] As Brunet J. noted, on July 20, 2018, there was a family dispute noted by the Ottawa Police Service. Mr. Durant was alleged to have struck his father and his father had concerns regarding Mr. Durant possibly using drugs. No charges were laid in that incident.
[5] The next day, on July 21, 2018, Ottawa Police attended the father’s home to remove Mr. Durant due to his odd behaviour. His father noted that over the last couple of months, his son, Mr. Durant, had changed and was asking questions like why the father was inside of his (Mr. Durant’s) mind. Mr. Durant had been observed to pour ginger ale on the floor for no reason.
[6] The firearms officer asked Mr. Durant if he would agree to provide medical records to see if he was in an improved mental state compared to in 2018.
[7] The disclosed medical records indicated that in 2018, Mr. Durant experienced psychotic episodes and referential delusions, delusions of thought insertion and thought control, body control and paranoia. He felt that people around him, including family, strangers or others, could put thoughts in his head, and had some referential delusions about music artists referring to them in their songs. He thought that people were able to influence his body and that he did not have control of his body. He also reported feeling unsafe at that time and was carrying a knife for protection. He reported experiencing auditory hallucinations, hearing voices that he could not recognize. He denied ever experiencing religious or grandiose delusions and disavowed experiencing visual or tactile hallucinations.
[8] The curated sample of the medical records which were before Brunet J. indicated there was no evidence of a history of mania, major depression, OCD or PTSD. This sample was from October 2018.
[9] The sample of records also indicated that Mr. Durant had met with a social worker who also met with Mr. Durant’s mother. His mother expressed concern about Mr. Durant’s trip to Barbados, him possibly not taking his medication, and him being in Barbados without parental supervision. She stated that Mr. Durant still believed he did not have a mental illness and that she wanted him to receive his medication by injection.
[10] When asked if he could recall his first psychotic episode, Mr. Durant apparently told the social worker that “I was crazy, but I’m okay now.”
[11] Further, in the sample, there was a noted instance when it was recognized that Mr. Durant was at high risk of relapse and brought in due to non-compliance with his medication regimen. In November of 2018, the attending physician felt that Mr. Durant did not appreciate the risks of relapse and its association with medication non-compliance. He also tested positive on a cannabis screen. Based on this presentation, Mr. Durant’s first episode of psychosis was likely schizophrenic spectrum illness and cannabis use disorder.
[12] Later in November of 2018, Mr. Durant’s mother felt there was a need for Mr. Durant’s hospitalization, noting his increased aggressiveness.
[13] As a result of this information, the firearms officer asked Mr. Durant to obtain more updated information regarding his mental health in order to assess his eligibility for a firearms licence. Mr. Durant denies there was an issue related to his mental health.
[14] In his reasons, Brunet J. reviewed the record which was before the court, setting out the medical evidence and the evolution of this case. He noted that Mr. Durant sought out a second firearms examiner when it appeared that it was taking what he viewed as an inordinate delay in getting his licence application approved.
[15] At pp. 15-17 of his reasons, Brunet J. outlined the firearms officer’s stated reasons for refusing the application. The refusal was based on the following:
An hour-long conversation with Mr. Durant where he denied any drug-induced psychosis.
Mr. Durant denied more than one visit to the hospital, although the hospital records indicated that there were three visits.
Mr. Durant confirmed that there has been no treatment diagnosis or hospital visits for anything similar.
Mr. Durant denied experiencing drug-induced psychosis and said that he believed his thoughts at the time were normal for society and that there was a lot of undercover things that he sees or undercover stuff and that he will lack belief that everything that he was seeing was real.
Mr. Durant was asked about auditory hallucinations and said he believed his thoughts were valid. The voices were telling him to get his licence back.
At least one other person who knew Mr. Durant and was interviewed expressed concern regarding Mr. Durant’s hostility, anger management and tendency to become pest with others when they do something with which he does not agree.
[16] Justice Brunet noted that Mr. Durant’s application was refused because he had been reported as having experienced mental health issues in the past, including auditory hallucinations and delusions, which he refused to recognize and instead believed that all of his thoughts back at that time were normal for society.
[17] Additionally, one other person who knew Mr. Durant expressed concern regarding his impulsivity, etc., and about the safety of others in the circumstances.
[18] Justice Brunet upheld the decision of the firearms officer that it was not desirable in the interest of Mr. Durant and public safety that he be permitted to hold a firearms licence, finding that decision reasonable on the evidence.
[19] He cited R. v. Morgan, [1995] O.J. No. 18 (Gen. Div.):
[I]t is not necessary that the Crown prove a likelihood that the respondent will use his firearms or weapons in a dangerous way.… [I]t is sufficient that there is a legitimate concern that the respondent lacks a responsibility and discipline the law requires of gun owners.
Evidence on Appeal:
[20] The Crown in this case did not object to the introduction of fresh evidence on this appeal of the decision of Brunet J.
[21] Mr. Durant made lengthy submissions regarding the genesis of his diagnosis, which he denies, and his treatment by mental health professionals. His recounting of the history of this
matter included his successful efforts to regain his driver’s licence after it was suspended due to concerns regarding his mental health. His former treating psychiatrist assisted him by writing a letter to permit him to regain his driver’s licence. He points to the fact that she was willing to assist him to regain his driver’s licence as evidence that he is a responsible and disciplined individual and capable of gun ownership.
[22] Mr. Durant harbours resentment toward his former treating psychiatrists and described them as incompetent. He indicated he was a victim of medical malpractice and vehemently maintains that he has no underlying mental illness. He provided evidence that he is employed and an active member of the community. In addition to his employment, he spends time working out at a gym. He indicated that he is not currently using cannabis.
Conclusion:
[23] On December 8, 2023, the firearms officer refused to issue a firearms licence to Mr. Durant. The firearms officer considered many factors including medical records which indicated that Mr. Durant was treated for schizophrenia and psychosis in the past, police reports of family conflicts, the fact that Mr. Durant denied ever suffering from mental illness, an interviewee expressing concern about him possessing a firearm, and Mr. Durant’s refusal to provide an updated psychiatric assessment.
[24] Mr. Durant reviewed the decision of the firearms officer to the Ontario Court of Justice. On February 16, 2024, Brunet J. dismissed the appeal finding that the decision of the firearms officer was reasonable.
[25] Absent an error of law, the standard of review for a reference hearing is reasonableness.
Basic v. Canada (Attorney General), 2014 BCSC 1903, at para. 13.
[26] A lower court’s findings of fact are not to be reversed absent a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.
[27] Having carefully reviewed all of the evidence in this case, including the fresh evidence introduced on this appeal, I am unable to find that Brunet J. erred in upholding the decision of the firearms officer as reasonable in the circumstances.
[28] Owning a firearm requires discipline and responsibility. I have heard evidence that Mr. Durant is very disciplined in aspects of his life. For example, he works out at the gym and has trained sufficiently that he can bench press 155 pounds. He also indicates that he is employed and there was unchallenged evidence that he holds a position of responsibility within the company which employs him. He has a drivers licence. Driving a car also requires discipline and responsibility.
[29] However, a firearms officer and a reviewing provincial court judge are entitled to consider anything about the background or conduct of the applicant that is relevant to the applicant’s safety, the safety of others or public safety: R. v. Davidson, 2011 ONSC 249, 231 C.R.R. (2d) 342, at para. 73.
[30] In this case, there is evidence of past family conflict which the firearms officer and the reviewing court below were entitled to consider. There is a diagnosis, which Mr. Durant denies, of schizophrenia and at least one episode of psychosis, perhaps brought on by cannabis abuse.
[31] While there is evidence before me of Mr. Durant’s discipline and responsibility in other areas of his life, the mental health issues which presented in the past, and which he has denied, were not improperly considered by the court below in determining whether he meets the standard required of gun owners, which is that the discipline and responsibility they exhibit in their day-to- day lives permits the ownership of an item which can result in injury or loss of life.
[32] The court notes that Mr. Durant was polite and prepared in his submissions to this court. He clearly spent a great deal of time preparing his case to be argued and was organized. Some of his submissions lacked in relevance, but when this was pointed out to him, he quickly moved on to other areas.
[33] He attempted to demonstrate that he is a person who is disciplined and responsible. As indicated, the evidence suggests that he is disciplined and responsible in some areas of his life. For example, he has been an athlete and has won medals in soccer. This type of success in physical
endeavours requires discipline and responsibility. He is employed and has a driver’s licence. The court appreciates his frustration related to his disagreement with his diagnosis. However, his past medical history and the related incidents of familial conflict were matters which were properly considered by the firearms officer and by the court which reviewed the decision of the firearms officer.
[34] I find no error in the judgment of Brunet J. in the circumstances of this appeal. Mr. Durant’s appeal is therefore dismissed. The professionalism and fairness displayed by the crown throughout these proceedings was appreciated and merits mention.
Anne London-Weinstein J.
Released: November 28, 2024
COURT FILE NO.: 23-11406251, 24-11400781
DATE: 2024/11/28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Sherwin Durant
Appellant
REASONS FOR DECISION ON APPEAL
Anne London-Weinstein J.
Released: November 28, 2024