Court File and Parties

Court File No.: CR-23-5824-AP
Date: 2025-02-27
Court: Ontario Superior Court of Justice

Between:
His Majesty the King – and – Phillip Rodd

Counsel:
Sarah Torelli, for the Crown
Somayeh Rasouli, for the Appellant

Heard: February 14, 2025

On appeal from the decision of Justice S. Pratt of the Ontario Court of Justice, dated February 7, 2023

Reasons for Judgment
Maria V. Carroccia

Introduction

[1] On February 7, 2023, S. Pratt J. of the Ontario Court of Justice granted an application brought by the Crown, pursuant to s. 117.05(4)(a) of the Criminal Code, RSC 1985, c C-46, for the forfeiture of several firearms and related items seized from the appellant on September 1, 2021, by the Windsor Police Service. Pratt J. also made an order pursuant to s. 117.05(4)(b) prohibiting the appellant from possessing any weapons, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of three years.

[2] The appellant appeals that decision pursuant to the provisions of s. 117.05(7), which permits an appeal to be brought to the Superior Court of Justice.

[3] The appellant seeks an order allowing the appeal and “reversing the decision” of Pratt J. and substituting therefor a finding that there was no evidence to substantiate that it was not desirable, in the interests of safety for the appellant to possess firearms. Or, in the alternative, the appellant seeks an order for a new hearing on the application.

The Grounds of Appeal

[4] The appellant appeals the decision of Pratt J. on the following bases:

i) That the learned application judge misapprehended the evidence which resulted in an unreasonable finding;
ii) That the learned application judge relied heavily on hearsay evidence without adequate reasons; and
iii) That the learned application judge failed to consider evidence (or the lack of evidence) of the appellant’s state at the time of the hearing that would justify the order being made.

[5] Although the amended Notice of Appeal alleged ineffective assistance of counsel, at the hearing, that ground of appeal was not pursued.

[6] The Crown submits that the evidence supported the decision of the application judge and that Pratt J. considered all of the evidence presented at the hearing in arriving at his decision, which was supported by the evidence, and, accordingly, the appeal should be dismissed.

Evidence at the Hearing

[7] Constable Jeffrey Pocock of the Windsor Police Service testified that on September 1, 2021, he was dispatched to the Victoria Park Place apartments, 150 Park St. West, for a report of a person with a gun. The call was made by Daniel Blok-Buxton, a security guard at that building.

[8] The information communicated to Constable Pocock by the police dispatcher from Mr. Blok-Buxton was that he had attended at apartment #604, the residence of the appellant, Phillip Rodd, and while in the apartment, he observed that Mr. Rodd had a loaded handgun and a knife on the table beside him. The security guard also told the police dispatcher that Mr. Rodd claimed to be a police officer and told him that in the past, someone had thrown something at his balcony and he had pointed the gun at him.

[9] Constable Pocock attended at that building along with other officers. They then attended at apartment #604 to set up a containment perimeter. Even before announcing their presence, Mr. Rodd opened the door to leave, and he was ordered at gunpoint to get onto the ground and was secured in handcuffs. Mr. Rodd was arrested for possession of a weapon dangerous to the public peace.

[10] Constable Pocock entered apartment #604 to clear it of any other persons. When he did so, he observed a black Sig Sauer handgun in a holster on the coffee table with a loaded magazine next to it, a leg holster (which was empty), a black folding knife and an old “slapper” once used by police officers. Mr. Rodd’s wallet was open on the table with his Possession and Acquisition Licence (“PAL”) visible, as well as a business card that said “RCMP” with Mr. Rodd’s name on it and a signature.

[11] The apartment was searched without a warrant. Constable Pocock determined that in the interest of public safety, any firearms in the apartment would be seized. He testified that Mr. Rodd was cooperative with police throughout this process.

[12] According to the evidence of Constable Taylor Vansickle who also responded to the call, after the police arrested Mr. Rodd, he indicated that he had taken the firearm out to clean it and that he intended to secure it afterwards.

[13] Constable Vansickle testified that Mr. Rodd had eight more firearms stored properly in their cases including a handgun, shotguns and rifles. The firearm observed on the table, the Sig Sauer pistol, was the only firearm he observed that was not properly stored.

[14] When asked by counsel in cross-examination whether it was possible that Mr. Rodd had taken the firearm out to clean it that day, the officer answered that it was possible.

[15] Constable Douglas Tilson testified as well. He is the Firearms Officer for the Windsor Police Service. Constable Tilson testified that he reviewed the reports from the arrest of the appellant and the seizure of his firearms, and that he obtained a statement from Robert McLean who was the manager of the apartment building. That statement was admitted into evidence at the hearing.

[16] Mr. McLean confirmed in his statement that he had received information from Mr. Blok-Buxton about the appellant displaying a firearm in his residence. Further, Mr. McLean advised Constable Tilson that an incident occurred in March of 2021 during which Mr. Rodd identified himself as an “air marshal”. Mr. McLean indicated that Mr. Rodd had an incident with a tenant who lived one floor below him. That man had thrown a bottle onto Mr. Rodd’s balcony, smashing the bottle and spilling the contents on the balcony. Mr. Rodd told Mr. McLean that as a result, he took his gun out in order to protect himself if he was confronted.

[17] After reviewing the reports of the police officers and that statement, Constable Tilson believed that Mr. Rodd lacked the “personal responsibility” required to own and possess firearms and, accordingly, he completed a “safety application” which resulted in the hearing conducted pursuant to s. 117.05 of the Criminal Code.

[18] His safety concerns related to the unsafe storage of the firearm as well as the fact that it appeared that the appellant had been identifying himself as a law enforcement officer when he was not. Constable Tilson was asked about a business card that was found with the appellant’s PAL. This card had the emblem of the Royal Canadian Mounted Police, along with those words, the name of the appellant and his signature. Constable Tilson testified that in his 30 years of experience as a police officer, he had never seen a card like this.

[19] According to Constable Tilson, in order to be properly stored in accordance with the firearm regulations, the Sig Sauer pistol should have had a trigger lock on it and it should have been stored in a receptacle that cannot be broken into.

[20] In addition to the viva voce evidence, the Crown filed at the hearing a Firearms Follow up Report identifying the firearms seized from the appellant that contained an appendix outlining the grounds for the search and seizure of the firearms. The defence took no issue with the filing of these documents.

[21] The statement of Mr. Blok-Buxton was also admitted on consent. In his statement, Mr. Blok-Buxton advised the police that he observed the firearm when he was called to the appellant’s apartment to investigate a complaint that someone had poured grease from an apartment above onto his balcony. He said that he saw the gun on the table with a magazine that appeared to be loaded. Mr. Blok-Buxton is himself a registered firearm owner.

[22] When Mr. Blok-Buxton asked the appellant about it, he replied saying “don’t worry about it, I’m a police officer”. In his statement, Mr. Blok-Buxton said that Mr. Rodd told him that someone had thrown a can of pop at his balcony on an earlier occasion and so he kept the gun staged on the table for the next time “someone does it”. After leaving Mr. Rodd’s apartment, Mr. Blok-Buxton spoke to the building manager and then called the police.

[23] The defence did not object to the Crown filing as part of its case, the statements of Mr. Blok-Buxton and Mr. McLean, who were not present to testify, however they did make submissions as to the weight to be attached to those statements.

[24] The defence did not call any evidence.

The Reasons for Judgment

[25] In his reasons, Pratt J. noted that this was an application pursuant to s. 117.05(4) of the Criminal Code and not a criminal charge and, accordingly, in these circumstances, the Crown bore the burden on a balance of probabilities to establish that it was not desirable, in the interests of the safety of the appellant or any other person, that the appellant possess firearms before the application could be granted.

[26] The application judge noted that the ownership of firearms in Canada is not a right, but rather a closely guarded privilege that is discretionary and subject to review at any time.

[27] Pratt J. considered the evidence relating to the manner in which the firearm was located; that it was in a holster, on a table in plain view with a loaded magazine beside it. It was not trigger-locked. Next to the firearm was a folding knife, a short baton and rubber gloves.

[28] Although counsel for the appellant at the hearing suggested that the firearm might have been taken out to be cleaned, the application judge dismissed that suggestion because, based on the evidence, it was holstered, there was no cleaning kit nearby, nor was there an empty pistol case or trigger lock nearby. He found that the circumstances did not support that the firearm had only been taken out briefly for cleaning. Furthermore, when the appellant was first observed by the police, he was leaving his residence and not in the process of cleaning the firearm, but rather, leaving it unattended in his apartment in an unsafe condition.

[29] Pratt J. considered the evidence contained in the statements filed, as well as the viva voce evidence in arriving at his decision. The hearing judge concluded that the statements of Mr. Blok-Buxton and Mr. McLean were credible and trustworthy hearsay evidence that he could rely upon.

[30] He concluded that there was a basis to believe the appellant had held himself out to be a member of law enforcement when he was not, and that based on the totality of the evidence, on a balance of probabilities, the Crown had met its burden to establish that it was not desirable in the interests of safety for the appellant to possess firearms. He granted the forfeiture application and made an order that the appellant not possess any weapon for a period of three years.

The Legal Principles

[31] The Crown bears the burden on a balance of probabilities on applications brought pursuant to s. 117.05 of the Criminal Code, to establish that “it is not desirable in the interests of the safety of the person from whom the thing was seized or any other person that the person should possess any weapon, prohibited device, firearm part, ammunition, prohibited ammunition and explosive substance, or any such thing….”

[32] The purpose of s. 117.05(4) of the Code “is the protection of the public from the destructive force of firearms in the hands of persons not equipped morally, mentally, or emotionally to handle them”: see R. v. Kuleczka, 2023 ONSC 3876, para 23.

[33] At a hearing conducted pursuant to s. 117.05 of the Code, the justice shall hear “all relevant evidence” pursuant to the provisions of s. 117.05(3).

[34] In R. v. Zeolkowski, paras 17-18, Sopinka J., delivering the decision of the Court, determined that this meant that the court could consider hearsay evidence. The Court determined that the term “all relevant evidence” included “all facts which are logically probative of the issue”. However, the court must scrutinize hearsay evidence presented to ensure that it is credible and trustworthy.

[35] The application judge must determine the sufficiency of the evidence relied upon in support of the forfeiture order as at the date of the hearing: see R. v. Peacock-McDonald, 2007 ONCA 128, para 40.

[36] This is not an onerous standard: see R. v. Zeolkowski, para 18; and R. v. Peacock-McDonald, 2007 ONCA 128.

[37] On appeal, when it is argued that a verdict is unreasonable, the appeal court must consider whether the decision is one that could reasonably have been rendered on the basis of the evidence or whether the decision was the result of illogical or irrational reasoning: see R. v. Li, 2013 ONCA 81, paras 122-123.

[38] If, on appeal, it is submitted that there was a misapprehension of the evidence that caused a miscarriage of justice, the appellant must establish that the alleged error could have affected the outcome. This is a stringent standard: see R. v. Smith, 2021 SCC 16, para 2.

[39] A failure to consider material evidence can constitute a misapprehension of the evidence: see R. v. A.A., 2024 ONCA 45, para 26.

[40] As for the sufficiency of a trial judge’s reasons, the Court of Appeal for Ontario in R. v. Scott, 2022 ONCA 317, para 27 set out the test as follows:

A trial judge’s reasons must provide an apparent “logical connection between the verdict and the basis for the verdict,” and a basis for meaningful appellate review of the correctness of the trial judge’s decision: R. v. R.E.M., 2008 SCC 51, para 35; R. v. Walker, 2008 SCC 34, para 20.

Analysis

i) Did the application judge misapprehend the evidence or fail to consider relevant evidence?

[41] The appellant alleges that the learned application judge misapprehended evidence which resulted in an unreasonable finding and that he failed to consider the evidence (or lack of evidence) of the appellant’s circumstances at the time of the hearing in making his determination.

[42] The appellant acknowledges that Pratt J. articulated the proper legal test to be applied in relation to the application before him but submits that he misapprehended the evidence before him or failed to consider evidence in applying that test to the circumstances of this case.

[43] According to the appellant, there was no evidence before the court of any threats to other persons, nor was there any evidence at the time of the hearing that the appellant posed a threat to his own safety or to the safety of others.

[44] The evidence considered by Pratt J. included the circumstances that led the police to investigate the appellant, that is, the observations made by Mr. Blok-Buxton, as well as the statements allegedly made to him by the appellant that he was a police officer, and the observations made by the police officers who attended at his residence.

[45] The appellant alleges in his factum that he was a lawful firearm owner for over five decades, and that many of the firearms in his possession were gifted to him. He also argues that the firearm was not trigger-locked or stored in a case because it was being cleaned and that this evidence was not considered by the application judge.

[46] The difficulty with the argument of the appellant is that he did not testify at the hearing and there was no evidence before the court as to the length of time that he owned firearms or what he was doing at the time that the police attended at his residence. There were suggestions put to the police witnesses during cross-examination that the appellant may have been cleaning his firearm at the time that the police attended and that that was the reason the firearm was located in a holster on a table in the living-room of his residence. In responding to those suggestions, the witnesses indicated that it was a possibility, but they had no direct knowledge of whether this was the case.

[47] There was no other evidence before the court as to the reason why the firearm was located on a table with a loaded magazine next to it. The application judge heard evidence in the nature of hearsay, that is, what the appellant said to Constable Vansickle, which is that he was cleaning the firearm at the time that the police attended.

[48] Pratt J. rejected that evidence, which he was entitled to do. He indicated in his reasons, reported at R. v. Rodd, 2023 ONCJ 62, para 20 the following:

…There is no evidence the gun was about to be cleaned. I heard nothing about a cleaning kit being nearby. The gun was in a holster. The idea that it was out of storage only briefly for cleaning is further discredited by there being no open trigger lock in the vicinity. Had the gun been taken out of storage for cleaning, and had the Respondent intended to return it to storage immediately afterward, would there not have been an empty pistol case and open trigger lock found nearby? There wasn’t. According to the list of seized items there were two handgun cases found, but they were in the closet. There is no evidence to support the contention that the gun was only out of storage for cleaning.

[49] This does not reflect a misapprehension of the evidence, it reflects a rejection of the position of the appellant because there was no evidence to support it.

[50] The application judge in his reasons clearly assessed all the evidence including the circumstances surrounding the attendance by the police at the residence of the appellant. Pratt J. was concerned about the circumstances surrounding the discovery of the firearm. It was in a holster, not trigger-locked. There was a loaded magazine beside it, as well as a belt, a short baton (the slapper), rubber gloves and a card that bore the RCMP coat of arms with the words “Royal Canadian Mounted Police” and with the name of the appellant printed on it and a signature. None of the officers had ever seen a card like this. There was evidence that the accused told one of the witnesses that it was okay because he was a police officer. At another time, according to the statement of the building manager, he had identified himself as an air marshal.

[51] I disagree that the learned application judge misapprehended the evidence or failed to consider evidence. The test to be applied on the application was whether it is “desirable in the interests of the safety of the person, or any other person” that the subject should be permitted to possess firearms. The application judge was required to determine, whether based on that evidence, there is a legitimate concern that the subject lacks the responsibility and discipline required of a firearms owner: see R. v. Penman, 2022 ONSC 1061, para 70. Based on the evidence at the hearing, it was open to the application judge to reach the conclusion that he did.

[52] As to whether Pratt J. failed to consider the evidence, or lack of evidence, as to the circumstances at the time of the hearing that would justify the making of the order, again I disagree with the submissions of the appellant.

[53] The appellant called no evidence at the hearing, although I recognize that he was under no obligation to do so; the onus was on the Crown. However, that left unanswered questions for the application judge.

[54] The Crown relied on the evidence of the conduct of the appellant at the time that the firearms were seized in support of their position that he lacks the responsibility and discipline required of a firearms owner. Although the appellant had no criminal record and was cooperative with the police, the fact that when the police arrived at his residence, he was leaving his apartment and there was a firearm left on a table with a loaded magazine beside it, together with the other evidence, caused the application judge to have significant concerns about the suitability of the appellant to possess firearms.

[55] The application judge referred to the statement of Mr. Blok-Buxton, which was admitted on consent. In that statement, the witness told the police that Mr. Rodd told him that he “normally” kept the gun on the table. He said: “he told me he keeps it there normally because someone had thrown a pop can at his balcony. He keeps it staged on the table in preparation or something for the next time someone does it.”

[56] This would suggest ongoing careless storage of a firearm which could put the appellant or others at risk. There is no requirement that the Crown show that the subject of the application will use their firearms in a dangerous way: see R. v. Penman, 2022 ONSC 1061, para 70. The record at the hearing was sufficient to permit the application judge to reach the conclusion that he did.

ii) Did the application judge rely heavily on hearsay evidence without adequate reasons for doing so?

[57] A judge hearing an application under s. 117.05 of the Code is entitled to rely on hearsay evidence: see R. v. Zeolkowski. Pratt J. was aware that he was required to scrutinize any hearsay evidence to ensure it was credible and trustworthy before he accepted it. [1]

[58] The application judge specifically indicated that he accepted the statements filed as credible and trustworthy. He stated the reasons why he did so. He indicated that he heard no evidence that would detract from their credibility or trustworthiness, nor was there evidence of any animus or motive on the part of those witnesses to fabricate allegations.

[59] The onus on the Crown on a hearing pursuant to s. 117.05(4) is on a balance of probabilities and not beyond a reasonable doubt. The application judge properly scrutinized the hearsay evidence as he was required to do.

[60] When his reasons are read as a whole, it was open to him to reach this conclusion. Accordingly, I find there is no reason to interfere with the ruling of the application judge on this ground.

Conclusion

[61] For all these reasons, the appeal is dismissed.

Maria V. Carroccia
Justice

Released: February 27, 2025

[1] R. v. Rodd, 2023 ONCJ 62, at para. 25.