Chapman v. Ireland, 2012 ABQB 643

Court of Queen ’ s Bench of Alberta Citation: Chapman v. Ireland, 2012 ABQB 643 Date: 20121022 Docket: FL14 01109 Registry: St. Paul Between: Arlene E. Chapman Applicant - and - Robert Ireland Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Should a firearm seizure term contained in the August 20, 2012 Emergency Protection Order issued by the Provincial Court in these proceedings be confirmed? The order was originally granted on the basis of a text message from Mr. Ireland to Ms. Chapman telling her that he and his guns were coming to the family home to retrieve his personal property. [ 2 ] Although the other terms of the EPO have been confirmed, the firearm seizure term is not confirmed.

[ 3 ] The firearm seizure order was properly made in the EPO from both a legal and a protection perspective. However, developments since then have established that a continuing firearms order is not required: the police have investigated the situation but no charges have been laid, and the respondent has advised that he no longer wishes to retrieve any of his property which remains in the matrimonial home. Although the applicant has a subjective fear of the respondent, on this confirmation application there is no objective support for any need to remove the firearms from Mr. Ireland ’ s possession to insure Ms.

Chapman ’ s safety and security. In all the circumstances, the court therefore declines to confirm that portion of the EPO relating to the seizure of firearms. Cases and authority cited [ 4 ] By the Court: Munroe v Munroe , 2011 ABQB 438 . 1. Background [ 5 ] During the course of a hearing held on August 20, 2012 to determine whether an EPO should be granted to the applicant Chapman in relation to her husband, the respondent Ireland, the Provincial Court heard testimony from Ms. Chapman including the following: I ’ m here today on the aggressive of my girlfriends to make me come forward. Mr.

Robert Ireland, my soon to be ex - we ’ re in the process of divorce, and he has made comments verbally and in text right now that the officers are looking at and they ’ re investigating, questioning him in regards to this, that he ’ s made verbal threats and physically abused me in the past and up to November till I filed for divorce. I fear for my life because I had to give him the guns that he ’ s coming back to come and get me with. . . .

He came to get his personal items with the police officer back in May, and I had to give him his personal items with a police escort, and I gave him the five guns that he had possession of, and I gave them back to him. Now he ’ s threatened on the text there that he ’ s coming back with those guns to fix this issue. . . . Apparently when I just left the police station, and they reviewed the statement apparently that Mr. Robert Ireland had said - text - that he was coming.

Him and his guns were coming for his stuff because there ’ s another court order now to come back to the property as of the 23 rd of July. . . . He didn ’ t get to finish picking up the items back in May. . . . the statement saying he and his guns are coming for me for his stuff. . . . [The statement] is on my cell phone. He made it on my phone . . . and this was August the first. [ 6 ] Ms. Chapman also testified at the original hearing that Mr.

Ireland had telephoned her on August 19, 2012 and made new threats and demands saying that he didn ’ t need a court order to come to the house to retrieve his property. [ 7 ] Ms. Chapman further testified that she had just learned, in November 2011, that Mr. Ireland had a criminal record pre- dating 1989. She added that, during the course of the marriage, Mr. Ireland had committed acts of violence on her. [ 8 ] The Provincial Court issued an EPO which contained, in addition to the usual no-contact provisions, the following term: 6.

A peace officer shall seize and store the following weapons: firearms and ammunition in his possession. [ 9 ] At the confirmation hearing, Ms. Chapman indicated that some of the seized firearms may, in fact, be her property. She stated that she wished to have the firearms provision maintained because she is afraid of her husband. She confirmed, however, that since the issuance of the EPO, and indeed prior to that time, Mr. Ireland had not attended the property without a police officer being present.

[ 10 ] Mr. Ireland ’ s position at the confirmation hearing was that he has now decided that he does not wish to obtain the return of any of the personal property that he has left at the matrimonial home; therefore, he argues that the threat of self-help recovery, with firearms, is now terminated and he is entitled to the return of his firearms. [ 11 ] Although the firearms are currently in the possession of the police, I have been informed through counsel for the respondent that the police will return the firearms to their rightful owner(

s) if the firearm term of the EPO is not confirmed.

b) Legislative [ 12 ] Alberta ’ s Protection Against Family Violence Act, RSA 2000, c. P-27, authorizes the issuance of orders for the seizure of firearms: S. 2 (3) An order under this

section may include any or all of the following: (

a) a provision restraining the respondent from attending at or near or entering any specified place that is attended regularly by the claimant or other family members, including the residence, property, business, school or place of employment of the claimant or family members; (

b) a provision restraining the respondent from communicating with or contacting the claimant and other specified persons; (

c) a provision granting the claimant and other family members exclusive occupation of the residence for a specified period, regardless of whether the residence is jointly owned or leased by the parties or solely owned or leased by one of the parties; (

d) a provision directing a peace officer to remove the respondent from the residence immediately or within a specified time; (

e) a provision directing a peace officer to accompany a specified person to the residence within a specified time to supervise the removal of personal belongings in order to ensure the protection of the claimant; (

f) a provision directing the seizure and storage of weapons where the weapons have been used or have been threatened to be used to commit family violence; (Emphasis added) [ 13 ] “ Family violence ” is defined under s. 1 of the Act as follows: (e) “ family violence ” includes (

i) any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member, (ii) any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member,

(iii) forced confinement, (iv) sexual abuse, and (

v) stalking, but is not to be construed so as to limit a parent or a person standing in the place of a parent from using force by way of correction toward a child who is under the care of the parent or person if the force does not exceed what is reasonable under the circumstances; (Emphasis added) [ 14 ] A provision similar to s. 2(3)(

f) is contained in s. 4 (2)(

l) of the statute with respect to the powers of the Court of Queen ’ s Bench in granting a protection order. 2. The firearm seizure order in the EPO was properly made [ 15 ] Although the statutory provision authorizing the seizure of firearms in the context of family violence has been in Alberta legislation for quite some time, I have only been able to discover one reported case commenting on the issues relating to that provision: Munroe . That decision has no specific application here since, in that case, weapons had not been used, or threatened to be used, to commit family violence.

Here, the evidence before the Provincial Court was that the firearms were mentioned in a message indicating that Mr. Ireland was coming to retrieve his property. The Provincial Court judge was obviously satisfied that Ms. Chapman felt intimidated by the message and that, in all the circumstances, that she had a reasonable fear that the weapons might be used against her if she were to interfere with her husband ’ s removal of what he considered to be his personal property from the matrimonial home.

Therefore, the Provincial Court EPO relating to the seizure of weapons was properly given. [ 16 ] Not only was the order properly given in the sense that it was authorized by the statute, but it was properly given in the sense that it clearly complied with the purposive intention of the legislation which is, in part, to provide an immediate, safe, shelter which allows both for a cooling-off period and for an investigation into the potential dangers of the situation. 3.

The firearm seizure order should not be confirmed [ 17 ] In the circumstances as they present as of the confirmation hearing, there does not appear to be any need to continue the seizure of the firearms. There have been some developments since the matter was before the Provincial Court: the police have not laid charges and Mr. Ireland has indicated that he no longer wishes to retrieve any of what he considers to be his personal property from the matrimonial residence. [ 18 ] Dealing with the first of those developments, despite being made aware of the message Mr. Ireland sent to Ms.

Chapman, and despite having received material from Ms. Chapman concerning Mr. Ireland ’ s activities over the past few years, the police have not laid charges against Mr. Ireland. This might be thought of as equivocal: perhaps the police haven ’ t laid charges because the firearms have been seized. [ 19 ] Dealing with the second development, Mr. Ireland ’ s decision not to retrieve what he considers to be any of his personal property remaining at the residence removes the potential for the development of a volatile situation. [ 20 ] Although Ms.

Chapman would prefer the firearms seizure to continue, there is no objective support for an ongoing concern about the potential use of firearms to commit family violence. During the last 22 or 23 years, Ms. Chapman has not known her husband to commit a criminal offence, and certainly not one in which firearms were used. Mr. Ireland ’ s text message to his wife was stupid, rash, offensive and threatening. Nonetheless, between the time he sent the message, August 1, 2012 and the date on which Ms. Chapman applied for an EPO, August 20, 2012, Mr. Ireland did not actually attend the matrimonial residence. Nor has Mr.

Ireland attended at the

property in the intervening period between August 20, 2012 and the confirmation hearing on October 1, 2012.. [ 21 ] Looking at the overall situation, the no-contact provision, which has been extended for a year, appears, in the circumstances here, to be a sufficient protection for Ms. Chapman. For a period of one year, which is presumably long enough for the parties to settle their matrimonial dispute, Mr. Ireland cannot be within 500 metres of either Ms. Chapman or the property where Ms. Chapman resides. If Mr.

Ireland does breach that no-contact order, he will be taken into custody at least until he can satisfactorily justify his breach of a court order. In those circumstances, the potential for the creation of a situation that could be dangerous to Ms. Chapman has been addressed. Heard on the 1 st and 16 th days of October, 2012. Dated at the City of St. Paul, Alberta this 19th day of October, 2012. J.B. Veit J.C.Q.B.A. Appearances: Ms. Chapman, on her own behalf N. Gwen May, McMurray Law Office for Mr. Ireland