R v Hart, 2016 ABQB 590

Court of Queen’s Bench of Alberta Citation: R v Hart, 2016 ABQB 590 Date: 20161020 Docket: 150758225S1 Registry: Red Deer Between: Thomas H. Hart Appellant - and - Her Majesty The Queen Respondent _______________________________________________________ Reasons for Decision of the of the Honourable Mr. Justice Kirk Sisson _______________________________________________________ Appeal from the Order by The Honourable Judge J.D. Holmes Ordered on the 29 th day of July, 2015 ( Docket: 150758225H1) [ 1 ] This is an appeal from a firearms prohibition order made under

section 111 of the Criminal Code of Canada [the “ Code ”]. These are my reasons denying the appeal.

Preliminary Comments [ 2 ] I reviewed the Court of Queen’s Bench

Summary Conviction Appeals Rules because a five-year prohibition under

section 111 of the Code is a final order made by a Provincial Court Judge to which

Part XXVII of the Code applies. In addition, I reviewed Code sections 813 to 815 and 820 to 828 . [ 3 ] I have read Mr. Hart’s material including the Notice of Appeal filed September 22, 2015, Mr. Hart’s affidavit filed October 28, 2015, Mr.

Hart’s memorandum filed September 22, 2015, and the transcript of the July 29, 2015 hearing in front of the Provincial Court. [ 4 ] I reviewed the transcript for the purpose of finding out if the Provincial Court properly directed itself to all the evidence bearing on the relevant issues. [ 5 ] In addition, I read the material provided by the Provincial Court including the Notice of Hearing on Application. [ 6 ] I also reviewed the affidavit dated June 26, 2015, filed by RCMP Constable Morrison; however, I note that the information therein was not presented in that format to the Provincial Court.

The transcript of the hearing indicates that the affidavit was used by Constable Morrison as an index to her oral testimony; consequently this affidavit will be ignored for the purpose of this Decision. [ 7 ] Finally, I reviewed the memorandum of the Respondent Crown, filed August 26, 2016. [ 8 ] This is an appeal on the record under section 822(1) against a

section 111 order prohibiting Mr. Hart from possessing firearms and other weapons for a period of five years. [ 9 ]

Section 111 states: Application for prohibition order 111

(1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

(2) On receipt of an application made under subsection (1), the provincial court judge shall fix a date for the hearing of the application and direct that notice of the hearing be given, in such manner as the provincial court judge may specify, to the person against whom the order is sought.

(3) Subject to subsection (4), at the hearing of an application made under subsection (1), the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.

(4) A provincial court judge may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person against whom the order is sought in the same circumstances as those in which a

summary conviction court may, under

Part XXVII, proceed with a trial in the absence of the Appellant.

(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.

(6) Where a provincial court judge does not make an order under subsection (1), or where a provincial court judge does make such an order but does not prohibit the possession of everything referred to in that subsection, the provincial court judge shall include in the record a statement of the court’s reasons.

(7) Sections 113 to 117 apply in respect of every order made under subsection (5).

(8) Where a provincial court judge makes an order under subsection (5), the person to whom the order relates, or the Attorney General, may appeal to the superior court against the order.

(9) Where a provincial court judge does not make an order under subsection (5), the Attorney General may appeal to the superior court against the decision not to make an order.

(10) The provisions of

Part XXVII, except sections 785 to 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsection (8) or (9), with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.

(11) In this

section and sections 112, 117.011 and 117.012, provincial court judge means a provincial court judge having jurisdiction in the territorial division where the person against whom the application for an order was brought resides. [ 10 ] The Code sets out the test the Court must follow in determining these applications is contained within s. 111(1), “where the peace officer . . . believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.” The burden of proof in

these cases is on a balance of probabilities. [11] No application was made under section 822(4) for a trial de novo. As Mr. Hart is self-represented, I reviewed the materialprovided by the Provincial Court and the transcript to determine if this matter would be better dealt with as a new hearing. It does notappear to me that this would be helpful. [12] As will be covered later, the information that Mr. Hart provided at the Provincial Court hearing was replicated in more detailin his filed material. However, it does not provide any of the grounds set out in s. 686.

Essentially, it is a plea that there is no need totake and keep firearms out of Mr. Hart’s possession for a period of five years. Standard of Review [13] The Appellant may appeal an order made against him under

section 813 of the Code which grants a general right of appeal ina

summary conviction proceeding. [14] Section 686(1)(

a) of the Code applies to

summary conviction appeals. Thus, on an appeal against conviction, the appellatecourt may allow an appeal where the verdict is unreasonable, unsupported by the evidence, where the trial judge has wrongly decided aquestion of law, or where a miscarriage of justice has occurred. The test is whether the evidence is so weak that a guilty verdict isunreasonable (R. v. McCoy, 2016 ABQB 240, at para 8, citing R. v. Corbett (1973), (SCC), [1975] 2 S.C.R. 275). [15] In simpler language, this means that in this case the Court should allow the appeal if Mr.

Hart demonstrates that theProvincial Court decision is unreasonable, or that it was unsupported by evidence, or that there was an error in law, or that there was amiscarriage of justice. [16] On a question of law the standard is correctness. On a question of fact, or mixed fact and law, the standard is palpable andoverriding error. Discussion [17] First, this is not a criminal trial and Mr. Hart is not charged with any Code offence nor will the result be a criminal record. [18] Mr. Hart said that it was wrong for the Provincial Court to rely on hearsay evidence to grant the Order.

Constable Morrison,the Crown’s witness, relied in part on the investigations of other RCMP members and information provided by other persons. [19] The Provincial Court was not wrong in considering hearsay evidence. This matter was determined in R v Zeolkowski, (SCC), [1989] 1 SCR 1378 [“Zeolkowski”], where Sopinka J for the Supreme Court of Canada stated: Accordingly, I am prepared to hold that hearsay evidence is admissible at a firearm prohibition hearing . . . unless such a result isprecluded by the words "all relevant evidence".

The meaning of "all relevant evidence" was the principal basis upon which the majorityof the Court of Appeal rested its decision. In my opinion, this expression means all facts which are logically probative of the issue . . .Frailties in the evidence are a matter of weight. In the case at bar, for example, the judge should properly consider what weight, if any, isto be given to the hearsay evidence. In doing so the judge should take into account the explanation, if any, for not making the bestevidence available.

The Crown bears the burden of proof . . . [and] that in considering its weight, the judge must scrutinize the evidenceto ensure that it is credible and trustworthy (at para 18). [20] Further, in Karatopis v. Chief Firearms Officer of Ontario, 2014 ONCJ 687, Harris J citing Zeolkowski at note 22, found: Both a firearms officer making a determination, and a judge, either hearing an initial application or upon a reference, may considerinformation that may not be admissible under the ordinary rules of evidence. Hearsay evidence, for example, is admissible.

Any frailtiesin the evidence should be considered in determining the weight to be given to the evidence (at para 23). [21] There was no legal error here. [22] At the provincial court hearing, Mr. Hart commented on his constitutional rights and freedoms, hinting that his commentsshould be protected under freedom of speech. The Provincial Court responded by indicating that

section 111 of the Code meetsconstitutional requirements. This missed Mr. Hart’s point; however, no Charter notice or Charter argument is apparent in the documentsthat Mr. Hart filed on appeal. Further, a close review of the material does not show any realistic basis for a Charter

section 2application. There is no error of law here. [23] During the Appeal Hearing, Mr. Hart said that he did not agree with

section 111 of the Code. But this is no ground to grantthe appeal. This is part of the law of Canada, and Mr. Hart is subject to the law as is everyone else. [24] In

summary, there was nothing pointed out by Mr. Hart at the Appeal Hearing that indicates the Provincial Court made anerror in law. [25] Mr. Hart argues that the persons to whom he made comments misunderstood what he was trying to say and they, and in turn,the Provincial Court Judge made wrong findings of fact and took wrong inferences from those facts.

These comments include threatsmade to his ex-wife, comments to the police officer that he was one minute away from shooting himself, threatening e-mails to hisformer counsel, and comments that an MEP worker took to mean that he was going to go on television, shoot his lawyer and thencommit suicide. Mr. Hart explained that he did not mean this. He was frustrated and trying to indicate; what does he have to do to gethis way, go on television, etc.

[26] The standard of review in these circumstances is “palpable and overriding error”. [27] Mr. Hart did not point out any facts accepted by the Provincial Court Judge that he thinks wrong. His argument is that eventhough he made certain statements, he did not intend harm to himself or anybody else. He admits making the statements but he does notadmit that the people he was speaking to could not read his mind. It is probable that those persons accepted them as what Mr. Hart wasthinking of doing. A reasonable person would be concerned about harm to Mr.

Hart or to others. [28] One clear example of this can be found starting at line 19 of page 19 of the transcript, where Judge Holmes asks whether Mr.Hart had made threats: Are you saying you never said that, or are you saying you would not do it? Mr. Hart responded as follows: I said that I was – like I say, when I was talking to MEP, I said that I was – the system had made me close to pulling the trigger. [29] Given the test set out in s. 111(1), it is not Mr. Hart’s belief about what his comments mean that counts.

It is what areasonable person hearing the comment would think. [30] A reasonable person hearing this explanation would conclude, as did the Provincial Court, that the system is close to makingMr. Hart pull the trigger. It is unstated whether this was intent to harm himself or others but that does not matter. What matters is thatMr. Hart told the judge on July 29, 2015, as he told several others as recently as May 8, 2015, that circumstances were making it close topulling a trigger. [31] This is exactly why s. 111 is in place. It is there to protect the safety of people like Mr.

Hart or other persons from possessingfirearms if there are reasonable grounds for doing so. [32] In this case, as exemplified by what Mr.

Hart told the Provincial Court, there are reasonable grounds and the Provincial Courtdid not make a palpable and overriding error. [33] Having said that and out of an abundance of caution, I should look at the situation as it is now on the record. [34] An appeal judge in this situation is entitled to review the evidence, re-examine it and re-weigh it, but only for the purpose ofdetermining “if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact couldreasonably have reached the conclusion it did on the evidence before it” (R. v.

Burns, (SCC), [1994] 1 S.C.R. 656,McLachlin J at para 15, citing R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, R. v. W. (R.), (SCC), [1992] 2S.C.R. 122). [35] Mr. Hart is clearly unhappy with the results of the breakdowns of his marriage, the resulting distribution of his property andhis treatment by the Maintenance Enforcement Program. With respect to the issue at hand, which is evidence of comments Mr. Hartmade that could be taken as threats to commit violence or to commit suicide, he denied that that was ever his intent. Mr.

Hart’s affidavitadds more detail about the problems caused him by the marriage breakdown and adds statistics about persons committing suicidebecause of unfair divorces. [36] At the appeal hearing, Mr. Hart provided an oral overview of the situation adding comments such as Constable Morrison saidshe was going to return the firearms, that she was depending on lies provided by his ex-wife and sister, and that the Constable was madat him because he complained to a Staff Sergeant at the RCMP detachment who bawled her out.

None of the additional comments weresupported by evidence. [37] In short, the RCMP presented evidence to the Court indicating comments made by Mr. Hart to a number of people. Mr. Hart,at the Provincial Court Hearing did not deny he made the comments, but said they were not direct threats, he did not mean he wouldactually kill himself or shoot others and he was simply commenting on the situation. [38] I wish I could do something for Mr. Hart. [39] He has had an incredible string of unfortunate incidents in his life.

In a few short years he has been seriously injured, hadproblems with recovery which included being treated with narcotics which were very difficult for him to stop taking, lost his well-payingjob, and his family while going through a divorce where Mr. Hart truly believes he was unfairly treated. In the course of dealing withthese very hard problems, Mr. Hart clearly made comments and implied that others in similar circumstances committed suicide and therewas a potential of harm to his ex-wife and her lawyer. Mr. Hart was, and continues to be angry, upset and frustrated by the situation.

This is very apparent and this attitude when combined with comments about suicide and threats does not mix well with weapons. Conclusion [40] I can see no error made by the Provincial Court. Further, it is without doubt that Mr. Hart’s statements provided reasonablegrounds for the Order made by the Provincial Court: that it is not desirable in the interests of the safety of Mr. Hart or of other personsthat he should possess firearms. [41] This is exactly the situation that

section 111 of the Code was drafted to cover. [42] In result, the Provincial Court did not make any errors in the decision and this application is dismissed on that basis. Inaddition, a fresh look at the situation makes it clear that the decision was the correct one.

[ 43 ] The appeal is dismissed. Heard on the 12 th day of September 2016. Dated at the City of Red Deer, Alberta this 20 th day of October, 2016. Kirk Sisson J.C.Q.B.A. Appearances: Thomas H. Hart, self-represented Appellant Andrew Shatto, for the Respondent