R. v. Pearson, 2017 ONCJ 566

CITATION: R. v. Pearson , 2017 ONCJ 566 DATE: July 24, 2017 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. IAN PEARSON ********** EXCERPT OF COURT PROCEEDINGS (Ruling on Application) BEFORE HIS WORSHIP JUSTICE OF THE PEACE P. KOWARSKY on July 24, 2017, at TORONTO, Ontario ********** APPEARANCES : Ms. K. Motyl The Applicant

Ian Pearson The Respondent ONTARIO COURT OF JUSTICE TABLE OF CONTENTS PROCEEDINGS 1 RULING ON APPLICATION 1 CERTIFICATION 14 LEGEND [ sic ] – Indicates preceding word has been reproduced verbatim

and is not a transcription error (ph) – Indicates preceding word has been spelled phonetically Transcript Ordered: July 25, 2017 Transcript Completed: July 30, 2017 Ordering Party Notified: July 31, 2017 MONDAY, JULY 24, 2017 R U L I N G O N A P P L I C A T I O N KOWARSKY, J.P. (orally): APPLICATION 1 . This is an application by the Crown for an order under

section 117.05(4) that

a) the Firearms Possession Acquisition Licence of Mr. Ian Pearson be forfeited to the Crown, and,

b) that Mr. Ian Pearson be prohibited from being in possession of weapons as set out in the Criminal Code for a period of five years. Appendix “A” to the Notice of Application sets out the circumstances which resulted in this application. 2 . Such circumstances were provided in some detail by the three witnesses called by the Crown in support of her application. THE APPLICANT’S EVIDENCE 3 . The first Crown witness was Mr. Pearson’s sister, Helen Pearson, who testified, in

summary, as follows: 4 . She completed a Public Safety Report regarding her brother and the question was: What caused her to do so? She said that she was hoping that his gun licence would be taken away. She knew that he had a licence - for a number of years she has known that - and that he also had weapons. 5 . She testified that her brother was in Winnipeg. He was married there, his daughter lives there, and he had been living there for some time. He was employed as a property maintenance person and joined the military. He was placed on medical leave for alcohol abuse and mental health issues.

6 . She indicated that last summer, in 2016, in Winnipeg, her brother had an unhealthy relationship with alcohol - his ex-wife and another woman, who had been engaged to him, had reported this to her - and that there was all kinds of turmoil there. She testified that he has aggressive mood changes in seconds, anxiety, depression, rapid mood changes, and he says things happened and she knows that they did not happen. 7 .

In February of 2017, he returned to Ontario from Winnipeg back to the family home at 22 Kimbolton Court in Scarborough, and was residing with his father and mother, his sister, and nieces and nephews. There were two incidents that occurred in accordance with her testimony. 8 . On April the 22 nd , 2017 there had been an argument between her brother and her father. Her brother had come back drunk from Guelph. He was swearing at her father. He had an injured hand and was in a cast. He had had surgery a few days before that and his hand was in a cast.

They had a very serious argument; something to do with neighbours who had problems with their son’s using part of their residence to enter into his home, which the residents of the other home were not happy about. She indicated she tried to help him. He told her: “Do not come to me. I hope you and dad die and I’m going to die too.” Agitated, unstable, as she indicated he is, the family called the police. He was arrested and it was at that point that she filed a Public Safety Report to revoke his firearms licence. 9 . She said that the police saw the licence in his pocket and seized it.

She fears for him and for other people. The mood changes continue. Sometimes he is calm. The next day, he gets angry in seconds, and he does not remember what happened the day before. And there is no guarantee, she says, for his or anyone else’s safety. 10 . She told the Court that he acknowledged that he has issues with alcohol. He had gone through a detox program at CAMH which did not help. He was prescribed medication which initially he was taking because his mother was preparing it for him daily, and, thereafter, he stopped taking his medication. She said that she saw him intoxicated every day. 11 .

After he left, from time to time, she and other members of the family went to clear his room and they found about 30 empty bottles of rum, beer, wine, and other alcohol under his pillow, his mattress, and all over his room. They were also in the living room and in the basement. And, at one point, he was put into hospital on a Form 1, kept there for 20 hours, and then released. At that time, he was released on bail. 12 . She referred to another incident on June the 30 th , 2017.

Her parents had left for England on June the 24 th , 2017 with an order that other people should not come into the house while they are away. And they have a dog who is not friendly and has cancer. They are looking after the dog. At one point, the accused’s girlfriend came in through the front, and she told her brother that this should not happen in the future. He was swearing at her and at her father; he indicated that, “You are not my family. I will get the noose for all of you.” Then he went outside to have a cigarette and then he apologized. He said he is trying to get alcohol abuse assistance. 13 .

She, at that time, was at a barbeque nearby, and got a call from her niece who lives in the same house. She said that after she had left, her brother and her 21-year-old nephew, also living in the house, got into a physical fight. Both of them were harmed and injured. The seven-year-old child, who also lives there, was terrified by what was going on. 14 . He returned to the house on Canada Day weekend, knocking on the door. No one would let him in. The police were called. The police came; arrested him. He was finally released on bail and his girlfriend was his surety. 15 .

The second Crown witness was Michael Lamb, an officer from the Toronto Police. He was involved in the April 22 nd , 2017 incident. He got a radio call and arrived and spoke to Stewart Pearson who is Mr. Ian Pearson’s father. He said that he and his son had got into an argument as a result of the son using the neighbour’s fence and trespassing. He said that Ian had threatened his sister, Helen, and his father, and said: “I hope you die and I will make sure that it happens.” Then Ian left the house. 16 . They did not know where he was, and the police went looking for him.

They found him lying not too far away on a sidewalk on Yonge Street. He was intoxicated and almost unconscious. He had ripped off the cast on his broken hand, and, although he had attended CAMH for alcohol abuse, according to the officer, he did not follow-up after that.

17 . Before the officer left the home, he looked in the bedroom of Mr. Ian Pearson and found all kinds of liquor bottles all over the room. 18 . Back to the incident where they found him on Yonge Street lying on the pavement semi-unconscious. They tried to restrain him and strap him to a stretcher after calling the ambulance. He tried to undo himself and he was restrained. The officers went with him in the ambulance to the hospital and in every way possible he was trying to remove himself and jump away from the restraints.

The officers made a Form 1 Order under the Mental Health Act, and had him admitted to the hospital for a psychiatric evaluation. 19 . The officer also testified that Ian had previously lived in Winnipeg; that his firearms licence was previously taken away in Winnipeg. But, at some point, after a psychiatrist in Toronto had indicated that Mr.

Ian Pearson did not appear to be a danger to anyone and that as long as he stayed off drinking alcohol he would be fine, the application in Winnipeg for forfeiture was withdrawn on the basis that he was to refrain from alcohol abuse and never to be in possession of a firearm of any kind while intoxicated. 20 . The officer said that he was very difficult at the hospital, and that his concerns are that someone who consumes so much alcohol and threatens family members and himself reveals a pattern, and that it is impossible for such a person to make a proper decision on the possession and use of firearms. 21 .

Curtis McLellan was the third witness for the Crown. He is also a member of the Toronto Police Services. He was involved in the incident on April the 22 nd , 2017 at 22 Kimbolton Court in Scarborough. He basically corroborated the evidence of Officer Lamb and indicated that the family members were very distraught. He had threatened to kill his father, his mother, and himself. He was very volatile at the hospital. They had to restrain him. 22 .

And, once again, on July the 3 rd , 2017, at around 3:18 p.m., at the same address, after receiving a call from the family members that Ian had assaulted his nephew, the police came and arrested him. He was in the backyard, and, at that time, he was very cooperative. He went to the hospital and was released from the hospital after being given some medication. THE RESPONDENT’S EVIDENCE 23 . The respondent testified, firstly, that he apologized to the officers, to his family, and to everyone concerned regarding his behaviour.

He admitted that he is an alcoholic; that he has been trying everything possible to address the alcohol problem. He was given the opportunity to leave his service position in the military in order to address the alcohol problems. He has had relapses from medications. 24 . He has gone to CAMH on several occasions; seen a psychiatrist. He went to the emergency department at CAMH at some point and the psychiatrist said that it was possible that he could relapse; that medications and alcohol were not a good idea. He was prescribed different medication.

He also attended CAMH’s “Goals for Success” group on the 20 th of July and has a follow-up appointment on the 26 th of July 2017. 25 . He testified, quite honestly, that he understands that his alcohol abuse is contributing to his violent outbursts. He said he does not intend to retrieve his firearms or obtain new ones, and he asked for time for treatment before a judgment is made in this matter. 26 . The Crown asked an excellent question: Why he wanted to hold on to his Firearms Acquisition Licence? He said that he is a reasonable person and he’s not a danger to the public using firearms.

The order in Winnipeg was based on his taking counselling and treatment for alcohol abuse. He has been fighting alcohol abuse for at least two and a half years. When asked by the Crown why he was carrying his Firearms Acquisition Licence in his pocket, he said that, in his mental state at the time, he cannot remember what he said and why he did that. 27 . He admitted that he has had suicidal thoughts, but actually said he was not likely to act on them. He admitted what happened on April the 22 nd with his intoxication and having pulled off the cast of his broken arm.

He admitted to drinking regularly rum, beer, and wine trying to use beer and wine to somehow, on his own, stay away from the rum. He would also crush up Percocet and take it through the nose and sometimes use marijuana; both of those to try to reduce his dependency on alcohol.

28 . He testified that his girlfriend for the last two months is the one who signed bail for him and one of the conditions is that he is not to attend at the home of where he used to live at 22 Kimbolton Court, Scarborough with his family. THE SUBMISSIONS OF THE APPLICANT 29 . The Crown submitted that the decision of the Court is made on a balance of probabilities, not beyond a reasonable doubt. She believes that the Crown has met its onus; that he is a danger; that he is self-medicating himself with beer and wine which are softer forms of alcohol.

He has admitted to alcohol, and medication, and uncontrollable threats, and threatening his most dear family - mother, and father, and sister - to kill them; that he would get a noose to do so. This is a very real concern, submits the Crown, regarding his ability to obtain weapons. 30 . He terrified his seven-year-old niece, in accordance with the evidence, and she is concerned that he would use his licence, the PAL licence, to get guns, and get drunk, and use them or leave them in a place in the house where the young children could see them, use them, and harm themselves and other people.

He did admit, according to the Crown - and I agree - that he had had suicidal thoughts in the past. FINDINGS 31 . To say that I was impressed by the composure and manner in which Mr. Ian Pearson testified is an understatement. I was extremely impressed by the forthright and articulate manner in which he testified. As I told him during his submissions, it is a tragedy that such a seemingly decent and respectable young man has been afflicted with an alcohol dependency condition that has caused such serious harm to himself and seriously affected his behaviour.

I hope that future treatment and counselling will finally put an end to this affliction, thereby enabling him to continue his life in a law-abiding and responsible manner. RULING 32 . The issue before the Court is set out very clearly in

section 117.05(4) of the Criminal Code which provides as follows in subsection 05(1) as read with subsection (4): “Where any thing or document has been seized under subsection 117.04(1) or (2), the Justice who issued the warrant authorizing the seizure, or, if no warrant was issued, a Justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within 30 days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the Justice may specify”. 33 .

That was done. There is no question about that at all. Then at the hearing, the Justice is required to hear all the evidence that is being provided.

And subsection (4) provides as follows: “Where, following the hearing of an application made under subsection (1), the Justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance, or any such thing, the Justice shall order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and where a Justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance, or any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order”. 34 .

From the evidence of the Crown’s three witnesses, I find that, in effect, it is not desirable, in the interests of the safety of Mr. Pearson himself or of any other persons, that Mr. Pearson should possess any weapons, or substance, or any such thing.

35 . I must indicate that the Crown provided me with case law from the Supreme Court of Canada: R. v. Zeolkowski, [1989] S.C.R. 1378 to the effect that, in hearings of this nature, hearsay evidence is admissible. There has been hearsay evidence during the testimony of the prosecution witnesses. And that the decision must be made on a balance of probabilities. 36 . From the evidence that I have heard, there is no doubt that any person, including Mr.

Ian Pearson, who is so afflicted by alcohol and mental health - the mental health may come as a result of the alcohol, I do not know - but mental health, alcohol, and drugs do not go with guns. There is no way of knowing what will happen in the future. 37 . Mr. Ian Pearson threatened, and the only time he was violent, as far as I know from the evidence that I have heard, was when he got into a fight with his nephew. Who knows what he can do since he knows himself that when he is so much under the influence of alcohol he does not know what happened, he does not know what he is doing, he does not know what he said.

And if he has a licence, and then obtains a firearm of some kind, and then gets drunk, who knows what will happen? 38 . I am of the view, and I am satisfied, that an Order should be made - and I will make the Order: that the gun licence that the police seized shall be forfeited to the Crown or be otherwise disposed of. And I will make a further Order: being satisfied that the circumstances warrant, I order that Mr. Ian Pearson is prohibited from possessing any weapons as defined by the Criminal Code for a period of three years from today. 39 .

I have reduced it from five years because five years is the maximum, and I honestly believe that if this person gets the right treatment and gets himself into a position where he is functioning properly and reliably, he may be able to, at that point, finally function as a reliable and responsible person, and then make an application for a Firearms Acquisition Certificate. That is why I reduced it from five to three years. That is my Order. MS. MOTYL : Thank you, Your Worship. THE COURT : Thank you, sir. THE DEFENDANT : Thank you, Your Honour.

THE COURT : Court is adjourned. ********** TRANSCRIPTIONIST’S NOTE: This transcript was revised and edits were made by His Worship Justice of the Peace P. Kowarsky Certificate of Transcript Evidence Act , subsection 5(2) THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from recordings made herein to the best of my skill and ability.

_______ Melanie James ________ __________ July 31, 2017 _______ (Official Court Transcriptionist) (date) I, Melanie James (transcribing the recording of Linda McDonnell) , certify that this document is a true and accurate transcript of the recording of R. v.

IAN PEARSON in the Ontario Court of Justice held at 1911 Eglinton Avenue East taken from File No. 4813-408- 20170724-094817-6-KOWARSP which has been certified in Form 1. ______ Melanie James ________ __________ July 31, 2017 _______ (Official Court Transcriptionist) (date) PHOTOSTATIC COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF MELANIE JAMES AND ACCORDINGLY ARE IN THE DIRECT VIOLATION OF ONTARIO REGULATION 587/01, COURTS OF JUSTICE ACT , JANUARY 1, 1990.