MITCHELL JOHN WOJCIK, – v. –, 2023 NBKB 177

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Mitchell John Wojcik v. His Majesty the King 2023 NBKB 177 MCA/19/2022 BETWEEN: MITCHELL JOHN WOJCIK, – and – HIS MAJESTY THE KING DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: August 21, 2023 DATE OF DECISION: October 19, 2023 APPEARANCES: Robert McKee, for Mitchell John Wojcik Malika Levesque, for His Majesty the King

DYSART, J. INTRODUCTION [ 1 ] This is an appeal filed by Mitchell John Wojcik pursuant to s. 117.05(7) of the Criminal Code with respect to an Order of Forfeiture and Prohibition issued by a Judge of the Provincial Court on November 7, 2022. That order was issued under the authority of s. 117.05(4), which reads:

(4) 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 (

a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and (

b) where the 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 of 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. [ 2 ] Mr.

Wojcik argues that the application judge made a number of reversible errors, including that he: - failed to conduct his assessment from the perspective of the date of the hearing of the Crown application rather than the date on which the events giving rise to the application (i.e. he relied on stale-dated evidence); - reversed the onus of proof by requiring the Appellant to prove that he was no longer suffering from mental health issues; and - applied the wrong test by inquiring whether the public would accept the Appellant possessing firearms.

BACKGROUND AND FACTS [ 3 ] The facts of this matter are summarized in the Appellant’s brief and the Crown does not dispute them. 3. On June 6, 2022, the police were called to the Moncton Hospital as they were requested to assist with an allegedly armed patient. Constable Gagné attended the scene and found the defendant in a room, who willingly handed over the knife he was carrying. The attending physician, Dr. Gagnon, expressed concerns about the respondent being suicidal, leading to his detention under the Mental Health Act. 4.

During the court proceedings, Constable Gagné's affidavit (C-1) was introduced, and it was clarified that the respondent had consented to being detained. Additionally, the police officer contacted the respondent's spouse, Lindsay Gauthier, who recounted two past incidents involving firearms. One incident occurred on April 6, 2022, when the respondent was found asleep on the sofa with a handgun next to him, and he pointed it at his spouse upon waking up. He claimed the gun couldn't fire, despite her pleas to stop. 5.

The other incident happened on May 21, 2022, when the respondent called his spouse, expressing conspiracy ideations and fears of a neighbor wanting to harm him. 6. Following these events, Constable Gagné sought assistance from Richibucto RCMP to seize any firearms from the respondent's residence. During cross-examination, it was confirmed that the respondent had no criminal history and no contact with the police since June 6, 2022. Nevertheless, his Possession and Acquisition License (PAL) for firearms was revoked. 7.

At the hearing under 117.05, the Applicant Crown argued that the incidents on April 6, 2022, May 21, 2022, and June 6, 2022, demonstrated that it was unsafe for the respondent to possess any weapons, prohibited devices, ammunition, or explosive substances, due to his alcoholism and mental health issues. However, the exact nature and seriousness of his mental health issues were not provided in

the evidence. 8. The court considered the spouse's concern for the respondent's well-being and her wish for him to seek help for his alcoholism andmental health problems, rather than facing criminal charges. Although the evidence provided was mostly hearsay, permissible in thiscontext, the court chose to give it substantial weight saying it was compelling as a result of the nature of the information shared byConstable Gagne and the attending physician. 9.

The judge acknowledged that suffering from mental health issues does not automatically disqualify someone from owning firearms, asmany individuals effectively manage their conditions. However, in the respondent's case, the judge called the events in April and May2022 as troubling, combined with his continued suicidal thoughts on June 6, 2022, raised serious concerns for him. 10. Despite no further negative police contact after June 6, 2022, the judge ruled the lack of recent interactions with law enforcementwas of limited value, given the past incidents.

The court found that, on a balance of probabilities, the respondent had pointed a firearm athis spouse while intoxicated on April 6, 2022, expressed conspiracy ideations on May 21, 2022, and continued to have suicidal thoughtson June 6, 2022. [4] Those facts are not complete, however.

The evidence before the Court was that on April 6th, when the respondent pointed ahandgun at his wife, he had been “passed out drunk on the couch” beforehand, and that he refused to stop pointing it at her when sheasked him to. [5] Also, the evidence with respect to the incident of May 21, 2022, was that the respondent called his wife and told her not to comehome because he had conspiracy ideations regarding the government and believed his neighbour wanted to kill him. As well, theAppellant expressed that he “would take himself out,” apparently expressing suicidal ideations. [6] Also omitted from that

summary of the facts was that the Court was advised by counsel for Mr. Wojcik that, because his PALhad been revoked, his client was looking to have the seized firearms released into the custody of a member of counsel’s law firm, whowas the holder of a PAL and who was legally entitled to have possession of those firearms. THE DECISION [7] The application judge ruled on the Crown’s application in a decision dated November 7, 2022.

He reviewed the facts and thenconsidered the law relating to applications under s. 117.05, starting with what the Crown had to prove: “The issue before me […] is whether the Crown has demonstrated that it is not desirable in the interests of public safety, of therespondent or any other person that he possess the seized firearms.

And I have to determine if the circumstances warrant that heprohibited from possessing any weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for a periodnot exceeding five years.” [8] He went on to consider the leading authorities with respect to such applications: “In R. v. Zeolkowski (1989) (SCC), 1 S.C.R. at page 1378, it was held that the standard of proof for such an applicationis on a balance of probabilities. It was further held that Parliament did not intend the proceedings to be conducted in the manner of acriminal trial.

Accordingly, it was not necessary for the judge hearing such an application to strictly apply the rules of evidence. Hearsayevidence is admissible in a hearing such as the one before this Court. Of course, the trial judge must always consider what weight, if any,is to be given to the hearsay evidence. An important factor in this type of application was stated in R. v. Dagenais 2009 SKPC 113 atparagraph 88 to 91 and I quote: “There are conflicting authorities regarding the test to be applied in a s. 117.05 application. In R. v. Day, [2006], 0. J.

No. 3187, Durno J.cavasses a number of these authorities. (…) “ In that court they concluded at paragraph 36 of the judgment that: “While there appears to be a significant difference in the tests applied between British Columbia, on the one hand, and Alberta and

Ontario on the other, I am persuaded the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners.” The court went on to say: “I accept that this test is an appropriate measure of whether or not “it is 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.” The Court was also of the view that the specific wording in s. 117.05(4) requires the determination of the sufficiency of the evidence relied upon to support the application as the date of the hearing rather than the date of the commencement of the application.

Then the Court finished at paragraph 91 by saying: “Bearing these principles in mind, it is the whole of the evidence that must be considered in determining if the Crown has met its onus on a balance of probabilities.” I would note that I subscribe to these principles I've set out in that decision. I must consider the evidence in its totality. It is important that sufficiency of the evidence relied upon to support the application is relevant at the date of the hearing and not simply at the date of the commencement of the proceedings.” [ 9 ] There is no suggestion from the Appellant, Mr.

Wojcik, that the application judge misstated the law. It is conceded that the strict rules of evidence do not apply, and that hearsay is admissible. It is conceded that the test is on the balance of probabilities.

And it is conceded that the analysis is to be undertaken effective the date of the hearing, and not retrospectively to the date when the Application was first filed. [ 10 ] The application judge then went on to complete his analysis, applying the legal principles to the evidence before him: The evidence disclosed and I accept that the respondent is an alcoholic and suffers from some mental health issues. It is to be noted that no evidence was presented as to what the mental health issue may be, how serious it may be, whether or not it is treatable, or whether or not they continue to be an issue.

The evidence does show events in April and May 2022 that raise serious concerns. In June 2022, it appears the respondent took it upon himself to seek assistance. Nonetheless, I must base my decision on the status of the respondent at the present time to determine if I should grant the application. I heard that the spouse of the respondent wanted him to seek help for his alcoholism and mental health issues. She did not want to see him charged with any criminal offence. It appears the respondent tried to get this assistance by attending the hospital on June 6, 2022.

It is important to note that the information with respect to these incidents was provided over the phone to the peace officer. Typically, this type of evidence, hearsay would not be permissible. However, as stated previously, the strict rules of evidence are to be relaxed in these cases. I found the officer had a good recollection of the conversation and I am prepared to give the evidence much weight. The same goes with the evidence of the attending physician. Again, it is hearsay, but the evidence is compelling, and again it deals with the state of mind of the accused on June 6, 2022.

There was no evidence, other than suicidal thoughts, to inform this court as to the type of mental health issues that the respondent may be suffering from. Now, the fact that a person may suffer from mental health cannot automatically preclude that person from owning firearms. There are many in our society who deal with mental health in a positive way and lead very productive lives. Conversely, we often see people in our courts with serious mental health issues who are involved in criminal activity.

Sadly, their conditions are not properly treated through medication, assistance or otherwise and they end up in our courts. The respondent does not have a criminal history. However, there are two troubling events in April and May of 2022. The evidence disclosed that there have been no negative contact with the police since June 6, 2022. It is also true that there had been no contact with the police for the events of April and May 2022 as well. Therefore, the current lack of contact with the police is of limited value.

I am satisfied on a balance of probabilities that the respondent, while intoxicated, repeatedly pointed a firearm at his spouse on April 6, 2022. I am also satisfied that on May 21, 2022, the respondent made comments of conspiracy in respect to a neighbour and that he threatened he may end his own life. I am satisfied that on June 6, 2022, the respondent continued to have suicidal thoughts and was admitted to the hospital. There is no evidence as to what treatment, if any, the respondent received since June 6, 2022.

There is no evidence that the events that brought this application to court are no longer a concern. The defence argues that the respondent should not be punished for seeking help. I agree. However, I must base my decision on the evidence before me. That is the two incidents in April and May 2022, and that he continued to be suicidal in June 2022. Would the public accept that such a person be permitted to possess firearms? The public might be convinced if it had knowledge of the steps taken to ensure such conduct was no longer an issue.

It is not the fact of having mental health issues that is the concern, but of the actions these may cause if left untreated. Though the respondent took some steps to address some of these concerns, I cannot speculate as to any benefit, if any, that correspond to those steps. Did he follow up with a psychiatrist? Is he on medication? Is he being followed by any meaningful way?

Without that knowledge, I am left with a situation where an alcoholic with suicidal thoughts has pointed a firearm at his spouse, threatened to kill himself and believed a neighbour wished to cause him harm, and this all in the very recent past. There is no evidence that shows this is no longer a live issue today. Accordingly, I am satisfied on a balance of probabilities that the respondent should be denied the possession of the seized firearms and be prohibited from doing so.

THE APPEAL [11] As stated, the Appellant argues that the application judge erred in several respects. He argues that the Judge, while stating thelaw correctly, nevertheless assessed the case on the basis of the evidence as it was at the time of the three incidents, rather than at thetime of the hearing. That is, the Appellant contends that the judge relied on stale-dated evidence. Secondly, he alleges that theapplication judge effectively reversed the onus by querying as to the current status of the Appellant’s mental health (“Did he follow upwith a psychiatrist? Is he on medication?

Is he being followed by any meaningful way?”). And finally, the Appellant argues that thejudge applied the incorrect legal test when he rhetorically asked, “Would the public accept that such a person be permitted to possessfirearms?” STANDARD OF REVIEW [12] Both parties agree that the standard of review in this case is similar to a

summary conviction appeal, which is that the decisioncan only be overturned if the verdict is unreasonable or if it cannot be supported by the evidence.

Ground of Appeal #1 – That the Judge Relied on Stale-Dated Evidence Ground of Appeal #2 – That the Judge Reversed the Onus of Proof [13] These two issues are somewhat intertwined, and so they will be addressed simultaneously in these reasons. [14] The evidence presented by the Crown consisted of three distinct incidents: • April 6, 2022, when the respondent was intoxicated, and he pointed a handgun at his spouse; • May 21, 2022, when the Appellant had conspiracy ideations regarding the government, believed his neighbour intended to killhim, and when he asserted that he would “take himself out;” and • June 6, 2022, when the Appellant was hospitalized under the Mental Health Act and was found to be in possession of a knife atthe hospital, and when his physician, Dr.

Gagnon, expressed his opinion that the Appellant was suicidal. [15] The Appellant argues that the application judge could not rely on that “old” evidence when he heard the Application on October24, 2022, nor when he issued his decision on November 7, 2022. He cites two cases for the principle that the judge must base her or hisdecision on the state of things at the time of the hearing, and not based on the events leading to the forfeiture application. [16] In R. v.

Peacock-McDonald, 2007 ONCA 128 , the Ontario Court of Appeal confirmed: “… that s. 117.05(4) requires the determination of the sufficiency of the evidence relied upon to support a forfeiture order as at the dateof the forfeiture hearing, rather than the date of the commencement of the forfeiture application: see R. v. Laframboise, [2002] O.J. No.5291 (Ct. J.). ” [17] In R. v. Douglas, 2013 ONCJ 649 , the seizure of the weapons had occurred some 6 months following Mr.

Douglas’admission to hospital on a Form 1 (i.e. under the equivalent legislation to the Mental Health Act), and the hearing occurred some fouryears later. [18] The Crown led the evidence of the physician who signed the Form 1. The Defence led evidence from Mr. Douglas’ treatingfamily physician, who was seeing Mr. Douglas every six to eight weeks. The treating family physician opined that Mr. Douglas was, atthe time of the hearing, not a threat to himself or others, with or without firearms. He had seen Mr.

Douglas weather severely stressfulsituations without harming himself or anyone else. [19] On the basis of that more timely evidence, the judge dismissed the Crown’s application, concluding that there was no evidence to

support the contention that Mr. Douglas lacked the “responsibility and discipline the law requires of gun owners.” [ 20 ] Mr. Wojcik argues that, as in the Douglas case, the evidence relied upon by the Crown dates from when the incidents occurred, and not from the date of the hearing. [ 21 ] While that is correct, the present case can be distinguished from Douglas for a number of reasons.

First, in Douglas , more than four years had elapsed from the incident in question (the Form 1 admission); whereas in the present case, only about five months had passed between the events in question in April, May and June 2022, and the hearing in October 2022. Also, Mr. Douglas led evidence from his treating physician which satisfied the judge that his mental health issues were being treated and that he was not a threat to himself or others. No such evidence was led by Mr. Wojcik in this case. [ 22 ] As well, it must be recalled that the evidence before the application judge was that Mr.

Wojcik was suffering from mental health issues and alcoholism. Typically, these are not temporary conditions. And the judge made it clear that the mere fact that Mr. Wojcik was suffering from mental health issues was not determinative: “ Now, the fact that a person may suffer from mental health cannot automatically preclude that person from owning firearms.” [ 23 ] But Mr. Wojcik did not lose his firearms because he had mental health problems.

Rather, he lost his firearms because, in the context of his mental health problems and alcoholism, he pointed a handgun at his spouse and expressed conspiracy ideations about his neighbour wanting to harm him. The use of the firearm and the ideations was evidence before the judge, which the judge relied upon. [ 24 ] In my view, once the Crown’s evidence relating to the events of April, May and June 2021, established that Mr.

Wojcik was suffering from two conditions, neither of which can be considered situational, episodic or temporary in nature, and given the relatively brief passage of time from those events to the date of the hearing, it was not unreasonable for the application judge to infer that, without treatment, they would be ongoing concerns. [ 25 ] This is where we become intertwined with the second grounds of appeal – that the judge allegedly reversed the burden of proof by requiring the Appellant to disprove that he was a danger. [ 26 ] It must be recalled that the Crown’s burden of proof is on the balance of probabilities, and not beyond a reasonable doubt, as is normally the case for matters covered by the Criminal Code .

It is the practical effect of that burden of proof which, it seems, has led to the Appellant’s argument that the judge reversed the onus. I am not satisfied that he did. [ 27 ] In my view, once the Crown’s evidence led the application judge to conclude that there was a prima facie case, on a balance of probabilities that it was undesirable for Mr. Wojcik to possess firearms, the Defence could – but was not required to – lead evidence that would tip the scales back in Mr. Wojcik’s favour. This has sometimes been referred to as the “tactical” evidentiary burden.

As stated by Sopinka et al, The Law of Evidence in Canada , Fifth Ed. at page 116: Some authorities label the common sense or tactical decision to adduce evidence in such circumstances a “tactical burden” or a “tactical shifting” of the evidential burden. However, the decision by a party to go forward with evidence because the risk of an adverse verdict is too great, is not a question of law but a matter of common sense.

Since the defendant is not required by law to do anything, this tactical decision to adduce evidence is not an evidential burden … and thus there is no shifting of the evidential burden. [ 28 ] That, in my view, is what the application judge was stating when he said: It is to be noted that no evidence was presented as to what the mental health issue may be, how serious it may be, whether or not it is treatable or whether or not they continue to be an issue. (Page 6, Line 7) … There was no evidence, other than suicidal thoughts, to inform this court as to the type of mental health issues that the respondent may be suffering from. (Page 7, Line 8)

… There is no evidence as to what treatment, if any, the respondent received since June 6, 2022. There is no evidence that the events thatbrought this application to court are no longer a concern. (Page 8, Line 11) … Did he follow up with a psychiatrist? Is he on medication? Is he being followed by any meaningful way? (Page 9, Line 5) [29] This would seem to be the same situation as was considered by the Ontario Superior Court of Justice in its very recent decision ofR. v Kuleczka, 2023 ONSC 3876 . Like the present case, that was a

summary appeal of a decision by an application judgepursuant to s. 117.05 of the Criminal Code. [30] Mr. Kuleszcka suffered from hallucinations. On two occasions he called police to report things that were the product of hishallucinations – that a young female was inside his residence, and that three males had stolen his vehicle at knifepoint and had pointed afirearm at him. In the third incident, Mr. Kuleszcka had told a friend that his (i.e. Mr. Kuleszcka’

s) life had to end. Police attended at hishome, where he denied being suicidal. [31] Mr. Kuleszcka was taken to hospital on a Form 1. The police then served him with an Application for the forfeiture of hisfirearms. [32] At the hearing, Mr. Kruszcka introduced letters from his psychiatrist and from various treatment providers. They confirmed thathe suffered from PTSD and major depressive disorder and had been under the care of a psychologist for many years to addresslongstanding anxiety, depression and relationship issues.

According to those treatment providers, he had never shown any tendenciestowards aggression or violence in any way.

His conditions manifested in the form of low self-esteem and “self-sabotaging behaviour.” He was reported to use alcohol as a form of self-medication. [33] The Justice of the Superior Court of Justice, in upholding the lower court’s decision to grant the forfeiture order, held as follows: [40] In my view, the Justice made no error in inferring from the fact that the appellant had experienced such detailed andconcerning hallucinations that his continued possession of firearms posed a risk of danger to the public.

I do not see this the Justice’sanalysis as stereotyping because the appellant had mental health issues. The evidence offered no explanation for or insight into theappellant’s episodes of hallucinations. There was no prognosis offered. There was certainly no evidence from which to concludethat they would not recur. [41] The Justice could not and did not rely simply on the fact that the appellant had a history of mental health concerns. Clearly, there needs to be a reason why the particular mental health concerns led to an inference that it was not desirable for theappellant to have firearms.

The reason “could arise from the person’s conduct with guns, or from their behaviour or mental stateotherwise that gives rise to legitimate concern about their potential future behaviour if they did have access to firearms”: R. v. King,2018 ONCJ 1589, at para. 19. As Wheeler J. noted at para. 22 of King, this may be because of “evidence of emotional or mentalinstability, evidence of irresponsible behaviour with guns, or some combination of the two…”. [42] In this case, there was no evidence of any concerning behaviour on the part of the appellant relating to guns.

But therewas documented evidence of significant mental health issues that had caused high level police responses. There was, as the Justicerecognized, a reasonable inference available that if the appellant perceived a risk to himself because of this sort of detailed hallucination,his possession of firearms could increase the risks to himself and to the public because it was completely unknown how he wouldrespond. I see no error in this conclusion. [43] Firearms are dangerous.

Their possession by individuals who experience vivid and concerning hallucinations involvingweapons and violence raises concerns as to how the person might react if experiencing hallucinations. This was a legitimate andappropriate concern in this case, despite the absence of any documented history of violence or misuse of the firearms by the appellant inthe past.

Section 117.04(1) “is preventative in nature. Its primary purpose is the prevention of serious injury and death resulting fromthe use of firearms…”: R. v. Hurrell, (ON CA), [2002] O.J. No. 2819 (C.A.), at para. 31.

[emphasis added] [ 34 ] In my view, the same principle applies here. That is, it was reasonable for the application judge to infer that Mr. Wojcik’s mental health issues and his alcoholism, in the absence of any evidence of treatment or a prognosis, represented an ongoing risk which justified the Forfeiture and Prohibition Order. He did not reverse the onus: rather, the evidence led by the Crown, which made out a prima facie case, required a tactical response from the Appellant. None was provided, and while Mr.

Wojcik was not obliged to lead evidence, his decision not to do so was at his own risk and perhaps, in the end, to his detriment. Grounds of Appeal #3 – That the Judge Used the Incorrect Test [ 35 ] The Appellant argues that the judge applied the incorrect test.

This is based on the following statement: “Would the public accept that such a person be permitted to possess firearms?” [ 36 ] Of course, the application judge clearly stated what the test is: “The issue before me […] is whether the Crown has demonstrated that it is not desirable in the interests of public safety, of the respondent or any other person that he possess the seized firearms.” [ 37 ] The issue, it would seem, is how a judge is intended to apply that test. Is it a purely subjective test?

Is it objective? [ 38 ] In Douglas , supra, cited by the Appellant, Justice Melvyn Green held as follows: [46] Less straightforward is the meaning of the critical words “not desirable” in sub.-s. (4). Unbound, as they are, by any statutory qualifiers such as “reasonable” or “appropriate”, the standard of “desirable” (or “not”) appears, at least on its face, to invite a judicial discretion so broad as to countenance subjectivism in the exercise of judicial wisdom. The better

interpretation, from my perspective, draws on similar statutory language employed in the Code’s surrounding regime governing the possession and control of firearms.

In s. 117.04, for example, the issuance of a judicial warrant for the seizure of firearms which are then subject to a s. 117.05 forfeiture application may proceed only where the justice is satisfied that “there are reasonable grounds to believe ... that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon”. (Emphasis added.) If the temporary seizure of weapons requires a judicial assessment of the reasonableness of the contextualized non-desirability of a person’s possession of those weapons, it seems both sensible and logical that a state application to permanently divest the same person of the very same weaponry would require the application of at least as onerous a standard - that is, reasonable grounds to believe ... that it is not desirable in the interests of the safety of the subject person, or of any other person, for the subject person to possess the weapon.

Any other

interpretation risks substituting subjectivity and arbitrariness for objectivity and reason […]. [ 39 ] I agree that the test is an objective one. The longstanding test of reasonableness would seem to apply, and I am satisfied that the application judge’s reference to “the public” was no more than a reference to what is reasonable in the circumstances. DISPOSITION [ 40 ] I can find no fault with the reasoning or analysis of the application judge. In my view, he correctly stated the law, and he properly considered the evidence before him.

His decision is reasonable and should not be disturbed. [ 41 ] The appeal is dismissed. DATED at Moncton, New Brunswick this 19 th day of October 2023. _____________________________________

Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick