2015 MBPC 53, 2015 MBPC 53

Cite 2015 MBPC 53 THE PROVINCIAL COURT OF MANITOBA In the Matter of: A Reference to a Provincial Court Judge Pursuant to Section 74(1) of The Firearms Act, S.C. 1995, c. 39 BETWEEN Laverne Sylvester Lesiuk Applicant ) ) ) Daniel M. Cleto for the Applicant ) - and – ) ) Her Majesty The Queen Respondent ) ) ) Alexander Menticoglou for the Respondent ) ) ) Judgment delivered: ) November 6, 2015 L. M. Martin, P.J. INTRODUCTION [ 1 ] The applicant, Mr.

Laverne Lesiuk (“Lesiuk”), brings a reference under s. 74 of the Firearms Act, S.C. 1995, c. 39 (the “ Act ”), to review the decision of the designate of the chief firearms officer (“CFO”) to revoke his firearms licence (“licence”). [ 2 ] For the reasons that follow, the application is dismissed and the CFO’s decision is confirmed.

BACKGROUND [ 3 ] Lesiuk is a 60 year old man who, other than some dated entries on his criminal record from 1973 to 1985, remained out of the criminal justice system for 30 years until February 4, 2015 when he received a one year suspended sentence in relation to three counts of failing to report the loss of a firearm pursuant to s. 105(1)(a), an offence under

Part III of the Criminal Code . Although the sentencing Judge ordered the return of all firearms seized from Lesiuk, the CFO revoked Lesiuk’s licence on April 15, 2015 pursuant to s. 70(1) (

a) of the Act . [ 4 ] Before coming to this decision to revoke Lesiuk’s licence, the CFO interviewed Lesiuk and two RCMP officers. He reviewed several police and firearm databases and made himself aware of the circumstances of Lesiuk’s February 4, 2015 conviction, including the fact that it was a plea bargain and the judge ordered the return of the firearms. [ 5 ] The reasons for the CFO’s decision to revoke Lesiuk’s licence are set out in his April 15, 2015 Notice of Revocation of a Firearms Licence.

In that decision, the CFO sets out the information he considered in coming to his determination, which includes the circumstances leading to the three firearm charges, which are as follows. [ 6 ] On September 6, 2012, the RCMP executed a search warrant in an unrelated matter which led to the discovery of an arsenal of firearms. One of the firearms was recorded as being registered to Lesiuk, yet when interviewed, Lesiuk denied ownership, thereby requiring the police to obtain a search warrant for Lesiuk’s residence. On October 5, 2012, this search warrant was executed in Lesiuk’s home.

Although the police found all of Lesiuk’s firearms to be properly stored, they could not locate three firearms otherwise listed on the registry as belonging to Lesiuk. On that occasion, Lesiuk first suggested that the police likely missed the firearms in their search, then placed blame for the missing guns on a house sitter he asserted had stolen them, and finally advised that he had illegally sold them. It is only recently, at the sentencing in February, that Lesiuk indicated that the three firearms were stolen in 2008 during a home invasion

by a man known to him, who threatened his life if Lesiuk told the police about it. To this day, Lesiuk has refused to file a complaintwith the police. Two of the three stolen firearms remain missing. POSITION OF THE PARTIES [7] Lesiuk submits that the CFO’s April 15, 2015 decision to revoke his license is not justified on the facts of the case.

He refers,in particular, to the CFO’s improper consideration of criminal charges that were stayed, as well as an erroneous characterization ofLesiuk’s actions, which are best portrayed as a one-time and understandable slip by an otherwise upstanding citizen and responsible gunowner. [8] The respondent submits that the CFO’s decision is owed a substantial degree of deference and that it can only be overturned ifit is clearly wrong. He suggests that what Lesiuk is asking this Court to do is to re-weigh the CFO’s decision which is not permitted atlaw.

He further submits that on the law and facts of this case, the CFO’s decision is justified. STANDARD OF REVIEW [9] Section 70(1) of the Act, provides authority to the CFO to revoke a licence for any good and sufficient reason: 70.

(1) A chief firearms officer may revoke a licence, an authorization to carry or an authorization to transport for any good andsufficient reason including, without limiting the generality of the foregoing, (

a) where the holder of the licence or authorization (

i) is no longer or never was eligible to hold the licence or authorization, (ii) contravenes any condition attached to the licence or authorization, or (iii) has been convicted or discharged under

section 730 of the Criminal Code of an offence referred to in paragraph 5(2)(a); [10] Notwithstanding this authority, when a licence holder disagrees with the CFO’s decision made pursuant to s. 70, he may referthat decision to a Provincial Court Judge for consideration as to whether the CFO’s decision was justified. (s. 74-75) [11] Where the grounds for the reference is related to the reasons for the CFO’s decision, as it is here, the Provincial Court Judge’srole in the reference is limited to determining whether the CFO’s decision was reasonable, not whether it was correct or whether shewould have come to a different conclusion.

As confirmed in Hintz v. Manitoba (Chief Firearms Officer), 2011 MBCA 60: [36] The Dunsmuir principles (Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190) should be applied here. Whilethere is no privative clause in the Act, the purpose of the respondent’s office and work, the nature of the question before him and hisexpertise in the matter of licencing of individuals in relation to firearms, all suggest a deferential standard when he is interpreting the Act.See also, Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 at para. 28, 328 D.L.R. (4th) 1, and Celgene Corp. v.

Canada (AttorneyGeneral), 2011 SCC 1 at para. 34, 327 D.L.R. (4th) 513. [12] Dunsmuir explains what reasonableness means and how a reviewing Judge must apply this standard: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [13] In determining whether the CFO’s decision was reasonable, the Provincial Court Judge reviews the facts relied on by the CFOwhich may be amplified by any relevant evidence presented at the review. (British Columbia (Chief Firearms Officer) v. Fahlman, 2004BCCA 343, at para. 23; Alberta (Chief Firearms Officer v.

Holland, 2004 ABQB 44, at paras. 12 – 15) [14] In this case, Lesiuk testified at the hearing as to his continued fear for his and his family’s safety as the reason for notcooperating in the investigation of the missing firearms. ANALYSIS [15] To lawfully possess a firearm, an individual must hold a licence (the Act, s. 13, 56). Both the application for a licence and itsrevocation, fall within the authority of the CFO.

The Act is clear that in making either of these decisions, the CFO is to be guided bysome general non-exhaustive considerations. [16] Specifically, when determining whether to revoke a licence, s. 70, as noted previously, provides a discretionary ability to revokefor any good and sufficient reason.

Section 5 of the Act refers to some guiding criteria as to what may be a good and sufficient reason: 5.

(1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person

not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.

(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under

section 74 , a provincial court judge shall have regard to whether the person, within the previous five years, (

a) has been convicted or discharged under

section 730 of the Criminal Code of ... (ii) an offence under this Act or

Part III of the Criminal Code ,... [ 17 ] As noted in Fahlman , however, these criteria are not exhaustive, meaning that the CFO, and the provincial court judge to whom the CFO’s decision is referred, may consider anything about the background or conduct of the licence holder that is relevant to public safety: [25].....Section 5(1) creates a broad safety standard for eligibility to hold a firearms licence or to continue to hold one following a revocation inquiry.

Section 5(2) requires a firearms officer or a Provincial Court judge on a reference to “have regard to” certain conduct by the applicant or licence holder. I do not read s. 5(2) as being exhaustive of the matters to be considered as affecting safety concerns under s. 5(1). There are many other things a firearms officer or a judge might consider that do not fit into s. 5(2) and that might logically and reasonably give rise to valid safety concerns.

I agree with the appellant’s submission that there is no statutory obligation to decide the safety issue in favour of the applicant or licence holder when none of the criteria in s. 5(2) is present; and that there is no obligation to refuse a licence or order a revocation if one or more of those criteria are present. A plain reading of the

section by itself evinces no such intention by Parliament.

The firearms officer and the judge are entitled to consider anything about the background or conduct of the applicant or licence holder that is relevant to public safety. [ 18 ] In this case, though the CFO considered prior convictions and charges that had been stayed, it is clear on a reading of his reasons that the CFO based his decision on the three February 4, 2015 convictions, an enumerated ground under s. 70(1) (a)(iii), as well as Lesiuk’s failure to report the theft of three firearms, not only in 2008, but to this day, as well as his multiple attempts to dissimulate the truth and lie to the police when they were investigating a serious offence where one of Lesiuk’s firearms was found. [ 19 ] It is true that the Provincial Court Judge who sentenced Lesiuk on February 4, 2015 was made aware of these same circumstances, declined to make a s. 110 Criminal Code weapons prohibition, and ordered the return of his weapons.

Such an order does not however bind the CFO with respect to the separate issue of whether or not to revoke licensing privileges.

This issue, as mentioned previously, falls within the purview of the CFO, subject, of course, to review by a Provincial Court Judge. [ 20 ] In the circumstances of this case, including the amplified record, I find that not only was the CFO’s decision-making process procedurally fair in that the reasons for the decision are transparent and intelligible and support the finding, but the decision itself falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 21 ] I am very mindful that other than for the three firearms in question, Lesiuk appears to have otherwise been a responsible firearms owner.

I am also mindful that Lesiuk’s fear of retribution by the individual who committed the 2008 home invasion, stealing the three firearms is very much real. That said, having a firearms licence is a privilege. I would note in this particular case that one of the stolen firearms ended up in the hands of a gang member and that two of the firearms are still missing.

I would further note that Lesiuk has still not reported the 2008 offence such that the police cannot investigate the whereabouts of those two firearms. [ 22 ] In all of the circumstances, Lesiuk’s application is denied, and the April 15, 2015 decision of the CFO is hereby confirmed. Original Signed by L.M. Martin, P.J.