R. v. Britt Date:, 2016 BCPC 329

Citation: R. v. Britt Date: 20161101 2016 BCPC 329 File No: 239471-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division IN THE MATTER OF AN APPLICATION PURSUANT TO S. 117.05 OF THE CRIMINAL CODE OF CANADA REGINA v. CHRISTOPHER PATRICK BRITT DECISION ON APPLICATION OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: J. Machek Counsel for the Defendant: John Cheevers

Place of Hearing: Vancouver , B.C. Dates of Hearing: August 30, 2016; October 4, 2016 Date of Judgment: November 1, 2016 Introduction [ 1 ] The Crown applies pursuant to s. 117.05 of the Criminal Code for an order prohibiting Mr. Britt from possessing firearms and an order authorizing the disposition of the seized firearms. Background [ 2 ] Cst. Garrick testified in support of the application. His evidence was primarily based on third party information. [ 3 ] In July 2015, Mr.

Britt and his fiancé, (“S”) boxed up their personal belongings, and prepared to travel the world for an extended period. [ 4 ] On July 17, 2015, a send-off celebration was held and during the celebration S learned that Mr. Britt had been unfaithful. S left the celebration and Mr. Britt went looking for her. Shortly thereafter Mr. Britt was stopped for speeding and investigated for impaired driving. The investigation resulted in Mr. Britt receiving a 90 day driving prohibition. [ 5 ] The next day, S and Mr.

Britt had a happenstance encounter at a local beach where they discussed things and S made it clear that their relationship was over. [ 6 ] On July 19, 2015, Mr. Britt spent the majority of the day drinking. A portion of that time was spent in the company of his friend, Mr. Josh Pitzlin. Mr. Pitzlin reported that Mr. Britt, was crying, and making comments regarding suicide. Such comments included: that he (Mr. Britt) was thankful he did not have his guns or he would be dead. He also stated that he would not kill himself because he did not want to hurt S. [ 7 ] At some point Mr. Pitzlin drove Mr.

Britt to a jewelry store where Mr. Britt had items on order. Mr. Britt paid for the items but rather than returning to Mr. Pitzlin’s car Mr. Britt left out of the rear of the store. [ 8 ] Mr. Pitzlin and others started looking for Mr. Britt. There was periodic phone contact where Mr. Britt stated his life was over; that he was going to take pills and jump off a bridge and if he had his guns he would be dead. [ 9 ] Concerned for Mr. Britt’s safety, S contacted the police. Cst. Garrick started looking for Mr. Britt and eventually found him on Mr. Britt’s boat. Mr.

Britt was intoxicated and he indicated if he had his firearms that he would use them. Cst. Garrick arrested Mr. Britt under the Mental Health Act and transported him to hospital. [ 10 ] While Mr. Britt was in hospital Cst. Garrick seized Mr. Britt’s firearms. The items seized included: Ammunition Savage 308 rifle Browning magnum Marlin 3030 rifle All items were lawfully in the possession of Mr. Britt’s hunting partner and lawfully stored. There is no evidence that Mr. Brett tried to access the firearms. [ 11 ] Mr. Britt spent a few hours at the hospital and was discharged.

He then spent the night at the apartment he shared with S. The two discussed the recent events and their relationship. During this conversation S made it clear she wanted space and that Mr. Britt was responsible for cancelling the trip and notifying friends and family about what had happened. [ 12 ] Over the next weeks and months Mr. Britt and S had limited communication. The communications generally occurred via email. The emails as described to the court consisted of a number of things including: Mr. Britt wanting to reconcile, expressions of remorse and Mr.

Britt stating he had done self-reflection and that he would not be sending anymore emails. [ 13 ] In September, there were telephone messages and emails. In the emails Mr. Britt apologized. He stated he was remorseful and that he was doing self-reflection. During October Mr. Britt sent S emails at a rate of one per week. Eventually the emails dwindled. [ 14 ] In early November, S received a voice message where Mr. Britt stated he wanted to explain things and that he had attempted suicide in the fall. The next contact was in December when S found a gift and a card left at her door by Mr.

Britt. [ 15 ] In January of 2016, the two had a chance encounter in Alberta. During this encounter S. told Mr. Britt that she was not ready to talk about things. [ 16 ] In February of 2016, S saw Mr. Britt at a distance on a few occasions while she was at Whistler. Then, and on February 21,

2016, S contacted Mr. Britt via text indicating she was ready to talk. Mr. Britt’s responses were to the effect that the relationship was over. Thereafter, there has been no contact. Copies of these text exchanges are Exhibit 1. Mr. Britt’s evidence [ 17 ] Mr. Britt is 29 years old and he works as an educator, a fishing guide and a guide for a ski company. He has a degree in science and education and in June of 2016 he completed a Master’s degree. [ 18 ] Mr. Britt and S met at university. Thereafter they dated for six years and they planned to marry.

After the death of a friend the two decided to take time off work, box up their belongings and travel. [ 19 ] Mr. Britt confirmed the events related to S discovering his infidelity. He candidly acknowledged causing the break up; driving while under the influence of alcohol; receiving a 90 day prohibition; and being taken to the hospital by the police. [ 20 ] As for what he may have said on July 19 th , Mr. Britt testified that his memory of the day is spotty.

He attributes his poor memory to the amount of alcohol he consumed pointing out his blood alcohol level as recorded by the hospital was five times the legal limit. [ 21 ] When asked about the suicidal comments attributed to him, Mr. Britt stated the comments do not sound like him. He indicated a strong bond with his brothers and the fact they look up to him as being the primary reasons why he would never take his life. [ 22 ] Mr. Britt acknowledged he hit a low point when his relationship with S ended.

In this regard, his long term relationship had come to an end; his trip was cancelled; he had given up his home and he was on leave from his work. He was also worried that the 90 day prohibition would ruin his career. [ 23 ] When asked about any risk that he may pose to himself or others, Mr. Britt stated that he is not a violent person and that he would not hurt anyone. He also categorically denied that he would cause harm to himself and he denied any suicide attempt. [ 24 ] As for what he has done since July 2015, Mr.

Britt has travelled; he finished his Master’s degree; he changed jobs; he started a clothing company; he formed a new relationship and he purchased a home. [ 25 ] Mr. Britt testified that within days of his break up with S that he started seeing Dr. Estrin, a registered psychologist, and has had contact with him since that time. [ 26 ] Mr. Britt produced two letters confirming he had seen Dr. Estrin. In a letter dated February 15, 2016, Dr. Estrin, described how Mr. Britt sought help in coming to terms with the loss of a long-term relationship. He observed that Mr.

Britt has made significant emotional gains and established a new life including a new job, a new home, new relationship and an abundance of social support. The letter concludes: “… it is reasonable to deem him to be at no risk to himself or to others at this time.” [ 27 ] The letter viewed in its entirety makes it clear Dr. Estrin was aware of the comments regarding suicide and that Mr. Britt wanted the letter in support of wanting his rifles returned [ 28 ] In the second letter dated July 28, 2016, Dr. Estrin confirms Mr.

Britt is his patient; that he saw the documents associated with instant matter, and he is aware that Mr. Britt had had suicidal thoughts. With respect to the suicidal thoughts Dr. Estrin opined as follows: “I am of the opinion that Mr. Britt’s suicidal thoughts (and pre-suicidal gestures such as saying goodbye to all his friends) were the product of a catastrophic situational crisis, and that his emotional reaction was exacerbated by several days of intoxication.” [ 29 ] As to the issue of whether or not Mr. Britt is a risk Dr. Estrin wrote: Mr. Britt has expressed no thoughts of self-harm since that time.

He decided to go on the planned trip around the world (he was to go with his partner), and stayed in contact with me intermittently. Upon his return he completed his Master’s degree, found a new teaching job, bought property, and has a new and happy relationship. Given his current positive outlook and life trajectory and considering that he has expressed no thoughts of self-harm since July 2015, it is reasonable to deem him to be at no risk to himself or others at this time. [ 30 ] Mr. Britt also produced a document titled, Clinical Assessment.

This document was prepared on August 21, 2016, by registered psychologist, Dr. Milstein. The document opens with Dr. Milstein speaking to his qualifications including that he is experienced in risk assessments and that he has previously given an opinion to the court. He then stated Mr. Britt came to his office for an assessment as to whether he (Mr. Britt) or anyone else would be at risk if Mr. Britt were to be in the possession of firearms. Then, and after considering the information before him including a letter from Dr. Estrin, Dr. Milstein, opined that he did not believe that Mr.

Britt was currently at risk for self- harm or causing harm to another person [ 31 ] During cross-examination, Mr. Britt acknowledged the role that alcohol played in the events leading to his firearms being seized. He candidly admitted that he still drinks, however, and on the advice of Dr. Estrin, he limits his weekly consumption to 15 beers. Mr. Britt was of the view that 15 drinks were within the recommended amount. Legal analysis: [ 32 ] The relevant portions of s. 117.05 read as follows: Application for disposition 117.05

(1) 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 anorder for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of thewarrant 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 thehearing be given to such persons or in such manner as the justice may specify.

(2) A justice may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person fromwhom the thing or document was seized in the same circumstances as those in which a

summary conviction court may, under PartXXVII, proceed with a trial in the absence of the defendant.

(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respectingthe value of the thing in respect of which the application was made.

(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests ofthe safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibiteddevice, 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.

(5) Where a justice does not make an order under subsection (4), or where a justice does make such an order but does not prohibit thepossession of all of the things referred to in that subsection, the justice shall include in the record a statement of the justice’s reasons. [33] The burden for establishing the orders sought rests with the Crown and must be established to the civil standard of proof; abalance of probabilities: R. v. Zeolowski, (SCC), [1989] 1 S.C.R. 1378, and R. v. Douglas, 2013 ONCJ 649. [34] A hearing pursuant to s. 117.05 permits the receipt of all relevant evidence including hearsay evidence.

Despite this, a judge isrequired to scrutinize the evidence to ensure that it is credible and trust worthy: R. v. Zeolowski, supra, at para. 18, and R. v. Douglas,supra, at para, 45. [35] A prohibition order may be granted even in circumstances where there has been no criminal conduct, no history of violence andno evidence of mental illness. This view is found in R. v.

Christiansen, 2006 BCCA 189, where the court heard an appeal related to theimposition of a prohibition order pursuant to s. 111 of the Code. [36] In Christiansen, the appellant argued the hearing judge and the appeal court judge erred in failing to consider as factors: that theappellant had not been convicted of a criminal offence related to firearms; that the appellant had never been treated for a mental diseaseassociated with violence; or that the appellant did not have a history of violence.

The court found the appeal judge did not err in decidings. 111 did not exclusively deal with behavior that could be characterized as involving a criminal conduct or acts of violence againstothers. [37]

Section 111 is distinguishable from s. 117.05 in that the former relies on a police officer’s reasonable grounds, and s. 117.05simply requires a judge to be satisfied. Despite the differences the sections are similar in purpose which is the protection of the public.

Accordingly, and despite the differences, the presence or absence of criminal conduct, mental illness or a history of violence are factorsto be considered but are not determinative of whether or not it is desirable in the interests of safety for the individual to possess firearms. [38] Finally a decision on whether or not an individual should be prohibited is based on a finding at the time of the hearing not at thetime of the seizure. In other words, the judge must consider, if at the time of the hearing they are satisfied that it is not desirable for theindividual to possess firearms: R. v.

Douglas, supra, at para. 45. [39] To summarize, the burden is on the Crown to satisfy a judge on a balance of probabilities that it is not desirable in the interestsof safety for the individual to possess firearms. A judge can be satisfied without there being evidence of criminal behavior, mentalillness or a violent past. Finally, the desirability issue is related to the individual at the time of the hearing and not at the time of theseizure. Position of the parties [40] The Crown argues the evidence establishes on a balance that it is not desirable in the interests of safety for Mr.

Britt to possessfirearms and therefore the orders sought should be granted. [41] In support of their position, the Crown argues nothing has really changed from July 2015. Specifically, Mr. Britt had a job thenand he has one now; Mr. Britt had a girlfriend then and he has one now; Mr. Britt had his brothers then and he has them now. TheCrown also points to Mr. Britt’s continued use of alcohol as being immature and reckless given the role alcohol played in the events ofJuly 2015. [42] Finally, the Crown argues Mr.

Britt has not really taken responsibility for the events that happened and that he projects blameonto S. [43] The defence argues the evidence falls markedly short of satisfying the court that there is a safety risk if Mr. Britt is permitted to

possess firearms. Counsel points out all the progress that Mr. Britt has made as well as the opinions of Dr. Estrin and Dr. Milstein. Counsel also challenges the reliability of some of the comments attributed to S. Decision [ 44 ] After considering all of the evidence, I find the Crown has failed to establish, on a balance, that it is desirable in the interests of safety to prohibit Mr.

Britt from possessing firearms. [ 45 ] In considering the evidence I note that it was a severe life crisis (loss of a long-term relationship, risk to employment, humiliation, remorse, and loss of home) combined with excessive alcohol consumption that triggered Mr. Britt’s comments. I also observe that Mr. Britt did not attempt suicide; that he has never taken preparatory steps towards suicide nor did he engage in risky behaviour suggestive of an attempt on his life. [ 46 ] Further to the above, Mr.

Britt’s actions in seeking out professional help points to self-awareness of his emotional state and his willingness to seek and receive professional help. In this regard, within three days of the break up Mr. Britt started seeing Dr. Estrin. Moreover, Mr. Britt is following Dr. Estrin’s advice regarding alcohol intake. [ 47 ] I do not agree with the Crown that Mr. Britt does not take responsibility for what happened. Mr. Britt was a candid witness. He acknowledged how his actions contributed to the break up but he also believed that S had some responsibility.

I do not see this as failing to take responsibility, rather, merely his analysis of the relationship. [ 48 ] I cannot agree with the Crown’s suggestion that Mr. Britt’s life is similar to what it was in July of 2015. Specifically, Mr. Britt now has jobs and contracts that he clearly loves; he purchased a new home; he adjusted his alcohol intake and most importantly he sought professional help for his grief. [ 49 ] Finally, the letters from Dr. Estrin and Dr. Milstein, as well as Mr.

Britt having been released from hospital only hours after his admittance, is persuasive in that the mental health professionals who have seen and interacted with Mr. Britt do not see him as a risk to himself or others. [ 50 ] For the above reasons the application is dismissed. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia