R. v. Marsden, 2018 BCPC 218

Citation: R. v. Marsden 2018 BCPC 218 Date: 20180830 File No: 248751-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CAMERON STUART MARSDEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: S. Preston Counsel for the Defendant: S. Ross Place of Hearing: Vancouver , B.C. Date of Hearing: June 27, 2018 Date of Oral Decision: August 8, 2018 Date of Judgment: August 30, 2018 INRODUCTION [ 1 ] Cst. Roycombough applies pursuant to s. 117.05 of the Criminal Code for an order prohibiting Mr.

Marsden from possessing firearms, ammunition, prohibited ammunition, prohibited device or explosive substance. He also seeks an order forfeiting the firearms and ammunition that were seized from Mr. Marsden.

[ 2 ] On June 27, 2018, a hearing was held where Cst. Roycombough and Mr. Marsden testified. Mr. Marsden also submitted medical notes and a letter for the court to consider. [ 3 ] The court is tasked with determining if the evidence establishes on a balance that it is not desirable in the interests of Mr. Marsden’s safety for him to possess firearms. [ 4 ] On August 8, 2018, the court gave an oral decision. The reasons are below. EVIDENCE Cst. Roycombough [ 5 ] On September 23, 2017, the Vancouver Police received a call expressing concerns regarding Mr. Marsden’s well-being.

The catalyst for the call was a letter he authored titled “Final Testament”. The letter was sent to Mr. Marsden’s brother and to his treating psychologist, Dr. LePage, who interpreted the letter as a suicide note and contacted the police. [ 6 ] The letter resulted in Cst. Roycombough being dispatched to check on Mr. Marsden’s well-being. Cst. Roycombough went to Mr. Marsden’s residence, knocked on the door, and after a period of time, Mr. Marsden opened the door. [ 7 ] Cst. Roycombough was invited inside at which point he and Mr. Marsden had a long conversation. During the conversation, Mr.

Marsden told the officer that he had been going through a hard time. He disclosed that his difficulties were caused by a number of motor vehicle accidents with the result that he suffered chronic pain and unable to work. [ 8 ] Mr. Marsden also told Cst. Roycombough that he suffered from sleep apnea, depression anxiety, PTSD, and asthma and that his circumstances placed him in significant financial distress such that he was worried about living on the streets. [ 9 ] During the conversation Cst. Roycombough formed the impression that Mr. Marsden was intelligent, thoughtful and credible. At one point, Mr.

Marsden disclosed to Cst. Roycombough that he had planned three different ways to end his life. Specifically, Mr. Marsden indicated he could use a knife, drive off of a bridge or shoot himself. [ 10 ] With respect to using a firearm, Mr. Marsden confirmed that he held a loaded gun to his head on up to 20 different occasions. Cst. Roycombough asked where the firearms were and Mr. Marsden stated that they were at a friend’s home. [ 11 ] Cst. Roycombough apprehended Mr. Marsden under the Mental Health Act and arranged his transportation to hospital. Once at the hospital, Cst. Roycombough and Mr.

Marsden had further conversation and it was at this time Mr. Marsden disclosed that he had a number of firearms in his home and one firearm was stored with his friend, Joe. [ 12 ] Feeling that the firearms need to be seized, Cst. Roycombough discussed the matter with Mr. Marsden. Mr. Marsden was cooperative; he gave Cst. Roycombough the key to his home and told him where the firearms were stored. [ 13 ] Cst. Roycombough left the hospital and returned to Mr. Marsden’s home where he seized a number of items. He also obtained Mr. Marsden’s firearm from Joe.

In total the following items were seized. • Browning rifle • Remmington 870 shotgun • Kimber pistol • Smith & Wesson handgun • C-2 pistol • Colt pistol • 10 pistol magazines • 9 boxes of ammunition [ 14 ] All of the firearms and ammunition were lawfully possessed, lawfully stored and properly registered. [ 15 ] Cst. Roycombough confirmed during cross-examination that he seized the firearms because he felt that Mr. Marsden should not have access to firearms until he was in a better state. Mr. Marsden [ 16 ] Mr.

Marsden testified that he is 54 years old and he suffers from various health issues which are primarily related to injuries suffered in car accidents during the years; 1995, 2004, and 2013. Prior to the accidents Mr. Marsden worked in the finance industry, specifically, auto finance which included retail finance and wholesale finance. He also worked for GMAC Credit company and in 2013 he had just been hired by a financial institution when he was injured. [ 17 ] The injuries suffered in the 2013 accident prevented Mr. Marsden from working and this led to his employer terminating him.

The termination and the motor vehicle accident led to Mr. Marsden being involved in multiple litigations. Specifically, he brought actions against his employer, against his disability insurer, and against the Insurance Corporation of British Columbia.

[ 18 ] By late September 2017, Mr. Marsden had exhausted all financial resources including all available credit. In addition to his legal issues, Mr. Marsden was suffering from debilitating chronic pain. The pain impaired his sleep and prevented him from walking and doing those things that he enjoyed. [ 19 ] In

summary, by late September, Mr. Marsden was financially depleted, he was suffering from chronic pain, he was the plaintiff in three litigations and he had been the subject of a private investigation. These circumstances culminated in Mr. Marsden drafting a document titled “Final Testament” and emailing it to his psychologist and to his brother. Mr. Marsden testified he mentioned suicide in the document and that he was strongly considering ending his life when he wrote it. [ 20 ] Mr. Marsden confirmed he was admitted to a psychiatric unit on the day that Cst.

Roycombough transported him to the hospital and thereafter he spent four to five days in hospital. On his release, Mr. Marsden’s was accepted into the Pain Clinic located at St. Paul’s hospital and in the spring of 2018, he started receiving specialized treatment for his pain. [ 21 ] Since the events of September 2017, there have been positive changes in Mr. Marsden’s financial situation and in his health. As for his financial situation, litigation involving Mr. Marsden settled and he received a large financial award, which if managed properly, will protect him from homelessness and provide life comforts.

In fact, the money enabled Mr. Marsden to purchase a special bed that assists with his pain management. [ 22 ] As for his health, Mr. Marsden is being treated by the Pain Clinic. His treatment involves Ketamine infusions and connection with support services including working with a psychiatrist. Thus far, the Ketamine infusions have benefitted Mr. Marsden in that he has experienced an 80% reduction in his shoulder and head pain. This reduction lasts approximately 3½ weeks. Mr. Marsden reports that the treatments have not resolved the pain in his lower back and in his left shoulder.

Despite this, the improvements permit him to go for walks, which is something he has re-gained. [ 23 ] As for his firearms, Mr. Marsden testified he has been a long time user of firearms, that he is a competitive shooter and that he enjoys this activity. [ 24 ] Marsden testified that he would not take his life as he has a daughter who he loves very much. [ 25 ] In cross-examination, Mr. Marsden confirmed he has suffered depression all of his life but added that the motor vehicle accidents increased the frequency of his depression. He also added that his depression was historically treated with exercise.

Medical Evidence [ 26 ] The court was presented with documents prepared by various health practitioners who have dealt with Mr. Marsden. The documents are a letter from Mr. Marsden’s treating psychologist dated December 18, 2017, an Outpatient Clinic Consultation Note dictated by Dr. Simon Bow dated June 20, 2018, and a Procedure Note dictated by Dr. Wong dated June 1, 2018. Dr. LePage [ 27 ] At the request of counsel for Mr. Marsden, Dr. LePage prepared a letter providing information regarding Mr.

Marsden’s psychological status and whether it is safe for him to have the firearms that were seized by the police. [ 28 ] In his letter, Dr. LePage confirmed he had been working with Mr. Marsden on practically a weekly basis during the period January 14, 2014, to October 19, 2017. He also confirmed the purpose of the visits were to assist Mr. Marsden with emotional regulation related to the accidents. Further, that in December 2017, Dr. LePage had a two hour interview with Mr. Marsden and that Mr. Marsden completed psychometric tests. Thereafter, Dr. LePage documented Mr.

Marsden’s 2013 accident and how the effects of the accident contributed to Mr. Marsden’s suicidal ideation. In this regard, Dr. LePage wrote: His accident on May 28 th 2013 resulted in him experiencing a very light level of persistent pain, which proved to be unresponsive to the many medical attempts to lessen it. Mr. Marsden was always very conscientious in following the advice of his medical practitioners but unfortunately with no benefit. Needless to say his unremitting pain and the development of a very severe sleep disorder had a withering effect on him psychologically.

He became increasingly depressed, anxious, frustrated and despondent about ever being able to find relief from his pain. His deteriorating psychological condition and the persistent unremitting level of pain caused him to develop severe suicidal ideation. [ 29 ] Further on in his letter, Dr. LePage observed that the ICBC settlement and the referral to the Pain Clinic resulted in a significant change in Mr. Marsden’s perceived options and provided him some control in his life. [ 30 ] Dr. LePage then concluded his letter with the following: After our recent meeting Mr.

Marsden appeared calmer and more rationally focused but did still report feeling of depression and anxiety specifically about the effects on his life from the unremitting nature of his pain. He is not involved with active treatment with the experts at St. Paul’s and is hopeful that their future treatment may be able to lessen his pain. The psychometric testing confirms that he still has significant levels of depression and anxiety but at levels that are much lower than on previous testing. The testing also indicates some continued suicidal ideation. In discussion, Mr.

Marsden confirmed that while these thoughts are present he realizes that his life can now follow a different path given his increased degrees of freedom over the choices in his life. Mr. Marsden, throughout the three and a half years of our involvement, has always impressed as a very honest person and consequently I feel that the likelihood of harm to him or others through suicidal action is now minimal because of the significant changes in his life circumstances. He has been encouraged to receive continued psychological treatment through the St.

Paul’s Hospital Pain programme as he still needs to work on emotional self-regulation as a result of his pain. [ 31 ] Dr. LePage’s letter is of minimal assistance. My conclusion is based on a number of reasons. Most significantly, Dr. LePage’s objectivity is of concern given the therapeutic alliance he has with Mr. Marsden.

[ 32 ] I also observe that Dr. LePage has been seeing Mr. Marsden on an almost weekly basis for three years, and yet, he took no action regarding Mr. Marsden having placed a gun to his own head on several occasions. I recognize this lack of action may be owing to Mr. Marsden not being candid, and if this is the case then, Dr. LePage’s comment that Mr. Marsden’s has always impressed him as very honest is suspect. Alternatively, if Dr. LePage was aware that Mr. Marsden had placed a gun to his head then it is curious that these events were not in Dr. LePage’s letter. [ 33 ] Finally, and of significance, Dr.

LePage observed that the likelihood of Mr. Marsden self-harming through suicide is minimal and yet he fails to respond to the issue related to the impact that the minimal risk of suicide has on whether or not it is safe for Mr. Marsden to possess firearms. Dr. Simon Bow [ 34 ] On June 26, 2018, Dr. Bow, Resident of Psychiatry, dictated an Outpatient Clinic Consultation Note (the “note”). In the note, Dr. Bow briefly outlined Mr. Marsden’s general history and confirmed that Mr. Marsden has had Ketamine infusions with benefits tending to last four weeks. [ 35 ] Mr. Marsden’s psychiatric history was also discussed.

In this regard, it is noted, in 2013 Mr. Marsden was diagnosed with posttraumatic stress disorder, posttraumatic major depression, generalized anxiety disorder, panic disorder and the he has obsessive- compulsive personality traits. [ 36 ] As for Mr. Marsden’s social history, Dr. Bow observed that Mr. Marsden had a number of concerning stressors.

Some of these stressors include; the possibility that he may have to find a new place to live, that his daughter’s fiancé was diagnosed with cancer, that his younger brother was assaulted and that his older brother was diagnosed with Alzheimer’s. [ 37 ] Under the heading, Mental Status Examination, Dr. Bow noted that pain caused Mr. Marsden to stand during their interview. He noted that Mr. Marsden was tense and at times angry, but he also observed that Mr. Marsden smiled on occasion. It was observed that Mr.

Marsden appeared to be preoccupied by perceived injustices he had suffered at the hands of various insures and Dr. Bow noted that such feelings are often associated with PTSD. Dr. Bow found no evidence of suicidal or homicidal ideation and noted that Mr. Marsden’s daughter was his biggest motivation for staying alive. [ 38 ] It was Dr. Bow’s impression that the resolution of Mr. Marsden’s legal matters had relieved some of his stress. It was also noted that Mr. Marsden had a history of depression and anxiety but that he did not appear to be in a depressive state. It was recommended that Mr.

Marsden continue with his Ketamine treatment as it assists with pain and can be helpful with depression. [ 39 ] Although Dr. Bow’s note is of some assistance, the court has no information regarding the process Dr. Bow undertook to form his impression; moreover, there is no information as to what factors contributed to Dr. Bow to conclusion, “there is no evidence of suicidal or homicidal ideation or intent or plan at this time.” Specifically, the court does not know if Dr. Bow had Mr. Marsden complete psychometric tests similar to Dr. LePage, or if Dr. Bow spoke to collateral sources.

Additionally, there is no information as to how many times over what period of time he met with Mr. Marsden. Lastly, the note does not mention if Mr. Marsden’s lack of suicidal or homicidal ideation is stable or whether Mr. Marsden is vulnerable to changes in thought. Dr. Wong [ 40 ] On June 1, 2018, Dr. Wong, an Anaesthesiologist, dictated a Procedure Note (the “note”). The note confirms Mr.

Marsden has received Ketamine treatment and that this resulted in a significant pain reduction in some areas. [ 41 ] The note also confirms that the Ketamine infusions were not long term, but a short term process over a period of about 6 months at which point Mr. Marsden would be weaned to an NMDA antagonist. Dr. Wong also felt that Mr. Marsden would benefit from coping skills and cognitive aids to help him deal with chronic pain. [ 42 ] What I observe from Dr. Wong’s note is, the Ketamine treatment has had some benefit, the Ketamine treatment will be short term, and that Mr.

Marsden will continue to suffer chronic pain. THE LAW [ 43 ] The law related to s. 117.05 is set out in R. v. Britt, 2016 BCPC 329 , at paragraphs 32 – 39 : [32] The relevant portions of s. 117.05 reads as follows: Application for disposition 117.05

(1) Where anything 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 thirty 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.

(2) A justice may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person from whom the thing or document was seized 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 defendant.

(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respecting the 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 anything 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 appealrelated to the imposition 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 interests ofsafety for the individual to possess firearms. A judge can be satisfied without there being evidence of criminal behavior, mental illnessor a violent past. Finally, the desirability issue is related to the individual at the time of the hearing and not at the time of the seizure. POSITION OF THE PARTIES [44] The Crown argues it is not in the interests of Mr. Marsden’s safety for him to possess firearms. In support, the Crown arguesthat Mr.

Marsden is not sufficiently responsible. In this regard, the Crown underscores Mr. Marsden’s history of anxiety and depression,combined with the fact that his current treatment can cause hallucinations and a foggy state. [45] Counsel for Mr. Marsden argues the evidence establishes that it is not contrary to Mr. Marsden’s interest for him to possessfirearms. Counsel argues the collective evidence shows positive changes in Mr. Marsden’s life and that these changes have taken awayany risk that may have existed. In support, Counsel refers the court to the medical documents and to Mr. Marsden’s evidence.

DECISION [46] On the date that the firearms were seized the evidence clearly shows that Mr. Marsden was actively considering suicide. Theevidence also shows that Mr. Marsden had taken steps to actuate his suicidal intentions. Specifically, not once, not twice, but up to 20occasions, Mr. Marsden went to where his firearms were stored, unlocked the storage area, removed a firearm, obtained ammunition,loaded the firearm and placed it to his head. [47] It is accepted that some of the major stressors (finances and pain management) that contributed to Mr. Marsden’s suicidalthoughts and actions have been reduced.

Despite this, I observe that his financial concerns and pain issues are still present. In thisregard, the medical notes speak to financial concerns that Mr. Marsden still has. Notably, if necessary he will have to find a new place tolive and this will be difficult given his inexpensive rent. Additionally, it was noted that Mr. Marsden was hoping for funding in orderthat he receive trauma-informed cognitive therapy as his finances were limited. In my view, Mr. Marsden’s comments speak to aguarded and vulnerable financial situation. [48] As for Mr.

Marsden’s pain, the notes make it clear that the Ketamine infusions are a short-term option and that Mr. Marsden’spain is still present albeit significantly reduced (for 3 ½ weeks) in some areas. Of note is, Mr. Marsden’s pain remains unchanged insome areas and that his pain was significant enough that he had to stand while being interviewed by Dr. Bow. [49] As for the filed medical documents, I have already mentioned my concerns regarding them. What I do note is Dr. LePage notedthat testing confirmed that Mr. Marsden had significant levels of depression and anxiety and some continued suicidal ideation.

Incontrast, Dr. Bow did not find any evidence of suicidal ideation, nor, did he feel that Mr. Marsden was in an immediate depressive

episode. The lack of testing and the lack of information regarding Dr. Bow’s processes deprive me of the ability to place significant weight on his observations. [ 50 ] Lastly, I note Mr. Marsden’s comments that his daughter is his reason for living, however, I observe, he had his daughter when he formulated the three different ways to kill himself, he had his daughter on those 20 occasions when he put a gun to his head, and although I am certain she brings him joy to his life, circumstances beyond their bond caused Mr.

Marsden to be depressed and suicidal. [ 51 ] In conclusion, I find the established history shows that Mr. Marsden’s emotional health has undergone prolonged and significant fluctuations that are attributable in large part to his pain and finances and despite the improvements in these areas the improvement is recent and there remains a basis to question the stability of these improvements. Accordingly, this lack of stability and the medical information satisfies me that Mr. Marsden’s current emotional state remains highly vulnerable, as such, and based on all of the evidence, I am satisfied that if Mr.

Marsden experiences an emotional downturn, that his current emotional vulnerability places him at risk of self- harm. Essentially, current his circumstances are so fragile that a set-back would likely trigger suicidal behaviour. As such, I am satisfied that it is not currently desirable in the interests of Mr. Marsden’s safety for him to possess firearms. The application is granted hence Mr. Marsden is therefore prohibited from possessing firearms for five years.

As for the forfeiture, arrangements have been made for a third party to assume possession of the firearms and arrange their sale. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia