Citation: R.W.S. v. Regina 2018 BCPC 382 Date: 20180814 File No: 33245 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA R.W.S. v. REGINA RULING ON APPLICATION OF THE HONOURABLE JUDGE P. D. WHYTE Counsel for Applicant: S. Wright (A/S), Agent Counsel for Attorney General of Canada (Respondent) appearing by teleconference: B. Ward Place of Hearing: 100 Mile House , B.C. Dates of Hearing: Mar 16 and May 29, 2018 Date of Judgment: August 14, 2018

[ 1 ] These are my reasons for decision regarding Mr. S.’s application dated June 26, 2017, the reference to a Provincial Court judge pursuant to the Firearms Act . [ 2 ] R.W.S., otherwise known as the applicant, seeks a review of the June 13, 2017 decision of the Chief Firearms Officer ("CFO") to revoke his firearms licence pursuant to s. 70(1) of the Firearms Act , S.C. 1995, c. 39. [ 3 ] The applicant's position is that the revocation should be cancelled pursuant to s. 76 (

c) of the Firearms Act . [ 4 ] The respondent, Attorney General of Canada, opposes the relief sought by the applicant, and seeks to have the revocation confirmed pursuant to s. 76 (

a) of the Firearms Act . [ 5 ] Several witnesses provided viva voce evidence to the court for the applicant, R.S., T.S., and Ministry for Children and Family Development ("MCFD") social worker Gillian Bellica testified.

Firearms Officer Bridget Willman was the sole witness for the respondent. [ 6 ] The issue to be decided on this reference is whether or not the decision of the Firearms Officer can be shown not to be justified pursuant to s. 75(3) of the Firearms Act . [ 7 ] The burden of proof is on the applicant to convince the court that the Firearms Officer was not justified in revoking the applicant's firearms licence. The standard of review in this reference is one of reasonableness and requires the court to determine if the decision of the Firearms Officer was reasonable in the circumstances.

HISTORY [ 8 ] The applicant and his family came to the attention of MCFD in 2015. Exhibit 2, an RCMP General Occurrence hard copy, describes an investigation into a domestic abuse incident from July 3, 2015. The applicant contacted the RCMP to report that his wife was intoxicated and had hit him in the face with a bottle because he had been recording their argument. [ 9 ] At the time of the call, the applicant stated his wife had locked herself in the bathroom and that there were five children in the home.

Upon arrival, RCMP officers noted redness on the applicant's cheek. [ 10 ] The applicant's wife was arrested for assault with a weapon, and was transported to RCMP cells. She was released on a promise to appear. The matter was forwarded to Crown counsel with a charge approval recommendation, but no charges were approved. [ 11 ] As a result of the July 2015 investigation, four of the applicant's children were removed from his and his spouse's care.

The applicant and his spouse were described as being cooperative with MCFD and undertook counselling to deal with issues related to the removal. [ 12 ] The applicant and his family were subject to a further RCMP investigation on October 15, 2015, the details of which are contained in a General Occurrence hard copy filed in this application and found at Exhibit 3. [ 13 ] That investigation commenced following concerns of a sexual incident involving the applicant's children.

No allegations of sexual impropriety by the applicant or his wife were alleged. [ 14 ] However, during the course of interviewing the children, several disclosed to the RCMP that the applicant had shot at them with either a BB gun, an air gun or an Airsoft rifle. The allegations of being shot with a weapon contained in Exhibit 3 are summarized below. Disclosures to RCMP [ 15 ] Child A alleged that the applicant shot at him with a "BB gun" inside the family residence, hitting him in the hand and causing a blood blister.

Child A alleged the applicant shot at him with a "BB gun" on another occasion when Child A was holding a tennis racket and attempting to deflect the "BBs". Disclosures to MCFD [ 16 ] Child B reportedly told an MCFD worker that he had been shot at with an Airsoft gun on three occasions by the applicant, once while inside his residence. Child B reported that that the applicant laughed afterwards and told Child B not to tell anyone. [ 17 ] Child C reportedly disclosed to MCFD that he had been shot with a "BB gun" by the applicant.

Child C reportedly told the social worker that the applicant had been shooting at a tree but the projectile had ricocheted and hit him. [ 18 ] Child F also disclosed that he had been shot with an Airsoft gun. Disclosures to Foster Parent [ 19 ] The children's foster parent reportedly received a disclosure from Child F that he had been shot by the applicant with an Airsoft

gun. [ 20 ] The RCMP report indicates in a

summary

section of the report that two of the applicant's children alleged they were shot with a "BB gun" and two said they were shot with an "Airsoft gun". The RCMP believed that the applicant had shot at his children either as a form of discipline or "for fun". [ 21 ] The applicant voluntarily relinquished three Airsoft guns to the RCMP on the understanding that they would be destroyed. The Applicant's Evidence [ 22 ] The applicant testified that he began using Airsoft guns in 2014.

Soon thereafter, he commenced attending an informal, unsanctioned event where he and a number of young adults in their late teens or early 20s would gather in a field and "play army". This consisted of the participants running around and shooting at one another with Airsoft rifles. [ 23 ] I pause to note that in 2014, the applicant would have been either 35 or 36 years old, well older than any of the other participants of what I consider to be an inherently dangerous and immature endeavour. [ 24 ] I pause to note that on all occasions relevant to this application, the applicant described using an Airsoft gun.

The applicant stated an Airsoft gun is different from a BB gun. The former fires a plastic BB-type pellet, while the latter fires a metal pellet. It is acknowledged that an Airsoft gun generally does not meet the definition of a firearm due to the slower speed of the projectile. [ 25 ] The applicant denied ever owning a BB gun or shooting at any of his children with a BB gun. The applicant testified that he had never shot at his children for discipline purposes. He admitted, however, shooting his 11-year-old child in the hand while he was inside the house.

This is consistent with Child A's disclosure to MCFD. [ 26 ] The applicant further confirmed in his testimony that, prior to the incident described above, he had shot his eldest child with an Airsoft gun on at least one occasion. He said the child asked to be shot with the Airsoft gun. Surprisingly, the applicant did not recall the child's reaction. When it was put to him in cross-examination that this child did not ask to be shot at, the applicant said he did not recall. [ 27 ] He similarly responded that he did not recall using the Airsoft gun as a form of discipline.

This answer was qualitatively different than his direct examination where he was clear that he had not used the Airsoft gun as a form of discipline. [ 28 ] In cross-examination, the applicant tended to downplay the seriousness of shooting a child with an Airsoft gun.

He was unable to confirm whether Child A suffered a scar to his hand, and remarked that he had many scars from things he had done in his life. [ 29 ] When asked in direct examination to explain what he might have learned from the counselling sessions he attended following the removal of his children, the applicant stated he was "horrible with specifics".

Given the discrepancies between his evidence and the disclosures described in Exhibits 2 and 3, it seems entirely possible that the applicant shot more of his children then he was prepared to admit in his evidence. [ 30 ] He admitted in cross-examination that it was possible that he had shot at other children, but had no specific recollection of doing so. The applicant stated that he did not recall shooting his Airsoft gun at another person since 2014.

However he appeared less than convincing on this point. [ 31 ] There are discrepancies in the evidence of the applicant and the information contained in the RCMP General Occurrence Reports filed in this application. [ 32 ] I find that I do not need to resolve these discrepancies to decide the matters at issue in this application. I am content to accept the applicant's admission that, at the very least, he shot at and hit two of his children on at least two occasions with an Airsoft gun.

It is entirely possible that he shot at more of his children and did so on more than one occasion. [ 33 ] T.S., the applicant's wife, also testified on this application. She described the traumatic removal of her children following the allegation in 2015 and the hard work she and her husband did to improve their relationship in the aftermath. [ 34 ] Mrs. S. confirmed the incident in which Child A was shot inside the family's residence. She tended to downplay the seriousness of that event, stating that Child A was laughing the whole time. [ 35 ] She also acknowledged having "a little bit of memory issues".

When she recalled the incident, she could not say where she was in the house at the time. Mrs. S. denied having knowledge of the applicant using an Airsoft gun as a form of discipline. [ 36 ] Mrs. S. presented as a witness who wanted to do her best to assist the applicant. She was less clear in cross-examination that I might have expected. While she stated she had never been shot at or hit by the applicant, she denied knowing if a plastic BB would hurt more than a Nerf gun.

I would think that anyone having even a passing knowledge of an Airsoft gun would understand that it possesses more power than a children's toy like a Nerf gun. [ 37 ] Mrs. S. acknowledged that the applicant did not always display the best judgment, a fact made eminently clear in his behaviour towards the couple's children and in his "playing army" with like-minded but far younger acquaintances. [ 38 ] MCFD Social Worker Gillian Bellica also testified for the applicant. She was involved with the S. family in the latter part of 2015 as the Family Service Social Worker. [ 39 ] Ms.

Bellica confirmed that during the six months or so when the MCFD file was open, she had no active concerns with the

family. She stated that the children had, at times, embellished their stories or even made untruthful statements. She said that most of the S. children had some form of disability which made it challenging to gather accurate information from them. She did confirm receiving information from the applicant's eldest son that the applicant had shot at him with the Airsoft gun, and it was unclear to her whether this was done for discipline purposes or for fun. [ 40 ] Ms. Bellica confirmed that the children had been returned to the applicant and his wife under a supervision order.

She further advised that the family had responded appropriately to MCFD direction, and the applicant and his wife were, in her view, highly engaged and dedicated parents. [ 41 ] While Ms. Bellica at one time did not support the applicant having access to firearms, she testified that her views in this regard changed over time. She confirmed in court, and previously to the Firearms Officer, that she no longer had any concerns with the applicant's access to firearms. [ 42 ] There were no breaches of the supervision order reported and MCFD no longer had concerns with the family. [ 43 ] Ms.

Bellica said in cross-examination that, when she first started working with the applicant, he did not appear to appreciate the seriousness of shooting an Airsoft gun at his children. However, over the course of their relationship, she said his attitude changed in this regard. She retained the view that at times the applicant demonstrated imperfect judgment. The Respondent's Evidence [ 44 ] Chief Firearms Delegate Firearms Officer ("FO"), Bridget Willman, was the sole witness for the respondent. A delegated firearms officer since 2010, Ms.

Willman was tasked with assessing the applicant's eligibility for continued firearms licensing pursuant to s. 5 of the Firearms Act . [ 45 ] Her investigation was recorded into comments made in a document entitled "Firearms Licence Comments History" ("FLCH") tendered as Exhibit 1 on this application. [ 46 ] Ms.

Willman testified that she reached the decision to revoke the applicant's firearms licence after reviewing the RCMP documents contained in the PRIME system, including the July 2015 and October 2015 incidents. [ 47 ] Her concerns regarding the allegations that children were shot with Airsoft guns are documented in a June 3, 2016 entry into the FLCH. Those concerns were bolstered by a July 27, 2016 conversation with Social Worker Bellica who, at that time, did not support the applicant having firearms. [ 48 ] Firearms Officer Willman testified that she understood from speaking with Ms.

Bellica that the Airsoft guns were used against the children for disciplinary purposes. I note that Social Worker Bellica was less clear in her own evidence regarding the use of the Airsoft as a form of punishment. [ 49 ] Ms. Willman testified that she also spoke with Constable Knutson at the [omitted for publication] RCMP, whom she described in the FLCH as the lead investigator of the October 15, 2015 incident. [ 50 ] Additionally, Ms. Willman spoke directly with the applicant on July 27, 2016. The comments contained in Exhibit 1 describe the applicant as downplaying the incidents and left Ms.

Willman with the impression that he did not comprehend the seriousness of his behaviour until the children were removed from his care. Indeed, poor judgment is a theme that is repeated in the comments found under the July 27, 2016 entry. [ 51 ] Unfortunately the file then sat for the better part of a year before Ms. Willman continued her assessment. She spoke with Ms. Bellica again, who confirmed at the time that the Director's file had resolved and she had no current concerns with the family. Ms. Bellica told Ms.

Willman that she supported the applicant's wish to possess firearms. [ 52 ] Firearms Officer Willman spoke with Corporal Birtwhistle of the RCMP, who reviewed the police file and expressed the opinion that the RCMP did not support the applicant having access to firearms. Corporal Birtwhistle's comments are found in a June 2, 2017 entry in the FLCH. [ 53 ] Corporal Birtwhistle expressed concern regarding the applicant's "judgment as an adult to shoot at your children setting a bad example". [ 54 ] Ms. Willman confirmed the differences between Nerf style guns, Airsoft guns, airguns and BB guns.

She said that, to be classified as a firearm under the Criminal Code , the velocity of the projectile must exceed 500 feet per second. She stated that an Airsoft gun typically fired a plastic projectile at a rate of 350 feet per second, which fell below the threshold to be considered a firearm. However Ms. Willman testified that the velocity of a projectile fired from an Airsoft gun was not insignificant, and may be sufficient to kill a small animal. [ 55 ] Ms.

Willman summarized her decision to revoke the firearms licence, both in her testimony and in reference to the notice of revocation of a firearms licence dated June 13, 2017, and tendered as Exhibit 4 on the application. [ 56 ] She expressed concern about a history of domestic violence involving the use of alcohol. She was concerned that if firearms were in the house and improperly stored, persons under the influence of alcohol may have access to them. She was concerned that children may have access to unsafely stored firearms.

She was concerned that the applicant denied shooting the Airsoft gun in the house, despite multiple reports that he had done so. She was left with the impression that the applicant was downplaying the severity of the conduct. She was concerned with the vulnerability of the children and that a 35-year-old man would consider it appropriate, under any circumstances, to discharge an Airsoft gun at a child with intent to hit the child with a projectile for whatever reason. I note in the notice

of revocation Ms. Willman referred specifically to shooting for discipline purposes. [ 57 ] Ultimately, Ms. Willman testified that the cumulative effect of the applicant's behaviour resulted in a public safety concern that led her to conclude that, at this time, the applicant was not a safe and responsible gun owner. She reiterated that, in her conversation with the applicant, he had not been using his guns to hunt, although she also noted that the revocation did not mean the applicant could not hunt.

He could shoot a gun as long as he was within arm's reach of an individual with a possession and acquisition licence. Nor did her decision prevent the applicant from reapplying for a licence in the future. [ 58 ] The thrust of Ms. Willman's evidence was that it would be contrary to public safety to allow the applicant to possess a firearms licence. That is to say, it was desirable in the interests of public safety that he not possess such weapons at this time. [ 59 ] Ms. Willman was subject to a spirited cross-examination by Mr. Wright in which she attenuated some of her answers in direct examination. Ms.

Willman confirmed that she relied on the police reports and information imparted to her by the police officers and Ms. Bellica. She did not review transcripts or audio recordings of the statements that the children provided to police or MCFD. [ 60 ] She confirmed that the domestic incident involved individuals drinking, and not intoxicated as she had testified. She further conceded that the source of the holes in the walls of the applicant's residence were unknown to her, and could not be confirmed as having been made by the applicant in anger. [ 61 ] Further, Ms.

Willman confirmed that during a follow-up telephone call to Corporal Birtwhistle at the [omitted for publication] RCMP, the officer appeared to believe that the applicant had shot at his children with an air rifle, not an Airsoft gun. The former fires a projectile at a higher velocity and is thus a more dangerous weapon. [ 62 ] It was put to Ms. Willman that the RCMP's opinion was based on an inaccuracy because the weapon used to shoot at the children was an Airsoft gun, not an air rifle. Ms.

Willman reiterated that her decision was based largely on the fact that a person in a position of trust shot at vulnerable children, not the type of weapon used to shoot at the children. [ 63 ] It was put to Ms. Willman that some of the information upon which she relied was hearsay and was perhaps not sufficiently reliable to be utilized as basis for the revocation. Ms.

Willman generally responded that she considered the information to be reliable because it came either from the RCMP or MCFD professionals. [ 64 ] Nonetheless, she was examined extensively on the basis for her conclusion that an Airsoft gun was used for discipline purposes. [ 65 ] I understood Ms.

Willman's responses to be that she did not make her decision based upon any single piece of information but rather from a holistic view of all of the information available to her. [ 66 ] With respect to the issue of discipline, although specifically mentioned in her notice of revocation, she again testified that it was the fact that the applicant shot at his children that caused her the most concern, not the reason why he shot at them. [ 67 ] She confirmed that the applicant admitted to doing so during their July 27, 2016 telephone conversation.

She further confirmed that her decision would not have changed if it was determined that the applicant shot at his children only for fun, and not as a form of discipline. [ 68 ] Ms. Willman testified, while she was aware of the July 2015 incident, this did not involve firearms and was not a significant consideration in her decision to revoke the applicant's firearms licence.

Rather, it was the October 2015 incident and events subsequent to that which underscored her decision to revoke. [ 69 ] The applicant argues that the Firearms Officer's decision to revoke his licence was based upon an incorrect factual foundation. Had the Firearms Officer properly considered the evidence before her, she would not have concluded that the applicant posed a safety risk. The applicant argues that the misunderstanding of the use of the Airsoft gun as a form of discipline was a significant error on the part of the Firearms Officer.

Rather than doing further investigation when faced with the inconsistent facts, the Firearms Officer rendered her decision without considering whether the information regarding discipline was accurate. [ 70 ] It was further argued that the information about who was shot, and by what, was unclear. The children's statements were not reviewed first hand and the Firearms Officer did not consider whether the summaries of statements contained in other reports were reliable.

Rather, these hearsay statements were accepted as true without further consideration. [ 71 ] The information from Corporal Birtwhistle in particular was argued to have been based on an error in the sense that it was likely that Corporal Birtwhistle believed the applicant had shot at his children with an air rifle and not an Airsoft gun. [ 72 ] When the factual record is amplified and bolstered with viva voce evidence, it was submitted that the decision to revoke the applicant's licence cannot be considered reasonable and therefore the licence should be reinstated. [ 73 ] The respondent says the Firearms Officer properly discharged her duty to consider all relevant information available to her.

Firearm possession is a privilege, not a right, and the applicant bears the onus of demonstrating that he should be the beneficiary of such a privilege. [ 74 ] In the circumstances of the case, it was argued that the Firearms Officer completed a thorough and proper review of the information contained in the applicant's file. When this information is consider holistically, it reveals a significant concern regarding the applicant's judgment.

That concern does not rest on whether the applicant actually misused a firearm, indeed there is no evidence of that, or whether he shot his children for fun, discipline or for some other reason. The basis for the revocation was the firing of a weapon at children and a misunderstanding of the seriousness of that misconduct. [ 75 ] The applicant has taken substantial strides in his personal life that have resulted in healthier relationships with his family, such

that MCFD has no current concerns and indeed supports the application. However that does not detract from the reasonableness of the Firearms Officer's decision in the circumstances. The lack of judgment displayed by the applicant, it was argued, was of such magnitude that the Firearms Officer was well within her authority to revoke the licence. [ 76 ] The decision was and remains reasonable and correct, it was argued, and should not be disturbed. LEGAL FRAMEWORK [ 77 ] As a reference under the Firearms Act , this matter is of a regulatory rather than criminal nature.

It involves the review of an administrative decision by the Chief Firearms Officer's delegate. The Chief Firearms Officer's authority regarding the revocation is found in s. 70 of the Firearms Act .

I will not repeat s. 70. [ 78 ] The law to be applied in a firm's reference is set out in s. 5(1) of the Firearms Act which reads as follows: Public safety 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 crossbow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition [ 79 ] Further, s. 5(2) reads: 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 (

i) an offence in the commission of which violence against another person was used, threatened or attempted, (ii) an offence under this Act or

Part III of the Criminal Code , (iii) an offence under

section 264 of the Criminal Code (criminal harassment), or (iv) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act; (

b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or (

c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person. [ 80 ] The criteria listed in s. 5(2) are not meant to be exhaustive. Rather: ... 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. That quote found in British Columbia (Chief Firearms Officer) v. Fahlman , 2004 BCCA 343 , at paragraph 25 . [ 81 ] The applicant may refer the CFO's decision for a review by a Provincial Court judge.

That right of review is found in s. 74 of the Firearms Act . At the reference hearing, the judge shall hear: ... all relevant evidence presented by or on behalf of the chief firearms officer, registrar or provincial minister and the applicant or holder. [ 82 ] In this regard, the decision to revoke is subject to an application by further evidence adduced at the hearing itself.

A quote from the Firearms Act is found at found at s. 75(2) . [ 83 ] The applicant bears the burden of proof under the regulatory scheme to show why the revocation was not justified ( Firearms Act , s. 75(3)). [ 84 ] The options available to a Provincial Court judge at the conclusion of the reference are described in s. 76 , which reads: On the hearing of a reference, the provincial court judge may, by order, (

a) confirm the decision of the chief firearms officer, Registrar or provincial minister; (

b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or (

c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under

section 67. [ 85 ] A firearms reference is not a hearing de novo . It resembles a judicial review in certain respects. However, the fact that the court can receive evidence as amplified during the reference hearing makes it somewhat inconsistent with a judicial review. The process has to been described as a "hybrid review with de novo considerations" ( Bohn v. British Columbia (Chief Firearms Officer) , 2002 BCPC 378 , at paragraph 29 ).

[ 86 ] As noted by the respondent, the question for a reviewing judge is not whether they would substitute their opinion for that of the firearms officer. Rather, the question for the reviewing court is whether the decision under review was justified based on the record as amplified by review. The test is one of reasonableness and asks only whether the firearms officer's decision to revoke the licence was reasonable in the circumstances ( see Fahlman , at paragraphs 22 and 23 ; also R. v.

Pagnotta , 2001 BCSC 444 , at paragraph 28 ). [ 87 ] As noted in Pagnotta at paragraph 49 , although the Firearms Officer employs a high degree of expertise in the area of public safety, the court also retains an expertise.

For this reason, some, but not a high degree, of deference is to be extended to the Firearms Officer's original decision. [ 88 ] While the court is not to substitute its opinion for that of the firearms officer, it may consider the factual foundation of how much the firearms officer's decision was based when determining reasonableness. [ 89 ] If the firearms officer's decision was based on factual assumptions that are later determined to be incorrect, that may be sufficient for the court to determine if the decision was unreasonable. [ 90 ] In R. v.

Ricci , 2008 ONCJ 301 , the reviewing court was faced with just such a circumstance. The applicants in Ricci were subject to a firearms licence revocation after a music video surfaced showing a "known drug dealer handling restricted firearms in a careless manner". It was determined that the firearms in the video were owned by the applicants ( Ricci at paragraph 3 ). [ 91 ] One of the applicants testified during the reference that he kept his firearms in a safe and assured they were not loaded.

He admitted that he allowed a friend's companion to hold the firearms for purposes of being photographed as part of the rap video. When the artist began waving the firearms around, the applicant testified that he removed the firearms from him. The applicant further testified that he had no knowledge of the artist's criminal history, nor that he was a drug dealer.

He had not met him before the date that the video was filmed ( Ricci at paragraphs 22 and 36 ). [ 92 ] Having the benefit of an amplified record, and having determined that the factual underpinnings of the Firearms Officer's decision was faulty, the court concluded that the decision to revoke the applicant's licences was not justified ( Ricci at paragraphs 35 through 40). [ 93 ] A similar circumstance was discussed in Bohn v. British Columbia (Chief Firearms Officer) , 2002 BCPC 378 .

In that case, the Chief Firearms Officer's decision to revoke the applicant's licence was premised on information contained in various police reports which disclosed a pattern of violent behaviour. [ 94 ] Stansfield J., as he was then, determined that a number of the incidents of violent behaviour underpinning the CFO's decision were either unreliable or not factually made out. The court determined that the CFO was justified in concluding that the applicant was not eligible to hold an unconditional firearms licence.

However, Stansfield J. decided that a conditional licence was appropriate which allowed the applicant a limited right to possess firearms for purposes of hunting ( Bohn at paragraphs 57 and 58 ). [ 95 ] The thrust of the applicant's argument, as I understand it, was that the decision to revoke his licence was based upon incorrect evidence. Rather than take steps to investigate the veracity of hearsay statements, the Firearms Officer accepted wholesale what others had reportedly said and reached a decision based on inaccurate, or at least unclear, information.

There was reason to question the truthfulness of the statements made by the children and others regarding discipline, yet no further investigation was conducted. [ 96 ] Similarly, it was argued that the Firearms Officer declined to consider, or perhaps understand, that Corporal Birtwhistle's opinion of the applicant's risk was based upon a misapprehension of the type of non-firearm used by the applicant. [ 97 ] It is argued that the cumulative effect of these errors, as amplified upon review of the reference, weakens the basis for the decision for the revocation to a point where it no longer is reasonable.

The result should thus be a cancellation of the revocation.

Analysis [ 98 ] The basis of the revocation is found in the June 13, 2017 notice of revocation of a firearms licence tendered as Exhibit 4 in the references. [ 99 ] Under the heading "reasons for revocation", the Firearms Officer listed a number of her concerns, including: (1) the 2015 MCFD investigation that resulted in disclosures of the Airsoft gun being shot at the children; (2) the applicants apparent lack of understanding of the seriousness of these events as related by Constable Knutson of the RCMP; (3) the fact that the Airsoft gun was utilized as a form of punishment; (4) that the kids were scared and crying and one received a scar from one of the incidents; (5) her July 2016 conversation with Social Worker Bellica, where she expressed concerns of the use of the Airsoft gun as a form of discipline; (6) the July 27, 2016 conversation wherein the applicant told the Firearms Officer that he had shot at his children with the Airsoft gun "for fun" outside while playing games; and (7) the June 2, 2017 conversation with Corporal Birtwhistle who expressed concern regarding the applicant's "judgment as an adult to shoot at your children.

[ 100 ] I pause to note that under this

section of the revocation letter, Firearms Officer Willman also mentioned her conversation with Social Worker Bellica on June 2, 2017, wherein Ms. Bellica reportedly had no current concerns with the family, and supported the applicant having access to firearms. [ 101 ] It is clear that the Firearms Officer's concern, as echoed by Constable Knutson, was the fact that the applicant shot at his children with an Airsoft gun. [ 102 ] It was equally clear, through Firearms Officer Willman's evidence, that the reason why the applicant did so is less important. It was the shooting at children that caused the concern.

The issue here is one of judgment and it was the Firearms Officer's opinion that the behaviour displayed by the applicant, whatever the reason, demonstrated a serious lack of judgment. [ 103 ] Certainly, the concern would be elevated if the behaviour was undertaken as a form of punishment.

However, shooting at one's children as a form of entertainment does not in my view resolve the concern regarding judgment in favour of the applicant. [ 104 ] The applicant argued that Corporal Birtwhistle misunderstood or misread the police files, and erroneously believed that the applicant may have shot at his children with an air rifle. This error, in turn, caused the Firearms Officer to rely on an incorrect factual matrix in reaching her decision regarding revocation. [ 105 ] I was not as troubled with Corporal Birtwhistle's apparent or potential reference to air rifles.

Firearms Officer Willman clearly stipulated in her evidence that her concern was that an adult would think it appropriate, under any circumstances, to shoot at a child a weapon that discharged a projectile with sufficient velocity to potentially kill a small animal. Whether that weapon was an air rifle or an Airsoft gun it, seems to me, misses the mark. [ 106 ] The basis of the concern was the lack of judgment inherent in shooting at vulnerable young children.

While the concern would certainly have been elevated if the applicant had shot at his children with an air rifle, it cannot be said that the concern dissipated with confirmation that the applicant was shooting at his children with an Airsoft gun. [ 107 ] I add that the notes contained in the FLCH pertaining to Firearms Officer Willman's June 2, 2017 conversation with Corporal Birtwhistle do not reference the type of weapon used to shoot at the children. [ 108 ] Although not considered by the Firearms Officer, I further note that the applicant conceded in his direct examination that he had previously shot at other young people as part of a voluntary game of "playing army".

This was new evidence that was unknown to the Firearms Officer at the time she conducted her assessment. [ 109 ] The issue of how to assess new evidence tendered in a firearms reference was discussed in Canada (Chief Firearms Officer of the Province of Alberta) v. Pogson , 2005 ABQB 179 . Slatter J. proposed a two-stage analysis to be undertaken: [42] ... where the provincial court judge has before him or her significant and meaningful evidence that was not before the firearms officer": (

a) since the reference is not a hearing de novo, the provincial court judge should still examine the decision of the firearms officer, to see if it was reasonable based on the evidence that was before the firearms officer. If the decision was reasonable, some deference should still be given to it. (

b) The provincial court judge should then examine the new evidence to see whether it is significant enough to undermine the factual assumptions or inferences drawn by the firearms officer. If so, the provincial court judge would be entitled to interfere even if the decision, as originally made, was reasonable. [ 110 ] It would appear that the two-step analysis outlined in Pogson was intended to address new information that might undermine a decision to revoke a licence.

In the instant case, however, the significant and meaningful evidence that came to light in the applicant's direct examination provided information that would support the reasonableness of the Firearms Officer's decision. [ 111 ] In any event, I consider it as part of my role in determining the applicant's onus to demonstrate the Firearms Officer's decision was unreasonable. [ 112 ] This conduct, in my view, demonstrates a further lack of judgment. It is clearly infused with inherent dangerousness.

I wonder if the applicant had considered what might have happened if he had been responsible for causing injury to any of the young people with whom he "played army". It is understandable why teenagers and young adults might consider this to be a fun and exciting endeavour.

It is hard to imagine how a fully grown adult and father could think it was at all appropriate. [ 113 ] In making these comments, I am cognizant of the fact that the applicant engaged in this behaviour years ago and that he no longer participates in playing army with teenagers or young adults. [ 114 ] I wish to address the applicant's argument that the Firearms Officer should have personally reviewed the transcripts or audio recordings of the children's statements to the RCMP or MCFD social workers, rather than relying on summaries of those statements contained in police records. [ 115 ] It is true that the Firearms Officer can deduce further evidence of a firearms reference to support a decision to revoke a licence.

Section 55(2) expressly authorizes the Firearms Officer to conduct interviews with dependents or others who, in the opinion of the Firearms Officer, may provide information pertaining to whether the applicant is eligible under s. 5 to hold a licence. [ 116 ] However, I do not consider it was reasonable for the Firearms Officer to conduct a further investigation in this case. The Firearms Officer spoke directly with the applicant on July 27, 2016, at which time he admitted shooting as his children with Airsoft guns.

The Firearms Officer was left with the impression that the applicant downplayed the seriousness of this kind of conduct. It was

not until MCFD removed the children that the full effect of this behaviour became clear. [ 117 ] While the applicant said he only shot at his children outside, in his evidence during the reference, he confirmed that at least on one occasion he shot at and hit a child inside his residence.

Even if the contradictions in evidence result fully in the applicant's favour, I am left with the following: (1) the applicant attended events on a field with like-minded teenagers and young adults, and engaged in consensual shooting at one another with Airsoft guns, something he referred to as "playing army"; (2) the applicant shot at no less than two of his children with an Airsoft gun; (3) at least one child was shot at and hit inside his residence; and (4) the applicant appeared not to appreciate the seriousness of the conduct until his children were removed from his care. [ 118 ] In my view, this evidence alone provided a basis for the conclusion that it is desirable in the interests of public safety that the applicant not possess a firearms licence.

However, the burden is not on the court to reach such a decision. Rather, the applicant bears the onus of satisfying the provincial court judge that the revocation of the licence was not justified. [ 119 ] A holistic view of the evidence before the court at this reference demonstrates, in my view, a disturbing lack of judgment. The attitude displayed in reference to shooting an Airsoft gun at others, let alone one's children, is one of carelessness and indifference.

The fact that the MCFD had to intervene and remove the applicant's children before he grasped the seriousness of this conduct further underscores the concern in this regard. [ 120 ] In the circumstances of this reference, I am not satisfied that the Firearms Officer's decision to revoke the applicant's licence was not justified.

The lack of judgment displayed by the applicant towards like-minded young people in a consensual shooting environment, shooting at his children with an Airsoft gun, and a seemingly indifferent attitude towards the inappropriateness of shooting at his children with an Airsoft gun realizes a significant deficit in judgment. [ 121 ] That deficit can hopefully be remedied over time.

Indeed the Firearms Officer stated in her June 13, 2017 letter that the applicant may apply for a firearms licence in the future. [ 122 ] I note that the decision to revoke the licence does not preclude the applicant from participating in the use of firearms with other properly licenced individuals. As explained by the Firearms Officer, the applicant may still fire a firearm during a lawful hunt as long as he is within arm's length of a person with appropriate licensing.

Conclusion [ 123 ] For the foregoing reasons, the applicant has not established that the decision to revoke his firearms licence was not justified. Accordingly, pursuant to s. 76 (

a) of the Firearms Act , I confirm the decision of the Chief Firearms Officer. [ 124 ] Thank you counsel for your able submissions. [ 125 ] Any questions for the applicant, Mr. Wright? [ 126 ] MR. WRIGHT: No, Your Honour. [ 127 ] THE COURT: Thank you very much. Anything from you, Mr. Ward, for the respondent? [ 128 ] MR. WARD: No, Your Honour. Thank you. [ 129 ] THE COURT: All right. Thank you very much.