R. v. Piper, 2019 BCPC 70

Citation: R. v. Piper 2019 BCPC 70 Date: 20190325 File No: 33546-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Application under

Section 111 of the Criminal Code REGINA v. LYDIA PIPER RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Lalani, A Counsel for the Defendant: MacGregor, W. Place of Hearing: Terrace , B.C. Date of Hearing: September 21, 2018, March 13, 2019 Date of Judgment: March 25, 2019 Introduction

[1] On May 10, 2018, Constable Donald Munro applied under s. 111 of the Criminal Code for an order prohibiting Lydia Piperfrom possessing any “firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition,or explosive substance” for a period of five years. Constable Munro asserts he has reasonable grounds to believe that it is “not desirableor in the interests of the safety of Lydia Piper or any other person” that she possess these items. Lydia Piper opposes the Crown’sapplication on the basis she is neither a danger to her herself nor to others. Ms. Piper is not charged with any criminal offence and this isnot a criminal trial.

Section 111 is not offence-based legislation. It is public interest legislation enacted to prevent serious injury anddeath resulting from the use of firearms and other dangerous objects. What the Crown seeks is a pre-emptive order for the protection ofthe public generally and Ms. Piper specifically. Issue [2] Has the Crown proven on a balance of probabilities that it is not desirable that Lydia Piper possess firearms? History of the Proceedings [3] Constable Munro’s s. 111 application came before me for hearing on September 21, 2018.

Constable Munro and GordonSheridan testified in the Crown’s case, although it was Ms. Piper who subpoenaed Mr. Sheridan. On September 21, 2018, for the entireduration of the Crown’s case, Ms. Piper was self-represented. As is the case with many self-represented litigants, Ms. Piper’s questionsin cross-examination of witnesses were an amalgam of questions and evidence. She had significant difficulty articulating the questionsshe wished posed to the Crown witnesses. The Crown closed its case at the end of the first day of hearing. Ms. Piper retainedMr. MacGregor as her legal counsel to assist her with her response.

The hearing was scheduled to continue on December 13, 2018,however, neither Mr. MacGregor nor the judge was available on that day, so the hearing did not proceed until March 13, 2019.

On thatday, Lydia Piper and David Piper testified on behalf of the respondent. [4] Over the course of the two day hearing, I received into evidence the following Exhibits: Exhibit 1: A disk containing the audio recording of Constable Munro’s interview of Gordon Sheridan on January 2, 2018; Exhibit 2: A redacted transcript of Constable Munro’s January 2, 2018 audio-recorded interview of Gordon Sheridan; Exhibit 3: A four page Inpatient Consult Note dated December 1, 2017, authored by psychiatrist, Dr. Raphael Mayone; and Exhibit 4: A Discharge

Summary dated December 11, 2017, authored by Dr. Gregory John Linton. [5] At the conclusion of the hearing on March 13, 2019, I received submissions from counsel and case law from the Crown. Ireserved my decision and these are my reasons for judgment. Assessing Credibility and Reliability [6] Although this is not a criminal trial, it is a contested application with conflicting evidence on a number of events. In order todetermine whether the Crown has satisfied its burden of proof, I must assess what evidence I find reliable and credible. [7] Reliability and credibility are not the same.

Reliability involves the accuracy of the witness’s testimony. It engagesconsideration of the witness’ ability to observe, recall, and recount: R. v. Sanichar, 2013 SCC 4. Credibility, on the other hand, concernsthe veracity of a witness. Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes. [8] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’ evidence; (

b) any independentsupporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the“balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda;and to a lesser extent, (

f) the witness’ demeanour while testifying. [9] It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that iscredible may nevertheless be unreliable: R. v. Morrissey, (ON CA). [10] In this case, I find that all four witness were attempting to be truthful, however their evidence was not uniformly reliable.

TheCrown’s case is based largely on hearsay evidence of varying degrees of trustworthiness. [11] Generally, I find Lydia Piper and David Piper’s evidence as to the issues I have to decide to be both credible and reliable. [12] I find Constable Munro’s evidence credible and reliable with respect to his recollection of events which he personally observed,heard, or experienced. I accept some, but not all, of the hearsay evidence to which he testified. Specifically, I find reliable the hearsayevidence he gathered directly from others.

I do not find reliable the double hearsay he received from Gordon Sheridan. [13] I find Gordon Sheridan’s evidence credible as it relates to those matters of which he had personal knowledge. For the reasonsset out below, I do not find much of Mr. Sheridan’s hearsay evidence necessary or reliable. [14] Generally, I prefer the respondent’s evidence over the applicant’s hearsay evidence and where it conflicts, I accept therespondent’s evidence. Background Information [15] I have attempted to construct a chronology from the evidence I accept, whether it be direct or hearsay.

I have indicated when Ido not find the proffered evidence reliable. [16] Lydia Piper is 59 years old. She is the wife of David Piper. They have known each other for 44 years and lived together for 43.

They were married on June 14, 1979. Except for three months in the summer of 2018, Mr. and Ms. Piper have cohabitated continuously since December 1978. [ 17 ] Mr. and Ms. Piper have six children, all of whom are independent adults. None of the children have lived with Mr. and Ms. Piper for some time. [ 18 ] Mr. and Ms. Piper reside on rural acreage at 1150 Old Lakelse Lake Drive, Terrace, BC (the “Piper residence”). All but one of their adult children reside in the Terrace area. Mr. and Ms. Piper’s daughter Maria Piper, and their son, Joseph Piper, live in Terrace.

Although they did not appear at or testify in the s. 111 hearing, they did play a significant role in the matters before the Court. [ 19 ] Ms. Piper has an older sister, Marjorie Kay who resides in Kamloops, BC. She too played a role in this matter. [ 20 ] Ms. Piper was a homemaker while her children were growing up. In 2011, Ms. Piper trained as a care aide and worked at the Terraceview Lodge from 2012 until April 1, 2017, when she retired. [ 21 ] Ms. Piper is a long-term patient of Dr.

Gregory Linton, a local family physician. [ 22 ] In 2008, at the end of an intense assessment, Lydia Piper was diagnosed as suffering from Attention Deficit and Hyperactivity Disorder (“ADHD”) and prescribed Concerta, which she continues to take to this day. Ms. Piper said at that time, she provided a fulsome interview to her treating psychiatrist. As part of this assessment, Ms. Piper had her older sister, Marjorie Kay, write a letter to her physicians describing Ms. Piper’s “stellar lack of educational achievement and [her] tumultuous and interesting and wildly misspent youth and so on.” Ms.

Piper handed Marjorie Kay’s unopened letter to Doctor Linton. Accordingly, Ms. Piper believes Dr. Linton is fully apprised of her personal history. [ 23 ] Mr. Piper is a hunter and owns a number of firearms, including a restricted firearm, for which he is properly licenced. Ms. Piper is not a hunter, but interested in marksmanship. With monies she inherited from her stepmother in 2008, Ms. Piper purchased a 9- millimetre pistol from Misty Rivers Tackle Shop in Terrace, BC Ms. Piper held a Possession and Acquisition Licence (“PAL”) valid for restricted firearms.

She also held a registration certificate under the Firearms Act , S.C ., 1995, c. 39 , for her 9 mm pistol. [ 24 ] At some point, Ms. Piper’s father transferred to her and Mr. Piper possession of five firearms he bequeathed to his grandchildren. Mr. and Ms. Piper ended up with 28 firearms in their residence, all of which they stored in gun safes. Mr. and Ms. Piper complied with all regulations governing the licencing and storage of the firearms in their possession. [ 25 ] The Piper residence is large and heated by way of a wood stove. It has exposed rafters on which Ms.

Piper cured green wood used to fuel the wood stove. [ 26 ] In the beginning of 2017, Ms . Piper purchased two gravesites when she decided she did not like the transience of cremation. Mr. Piper also purchased a gravesite for his mother. Mr. Piper was not troubled by Ms. Piper purchasing their gravesites. [ 27 ] When Ms. Piper retired on April 1, 2017, she had a life insurance policy through her employer. She made inquiries into transferring this policy to a new carrier. Mr. Piper was aware of and not concerned by Ms. Piper making these inquiries. [ 28 ] In the spring of 2017, Ms.

Piper began to experience what she described as a “litany of family drama” which involved two of her adult children and caused discord between her and Mr. Piper. Ms. Piper was particularly distressed at her offspring interfering with her relationship with Mr. Piper. [ 29 ] Ms. Piper had a difficult menopause, which negatively affected her moods and sleep patterns. Although she continued to take Concerta, she found it less effective and from time-to-time Ms. Piper began to exhibit symptoms of irritability and impulsivity. April 6, 2017 Incident [ 30 ] On the morning of April 6, 2017, Ms.

Piper had a 1.5-hour appointment with Terrace psychiatrist, Dr. Ron Gibson. Ms. Piper arranged this appointment through her family physician, Dr. Gregory Linton. Dr. Gibson had an office in the same building as Gordon Sheridan, a clinician in the employ of Northern Health. [ 31 ] Ms. Piper invited her husband to participate in her counselling session with Dr. Gibson. At its conclusion, Ms. Piper announced to Mr. Piper she planned to divorce him and got up to leave. Mr. Piper grabbed her wrist and barred her exit; Ms. Piper protested loudly. Gordon Sheridan, who was working elsewhere in the building, heard Ms.

Piper shouting and asked one of the administration staff to call the police. Ms. Piper and Dr. Gibson eventually left his office, leaving Mr. Piper behind. As they were walking away, Ms. Piper apologized to Dr. Linton for hijacking their counselling session for her own purposes. The police arrived at the scene to investigate Gordon Sheridan’s complaint. [ 32 ] The RCMP recorded this incident as “causing a disturbance”, although it did not give rise to any Criminal Code charges or apprehension under the Mental Health Act , RSBC 1996, c. 288 (the “ MHA ”).

It was unclear who the police believed was disturbed and who they considered responsible for the disturbance. The RCMP “determined there was no need for further involvement and cleared it from the team.” [ 33 ] As a result of the April 6, 2017 incident, the RCMP directed David Piper to remove all firearms from his residence. The Crown did not explain on what authority the RCMP made this directive. In any event, on that same day, Mr. Piper removed the firearms from the Piper residence. He subsequently retrieved them for hunting season prior to November 30, 2017. [ 34 ] In the fall of 2017, Mr.

Piper began to obtain counselling services from Gordon Sheridan, a registered social worker who had worked as a clinician for Northern Health’s Community Adult Mental Health and Addiction Services for the past 11 years. His offices were in the Terrace Northern Health Building on Kalum Street, across from the courthouse.

[ 35 ] Mr. Piper had about eight to ten counselling sessions with Mr. Sheridan. Over the course of these sessions, Mr. Sheridan became concerned about what he was hearing about Ms. Piper. Mr. Sheridan met with Joseph and Maria Piper, who expressed to him concerns for their mother’s well-being. [ 36 ] Mr. Sheridan never spoke with Ms. Piper. In fact, he met her for the first time on September 21, 2018, on the first day of the s. 111 hearing. [ 37 ] Although Ms. Piper was not his client, Mr. Sheridan undertook to gather “collateral information” about Ms. Piper to pass on to her family physician, Dr. Linton.

He stated: Even if a person is not a client of our office, or has declined services, we have fiduciary duty as public health professionals that if it shows that this person may be a danger to them-self or others we still have to intervene and provide information to a doctor, or contact the police ourselves. November 30, 2017 apprehension [ 38 ] On November 30, 2017, after four to six weeks of information gathering, Mr. Sheridan contacted Dr. Linton about the concerns he gleaned from the Piper family about Ms. Piper. Mr. Sheridan’s team leader, Ray Reid, spoke to Dr. Mondink, a physician with whom Dr.

Linton shared a practice. Mr. Sheridan testified Dr. Mondink directed Ray Reid to contact the police, a task which Mr. Sheridan ultimately undertook. Mr. Sheridan never explained why he and Mr. Reid sought or took direction from Dr. Mondink given Dr. Linton was Ms. Piper’s family physician. In any event, whatever Dr. Mondink said to Mr. Reid is double hearsay and of little probative value. [ 39 ] On November 30, 2017, at about 4:30 p.m., Mr.

Sheridan contacted the RCMP seeking police assistance in apprehending Lydia Piper under s. 28 of the MHA , because he had concerns she may have weapons and that she may be “suicidal by cop.” [ 40 ] Constable Munro became the lead investigator on this matter. He understood his powers as a police officer, under the emergency provisions of s. 28 of the MHA , to be as follows: It [ s. 28 MHA ] allows me to take a person into custody, apprehend them and transport them to a medical facility to be assessed by a medical physician.

The requirements for that are I either have to have my own personal belief that they are a risk to themselves, or others, or I must have been informed by somebody who has provided me grounds that . . . may be true. It doesn't have to be something I personally have observed. In the case of say a mental health clinician like Mr. Sheridan, his word is good enough under the Mental Health Act for me to apprehend someone if he directs me to do so, if he has that belief. [ 41 ] Constable Munro described how the police reacted to Mr. Sheridan’s allegation Ms.

Piper may be “suicidal by cop”: For us [suicide by cop] is a serious concern. When we go and if any of those people who may be in distress, or are looking to have themselves harmed, or injured, a suicide by cop concern indicates that they are seeking perhaps to have us carry that act out by presenting themselves in such a manner that we have no choice but to fear for our own safety and employ potential lethal force as a result. [ 42 ] On November 30, 2017, Constable Munro had no past dealings with Lydia Piper and had never been to her residence. [ 43 ] Constable Munro contacted Mr.

Sheridan and learned that he and his team leader [Mr. Reid] had been in contact with Dr. McIver who was coming on shift at Mills Memorial Hospital. Constable Munro understood that if the police apprehended Ms. Piper under s. 28 of the MHA and brought her to the hospital, Dr. McIver would admit her for an assessment. [ 44 ] In a 15 to 20 minute phone call, Mr. Sheridan provided Constable Munro with information, indicating Ms.

Piper: a. may be manic and that she had not been sleeping; b. may be in possession of firearms; c. made a comment about wanting her husband to shoot her; d. made an inquiry into life insurance about sudden and violent deaths and about receiving claims for those deaths; and e. had purchased two gravesites. [ 45 ] Mr. Sheridan told Constable Munro he derived his information about Ms. Piper from her husband, David Piper, her daughter, Maria Piper, and her son, Joseph Piper. Mr.

Sheridan provided Constable Munro with the informants’ contact information. [ 46 ] Constable Munro conducted a registry search and learned Ms. Piper possessed a restricted PAL and a registered 9 millimetre pistol. He also conducted a criminal name index check and a “2-9” search from which he learned Ms. Piper had no criminal record and was not under any active conditions for any Criminal Code offences. [ 47 ] Constable Munro consulted Corporal Abbott and Staff Sergeant Michael Robinson who instructed him to obtain further information directly from Ms.

Piper’s family members. [ 48 ] Constable Munro telephoned Maria Piper and learned she and her brother, Joseph Piper, were waiting at Mills Memorial Hospital in anticipation of the RCMP apprehending their mother. Maria Piper told Constable Munro: a. the layout of the Piper’s home; b. the RCMP might not be able to gain entry to the residence because of the clutter;

c. Ms. Piper was at home alone as David Piper had left the residence “due to the behaviours exhibited by Ms. Piper”; d. she was worried for her mother’s safety. Specifically, Maria Piper was worried her mother might flee if she believed the police were going to try and take her to the hospital; e. the locks on the gun safes in the residence had been changed and her mother had no key to access them; and f. at some unspecified time, the family had removed the barrel of Ms.

Piper’s 9 mm pistol so that it was no longer operational. [ 49 ] Constable Munro also spoke to Joseph Piper who “expressed concerns for his mother’s wellbeing.” [ 50 ] Neither Marie nor Joseph Piper could say what firearms were present in the Piper residence. They suggested Constable Munro contact their father, David Piper. [ 51 ] Constable Munro contacted David Piper who advised him the Piper residence contained three gun safes containing 28 long- guns ranging from shotguns to long barrelled rifles. Mr.

Piper confirmed he had changed the locks on the gun safes and hid the keys and did not believe Lydia Piper could access the firearms. [ 52 ] There is no evidence that David Piper, Maria Piper, or Joseph Piper told Constable Munro he or she considered Lydia Piper a suicide risk or a threat to anyone else. In particular, none of the Piper family members told Constable Munro Ms. Piper may be suicidal by cop. Constable Munro did not know the source of that allegation. [ 53 ] David Piper testified he has never known Lydia Piper to be violent or threaten violence against herself or anyone else.

He had no safety concerns about her possessing firearms. Mr. Piper says Gordon Sheridan misinterpreted and misstated what he had told him in their counselling sessions. In some instances, Mr. Sheridan had taken Mr. Piper’s comments so far out of context they were unrecognizable. For example, in cross-examination, Crown Counsel asked Mr. Piper if he ever indicated to Mr. Sheridan that Ms. Piper asked him to shoot her. Mr. Piper responded: We discussed a comment that she made, that is so far off-base, I would have to go with no. That is not want I was discussing. . . .

I was having problems understanding my wife and what was going on in our relationship. People get heated and say things and I used that as example [to ask] how would I respond to it. Not there was any meaning to that. . . . Mr. Sheridan’s

interpretation of that was definitely not mine or my question to him. . . . When asked if Ms. Piper said she wanted him to shoot her, Mr. Sheridan responded: Not, in those words. When ask what words Ms. Piper did use, Mr. Sheridan testified: I do not recall, but it was if we couldn’t straighten things out that I might as well shoot her or something along those lines, but that was in a hysterical moment in a slightly heated debate. My question to Mr. Sheridan was in a situation like that - without me becoming upset, how does one approach it? I was looking for counselling – not what happened. [ 54 ] Lydia Piper testified: (

a) she has never indicated to anyone she was considering suicide; (

b) she has never been violent to anyone; and (

c) she has never threatened violence to anyone. The Crown adduced no direct evidence to contradict Ms. Piper’s denials. [ 55 ] Constable Munro spoke with Gordon Sheridan, Maria Piper, Joseph Piper, and David Piper shortly after he received the dispatch at approximately 4:30 p.m. on November 30, 2017. After these telephone interviews, the entire RCMP watch convened. This included Constable Munro, Corporal Abbott, Constable Trent, Constable Rependa, and Constable Campbell as well as Corporal Trickett of the police dog services.

They conducted a Google map search on the Piper residence at 1150 Old Lakelse and devised an operational plan to set up a perimeter so the police “would have containment on the house.” This plan included engaging the emergency response team in the event Lydia Piper refused to leave her home. [ 56 ] Sometime before 6:40 p.m. on November 30, 2017, six police officers approached the Piper residence. This RCMP team include Corporal Trickett and the police dog Eli.

The officers arrived in six different vehicles and parked approximately 100 metres to 150 metres down the roadway from the Piper residence in a location where they would not be visible from the house. The officers were armed with long guns and wore heavy protective body armour. [ 57 ] The Terrace RCMP determined that apprehending Lydia Piper under s. 28 of the MHA constituted an “extremely high risk” situation.

Constable Munro stated: We had an individual whom we weren't familiar with who we had been informed was potentially volatile, or seeking perhaps to harm either themselves, or us, or to put us in a position where we may need to use lethal force which is a dangerous option at any time. She also had access to not only her restricted handgun but there was also upwards of 28 long-guns in the residence all of which would be quite capable . . . of ending a human life.

[ 58 ] Constable Munro testified this high risk assessment was made after he had spoken to Mr. Sheridan and three members of the Piper family. The evidence at the hearing was that Mr. Sheridan had never met or spoken with Lydia Piper, none of the Piper family members told Constable Munro they considered Lydia Piper a threat to anyone’s life, including her own, and she did not have ready access to the firearms, restricted or otherwise. [ 59 ] At about 6:40 p.m., Constable Munro called the Piper residence and Lydia Piper answered the call and identified herself. Constable Munro wanted to coax Ms.

Piper to come outside to speak to him. He testified: I wasn't particularly forthcoming with exactly why given the concerns that had been expressed that if she knew she was going to go to the hospital that she might flee. And the residence did back onto a large acreage and out into the woods which was a concerning fact for us as well. [ 60 ] Constable Munro said Ms. Piper began expressing her frustration with her family situation, her husband and the mental health services. They spoke on the telephone for 15 to 20 minutes, during which Constable Munro found it difficult to get a word in edgewise.

If Constable Munro recorded this conversation in any manner, the record was not tendered in evidence in these proceedings. Nevertheless, Constable Munro made no suggestion that in her lengthy monologue, Ms. Piper said anything alarming or threatening. [ 61 ] Ms. Piper remembers her conversation with Constable Munro that evening. She was confused as to why the officer wanted to speak to her and offered to make an appointment to come and see him the following day. She believed Maria Piper instigated the police presence because of Ms.

Piper’s advocacy on the part of her mother-in-law, who was then a patient in Mills Memorial Hospital. Ms. Piper believed that perhaps she had been too strident in her request to have her mother-in-law bathed and had somehow offended or annoyed the hospital staff. Maria Piper was a licenced practical nurse and had a close friend who worked at Mills Memorial Hospital. Maria Piper was a colleague of some of the nurses who worked on Ms. Piper’s mother-in-law’s ward. Ms. Piper claims Maria Piper shared freely her opinions about Ms. Piper’s mental health with those nurses. [ 62 ] Ms.

Piper was confused why Constable Munro did not simply come up to her residence and knock on the door and told him so. She asked him if he was concerned about the firearms in the Piper residence. Constable Munro told her he was concerned. Ms. Piper volunteered to come outside and meet him. She said she would come out with her hands in the air so he could see she had no guns. Constable Munro agreed to drive up in his marked police vehicle. Ms. Piper put on her boots and went outside holding her hands in the air. Constable Munro testified: After I informed the other members who were on scene that Ms.

Piper would be exiting the residence and that I would approach in a police vehicle I also advised Ms. Piper that Constable Trent who I knew to be near the driveway would be coming out with me as well. I drove up and parked at the base of the roadway, not into the driveway. I exited my vehicle. While I was doing so, Corporal Trickett had eyes on Ms. Piper and stated that he can see that she had her hands up and that he did not see any firearms, or weapons on her, or in her possession at that time. [ 63 ] Constable Munro approached Lydia Piper. He informed her she was under apprehension under the MHA .

Constable Trent searched Ms. Piper; Constable Munro handcuffed her and informed her of her right to counsel and provided her with “cautions and warnings.” [ 64 ] Constable Munro placed Ms. Piper in the back of his police vehicle and drove her to Mills Memorial Hospital for a psychiatric assessment. As she was “frog marched” handcuffed into the emergency room, Ms. Piper encountered Maria and Joseph Piper. As she considered them responsible for her predicament, Ms. Piper was not pleased to see them. When their discussion became heated, Constable Munro took Ms.

Piper to the assessment room. [ 65 ] Constable Munro testified Ms. Piper was quiet during the drive to the hospital. When they arrived, she began speaking again about the mental health system, her family, and husband. Nevertheless, Constable Munro removed her handcuffs once they reached the secure room in the hospital as Ms. Piper was “being polite and respectful.” [ 66 ] Constable Munro does not suggest at any time during any of his interaction with Ms. Piper on November 30, 2017, that she threatened to harm herself or anyone else. In fact, Constable Munro said Ms.

Piper did not exhibit violence towards anyone, which is why he left her alone in the assessment room with the nursing staff. Technically, Ms. Piper was still in police custody until assessed by a medical doctor and it was Constable Munro’s duty to ensure her safety and that of anyone near her. Even though it was traumatizing for Ms. Piper to be arrested, handcuffed, and escorted to the hospital by uniformed police officers, Lydia Piper’s most troubling behaviour seems to be that sometimes she talked a lot. [ 67 ] On November 30, 2017, Ms. Piper was admitted into Mills Memorial Hospital for an assessment.

On December 1, 2017, Dr. Mayone prepared a four-page inpatient consult report which was tendered as Exhibit 3 at hearing. At the time he authored this report, Dr. Mayone had interviewed Lydia Piper and David Piper. Mr. Piper told him his wife had been behaving a bit more irritable of late and sometimes acted impulsively. Dr. Mayone makes no mention of David Piper reporting concerns of Lydia Piper being a threat to persons or property or violent toward herself or others. Mr. Piper’s concerns as to his wife’s impulsivity related to her trading in her Red Mustang for a Honda Civic without consulting him.

This occurred in 2016. Dr. Mayone’s report depicts Mr. Piper as a husband concerned by his wife’s recent confounding behaviour. Still, David Piper said, “Lydia is the love of my life, even though we have had our ups and downs in the past.” Dr. Mayone writes: [David Piper] noted that there may have been other ways of assisting her mental health rather than bringing her into the hospital as an involuntary patient, which was a traumatic experience for both of them. [ 68 ] Dr. Mayone reports that Ms. Piper was saddened by the distress in her marriage. She concluded that Mr.

Piper must have had been involved with her arrest and detention under the MHA . Still, Ms. Piper told Dr. Mayone her husband “has always been a good man and provided well for his family and I want him to be happy.” She goes on to say: I feel we are a lifetime couple and I am open to any suggestions to make our relationship better. I am ready to take any medication or

comply with any treatment plans that will be suggested following this assessment. [ 69 ] When he explains the reason for Ms. Piper’s admission on November 30, 2017, as follows: Lydia was admitted under the Mental Health Act the previous night after her family expressed concerns with regards to her mental health and the police were called to bring her to the hospital. It was reported that there were difficulties in the past few months after she began making inquiries about her and her husband’s personal life insurance and also having bought two plots at the graveyard recently.

She was reported to have stockpiled firewood in the house with possible plans to burn down the house. She also told her husband to shoot her dead on one occasions recently. Her husband had to lock up the guns at home to ensure safety for his family members. Her sister, who lives in Kamloops, and some of her children, who lived on her property, expressed concerns and requested an urgent psychiatric evaluation. Also, Lydia was reported to have attended Dr. Gibson in the outpatient client a few weeks ago, but had stormed out of his offence enraged and then the police were called to attend to the situation.

Apparently she was let back home and the community clinician Gord was involved in her care at the time. [ 70 ] Dr. Mayone’s explanation as to why Ms. Piper was committed on December 1, 2017, underscores the inherent frailties of hearsay evidence and why it is generally excluded in a court of law. The evidence given under oath or affirmation in these proceedings indicate: a. It was Gordon Sheridan who called the police on November 30, 2017, not Ms. Piper’s family members; b. Ms. Piper made inquiries into her own life insurance in April 2017, after she retired.

Her life insurance policy, which had been through her employer, had to be transitioned to another carrier after her retirement. Mr. Piper was aware of and not troubled by Ms. Piper’s inquiries. He remained her beneficiary under her life insurance policy and Will; c. Ms. Piper purchased two gravesites in early 2017, when she decided she did not like the transience of cremation. Mr. Piper also purchased a gravesite for his mother. Mr. Piper was not troubled about these purchases; d. Ms. Piper did not stockpile firewood in an enclosed attic.

She placed green wood on open rafters to cure it for burning in their wood stove, which was a principal source of heat. There is not a scintilla of evidence Ms. Piper threatened to burn down her residence; e. Ms. Piper said to her husband something along the lines if they could not fix their marriage, then he might as well shoot her; f. Mr. Piper removed the firearms from the Piper residence on April 6, 2017, pursuant to a RCMP’s directive given after the police attended at Dr. Gibson’s office pursuant to a call Gordon Sheridan initiated; g.

In November 2017, there were no other family members living in the Piper residence except Mr. and Ms. Piper; h. Ms. Piper’s consult with Dr. Gibson was not a “few weeks ago”, but eight months ago, on April 6, 2017. It was Ms. Piper’s appointment and she did not storm out but was protesting her husband’s attempts to restrain her from leaving at the conclusion of their session; and i. “Gord” had no involvement in Ms. Piper’s care; he did not know her and had never spoken to her. [ 71 ] Dr. Mayone states under the heading “Mental Status Examination”: . . .

There was no clear evidence of psychosis and she denies delusional beliefs, perceptual abnormalities and passivity experiences. She denied any preoccupation or intrusive thoughts regarding herself or family members. She reported “I don’t have any thoughts of arson and I would not harm myself or anyone.” She denied suicidal or homicidal ideas, plans or intent. She was well-orientated to her surroundings. She appeared to have partial insight and judgment with regards to her mental health and recent events in her life. [ 72 ] In his report, Dr.

Mayone writes under the heading, “Impressions”: Lydia is a 58-year old married lady, recently retired and having a background history of attention deficit hyperactivity disorder, who was admitted on an involuntary basis following concerns regarding possible suicidal and homicidal ideas and plans. She presented with the possibilities of a mood disorder with psychotic symptoms, primary psychotic illness, and prolonged bereavement issues after the death of her mother many years ago.

An adjustment disorder following psychosocial stressors from complex family dynamics as well as an alcohol use disorder require exclusion. There are no other major indicators for a possible personality disorder diagnosis at this point except for previous self-harm, unstable mood pattern, eccentricity, and impulsivity. [ 73 ] Dr. Mayone does not state who expressed concerns about Lydia Piper’s “possible suicidal and homicidal ideas and plans,” but it was certainly not David or Lydia Piper, who were the only two people Dr. Mayone mentions having interviewed in his report. [ 74 ] The self-harm to which Dr.

Mayone refers involved Ms. Piper taking an overdose of drugs when she was 14 years old – 45 years ago. [ 75 ] Piper’s alcohol use consisted of four beers about four times weekly in the last couple of months. Prior to retiring in April 2017, Ms. Piper never purchased alcohol. [ 76 ] The complex family dynamics involved Mr. and Ms. Piper’s adult children, some of who were interfering in their marriage. [ 77 ] Dr. Mayone confirmed that “further collaterals would be sought from other family members so as to corroborate the history as provided by Mr. and Ms.

Piper.” If family members were consulted, their evidence was not before the Court in these proceedings, either directly or indirectly. The unnamed source of Dr. Mayone’s information appears to be Gordon Sheridan or someone citing him: see Exhibits 1 and 2.

[ 78 ] Dr. Mayone’s history as to the reasons Ms. Piper was apprehended under the MHA consists of several degrees of hearsay information. It is unclear the degree to which Dr. Mayone’s comments are based on erroneous information. As Ms. Piper was not Dr. Mayone’s patient, either before or after her apprehension, and he did not testify at the s. 111 hearing, I conclude I must treat his comments in Exhibit 3 with caution. [ 79 ] While in the hospital after her admission, Ms. Piper was under the primary care of Dr. Linton, with Dr. Mayone as a consultant. Ms. Piper was discharged on December 11, 2017. The Discharge

Summary marked as Exhibit 4 in the hearing stated: This woman responded to removal from her current domestic situation with calmness. She came willingly with police to the hospital and was able to stay certified under the Mental Health Act without need for high observation rooms. While in the hospital she was taking Seroquel 24 and then increased to 50 mg q.h.s., but at the time of discharge has stated she would not be taking any outpatient medication. She, at the time of discharge, was not displaying any signs of hallucination or suicidal or homicidal ideation.

She was traumatized by the events of her admission, being held handcuffed and put in a police cruiser. She was tearful about this but was consolable. At the time of discharge, she was going to arrange for possible marriage counselling and would follow up with Dr. Mayone in the Outpatient Clinic as well as her physician, Dr. Linton in the next one to two weeks. She was decertified under that Mental Health Act on the day of her discharge and left the hospital in stable condition.

She has some personality traits that cannot be classified as a personality disorder per se , but there is certainly some impulsivity and high drama with chaos that can be affecting those around her. [ 80 ] Dr. Linton does not indicate Ms. Piper suffered from any enduring mental illness. [ 81 ] As Dr. Linton has been Ms. Piper’s treating physician for many years, I regard Exhibit 4 as relevant, necessary and sufficiently reliable to accord it considerable weight. Disposition of the Firearms [ 82 ] Before he left the hospital, Constable Munro spoke to Maria and Joseph Piper.

He learned they too had restricted PALs and they agreed to take custody of and store their parent’s firearms in their residence. Constable Munro was content with this arrangement until December 24 th , 2017, when the National Weapons Enforcement and Support Team (NWEST) directed the Terrace RCMP to seize Ms. Piper's 9 mm pistol, its registration and her restricted PAL. I assume this directive arose because s. 17 of the Firearms Act requires the holder of a registered firearm to possess it only at his or her dwelling house. When Joseph Piper moved the 9 mm pistol to his residence, Ms.

Piper was no longer compliant with the Firearms Act . [ 83 ] So on December 24 th , 2017, despite having asked Joseph Piper to take possession of Ms. Piper’s 9 mm pistol, Constable Munro attended Joseph Piper’s residence with Constable Hansen and seized the pistol. The officers also went to the Lydia Piper’s home where they met David Piper. He told them Ms. Piper was not home at the time, but he would inform her that the RCMP was seeking to seize her firearm licence. Later that day, at approximately 2:00 p.m. Ms. Piper attended the RCMP Detachment and met Constable Munro at the counter.

She surrendered to him her registration certificate for her registered firearm and her restricted PAL. Constable Munro describes Ms. Piper as polite and respectful, although she spent 10 to 15 minutes talking about the November 30, 2017 incident and her concerns with her family and the mental health care system. Once again, Constable Munro makes no suggestion Ms. Piper said anything in this lengthy conversation he considered alarming or threatening. [ 84 ] On June 1, 2018, Ms.

Piper attended the RCMP detachment and met with Constable Gonah and she signed a relinquishment of claim to her 9 mm pistol, its registration certificate and her restricted PAL. Sections 117.04 and 05 Applications [ 85 ] Constable Munro was directed to apply, under ss. 117.04 and 117.05 of the Criminal Code , for the seizure and disposition of Ms. Piper’s 9 mm pistol, its registration certificate and her restricted PAL. Those sections state: Application for warrant to search and seize 117. 04

(1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

Search and seizure without warrant

(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

Return to justice

(3) A peace officer who executes a warrant referred to in subsection (1) or who conducts a search without a warrant under subsection (2) shall forthwith make a return to the justice who issued the warrant or, if no warrant was issued, to a justice who might otherwise have issued a warrant, showing (

a) in the case of an execution of a warrant, the things or documents, if any, seized and the date of execution of the warrant; and

(

b) in the case of a search conducted without a warrant, the grounds on which it was concluded that the peace officer was entitled to conduct the search, and the things or documents, if any, seized. Authorizations, etc., revoked

(4) Where a peace officer who seizes any thing under subsection (1) or (2) is unable at the time of the seizure to seize an authorization or a licence under which the person from whom the thing was seized may possess the thing and, in the case of a seized firearm, a registration certificate for the firearm, every authorization, licence and registration certificate held by the person is, as at the time of the seizure, revoked. 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 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. [ 86 ] The Crown did not tender into evidence at this s. 111 hearing a copy of any warrant or application or return.

It is not clear to me if or when the ss. 117.04 and 05 applications or reports were perfected. I am not aware of any court order requiring Ms. Piper to surrender or relinquish ownership of her restricted firearm, its licence, or her PAL. I assume she did this voluntarily upon receiving a police request to do so. Gordon Sheridan’s Statement [ 87 ] On January 2, 2018, Constable Munro attended Gordon Sheridan’s office to obtain his statement as to why he sought Ms. Piper’s apprehension under the MHA on November 30, 2017.

Constable Munro explained the reason for this interview: As I. . . had been directed . . . to proceed . . . with the application there, firm up our concerns about possession of the firearms and the exact underlying reasons for why we had been called to the residence I went back . . . to get the specifics from Mr. Sheridan in regards to any concerns that mental health might have about . . . Ms. Piper's well-being. [ 88 ] On January 2, 2018, Mr. Sheridan provided Constable Munro with an audio-recorded statement recounting the information he had on hand at the time when he phoned the police on November 30, 2017.

The information Mr. Sheridan conveyed mirrors that set out in Exhibit 3. Still, it bears repeating because it is this January 2, 2018 statement upon which the Crown bases its s. 111 application. Mr. Sheridan states: a. David Piper was his client who had expressed safety concerns about Lydia Piper as the result of her odd and bizarre behaviour.

This behavior included stripping chainsaws on the dining room table, storing firewood in the attic, buying and selling vehicles, leaving the home without letting others know where she was going, alternatively seeking and rejecting sexual intimacy; removing snow at their residence with a toboggan rather than snow removal equipment; and purchasing and consuming alcohol; b. Joseph and Maria Piper made an appointment with Gordon Sheridan and expressed concerns for their mother’s mental health and their own safety because their mother had firearms; c.

Joseph and Maria Piper say their mother wants to overdose on heart medication, although Mr. Sheridan did not believe Ms. Piper even had a prescription for heart medication; d. Ms. Piper’s older sister, Marjorie Kay, called on December 1, 2017, and provided information to someone in his office about Lydia’s drug use and suicide attempt in her youth; e. Lydia Piper had contacted her insurance agent trying to obtain life insurance or asking questions whether they still pay insurance if a person is killed by violent means. The insurance agent phoned Mr. Piper; f.

Lydia Piper asked her husband to shoot her at one point; g. The Piper children reported to Mr. Sheridan their mother had bought two gravesites, albeit not recently; h. The daughter [Maria Piper] disclosed her mother always had a fascination with death by cop; i. Lydia Piper believes health care professionals are against her and were somehow out to get her; j. The Piper children were concerned their mother had some sort of dementia; k. Lydia Piper was “like sleeping not like maybe a couple of hours very pressured speech which is part of um being manic”; l.

Lydia Piper had not followed up with treatment or medication, which shows her as “somebody [who] is quite resistant to treatment.” [ 89 ] Mr. Sheridan acknowledges that he was not the recipient of some of this “collateral information.” Mr. Sheridan cited David, Maria, and Joseph Piper as the source of most of his information. Constable Munro spoke directly to David, Maria, and Joseph Piper on November 30, 2017, after having received Mr. Sheridan’s dispatch. Constable Munro did not obtain formal statements from any member of the Piper family, even Lydia Piper.

She does not appear to have been afforded an opportunity to respond to the allegations against her, even though she demonstrated no animosity toward Constable Munro and seemed willing to talk to him.

[ 90 ] As stated previously in these reasons for judgment, David Piper denies the accuracy of Gordon Sheridan’s “collateral information” about his wife. Mr. Piper denies Lydia Piper expressed any suicidal or homicidal ideation and he had never heard of her alleged fascination with “suicide by cop” until he listened to Gordon Sheridan’s January 2, 2018 statement. [ 91 ] Lydia Piper did not respond to all of the incidents set out in Gordon Sheridan’s statement. She did, however, give rational explanations for a number of his allegations. Given the Crown’s continued reliance of Mr.

Sheridan’s statement in these proceedings, Ms. Piper’s responses bear reiteration: a. Ms. Piper used a toboggan to remove snow from the doorway of her house. Mr. Piper’s snow removing equipment was a plow affixed to a truck and not appropriate for removing snow piled close to buildings; b. The Piper residence was large and wood heated. Ms. Piper placed green wood on open rafters or stringers to dry. It was not stockpiled in an enclosed attic; c. Ms. Piper made inquiries into the status of her life insurance policy upon retiring in April 2017, because it had to transition to another carrier; d. Ms.

Piper purchased two gravesites in early 2017 because she did not like the transience of cremation; e. Ms. Piper traded in her Red Mustang for a Honda Civic. This hardly amounts to buying and selling vehicles; f. Ms. Piper did try to follow up with Dr. Mayone after her hospitalization in December 2017, but his practice was full so she attended her family doctor instead. [ 92 ] Mr. Piper was aware of Ms. Piper having purchased the gravesites and her inquiries in to her life insurance policy. He said he didn’t put much thought into those events and they did not carry any weight in his mind. Although Mr.

Piper testified at the hearing, he was not asked by either counsel to respond to Mr. Sheridan’s hearsay account of his wife’s other allegedly “odd and bizarre behaviour.” [ 93 ] On January 3, 2018, Constable Munro interviewed Dr. Linton, who has been Ms. Piper’s family physician for a significant amount of time. Dr. Linton did not want to provide an audio-recorded statement, however, Constable Munro took notes of their conversation. Constable Munro knew Dr. Linton, having met him on numerous occasions in the course of his duties as a police officer. Dr.

Linton is one of the attending emergency room physicians who often interacts with the police in the course of their duties. Dr. Linton acknowledged Ms. Piper exhibited odd and unusual behaviours for the average person; however, opined this was a personality issue not a mental health disorder. When Constable Munro asked him if he had any concerns he might have about Ms. Piper having access to firearms, Dr. Linton said that he was neutral in that matter. [ 94 ] Constable Munro concerns about Ms. Piper having access to firearms was not comforted by Dr. Linton’s views on the matter.

Constable Munro stated: At that time I still had concerns. With her family physician not being one to say, you know, that he didn't have any explicit concerns one way or the other I would have expected that if he felt very confident in her having them he would have said so. [ 95 ] Mr. MacGregor submits, and I accept, the converse is likely true. If Dr. Linton had serious concerns about Lydia Piper having access to firearms, he would have voiced that concern. [ 96 ] Shortly after interviewing Mr. Sheridan and Dr. Linton, Constable Munro transferred to Kamloops and has no further involvement with Ms.

Piper. [ 97 ] On May 10, 2018, Constable Munro filed this s.111 application. At its hearing, the Crown did not subpoena or call as witnesses any members of the Piper family, Dr. Linton or Dr. Mayone [ 98 ] Given its misstatements and inaccuracies, I do not find Mr. Sheridan’s unconfirmed hearsay account of Ms. Piper’s circumstances a trustworthy source of information upon which the Court ought to rely. June 12, 2018 Incident [ 99 ] The first appearance of the hearing of this s. 111 application was scheduled in Terrace Provincial Court on June 12, 2018. Ms.

Piper held the police had no reasonable grounds for the s. 111 application nor did they have grounds to apprehend her then or on November 30, 2017. She decided to make a pointed political protest against the police and the mental health system. Ms. Piper parked her vehicle at Mills Memorial Hospital. She donned a costume consisting of a hospital gown, which she wore over her clothes. She put her father’s antique English longbow on her granddaughter’s little wooden toboggan. The longbow had a flabby string and no arrow.

She left in her car a hand sickle and a mace she had made years ago in the Sunshine High School shop class. [ 100 ] Ms. Piper towed the little toboggan over the Sande overpass and past the police station. As expected, she attracted police attention. One or two police officers followed her, but Ms. Piper continued on her path. She stopped at all intersections; she did not jaywalk; she obeyed the traffic signals; she did not dart into traffic. At one point, Ms. Piper turned around and handed the longbow to the officer who was following her.

She told him it belonged to her dad and she would pick it up later. [ 101 ] Ms. Piper continued up Kalum Street in her costume intend on serving Gordon Sheridan with a subpoena to appear at the hearing of this application. He was not at work and Ms. Piper left the subpoena at his office. [ 102 ] Ms. Piper returned to Mills Memorial Hospital, tossed her hospital gown in the laundry and took her mother-in-law on their usual outing. After returning her mother-in-law to the hospital, Ms. Piper observed a police vehicle parked next to hers.

The police vehicle was manned by one of the officers who had tried to intercept her earlier. Joseph Piper stepped out of the police vehicle.

According to Ms. Piper, her son told the officer about the two gravesites she had purchased and her inquiries into a life insurance policy. The officer apprehended Ms. Piper under s. 28 of the MHA and took her into Mills Memorial Hospital for an assessment. [ 103 ] Ms. Piper says she sat in a busy emergency room waiting to be assessed by Doctor Iyayi, who was quite swamped. After two or more hours she saw a nurse she recognized as a former co-worker. Ms. Piper wrote her a quick note asking Doctor Iyayi to “commit her or get off the pot.” The nurse passed the note to the doctor and they joked about it. Ms.

Piper believed Doctor Iyayi was quite conflicted and worried about the November 30, 2017 incident. He committed Ms. Piper and she spent the night in the hospital. Dr. Linton attended the hospital and discharged Ms. Piper early the next morning. [ 104 ] Constable Munro had no involvement in the June 12, 2018 apprehension as he had been transferred to Kamloops months earlier. Nevertheless, Crown had Constable Munro describe the incident from police records. When asked as to his concerns about the longbow, Constable Munro stated: From my understanding a longbow is typically an archery weapon.

A longbow specifically is usually greater than five feet in height, otherwise if it's less it's a recurve bow. . . I would consider it to be a weapon under the Criminal Code . It's not illegal to be walking around with but it is unusual and disconcerting. [ 105 ] I gather Constable Munro was referring to s. 2 of the Criminal Code which defines “weapon” as follows: Weapon means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88 , 267 and 272 , any thing used, designed to be used or intended for use in binding or tying up a person against their will; … [ 106 ] David Piper and Joseph Piper attended at the detachment and the police returned the longbow to David Piper. Constable Hunter seized the sickle and mace from Ms. Piper’s vehicle. Constable Munro did not explain the legal basis for the RCMP’s search of and seizure from Ms.

Piper’s vehicle. [ 107 ] Constable Munro asserts Ms. Piper ferrying a longbow on a toboggan on June 12, 2018 caused the RCMP grave safety concerns. When asked in direct-examination to articulate these concerns, Constable Munro stated: I am referring to the incident on June 12th. . . .which would be . . . downtown in Terrace is a high traffic area with a number of individuals trafficking on major roadways. And a police response there for a weapons call may involve us -- requiring us to display our firearms as a result which puts both us, Ms.

Piper and other members of the public at risk for that response. . . [ 108 ] In this case, it was obvious the longbow was old, dysfunctional and without an arrow. There is no suggestion that Ms. Piper used the longbow to injure, threaten or intimidate anyone. Ms. Piper is a petite woman, and while before the Court at least, displayed not a hint of aggression or hostility. I find it disconcerting the mere presence of an unarmed antique longbow on a small wooden toboggan in Terrace could incite the police to draw their firearms. Legislative Framework [ 109 ]

Section 111 of the Criminal Code empowers a police officer to apply to the provincial court for an order prohibiting a person from possessing any of the weapons or ammunition listed in the provision. It states, in part: Application for prohibition order 111

(1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing. . . . Hearing of application

(3) Subject to subsection (4), at the hearing of an application made under subsection (1), the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought. . . . Prohibition order

(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made. Reasons

(6) Where a provincial court judge does not make an order under subsection (1), or where a provincial court judge does make such anorder but does not prohibit the possession of everything referred to in that subsection, the provincial court judge shall include in therecord a statement of the court’s reasons. [110] R. v. Zeolkowski, (SCC), is the seminal authority on what is now s. 111 of the Criminal Code. In Zeolkowksi,the Supreme Court of Canada held s. 98 (the predecessor to s. 111) is part of a comprehensive legislative scheme enacted to govern thepossession and use of firearms as a public safety measure.

In Zeolkowski the Supreme Court set down an analytical framework forinterpretation of s. 111. Onus of Proof [111] In R. v.

House, (NL PC), Judge Gorman distilled from Zeolkowski the following principles applicable to asection 111 Criminal Code application: a. the onus of proving that a prohibition should be issued rests with the Crown; b. the onus of proof is on a balance of probabilities; c. hearsay evidence (or other evidence considered reliable) is admissible, but the form of the evidence may affect its weight; d. the assessment which must be made by the application judge involves a pre-emptive analysis; e. the test is an objective one; f. the Crown must establish that it is not desirable for the respondent to possess the items listed in the provision; and g. this requires proof that possession of any of these items would be unsafe for the public; the respondent; or any other person. [112] In Zeolkowski, Sopinka J., for the Court, stated, in part: . . .

By using the phrase "all relevant evidence", Parliament did not address the question of exclusionary rules; it did not require"something more" at a firearm prohibition hearing. The effect of the exclusionary rules is left to the provincial court judge as part of thewhole body of evidence on which the provincial court judge determines whether he or she is satisfied that the reasonable grounds exist.Frailties in the evidence are a matter of weight. In the case at bar, for example, the judge should properly consider what weight, if any, isto be given to the hearsay evidence.

In doing so the judge should take into account the explanation, if any, for not making the bestevidence available. (Emphasis Added) The Crown bears the burden of proof at a s. 98(6) hearing and . . . in considering its weight, thejudge must scrutinize the evidence to ensure that it is credible and trustworthy. [113] In this hearing, the Crown has not adduced the “best evidence available”, such as direct evidence from members of the Piperfamily or Ms. Piper’s treating physicians or the police officers involved in the June 12, 2018 incident, or even a recorded statement fromMs. Piper.

Instead, the Crown seeks to rely primarily on the hearsay evidence of Gordon Sheridan, a man who had never met or spokenwith Ms. Piper until the hearing of this matter. This is somewhat ironic as the Crown initially intended to call Constable Munro as itsonly witness. Mr. Sheridan happened to attend the hearing because Ms. Piper served him with a subpoena. As he was already present inthe courthouse on September 21, 2018, the Crown called Mr. Sheridan in its case.

Other than simply asserting an applicant is entitled torely on hearsay evidence in a s. 111 hearing, the Crown has not explained as to why it has done so in this case. “Not desirable” [114]

Section 111 requires the Crown to prove on a civil standard it is not desirable or in the interests of the safety of Lydia Piper orany other person to possess firearms. In R. v. Hurrell, (ON CA), the Ontario Court of Appeal constitutionally uphelds.117.04, finding the term “not desirable” was not void for vagueness.

Moldaver J.A. (as he then was) held, at paras. 45 and 49, in part[Citations omitted]: [45] Turning to his second argument, the appellant submits that s. 117.04(1) is impermissibly vague because the word “desirable” isamorphous and injects a subjective criterion into the provision that could lead to the issuance of a warrant based on irrational oremotional rather than objective grounds. With respect, I disagree. The word “desirable” is not a free-standing criterion.

It is an adjectivefirmly anchored to the objective concept embodied by the words “reasonable grounds to believe”, which precede it, and the public safetyconcept contained in the words “the interests of the safety of the person, or of any other person”, which follow it. . . . [48] Applying that reasoning to this case, I am satisfied that when the words “not desirable”, which in my view simply mean “notadvisable”, are read in context, they can hardly be described as so subjective, vague and amorphous that they fail to provide an adequatebasis for legal debate. The fact that language may be open to judicial

interpretation does not render it impermissibly vague. Flexibilityand vagueness are not synonymous . . . Moreover, because s. 117.04(1) is procedural and does not carry with it the threat of a criminalrecord or imprisonment, the need for precision is diminished . . . Finally, to the extent that the police or the issuing justice need aframework within which to assess the “non-desirability/public interest” component of s. 117.04(1), Parliament itself has providedguidance in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39. . . [115]

Section 5 of the Firearms Act, governs eligibility for a firearms licence. It holds the chief firearms officer may deny a person afirearm’s licence in the interest of public safety. It states: Public safety 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. Criteria

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

v) an offence relating to the contravention of subsection (1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) ofthe Cannabis Act; (

b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not theperson was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on thepart 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. [116] In British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343 and in Re Christiansen, 2006 BCCA 189,the BC Court of Appeal held the criteria set out in s. 5 of the Firearms Act are not exhaustive as to the circumstances in which a chieffirearms officer may refuse to issue a licence, or as to when an order may be made under

section 111 of the Criminal Code. A licence canbe refused under the Firearms Act, and a prohibition order can be justified under s. 111, even though none of the circumstances set out ins. 5(2)(a), (b), or (

c) are present. A provincial court judge, like the firearms officer, is entitled to consider anything about the backgroundor conduct of the applicant or licence holder that is relevant to public safety. As Madam Justice Levine stated for the majority in ReChristiansen (at para. 7), “there can be a firearms prohibition without criminal conduct, a history of real or threatened violent behaviouror a documented mental disorder that leads to violence.” [117] In R. v. Britt, 2016 BCPC 329 and R. v.

Marsden, 2018 BCPC 218 , Judge Harris summarized the Crown’sburden for establishing the orders sought under s. 111 as follows: [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 illness ora 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. [118] In R. v.

Douglas, 2013 ONCJ 649 , Green J. held: [48] I confess to having difficulty locating any materially greater legal clarity or direction in the words "not advisable" than I do in thewords "not desirable". Neither expression of the legal standard fits comfortably with the adjudicative work normally conducted bycriminal court judges. More immediately helpful is the guidance afforded by Durno J. in the more recent case of R. v. Day, [2006] O.J.No. 3187 (Ont. S.C.J.).

As said at para. 36 of the Day case: "the appropriate test is whether there are legitimate concerns the personlacks the responsibility and discipline the law requires of gun owners". . . . [Citations omitted] [119] In R. v. Bokhari, 2009 ONCJ 691, Blacklock J., referencing Day, stated at para. 10: [10] Under this approach a court does not have to be satisfied that, in fact, it is more likely than not that the respondent will, in fact, usehis weapons to cause harm to a person.

It is sufficient if there is a finding that there in fact exist legitimate concerns that the respondentlacks the responsibility and discipline the law requires of gun owners. It would appear that if such a state of affairs exists then given theinherent dangerous nature of firearms, it should be taken as following that the continued possession of such a person would pose thenecessary danger to the possessor, or to other members of the public, that is contemplated by the legislation. [120] In R. v.

King, 2018 ONCJ 190, , Wheeler, J. states [19] I find that s. 111 requires that the Crown establish concrete reasons why firearm possession is not desirable for the person who isthe subject of the application. The concerns have to be tied to the particular person.

It would not be enough for the Crown to raiseconcerns about guns in general without evidence that shows that there are particular reasons why it is not a good idea for the respondentbefore the court to possess guns, whether those reasons arise from the person’s conduct with guns, or from their behaviour or mentalstate otherwise that gives rise to legitimate concern about their potential future behaviour if they did have access to firearms. . . . [121] In King, Justice Wheeler followed Justice Moldaver’s lead in Hurrell, by starting the “not desirable” analysis begins with aconsideration of the three criteria set out in ss. 5(2)(a), (b), or (

c) of the Firearms Act. Section 5(2)(a): Criminal Convictions [122] Lydia Piper has not been convicted or discharged under s. 730 of any offence, including the enumerated offences. Section 5(2)(b): Mental Illness

[123] The Criminal Code does not define “mental illness”, but rather “mental disorder”, which, in s. 2, is defined as “a disease of themind.” [124] Lydia Piper acknowledges she suffers from ADHD, for which she has taken medication since 2008, when she acquired herrestricted firearms licence. The only medical information before me is that set out in Exhibits 3 and 4 which Ms. Piper tendered intoevidence with the consent of the Crown. I do not have the benefit of opinion evidence from a properly qualified medical expert onADHD and its impact on Ms. Piper’s behaviour.

I accept ADHD is a medical condition which causes, as its name suggests, attentiondeficits and hyperactivity. Nevertheless, I cannot take judicial notice ADHD is or is not a mental illness. This requires expert evidence. [125] Even if ADHD could be considered a “mental illness,” the Supreme Court of Canada in Winko v. British Columbia (ForensicPsychiatric Institute), has held that persons who are mentally ill are not inherently dangerous. As noted in King, the s.111 analysis is an individualized process, which is antithetical to stereotyping. In this case, there is no evidence Ms.

Piper’s impulsivityhas somehow involved her possession or use or storage of firearms. [126] Ms. Piper was an involuntary patient in Mills Memorial Hospital from November 30 to December 11, 2018. Although Dr.Mayone’s December 1, 2018, consult note indicates Ms. Piper was involuntarily admitted to the hospital following “some concernsregarding possible suicidal and homicidal ideas and plans,” I find these concerns were not evidence-based and did not rise to the level of“legitimate concerns.” Dr. Mayone was simply documenting something he was told by an unnamed source. [127] I find compelling Dr.

Linton’s evidence of Ms. Piper’s mental health as set out in the Discharge

Summary and recounted toConstable Munro. He has been Ms. Piper’s physician for years and she sees him regularly. Dr. Linton did not find Ms. Piper to besuffering from a mental illness or a personality disorder. Rather, he describes her as a person who exhibits odd and unusual behavioursfor the average person. [128] I conclude that even if it could be said Ms. Piper has been treated for mental illness, there is no credible or reliable evidence hercondition “was associated with violence or threatened or attempted violence . . . against any person.” Accordingly, I do not find theevidence before me satisfies s. 5(2)(

b) of the Firearms Act, namely, that Ms. Piper has been treated for a mental illness that wasassociated with violence. Section 5(2)(c): History of Violence [129] There is no evidence I accept indicating Ms. Piper has a history of behaviour that includes violence or threatened or attemptedviolence against any other person. Her suicide attempt when she was 14 years old has long lost any relevance to a s. 111 applicationbrought when she was 59. Public Safety [130] As indicated in Re Christiansen, ss. 5(2)(a),(b), and (

c) of the Firearms Act, are the beginning of the analysis. The Court mustalso consider anything about the background that is relevant to public safety. In King, Justice Wheeler held s. 111 captures a broad rangeof psychological, emotional and mood disorders, conditions and behaviours. She states, in part at para. 22: [22] I disagree with the submission that the Crown must necessarily articulate a safety concern that relates to a specific or closelydefined group.

It seems to me that there is no fixed formula for how the Crown could discharge its burden under s. 111, and that it couldbe met by evidence of emotional or mental instability, evidence of irresponsible behaviour with guns, or some combination of the two.Again, the comments of Green J. in Douglas, supra, are helpful: 56 I begin with the obvious: firearms are dangerous. Their possession by persons who are unstable or disposed to physical anger,violence, intemperate behaviour or poor impulse control cannot be countenanced. In the language of s. 117.05(4), such persons’possession of firearms is "not desirable".

In applying this provision one must not forget, as said analogously of s. 117.04(1) in R. v.Hurrell, supra, at para. 31, that it "is preventative in nature. Its primary purpose is the prevention of serious injury and death resultingfrom the use of firearms and other dangerous objects." [131] There is nothing in Ms. Piper’s dealings with the police, her medical practitioners, the hospital staff, her family, or anyone elsethat indicates she is a risk to public safety.

I do not accept her act of political protest on June 12, 2018, could, as Constable Munro posits,incite a police response requiring officers to display their firearms putting Ms. Piper and other members of the public at risk. There is nosuggestion the police had to “display their firearms” on June12, 2018. They simply arrested Ms. Piper under s. 28 of the MHA and forcedher to undergo yet another psychiatric assessment at Mills Memorial Hospital.

Whether that was an appropriate response is notsomething I have to decide. [132] Gordon Sheridan identifies David Piper, Maria Piper, and Joseph Piper as the source of his information that Ms. Piper was a riskto herself and perhaps others. Only David Piper attended at the s. 111 hearing and unequivocally denied the veracity of those concerns.Neither Maria Piper nor Joseph Piper testified at the hearing, although they live in the area. I would assume that if they harbouredongoing concerns about Ms. Piper possessing firearms, they would have participated in these proceedings. [133] I am not satisfied that Ms.

Piper’s background or conduct is detrimental to public safety. Conclusion [134] The Crown bears the burden of proving its case on a balance of probabilities. The evidence at hearing, which I find credible andreliable, does not discharge that burden. In his personal dealings with Ms. Piper, Constable Munro found her polite, respectful, andcooperative. Although she occasionally talked too much, Ms. Piper apparently never said anything that was threatening or alarming. Shevoluntarily surrendered to the police her restricted firearm and her PAL. None of Ms.

Piper’s family members, nor her treating physician,told Constable Munro they considered her suicidal or homicidal. Nevertheless, Constable Munro based his “reasonable belief” on thecontested and stale-dated hearsay evidence of Gordon Sheridan, a man who had never met nor spoken to Ms. Piper until the hearing of

this application. [ 135 ] In the circumstances, I am not satisfied Constable Munro has reasonable grounds to believe it is not desirable, in the interests of the safety of Ms. Piper or other person, that she should possess a firearm. Accordingly, I dismiss the Crown’s application. ______________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia