R. v. Pearse Date:, 2018 BCPC 44

Citation: R. v. Pearse Date: 20180125 2018 BCPC 44 File No: 38936-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHARLES RICHARD PEARSE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J. Blazina Appearing on his own behalf C. Pearse Place of Hearing: Ganges , B.C. Dates of Hearing: July 11, November 20, 2017 and January 15, 2018 Date of Judgment: January 15, 2018

Introduction [ 1 ] THE COURT: This is an application by Crown in which it seeks an order pursuant to s. 111(1) of the Criminal Code , R.S.C. 1985, c. C-46, against Charles Richard Pearse, prohibiting him from possessing firearms for a period of five years (the “Prohibition Order”).

Crown further seeks an order pursuant to s. 491 of the Criminal Code for the forfeiture of three rifles and a shotgun being "firearms" as defined under s. 2 of the Criminal Code (the “Forfeiture Order”). [ 2 ] Those firearms were seized by the RCMP from Charles Richard Pearse at his Salt Spring Island property without a warrant on February 24, 2016, pursuant to the provisions of s. 117.04(2) of the Criminal Code .

At the time of seizure, Charles Richard Pearse (the "Respondent") had allowed his firearms licence to expire and accordingly was not in possession of a valid firearms licence. [ 3 ] The RCMP failed to make an application for an order for disposition of the seized firearms within 30 days of their seizure pursuant to 117.05 of the Criminal Code . [ 4 ] Therefore, pursuant to s. 117.06(1) (

a) of the Criminal Code , the firearms subject of the seizure (the "Firearms") and as more particularly described below, should have been returned to the Respondent. In this case, the Firearms have remained in the possession of the Salt Spring Detachment of the RCMP up to present time. Crown says the Firearms could not have been returned to Mr. Pearse because he was not the holder of a valid possession and acquisition licence. [ 5 ] The Respondent has not filed a formal application for the return of the Firearms under s. 490(7) and 490(9) of the Criminal Code .

The Respondent has been self-represented throughout this matter. As I understand it, he is opposing the Prohibition Order and is of the view that the Firearms should be released and returned to his son. Background [ 6 ] The Respondent testified on his own behalf. [ 7 ] RCMP Constable Charles Persson testified on behalf of the Crown in this application. His affidavit sworn July 12, 2016 (described below), was also before the court.

Constable Persson was the police officer who completed the warrantless seizure of the Firearms from the Respondent pursuant to s. 117.04(2) of Criminal Code , and he has had carriage of the matter on behalf of the Salt Spring Island detachment of the RCMP.

He had the responsibility for complying with the statutory requirements of the Criminal Code as it related to the seizure and the ultimate disposition of the Firearms. [ 8 ] Tamara Pearse, daughter of the Respondent, also testified on behalf of the Crown in this application about her father's mental health state and his behaviour, and specifically about what she considered to be his concerning behaviour in the months of January and February of 2016. [ 9 ] As a result of her concerns, Tamara Pearse attended at the Salt Spring RCMP detachment on January 25, 2016, to first report her concerns about the Respondent's behaviour. [ 10 ] On February 21, 2016, the Salt Spring RCMP detachment received a report about the Respondent's untoward behaviour from two males who were walking their dogs and had encountered the Respondent. [ 11 ] The dog walkers reported the incident (the "Dog Walkers' Incident") to the RCMP as follows: [ 12 ] The report made in connection with the Dog Walkers’ Incident indicated that the Respondent had threatened the two males while they were walking their dogs and specifically indicated as follows:

a) the Respondent told the men how to walk their dogs;

b) the two males disengaged with the Respondent;

c) the Respondent yelled at the males, "I am going to fucking kill you!" multiple times. He also stated, "I have a gun and I'm going to shoot your friend and his dog in the head";

d) the Respondent then took out his firearms licence and showed it to the two males;

e) the two males were very fearful of the Respondent and felt the threats were excessive for the context of the situation. [ 13 ] Due to the Respondent's mental health issues, the RCMP did not pursue criminal charges against the Respondent as a result of the Dog Walker's Incident. [ 14 ] Tamara Pearse subsequently reported to the Salt Spring Island detachment on February 24, 2016, that her father, the Respondent, was having a "breakdown" and needed police assistance. [ 15 ] As a result of that report, Constable Persson immediately thereafter on that day personally attended upon Tamara Pearse and received additional information from her about her father's ongoing concerning behaviour and her concerns about his mental health. [ 16 ] Then Constable Persson also spoke to the Respondent.

The Respondent described to Constable Persson about his kidney stone attacks, his significant loss of weight, his fear that he was going to die, and his resulting wish to dispose of his property. [ 17 ] Tamara Pearse urged the Respondent to go to a hospital for a mental health assessment. He agreed to go. Constable Persson apprehended the Respondent under s. 28 of the Mental Health Act [RSBC 1996] c. 288 . The Respondent was transported to the local

Salt Spring Island hospital, examined by a physician, committed for psychiatric evaluation, thereafter assessed by a psychiatrist and, as a result, was committed for approximately three weeks to a psychiatric facility at Comox on Vancouver Island. [ 18 ] At the time of the Respondent's apprehension under the Mental Health Act , Constable Persson became aware of the Firearms and the fact that the Respondent’s Possession and Acquisition Licence for firearms had expired in June of 2015.

Based upon Constable Persson's belief that there was imminent danger or a threat to allowing the Respondent to have access to the Firearms, and based upon Constable Persson's further belief that it was in the interest of public safety and the Respondent's own safety, he completed the warrantless seizure of the Firearms. [ 19 ] No charges were laid against the Respondent with respect to the possession or the storage of the Firearms, notwithstanding the fact that the Respondent did not have a valid Possession and Acquisition Licence for the Firearms and he could have faced a charge under s.91(1) of the Criminal Code (Unauthorized Possession of a Firearm) . [ 20 ] A few weeks following the seizure of the Firearms and the Respondent's hospitalization, Constable Persson was contacted by Tamara Pearse and other family members of the Respondent who informed him that they had concerns for their own safety and feared the Respondent's release from hospital. [ 21 ] Constable Persson prepared a Report to a Justice in a Form 5.2 on June 6, 2016, which contained an Application for Detention of the Firearms pursuant to s. 490(1) of the Criminal Code for a period of three months.

That was well after the seizure of the Firearms that took place on February 24, 2016. [ 22 ] A detention order was never granted by a Justice of the Peace or by a Judge. The reasons for the refusal are unknown.

Constable Persson testified that he faxed the Form 5.2 Report to a Justice of the Peace, but had no record of that occurring. [ 23 ] Constable Persson became aware that nothing had been returned from the Justice of the Peace, by fax or other means, when he consulted his file shortly before the commencement of the hearing of this application. [ 24 ] Constable Persson also completed an application dated July 11, 2016, for the Prohibition Order pursuant to s. 111(1) of the Criminal Code , and in support of that application, he swore an affidavit on July 12, 2016.

That application and the affidavit were filed with the Duncan Court Registry on July 29, 2016. [ 25 ] The matter came before this court almost a year later for a hearing that commenced on July 11, 2017, at the Ganges Courthouse on Salt Spring Island and continued thereafter on November 20, 2017. [ 26 ] The Firearms subject of the application are as follows: 1. a rifle with scope - .308 calibre - make: Savage - Serial Number H107889; 2. a rifle - .243 calibre - make: Savage - Serial Number H487363; 3. a rifle - .22 calibre - make: Remington - Serial Number 1744803; 4. a shotgun - 12-gauge - make: Weatherby - Serial Number TP01866.

Evidence of Tamara Pearse [ 27 ] When she first reported her concerns to the RCMP about the Respondent's mental health and his concerning behaviour, Tamara Pearse had specific concerns about her father's verbal aggression, inconsistent moods, distinct lack of self-control, and her concerns about his treatment of others. [ 28 ] Ms. Pearse described her father as always having "somewhat odd behaviour".

She testified that his unusual behaviour had been "accelerating" for the two years preceding the months of January and February of 2016, and by February of 2016 it had become what she described as "extreme behaviour". [ 29 ] After learning about the Dog Walkers' Incident from the RCMP, she approached her father. Those discussions went "very poorly". Ms. Pearse testified that the Respondent grabbed her, yelled at her, blamed others, and then threatened to burn down Tamara Pearse's home. That threat made her fearful.

During this period, the Respondent had also made threats of death, violence, and harm towards Tamara Pearse's partner, saying words to the effect that he would kill her partner, and that it would occur while that individual was sleeping.

The Respondent also made threats of harm to a friend of Tamara Pearse and to that friend's partner. [ 30 ] As I understand it, Tamara Pearse and her partner and her friend and that friend's partner, along with the Respondent, were all residing on five acres of property originally purchased from monies derived from an inheritance received by the Respondent, from his own deceased mother and from the sale of her residence.

The five acre property was apparently put into the name of Tamara Pearse, with a plan that it would be for the use of all the family members, including the Respondent. [ 31 ] Improvements on the property consisted of a utility building, three small travel trailers which were used as residences, and three separate 12-foot-long covered utility trailers. [ 32 ] Jacob Pearse, Tamara Pearse's brother and son of the Respondent, was not living at that location; he had apparently not lived on that property and he had only made two visits to the property in four years.

Tamara Pearse testified that she had never seen her brother Jacob enter into the utility trailer on the property where the guns were stored. [ 33 ] Ms. Pearse was aware of the Firearms located on the property. She believed that they were kept by the Respondent in a locked storage cabinet in one of the covered utility trailers. However, she was unsure of how many firearms the Respondent had, and she had never seen the Respondent display or use those Firearms.

[ 34 ] Tamara Pearse testified that she is no longer afraid about the Respondent inflicting physical harm on her or anybody she lives with. She testified that the Respondent is now calmer and “not as erratic since being released from hospital." She also testified that she is no longer disturbed by her conversations with her father, but she is still, from time to time, uncomfortable. [ 35 ] In cross-examination, she agreed that prior to the incidences in February of 2016, the Respondent had never been forceful or threatening with her.

She also agreed with the Respondent's suggestion to her that the Respondent had told her that the threat to burn her house down was "gallows humour" and that he was only speaking metaphorically. However, she said that this explanation was offered by him some time well after the fact. [ 36 ] Tamara Pearse indicated that she is not sure where her father now lives on Salt Spring Island. She did indicate that the Respondent does have some community support from her brother Jacob.

Evidence of Constable Persson [ 37 ] Constable Persson has been a 10-year veteran of the RCMP and has been on Salt Spring Island for a period of some six and a half years. [ 38 ] For the purposes of preparing the affidavit that he swore on July 13, 2016, Constable Persson had reviewed various RCMP files, as well he had discussions with other RCMP officers at the Salt Spring detachment, he had spoken with Tamara Pearse, and he had spoken with other family members, including the sister of Mr.

Pearse, as well as with the Respondent himself. [ 39 ] It was during Constable Persson's personal attendance at the property owned and occupied by members of the Respondent's family that Constable Persson learned of the existence of the Firearms and he also became aware that the Possession and Acquisition Licence held by the Respondent had expired in 2015. [ 40 ] During his discussions with the Respondent, Constable Persson indicated that the Respondent appeared to be comfortable and cooperative throughout and was in agreement that he should attend at the local hospital for an assessment of his mental health. [ 41 ] Constable Persson also offered evidence about locating the Firearms.

He testified that the Firearms were actually locked inside a safe which was inside one of the utility trailers. He expressed the opinion that those firearms were very secure. However, he did express the view that he was concerned that there were no immobilizers on the wheels of the utility trailer, and hence he had concerns that the utility trailer could be removed.

He did note that the utility trailer had two doors which had bolting devices, but at the time of his attendance at the home it appears the bolting devices were not locked. [ 42 ] Also, Constable Persson did confirm that when he unlocked the gun safe, he found that the Firearms were not loaded.

He could not recall whether or not there were trigger locks on each of the guns. [ 43 ] Having learned of the fact that the Respondent's Possession and Acquisition Licence had expired, Constable Persson then made inquiries with the firearms officer and determined that no application for renewal had been made by the Respondent with respect to his own Possession and Acquisition Licence. [ 44 ] Constable Persson explained that his delay in filing the report to a Justice and making necessary applications for either detention or for destruction of the Firearms was as a result of being "overworked" and he simply forgot to complete the file documentation. [ 45 ] He admitted in his evidence that he had failed to follow up in order to determine the status of the application for detention which he says he had faxed to the Justice of the Peace. [ 46 ] Constable Persson also testified that at the time he was having discussions with the Respondent about the Firearms, the Respondent had indicated to Constable Persson that the Firearms belonged to the Respondent.

Constable Persson said that he believed this to be correct, based on the information provided to him by the Respondent. [ 47 ] Later, as matters unfolded, Constable Persson said that Jacob Pearse, the son of the Respondent, had attended at the Salt Spring Island detachment of the RCMP, and indicated that he was the owner of some of the Firearms that had been subject of the seizure. [ 48 ] According to Constable Persson's evidence, he determined that Jacob Pearse had a valid Possession and Acquisition Licence.

As I understand it, Jacob Pearse was requested by the RCMP to provide documentation concerning the purchase or ownership of certain of the Firearms. I gather from those discussions, Jacob Pearse also told the police that he did not know the serial numbers of the specific firearms which he asserted were his, but he did know the make and models of each and also said that they were locked in the safe on the property occupied by the Respondent. [ 49 ] Constable Persson also testified that at the time he was apprehending Mr.

Pearse under the Mental Health Act , that the Respondent did produce his own expired Possession and Acquisition Licence. [ 50 ] In cross-examination, he also agreed that the utility trailer in which the gun storage locker was located was at the rear of the property that was being occupied by the Respondent at that time. Evidence of the Respondent [ 51 ] The Respondent testified about his background. He is now age approximately 67 years. He is a retired coastal faller in the logging industry. For many years he worked as an independent contractor. He indicated that he has lived on Salt Spring Island since 2011.

Predating his arrival on Salt Spring, he lived with his children in what he described as a "bush situation" outside of the Village of Pemberton, British Columbia. I understand that he and the children, whom he raised as a single parent, lived in a trailer in some remote location.

[ 52 ] The Respondent testified that owing to arthritis in his knee, he was unable to continue with his vocation as a faller. He said that he does, on occasion, cut firewood and takes down a couple of trees each year. [ 53 ] He testified that with respect to the family situation, that he had been divorced from his wife and mother of the children when the children were quite young. He says that they suffered greatly from that family breakup. He also indicated that he has had a somewhat strained relationship with his daughter Tamara Pearse for many years.

He described her as being a "bossy boots", which I understood to be his characterization of her being a difficult individual with whom to deal. [ 54 ] He testified that he has always had somewhat unique behaviour patterns. He says that part of this was shaped by the fact that in his late teens, he became acquainted with a number of people whom he described as "Jesus freaks". They provided him with some insight into religion and spirituality.

He also indicated that he has suffered for many years from issues relating to severe kidney stones and that he has been subject to repeated events of kidney stone attacks over the years. He says that that problems originated from becoming dehydrated when he was working as a faller, and that those problems have continued for many years since then. [ 55 ] In a somewhat unique manner, the Respondent described how he has dealt with his kidney stone issues for many years.

He said that he had learned that if he “sang to his kidney stones” that they would break up and be reduced to what he described as gravel-size proportions which were difficult to pass. However, if he “growled at his kidney stones”, they broke up and became more sand-size proportions and were easier to pass. [ 56 ] He spoke at some length about the theme of his kidney stones and indicated that during the timeframe from January to February of 2016, he was under significant pain and discomfort from those kidney stones.

He described it as being “assaulted” by his kidney stones in the year preceding January and February of 2016. He has subsequently found home remedy solutions in order to reduce the impact and to reduce the frequency of his kidney stone issues. [ 57 ] It was as a result of his physical distress and the accompanying symptoms that he found himself in conflict with his daughter in the early part of 2016. He said that he found his daughter to be confrontational and abusive towards him. He also indicated that she was being confrontational and abusive to those around her, including her own partner and her friends.

I take it that those are the friends that were occupying the five-acre portion of property along with the Respondent. [ 58 ] The Respondent testified that notwithstanding the difficult nature of his daughter, he had always treated her in a respectful manner. He was concerned to learn that she became fearful of his behaviour, which again he attributed both to her behaviour towards himself and other individuals, as well as his pain and suffering from the kidney stone attacks. [ 59 ] The Respondent also provided his version of events that took place in the Dog Walkers' Incident.

Briefly, it was the Respondent's view that the two males whom he encountered during that incident were dealing with a dog which the Respondent described as "a part Malamute monster", and that they evidenced an inability to effectively control that dog. [ 60 ] It is clear from the evidence of the Respondent that he felt it was important that he provide unsolicited advice to the two dog walkers about the means of controlling their dog and the necessity of doing so. He said that this resulted in what he considered to be an unprovoked response from them, whereupon they became engaged in very unhappy discussions.

Those discussions accelerated to the point that he indicated that he, the Respondent, felt threatened and, accordingly, he was using what he considered to be an “older logger’s'” expression to the effect that if anyone was to be hurt by the dog walkers' dog, he would "shove a gun up [their] ass". The Respondent testified that in his youth, this really meant that he intended to "call the cops". [ 61 ] The Respondent does admit that as the tensions between himself and the dog walkers heightened, he did pull out his gun ownership licence and tell the dog walkers in rather profane language that he did have guns.

The Respondent testified that he did anticipate, as a result of that exchange with the dog walkers, that he may receive a visit from the police. Accordingly, he prepared a handwritten letter to the RCMP which he held in abeyance in anticipation that the police would arrive. That letter was shown to be dated February 27, 2016.

However, the Respondent does indicate that he believes that he wrote it somewhere around the date or shortly around February 21st or thereafter, when he believes that the Dog Walkers’ Incident occurred. [ 62 ] In his testimony, the Respondent also indicated that the utility trailer was properly secured with a sturdy lock which would prevent the trailer from being moved.

He also indicated that the Firearms were properly secured in the gun locker, such that they would not be accessible. [ 63 ] The evidence of the Respondent as to the ownership of the guns varied from what Constable Persson understood to be the ownership arrangements.

From what I gather over the two separate days of his testimony, the Respondent was of the view and the belief that two of the guns were actually owned by his son and one of those guns was one that he had gifted to his son or at least intended to pass on to his son Jacob. [ 64 ] Dealing specifically with the firearm described as the Savage rifle with a scope, .308 calibre, the Respondent testified that his son Jacob had purchased that rifle himself and that the original scope on it had been upgraded by a purchase made by the Respondent for his son. [ 65 ] With respect to the second firearm described above, the Respondent testified that he bought that particular rifle as a gift for his son back in 2010.

He said that it was used, on occasion, by himself and his son for the purposes of deer hunting. [ 66 ] The third rifle, being the .22-calibre Remington, was one that the Respondent said he himself had in his possession since his youth and that he had passed that particular rifle on to his son by way of a gift. [ 67 ] With respect to the shotgun, as I understood the evidence, the Respondent indicated that that shotgun was in fact owned by the Respondent and not gifted by him. [ 68 ] THE ACCUSED: That was purchased by Jake, the shotgun, just to correct that.

[ 69 ] THE COURT: Well, give me a moment because I going through the next portion of the evidence. [ 70 ] In his evidence on November 20, 2017, the issue of the shotgun was further canvassed and it was during that evidence that the Respondent indicated or clarified that the shotgun, the Weatherby shotgun, had been purchased by his son in 2008, but had been left in the possession of the Respondent or more specifically had been left in the family gun cabinet, which had to be eventually moved to the five-acre portion of property. [ 71 ] In describing the various arrangements with respect to all the Firearms, the Respondent indicated that the ownership arrangements were not necessarily documented in writing between himself and his son, but he says that it was understood between himself and his son as to what was intended to be his son's guns and what was intended to be those items owned and retained by the Respondent. [ 72 ] Part of the problem that the Respondent said occurred with respect to where the Firearms were being stored arose from the fact that Jacob had not obtained a driver's licence.

I take it that the lack of a driver’s license resulted in him not relocating to the five-acre parcel of land, but rather maintaining a residence closer to the more populated portions of Salt Spring Island. The Respondent characterized that the Firearms had "followed him" (that being the Respondent) as a result of the move to the five-acre parcel of land, during which time the Respondent did have a valid Possession and Acquisition Licence. [ 73 ] He said that it was inadvertence on his part that his licence had subsequently expired.

His explanation for that expiration to occur was that he had not notified the necessary authorities of his move or change of mailing address from a previous address on Salt Spring Island prior to moving to the five-acre parcel of property. [ 74 ] The Respondent also testified about the allegations of the threats that he made to his daughter and the assertions that he had also threatened her partner and friends. He denies that this had occurred.

He did say that he was only speaking metaphorically when he suggested that he was going to burn her house down, and that that was not a literal reference to her house, but rather he asserts that he meant he “was going to burn her ideas down”. I take that to mean that he was going to dismiss or reject or discard her ideas. He said that he made that comment as a result of the continuing abuse that he felt that he had been subjected to by his daughter for several years. [ 75 ] The Respondent also testified about his hospitalization as a result of being apprehended under the Mental Health Act .

He suggested that he was assessed and because of the continuing issues which flowed from the pain and suffering from the kidney stones, that he was hospitalized for something in the range of about three weeks in the facility at Comox. [ 76 ] He also testified that, as a result of his assessment at that mental health facility, that he was determined not to have any ongoing mental health issues and rather, he was effectively given a “clean bill of health” by the mental health professionals when he left Comox. [ 77 ] He testified that since returning to Salt Spring Island, that he has not had much in the way of reoccurrences of his kidney stone issues, although he did indicate in his evidence that if they do occur, it is about once every six months.

He said that he does not have ongoing mental health treatment and does not have a local doctor on Salt Spring Island.

He says it has not been recommended that he receive any further treatment, or obtain any ongoing treatment, either on his own volition or at the suggestion of any medical or mental health professionals that may have treated him. [ 78 ] In fact, he characterized the departing words of the mental health professionals in Comox to the effect that they were "pleased with me", and hence there was no suggestion of a requirement for ongoing treatment to occur. [ 79 ] The Respondent testified that he is "completely harmless" and that he has never been a violent individual.

He says he responded with language which was misinterpreted by other individuals as being threats against them, when in fact they were not threats. He says it was more in the nature of using terms, which he said were not intended to connote violence, but were more intended to be terms that he had frequently used during his life in the logging industry. Position of Crown on the Applications [ 80 ] Crown notes in their submissions that the firearms were seized without a warrant pursuant to s. 117.04(2) of the Criminal Code on February 24, 2016.

The provisions of s. 117.05 of the Criminal Code deals with the forfeiture of items seized pursuant to s. 117.04 . The Crown submits that this

section requires that an application for an order for the disposition of the seized items be made by a peace officer within 30 days of the seizure. [ 81 ] Crown concedes that no application for an order for disposition of the Firearms was made pursuant to s. 117.05 . Therefore, Crown says that pursuant to s. 117.06(1)(a), the Firearms should have been returned to Mr.

Pearse. [ 82 ] Crown says that in this case, the Firearms were not returned to him, as was the statutory obligation, but then says that the Firearms could not legally be returned to the Respondent as he was not in possession of a valid firearms licence. [ 83 ] Crown concedes that a detention order was never granted and the Firearms have remained in the possession of the RCMP since their seizure. [ 84 ] Crown says that if a s. 111 Prohibition Order is made, that a forfeiture order under s. 115 is not available as the Firearms are not in the possession of Mr.

Pearse and will not be in his possession at the commencement of the order. Regardless of whether or not the court grants the s. 111 application, Crown says it will be seeking a Forfeiture Order pursuant to s. 491 of the Criminal Code and in support of that position Crown relies upon the Supreme Court of British Columbia decision in R. v. Weatherill , 2015 BCSC 566 ; [2015] B.C.J. No. 722 . [ 85 ] Crown further submits that s. 490 of the Code will not apply in this case due to the absence of a detention order following the submission of the report to a Justice.

In that regard, reference is further made to Weatherill at paragraphs 17 to 22 .

[ 86 ] Crown submits that s. 491 of the Criminal Code is the operative section. Crown submits that the Respondent committed an offence that involves or which is the subject matter of a firearm, namely, the offence of the unauthorized possession of a firearm contrary to s. 91 of the Criminal Code . Crown submits that the offence was committed on February 24, 2016, when the Respondent was in possession of the Firearms without a valid licence. [ 87 ]

Section 491 of the Code applies in this case, says the Crown, even though the Respondent has not been charged nor convicted of the offence of unauthorized possession of a firearm or indeed any offence. Crown submits that the court can make a determination that the Respondent has committed an offence and make an order under s. 491, despite not hearing a trial regarding that possession of a firearm.

In that regard, reliance is again placed on Weatherill at paragraph 23 . [ 88 ] Crown further submits that notwithstanding that the Firearms having been detained without a detention order, that such non-compliance with the statutory requirements of the Criminal Code does not preclude the court from making a forfeiture order pursuant to s. 491.

Again, reliance is placed on Weatherill at paragraphs 36 and 49 to 55 . [ 89 ] It is Crown's further submission that the circumstances necessary to meet the required test for the making of the Prohibition Order as set out in s. 111 of the Criminal Code existed at the time that the seizure of Firearms was completed by Constable Persson, and further that such necessary circumstances to satisfy the test continue to exist as of today's date. [ 90 ] That test is found under subsection (1), which reads as follows: 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. [ 91 ] Crown submits that the circumstances giving rise to the reasonable grounds are met by way of the threats made by the Respondent to his daughter to burn down her house.

There is also the evidence of the daughter to the effect that there were threats to kill her partner in his sleep and the threats to cause harm to the friends of Tamara Pearse. Crown does acknowledge that there was a failure on the part of the Respondent to examine or cross-examine Tamara Pearse on those issues, and that the alternate version of facts, as suggested by the Respondent in his evidence, were not put to Ms.

Pearse during cross-examination. [ 92 ] Furthermore, Crown relies upon the evidence that as a result of the behaviour of the Respondent towards certain individuals, it caused them to move off of the five-acre property.

Crown also points to the Dog Walker Incident and notes that rather than reporting the threats allegedly made by the dog walkers towards him, the Respondent simply waited for the police to contact him regarding those events and failed to report the alleged threats. [ 93 ] Crown says that I should reject the explanations provided by the Respondent as to the language he used, both to his daughter concerning burning down her house and also to the dog walkers with respect to the use of a gun.

Crown says that those are simply unbelievable and no weight should be placed upon them by the Court. [ 94 ] Crown also relies upon the fact that the Respondent was apprehended under the Mental Health Act and had several weeks of treatment in a facility before being released. Crown does express concerns that no steps have been taken by the Respondent to take follow-up treatment for his mental health matters or for his kidney stone issues.

Crown then says that the attribution by the Respondent of his kidney stone problems to his peculiar behaviour and the Respondent’s own testimony that his kidney stone attacks can come on quite quickly, does not allay the concern that the Respondent may start acting in a peculiar and possibly dangerous manner if he should be afflicted by kidney stones in the future. [ 95 ] With respect to the length of the Prohibition Order, Crown says that given the fact that significant time has expired, it is seeking a four-year order and not a five-year order. [ 96 ] The position with respect to the Firearms and the orders being sought are set out above in my recitation of Crown's position and the in the Introduction.

Crown says that there should be a Forfeiture Order with respect to all four guns, but does concede that if I determine that there may be ownership of any of the guns by Jacob Pearse, then it would be open to the Court to make a Forfeiture Order only with respect to those firearms which I am satisfied are owned by the Respondent. Position of the Respondent [ 97 ] As I understand the brief submissions provided by the Respondent, he contends that a Prohibition Order should not go against him.

He describes his concerning comments as being statements that either “just popped out” of his mouth or that he was “shooting from the lip”.

He also indicates that the ownership of at least three of the guns is property of his son, and that there should not be a Forfeiture Order with respect to those guns. [ 98 ] The Respondent does indicate that he has not had any use for the Firearms for some time and essentially the retention of the Firearms in the cabinet was done so in a safe manner for the benefit and for the purposes of maintaining those as the family gun cabinet for his son. [ 99 ] He does indicate that he has essentially given up retaining his Possession and Acquisition Licence but does admit that he, through inadvertence, had failed to notify the authorities of his new contact information and mailing address.

Analysis [ 100 ] I accept Crown's submissions as it relates to the applicable sections of the Criminal Code that apply in this particular set of circumstances. With respect to the test that I must apply, which is set out under s. 111(1) of the Criminal Code , I accept that the burden

is on the Crown to establish that the test has been met in order to obtain the orders that they seek. I further accept that the Crown mustestablish that to the civil standard of proof, being a balance of probabilities: See R. v. Zeolkowski, (SCC), [1989] 1S.C.R. 1378, and see R. v. Douglas, 2013 ONCJ 649, and see R. v. Britt, [2016] B.C.J. No. 2293, 2016 BCPC 329. [101] On the whole of the evidence before me, I am satisfied that Crown has discharged its burden and that a Prohibition Order againstMr. Pearse should be made. I do so on the basis of the threats that were made by Mr.

Pearse, both to his daughter and to her friends andto the dog walkers. I do not accept Mr. Pearse's version of events and his explanation to the effect that the language he used was actuallymeant to represent anything other than a threat; I reject his contention that that the language was, in fact, simply a use of phrases oridioms that he has historically used and learned as a long time participant in the logging industry. Those explanations, in my view,simply do not make much sense. Accordingly, although Mr.

Pearse may feel that he was provoked in both sets of circumstances by thebehaviour of his daughter on one hand, and by the dog walkers on the other, his responses were completely inappropriate and, in myview, gave rise to a reasonable apprehension of safety concerns on the part of the individuals who were subject of those comments. [102] I am also of the view that the Prohibition Order should flow as a result of the mental health issues that Mr. Pearse have inflictedMr. Pearse. I do accept that those issues may have been exacerbated by problems with kidney stones and the pain caused by thosekidney stones.

However, I share Crown's concerns that there has not been a plan implemented or followed up by Mr. Pearse with respectto maintaining his physical health, as it relates to his kidney stones, and similarly there appears to be nothing that would suggest that heis seeing a physician on a regular basis in order to maintain the level of mental health which he says that he presently enjoys. [103] There is no medical evidence before me from either Crown or from Mr. Pearse. I have to rely on the observations of individualswho observed Mr. Pearse and who testified and on my own observations of him in court.

I also have to rely upon the Respondent’s ownassessment of his health. However, on balance, I am of the view that there are still continuing concerns that need to be addressed in amore formal manner by professionals before Mr. Pearse would be entitled to be in possession of firearms. [104] I am of the view that a two-year prohibition meets all of the concerns in this case. Mr. Pearse has not come back before thecourt on other matters and has not been subject of further concerns or investigations by the police.

However, it is important that there bea continuing period during which his behaviour can be properly monitored and assessed before he returns to a position of lawfully beingentitled to be in possession of a firearm and being a lawful holder of a firearm. Conclusion With Respect to the Prohibition Order [105] Hence, there will be a Prohibition Order made, granted as requested by Crown, for a period of two years from today's date. Further Analysis With Respect to the Forfeiture Order [106] With respect to the Forfeiture Order, I take a different approach from that submitted by Crown or as originally sought byCrown.

I am of the view that there is reasonable evidence before me that not all of the guns comprising the Firearms were owned by Mr.Pearse at the date that they were seized by Constable Persson. There is clearly some conflicting evidence as to ownership. I also notethat Mr.

Pearse's son, Jacob Pearse, has not been an active participant in these proceedings and has not been here to assert his proprietaryownership in those firearms. [107] However, Crown has not adequately satisfied me that the guns or the Firearms in question have become the property of theRespondent, in this case, as a result of simply being stored in what I accept is a family gun cabinet.

Conclusion With Respect to the Forfeiture Order [108] Accordingly, with respect to the Firearms in question, there will be a forfeiture order only with respect to the one firearm ownedby Respondent which the Respondent said that he intended to gift to his son Jacob, that being the .22-calibre Remington rifle, SerialNumber 1744803. I accept that the other Firearms were either the property of, or purchased directly by, Jacob Pearse and accordinglythose firearms are to be delivered back to him. [109] That concludes my reasons with respect to this matter. (REASONS CONCLUDED)