R. v. Hickman Date:, 2017 BCPC 154

Citation: R. v. Hickman Date: 20170224 2017 BCPC 154 File No: 40656-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KERRY HICKMAN ORAL REASONS FOR JUDGMENT ON AN APPLICATION PURSUANT TO S. 111 OF THE CRIMINAL CODE OF CANADA OF THE HONOURABLE JUDGE P.M. DOHERTY

Counsel for the Crown: T. Morgan Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Dates of Hearing: November 15, 2016 and February 24, 2017 Date of Judgment: February 24, 2017 [ 1 ] THE COURT: This is an application by Crown under s. 111(1) of the Criminal Code . That

section reads, in part: A peace officer ... may apply to a provincial court judge for an order prohibiting a person from possessing any firearm ... where the peace officer ... believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is made or of any other person that the person against whom the order is sought should possess any such thing. [ 2 ] On the Application the Court must hear all of the relevant evidence. If satisfied that the circumstances require a prohibition, such shall issue.

If no Order is made, a statement on the record must be made of the Court's reasons. [ 3 ] The subsections, as I say, go on to state that if the Court is satisfied that the circumstances exist, the Court is compelled to make the order, and if no Order is made, reasons must be provided. [ 4 ] The matter was before the Court on November 15, 2016. After hearing oral argument, the Court required counsel to provide written submissions. The Crown provided a factum, Defence a factum, and Crown a brief reply. [ 5 ] In his factum Mr.

Marion notes, at paragraph one: The Crown asserts in paragraph 2 of their factum that the issue is whether the Crown can lead the accused's statement to the police in the context of Cst. Thackeray's grounds to believe that Mr. Hickman should not possess firearms. It prefaces that a question by a recitation of the process chosen by the Crown in paragraph 1. Those two paragraphs set up what is ultimately the defence complaint with this prosecution. [ 6 ] Let us then look at these paragraphs in the Crown's submission.

Paragraph 2: The discrete preliminary issue the Court is being asked to determine at this point is, whether, the Crown can lead evidence of the confession of the Subject in the context of the affiant police officer's [Cpl. Thackeray] reasonable grounds to believe that the Subject should not possess firearms (see affidavit of Cpl. Thackeray). [ 7 ] In addition, Crown notes at paragraph 3 and 4: In a nutshell, it is alleged on June 2nd, 2013, the Subject, believing that one of his family members was in some distress, brought an unloaded pistol to an outdoor party in the Sayward area. . .

During his attendance, he pointed the gun at a group of males telling them to back off or someone would get hurt. Later he provided an audio and video recorded statement to the police in which he confessed to what he had done. At a preliminary hearing before Sutton J., the statement was excluded because the judge found that Corporal Ramsey had not been called to testify about his limited dealings with the Subject. [ 8 ] And in paragraph 4: In the context of a s. 111 hearing, it is submitted that the ultimate question the Court will have to determine is . . . [ 9 ] Crown refers to R. v.

MacDonald 2000 BCPC 118 , Bruce J., as she then was: Therefore it is the Court's task to evaluate the evidence, not to determine whether it would have prohibited the Respondent from possessing firearms, but to determine whether there is an objective basis for the officer's belief that reasonable grounds exist for the application.

Or, in other words, whether on the balance of probabilities, there is an objective basis for the officer's belief based on reasonable grounds that it is desirable in the interests of the safety of the Respondent or any other person that the Respondent be prohibited from possessing firearms. [ 10 ] By way of background, Mr. Hickman was charged with numerous offences on the Indictment. He chose trial by judge and jury. A Preliminary Inquiry was held before my brother Sutton, and he delivered reasons December 19th, 2014.

Some counts on the Indictment went forward uncontested, or if contested, the hearing judge was content to put Mr. Hickman to his trial on counts 4 through 9. [ 11 ] Counts 1, 2 and 3, namely, a threat to one Steven Hill [who, it should be noted, did not give evidence at the Preliminary Inquiry,] to cause Hill bodily harm, assault with a weapon, namely a firearm, by pointing same at Hill, and other firearms offences. Before the matter could get to trial Crown stayed all counts on the Indictment. Three years after the original Indictment was sworn, Crown brought the Application currently before the Court.

Defence says, at paragraph 3 of the factum, [in part] . . . the Crown decision to defeat the accused's election of trial by jury on these allegations and advance the same allegation in their original form, without regard to the fact that some of the evidence had been ruled inadmissible and some was found unreliable for committal under cross-examination, constitutes an abuse of process under s. 7 of the Canadian Charter of Rights and Freedoms . [ 12 ] Mr. Marion adds:

. . . Crown's factum addresses not the merits, but amounts to the defence of a process chosen by Crown . . . [ 13 ] The background to this matter is a little complex and Defence outlines this background quite extensively in paragraphs 4 through 10 of Mr. Hickman's factum. I shall distill it for the purposes of these reasons; Defendant is 55 years old and partially disabled.

He received a call at around 2:00 a.m., 2nd of June 2013, from one of his sons, who related that he and his brother had been seriously beaten trying to get their underage sister away from a bunch of drunken loggers who were partying at or near Sayward, a small somewhat isolated, very rural community a few kilometres north of Campbell River. [ 14 ] Mr. Hickman, for reasons that are mystifying, retrieved an old World War II souvenir pistol and raced to Sayward Junction with his unloaded weapon. He met his sons there and it was evident that they required medical attention. Mr.

Hickman called 9-1-1 for police and medical aid. [ 15 ] In the meantime, Mr. Hickman and his sons attended the gathering of drunken loggers in an attempt to retrieve the underage girl. This did not go well. The three of them were attacked and Mr. Hickman sustained serious injuries, most notably to his head, after being struck by a metal pipe or bar. The family retreated to Sayward Junction to await the attendance of police and an ambulance. [ 16 ] In an effort to find and retrieve his daughter, it is alleged that Mr.

Hickman took with him the unloaded pistol and used it in a threatening manner. [ 17 ] Police obtained a statement from Mr. Hickman later that day. The admissibility of this statement was hotly contested in the Preliminary Inquiry. My brother Sutton ruled the statement inadmissible, concluding that the onus of voluntariness was on the Crown and Crown failed to discharge that burden. Judge Sutton declined, therefore, to commit Mr. Hickman on counts 1 through 3 of the indictment. [ 18 ] As I have already noted, Crown stayed the remaining charges on the Indictment and then filed this s. 111 Application. [ 19 ] Mr.

Morgan puts the question this way, in paragraph 4 of the Crown's factum and I quote, in part: . . . given the information and knowledge that Cpl. Thackeray has, whether a firsthand confession for the Subject or the hearsay evidence from witnesses, is it reasonable to conclude as this officer has that the Subject should be prohibited from possession firearms? [ 20 ] Mr. Justice Sopinka in Zeolowski expressed it as such: Clearly the peace officer is not required to act solely on the basis of evidence that would be admissible at trial. [ 21 ] Mr.

Morgan says: The application judge by virtue of s. 111 shall hear all relevant evidence presented by or on behalf of the applicant. [ 22 ] Mr. Morgan goes on the say, at paragraph 5: The Subject resists the Crown leading evidence of his confession to the affiant . . .by relying on the concept issue estoppel. The Subject says that because Sutton J. held his confession was involuntary at the preliminary inquiry, the Crown cannot lead it during this hearing. [ 23 ] At paragraph 6: This is not a re-trial or re-litigation of a matter. . . . There are no liberty interests at stake.

This hearing is best conceptualized not as a criminal matter, but as an administrative hearing.

Indeed, it has all of the trappings of an administrative hearing -- relaxed rules of evidence (hearsay permitted) and the Crown's burden is on the balance of probabilities. [ 24 ] And finally, at paragraph 8: It is the Crown's position voluntariness of any proffered statement given to the persons in authority is a matter of weight , not admissibility, in the context of a s. 111 hearing. [ 25 ] Crown maintains that for issue estoppel to apply Judge Sutton's decision regarding the admissibility of the confession would have to be final. According to Mr.

Morgan, it was not and Crown was free to re-litigate that issue, had it come to trial. Furthermore, if Crown could re-litigate the issue at trial, it should also be able to do so in the s. 111 application. [ 26 ] Crown cites R. v. Zamora 2001 BCPC 294 , Weitzel J., for the proposition that since there was no risk of depravation of life, liberty and security of the person, the Charter did not apply, nor did the confession rule out of Court statements if relevant.

They are applicable within proof of voluntariness. [ 27 ] Crown says this about issue estoppel and res gestae at paragraph 13 at its factum; First, the Crown distinguishes R. v. Wabason and R. v. W.L. and R. v. N.J.S. and notes, Again, context is the driver. All of the cases deal with the issue of res judicata and issue estoppel, and rely on s. 653.1 of the Criminal Code . This

section provides in the case of a mistrial , evidentiary rules, or the Charter decisions, are presumptively binding on the parties at a new trial, unless the court decides it is not in the public interest to bind the parties. Again, this is in the criminal trial context where the Crown has the burden of proving matters beyond a reasonable doubt. The rationales, wasting scarce judicial resources and unnecessarily repeating litigation, are forefront.

Again, the ultimate question to be decided in this s. 111 hearing is not whether the subject is guilty of firearms offences, but whether, based on Cpl Thackeray's reasonable and probable grounds, the Subject should be prevented from possessing firearms.

[28] Crown sums up at paragraph 14: It is submitted that Crown be permitted to lead the evidence of Cpl. Thackeray's receiving the confession of the Subject (going to Cpl.Thackeray's reasonable grounds) and, additionally, lead the confession of the Subject as direct evidence. Defence Response/Position [29] At paragraph 12, Mr. Marion states, in part: . . . Crown has understated the extent of the court's task on a s. 111 hearing. The Crown has misconstrued the burden on the Court assimply determining the reasonableness of the officer's grounds and not their reliability or accuracy.

The defence says that Judge Bruce'sfollowing quote from paragraph 8 of MacDonald in 2000, in the Crown's factum, Tab 4, is not the entire burden of the court. [30] The following quotation appears: Therefore it is the Court's task to evaluate the evidence, not determine whether it would have prohibited the Respondent from possessingfirearms, but to determine whether there is an objective basis for the officer's belief that reasonable grounds exist for the application. [31] Mr.

Marion says, [again in part]: The defence submits that a circumstance may exist where the officer subjectively believes his grounds and those grounds may have beenobjectively sustainable on the facts as he knew them at the time, but the Court still must determine that those facts in fact existed, andthat they continue to exist at the time of the hearing. . . The Crown seems to be saying that the inquiry stops with the determination thatthe officer had reasonable grounds, without consideration to the accuracy of those grounds. . .section 111(5) clearly suggest that thegrounds must in fact be true. . . Chan v.

S.B. [2009] AJ 695 (Alta. P.C.) Judge Main notes that the finding of the officer's belief wassubjectively and objectively sustainable "does not end the matter. There must also be a finding . . . that the circumstances referred to inthe applicant's application do, in fact, exist." [32] Judge Sutton, in his admissibility ruling, made no finding one way or the other. In paragraph 13 of the defence factum Mr.Marion refers to R. v.

Christianson [2004] BCJ 1490 Gove J., again in part: . . .It seems to me the proper way of looking at this is that the officer must have reasonable grounds to make the application and then,after hearing the evidence, the Court must be satisfied that there continues to be such grounds in order to justify the making of an order ofprohibition. [33] At paragraph 15 Mr.

Marion makes the following observation: Accordingly, the issue is not just whether Thackeray had reasonable grounds on the facts as he knew them, but whether the facts herelied on are, in fact, true, on a balance of probabilities, and whether they continue, in fact, to exist. [34] If that, in fact, is the case, I am not sure how a Court would be in a position to make that determination without actuallyreviewing the evidence upon which the Crown relies to support the s. 111 application. [35] Finally, Mr.

Marion says: The Crown must establish that it is in the interest of justice to re-open the ruling. [36] The ruling to which he refers is, of course, the ruling Judge Sutton made as to the voluntariness issue, proof of which was theCrown's burden. Judge Sutton concluded that Crown had failed to meet the test for voluntariness and correctly, in my view, declined tocommit Mr.

Hickman on certain counts that related to his statement to police. [37] Judge Sutton made no findings on the evidence itself as to whether it was credible, nor did he test and weigh the evidence todetermine whether the underlying statements might be true. Nor, should he have done that. That was not his role. Simply because heruled the statement involuntary does not mean he made findings that will be of assistance to Mr. Hickman in this application. Thatbrings me to Mr.

Morgan's reply. [38] He points out that this court must hear all relevant evidence on such an application, as Zeolkowski (SCC),[1989] 1 SCR 1378, Sopinka J., Crown sets out a hypothetical question and answer between Crown and the affiant officer that wouldtake place, or might take place, in a s. 111 hearing. At paragraph 4, Mr. Morgan says: In a nutshell, you have the Subject confirming what four witnesses said he did [that is what Mr. Hickman did]. . . he produced andpointed a gun.

On this preliminary evidentiary issue, how does Cst Thackeray divorce what he has been told from the four men, fromwhat he's been told from Mr. Hickman, in articulating his reasonable grounds to bring the application? To put it another way, thereasonableness that animates Cpl Thackeray's grounds is reinforced and intermingled by this body of confirmatory evidence -- theSubject and the four men say essentially the same thing. [39] And at paragraph 5: This matter was not tried but was heard by Sutton J. as a preliminary inquiry judge.

This is a significant distinction . . . if this matter hadgone to trial in the Supreme Court the Crown would not have been barred from seeking to have the subject's confession admitted. . .Surely then, in the context of a s. 111 hearing, the Crown is not prevented from leading this evidence -- it's why s. 653.1 cannot beengaged moving from a preliminary inquiry to trial. [40] At paragraph 7:

Again it bears repeating, this is not a criminal matter, but it is a s. 111 hearing where the court "shall hear relevant evidence presented by the applicant" and Cpl Thackeray, in the words of Sopinka J, "is not required to act solely on the basis of evidence that would be admissible at trial." [ 41 ] Finally, Mr. Morgan points out that there are -- . . .different interests involved here (criminal vs. preventive) and different rules of evidence are at play.

This is not a case where the concept of autrefois acquit can apply. [ 42 ] It is my respectful view that in order to make a determination on an s. 111 application of this nature the court must hear all relevant evidence. Such evidence may include a statement ruled inadmissible at a preliminary hearing and/or even hearsay evidence. On an s. 111 application, only after the evidence is led and considered by the Court is the Court in a position to determine whether or not the grounds relied upon by the officer is based on reason. [ 43 ] Judgment accordingly. (JUDGMENT CONCLUDED)