In the Matter of an Application Pursuant to s. 117.05 of the C.C.C., 2023 BCPC 241

Citation: In the Matter of an Application Pursuant to s. 117.05 of the C.C.C. 2023 BCPC 241 Date: 20231026 File No.: 44102-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 117.05 OF THE CRIMINAL CODE OF CANADA AND IN THE MATTER OF THIERRY GENDRON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE STEWART Counsel for the Crown: Brendan Ward Counsel for the Respondent: Appearing on his own behalf Place of Hearing: Campbell River, BC Dates of Hearing: June 9, September 8, and October 5, 2023 Date of Judgment: October 26, 2023

BACKGROUND: [1] Thierry Gendron is a retired member of the regular force of the Canadian Armed Forces (CAF), and continues to serve in thereserve force, as well as serving as a member of the Campbell River Fire Department. [2] In his military career, he started in the infantry, but completed his regular force career as a fire fighter, and continues to serve asan instructor and as a firefighter in the reserves. [3] During his military career, he served in operational theaters in Iraq, in southwest Asia (the Middle East) and in Bosnia.

Duringhis tour in the Persian Gulf he was injured during an explosion and suffered a Traumatic Brain Injury.

His wife testified that followinghis TBI and return from the tour, he was not the same man that she married. [4] In his role as a firefighter, both in the military, and in his civilian service here in Campbell River, he is been exposed to countlesstraumatic events. [5] He is currently a Sergeant in the reserves, but retired from the regular force as a Warrant Officer, and, in taking his retirementfrom the regular force, declined a posting and promotion to Master Warrant Officer, which is the second highest rank for Non-Commissioned Officers in the Canadian Forces.

He is soon to be restored to his former rank as a Warrant Officer. [6] Serving in a leadership role, Sgt. Gendron has supported and assisted other members and other firefighters in mental healthcrises, including risks of self harm and suicide. [7] In addition to his firefighter duties Sgt. Gendron is firearms instructor and CBR (Chemical, Biological, and Radiological)Defence trainer at CFB Comox. SUICIDE ATTEMPT: [8] In early January 2023 Sgt. Gendron attempted to commit suicide at his home.

He unlocked a safe and removed apersonal/civilian (non-military issue) firearm and ammunition, loaded the weapon, and held it to his head. His wife found him this way,when he then pulled the trigger. Fortunately, due to his training, the safety was still engaged and the trigger did not fire the weapon. Hiswife grabbed the firearm and pulled it away from him. He left the home, and his wife called the police. [9] Sgt. Gendron was located the next morning. He fully cooperated with the police and provided them with the codes to retrieve hisother firearms. Sgt.

Gendron’s weapons, and ammunition were seized, and this application, pursuant to s.117.05 is to determine whetherhe should be prohibited from possessing weapons. [10] Sgt. Gendron’s suicide attempt was clearly “unsafe.” Not merely with respect to his own self-harm, but also to his wife. While hiswife was never threatened in any way, clearly any use of a firearm in such circumstances creates an actual risk of physical harm toanyone present, and a real and effected harm of trauma to her, both in the attempt and certainly had he been successful. As a firstresponder, Sgt.

Gendron himself knows the trauma experienced by those who attend to any death, in particular any suicide involving theuse of a firearm, when family is present and in a home. [11] Absent here is any actual or threat of domestic violence. Also absent is any actual or threat to persons in authority, or any aspectof obstruction or resistance to the necessary intervention of the RCMP. Were those factors present here, this would be an entirelydifferent analysis.

THE LEGISLATION: [12] Sections 111 to 117 of the Criminal Code enact a process to deal with weapons when it is found that “it is not desirable in theinterests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon.”The process, and relevant judicial authorities are carefully, and thoroughly reviewed in two decisions written by my sibling JudgePatterson; • R. v. Tauber, 2023 BCPC 86 • R. v.

P.P.B., 2021 BCPC 28 [13] In Judge Patterson’s characteristically forthright approach he comments at paragraph 4 in P.P.B. as follows; This is not a criminal trial. In many respects, it is unfortunate that the Government of Canada has placed s. 111, which is public interestlegislation enacted to i. protect the safety of the person against whom the s. 111(5) order is sought, and or ii. protect the safety of any other person(s), into the Criminal Code, as opposed to placing s. 111 into another piece of public interest legislation. Why?

Because the Governments ofCanada and British Columbia are spending lots of taxpayer money on mental health and addictions campaigns, trying to educate andconvince Canadians through the mediums of television, radio, print, the Internet and other social media that we need to be non-judgmental and remove the stigma attached to mental health and addiction issues.

Yet the placing of s. 111 into the Criminal Code addsstigma and an air of criminality to what is often a mental health or addictions issue. [14] In this light, I commend Crown Counsel in this case, Brendan Ward, for conducting this application in a manner that was non-prosecutorial, and instead focused on the public-interest, harm-reduction model, without further stigmatising Sgt. Gendron.

[ 15 ] I return to R. v. P.B.B. and commend the entirety of Judge Patterson’s

Part 7. Analysis from paragraph 80 to 91, and 104 to 112, as a comprehensive

summary of the law in this area. [ 16 ] Central to my analysis here is the review of judicial authorities’ consideration of the relevant point in time for the assessment of safety. This is summarized at paragraph 85 in R. v. P.B.B. (the bold and underlining has been added for emphasis by me): [85] In addition to the principles set out Zeolkowski , Judge Harris at paragraph 38 in R. v. Britt , 2016 BCPC 329 , agreeing with the Ontario Court of Justice decision in R. v.

Douglas , 2013 ONCJ 649 , confirms that the desirability issue in s. 111(1) is related to the individual at the time of the s. 111(1) hearing and not at the time of the seizure of the firearm (s): [38] Finally a decision on whether or not an individual should be prohibited is based on a finding at the time of the hearing not at the time of the seizure. In other words, the judge must consider, if at the time of the hearing they are satisfied that it is not desirable for the individual to possess firearms : R. v. Douglas , supra, at para. 45 . ANALYSIS: [ 17 ] Certainly, in January 2023 it was unsafe for Sgt.

Gendron to personally possess firearms in his home. This is distinct from the CAF decision that Sgt. Gendron resume his use and possession of weapons in his capacity as a weapons instructor. I would draw a similar distinction for any respondent who uses a firearm in another aspect of public service including an RCMP officer or Sheriff. [ 18 ] At the time of his suicide attempt Sgt.

Gendron faced a crisis in his marriage, and was; • highly intoxicated, • was not addressing underlying issues impacting his mental health, • did not recognize or accept that he was an alcoholic, • did not recognize or accept any impacts of his Traumatic Brain Injury, • did not recognize or accept the degree to which his exposure to trauma in his service as a first responder may have been affecting him. [ 19 ] We must no longer be surprised when first responders or public safety personnel (PSP) suffer impacts to their mental health and/or experience mental health crises, including behaviours that are self-destructive (such as negative behaviour in their professional, personal and familial relationships) self-harm, and suicide. [ 20 ] Since 2008, the Canadian Forces release an annual report documenting suicide rates and factors amongst its members (most recently the 2022 Report on Suicide Mortality in the Canadian Armed Forces).

At the time of the report`s release in 2021 the Surgeon General of the CAF, MGen. Marc Bilodeau, commented: Normalizing conversations regarding mental health and suicide is integral to our understanding of the factors that lead to mental distress. Understanding these factors enables us to constantly improve the healthcare programs and services that we offer to our members.

As clinicians, we know the benefits of reducing the stigma and encouraging an open dialogue when it comes to mental health, and investing in the education and awareness programs required to help our members. “Please do not struggle in silence, we are here to help you.” Canadian Military Family Magazine. , May 19, 2022. [ 21 ] Sgt. Gendron has been fully supported by the CAF since he experienced his mental health crisis in January 2023. [ 22 ] It is fortunate for Sgt.

Gendron that the RCMP officers who responded to his crisis in January 2023, saw him through a lens of mental health and trauma, and not of criminality. In particular, I commend Cst. Caron, who located Sgt. Gendron the morning after the suicide attempt. Cst. Caron, spoke with Sgt. Gendron about his own experience with colleagues who sought and found help in support services, and Cst. Caron shared his own military background with Sgt. Gendron. [ 23 ] That I commend Cst. Caron for his empathy and understanding must not suggest I find this in any way exceptional.

I hear about the kindness of Mounties – shown to persons in crisis – both victims and accused -- all the time. To be present and witness some of the most anguishing moments in strangers lives is both a gift and a burden. [ 24 ] What is clear is that RCMP officers have a particular understanding of other first responders’ shared experiences with trauma.

A recent study with the Canadian Institute for Public Safety Research and Treatment includes the following Introduction; Public safety personnel (PSP), including border services personnel, correctional workers, firefighters, operational and intelligence personnel, paramedics, police officers, public safety communicators, and search and rescue personnel, “ensure the safety and security of Canadians.” Footnote 1 Of all Canadian PSP, Royal Canadian Mounted Police (RCMP) report the highest average number of exposures to potentially psychologically traumatic events (PPTEs), often more than 11 exposures to each type of PPTE.

Footnote 2 Using self-reported symptoms (based on validated measures, but not structured clinical interviews) of surveyed Canadian PSP, Carleton et al. Footnote 3 determined that a very high percentage of RCMP officers screened positive for posttraumatic stress disorder (PTSD) or other posttraumatic stress injuries (PTSI; e.g. major depressive disorder, panic disorder); half (50.2%) screened positive for one or more mental health conditions.

Footnote 3 Many have reported suicidal behaviours during the past year (i.e. ideation [9.9%], planning [4.1%], attempts [0.2%]) or during their lifetimes (i.e. ideation [25.7%], planning [11.2%], attempts [4.2%]). Footnote 4 Despite commitments to support PSP mental health and widespread efforts involving implementations of different interventions, evidence for effective programs designed to support PSP mental health remains extremely

limited. Footnote 5 Footnote 6 Footnote 7 Footnote 8 Footnote 9 Footnote 10 Footnote 11 Carleton RN, et. al. “The Royal Canadian Mounted Police ( RCMP ) Study: protocol for a prospective investigation of mental health risk and resilience factors.” Health Promotion and Chronic Disease Prevention in Canada, Vol 42, No 8, August 2022 [ 25 ] My reference to the above study, and the earlier referenced reports on suicide in the CAF, is not evidence in this trial. It has no impact on my assessment of whether the threshold safety interests are met in this Application.

Instead, my reading and research is an acknowledgment of my role and responsibility to better understand and appreciate the challenges faced by first responders or PSP. [ 26 ] Sgt. Gendron is grateful for the support of the RCMP officers who intervened that morning. Indeed, after each testified he thanked them for how they helped him. [ 27 ] Sgt. Gendron is also grateful for the support that morning, and ever since, of his friend, and supervisor with the Campbell River Fire Department, Lieutenant Stuart Feltham. [ 28 ] Ultimately, in the immediacy of his suicide attempt, it was his wife who saved Sgt.

Gendron’s life, grabbing the rifle away from him. [ 29 ] However understandable, and however dangerous, indeed, terrifying the events of early January 2023 are, my assessment of safety is focused on where Sgt. Gendron is now. [ 30 ] Since January 2023, Sgt. Gendron has surrendered to every available support and service to address his mental health and recovery. In comparison to where he was almost a year ago; • He is now in stable and supported recovery from his alcoholism. • His marriage is secure and strengthened, • He has transparency about his struggles and his need for and acceptance of support from; i.

His wife, ii. His friend and colleague, (personally and professionally), Lieutenant Stuart Feltham, iii. his military chain of command and community, iv. the Campbell River Fire Department. [ 31 ] I place significant weight on these supports and their assessment of Sgt. Gendron’s recovery, and his dedication and commitment to his mental health. [ 32 ] Admitted as exhibits at trial were; • Correspondence from Psychiatrist, A. Minnings, MD, FRCPC, CAF Health Services Pacific, confirming that Sgt.

Gendron has adhered to all treatment recommendation, and offering his medical opinion that; “as long as he continues to maintain his sobriety, his risk [of suicide] remains similar to that of the general population, and I do not have concern with him using or owning firearms safely.” • Correspondence from N. Myssechko, MSW, RSW, Wing Addiction Counsellor, Health Services Comox, confirming Sgt. Gendron’s active engagement in treatment and all advised recommendations, and confirming that; “As long as he continues to maintain his recovery there is no increased risk of suicide noted.

I have no concerns with him having access to firearms.” [ 33 ] While his treating professionals assess Sgt. Gendron’s risk of further suicide attempt to similar to that of the general population, I find that any remaining risk is further mitigated by two circumstances; • An internal influence is that Sgt. Gendron, through his experience and training, and his testimony concerning his approach to his treatment, demonstrates a higher degree of personal discipline than most. • An external influence is that Sgt.

Gendron benefits from a supportive environment at home, and in particular, professionally, both in his military service and in his service as a civilian firefighter. [ 34 ] Referring to professional culture, I commend, Cst. Caron, Lt. Feltham and Sgt. Gendron, for modelling a culture of increased openness concerning mental health and addictions. For too long, military culture, including para-military cultures such as the RCMP and Sheriff Services, relied on stiff-drinks, “stiff-upper-lips” and rigid regimental traditions, as a response (or at worst a denial) to trauma. I am encouraged to see a cultural shift.

No doubt, the traditional stigmas, shames, and regimented thinking persist. They do in this culture (the bar, and the judiciary) as well. [ 35 ] I am particularly impressed by the testimony of Lieutenant Feltham, and Sgt. Gendron, that their leadership includes leading by example with their military and firefighting siblings and transparency about their own struggles with trauma and mental health. [ 36 ] Hearing about these shifts in culture, further supports my determination about any future risks for Sgt. Gendron. That he is surrounded by a supportive, transparent culture, further mitigates any future risk.

DECISION: [ 37 ] I find that Sgt. Gendron does not currently present as a risk to himself or to others, whether specific to his use or possession of

firearms or otherwise. [ 38 ] I find that Sgt.

Gendron’s mental health crisis in January 2023 – in particular his suicide attempt – led to his seeking, receiving and embracing the interventions and supports that restored his mental health. [ 39 ] I do not find that it is desirable in the interests of the safety of him, or of any other person, that he be prohibited from possession of any weapon. [ 40 ] I order the return of weapons seized to him, or should he decide that it is not yet (in his discretion) the best time for their return, that they be returned to another properly licensed individual. [ 41 ] Crown Counsel and Sgt.

Gendron know from my colloquy with them at the conclusion of the evidence in this hearing that I sought to know whether there was a discretion to order a conditional prohibition – essentially that he not keep weapons in the house – but that there be no prohibition on Sgt. Gendron’s use or possession of weapons in his military service. [ 42 ] Ultimately, having reviewed the evidence I did not find the threshold safety grounds were met. As such, no prohibition may be ordered. [ 43 ] However, I ask Sgt.

Gendron to consider his wife, and the trauma she endured, and whether the return of the weapons to the house might be a trigger for her. I trust Sgt. Gendron to maintain the discipline of seeking objective input concerning this, and then exercise the appropriate discretion. His friend, and support, Lieutenant Stuart Feltham has offered to take the weapons for him. Sgt. Gendron might consider this, at least for a period. To be clear, I do not order any restriction. Indeed, Sgt. Gendron has demonstrated a new awareness, to seek advice, and follow it.

FINAL COMMENTS: [ 44 ] I commend the CAF for continuing to utilize Sgt. Gendron as a firearms instructor during this process. It is perhaps a model for supporting public service personnel who use firearms in their professional capacity, and then experience a mental health crisis resulting in an attempted suicide or other self harm.

Whether it’s the military, or the RCMP or sheriff services, they are well-positioned to determine whether and when a well-trained, well supervised member, once recovered sufficiently from a mental health crisis, permits their return to active duty, and to supervise them in their continued use of a firearm. That risk assessment is different from the risk assessment for that same individual when off-duty, and at home. That Sgt. Gendron was supported by the military in his continuing use of a firearm at work, despite the fact that his personal weapons had been removed from his home appears to have been appropriate.

Showing that confidence in Sgt. Gendron was likely beneficial to him in his recovery, and permitted him, his students, and the public to benefit from his experience and expertise. [ 45 ] Too often our systems fixate on an immediate, identified risk, without regard to how our reactions to that risk, may undermine the available opportunities to address the underlying issues that created the risk, and in turn, perpetuate or exacerbate future risk. [ 46 ] Finally, I repeat my comments regarding the manner in which this matter was guided by Crown Counsel Brendan Ward.

He has the court’s appreciation. ______________________ PCJ DMD Stewart