R. v. Tabaeini, 2014 ONCJ 701

COURT FILE No.: Toronto DATE: 2014-12-18 Citation: R. v. Tabaeini , 2014 ONCJ 701 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — POURIA TABAEINI Before Justice F. Bhabha Heard on: September 26 th and November 18th 2014 Firearms Reference Hearing: Pouria Tabaeini Ms. Nancy Krigas ....................................................................................................... for the Crown The defendant Mr. Pouria Tabaeini………………………………………………………on his own behalf F. BHABHA, J.: Nature of the Application This is an administrative hearing under

section 74 of the Firearms Act, (“the Act”), also referred to as a “Reference Hearing”. [ 1 ] In October of 2013, the applicant, Pouria Tabaeini, made an application to the Chief Firearms Officer of Ontario for a license to possess and acquire non-restricted firearms, also referred to as a “PAL”.

On April 23rd 2014, Douglas Jones, the Area Firearms Officer and designate of the Chief Firearms Officer of Ontario denied the application. [ 2 ] Among the reasons given for denying the application were that: 1) the applicant was subject to two separate weapons prohibitions under the National Defence Act which he failed to disclose in his application ; 2) there were serious questions about the authenticity of the signature of one of the two references he provided in support of the application in that the reference categorically denied signing the application; 3) that same reference when contacted emphatically refused to endorse the applicant as a suitable licensee, and in fact provided specific reasons why such the applicant was ill-suited for a PAL , 4) attempts to contact the second reference at the contact number the applicant provided were unsuccessful. [ 3 ] Mr.

Tabaeini now applies to this court for a judicial determination as to whether the refusal by the Chief Firearms Officer was reasonable or justified. Mr. Tabaeini is self-represented. The application was heard over two days partly to provide the applicant an opportunity to supplement the record in particular with respect to his military record. [ 4 ] Mr. Tabaeini testified and provided explanations for why his reference, Mr. Maddison, in his view, turned on him. He also explained why in his view the difficulties he encountered in the Canadian Armed Forces (“the CAF”) were not of his doing alone.

He explained that the reason he did not disclose the weapons prohibitions was because he did not understand those to be the type of prohibitions that were referenced in the application. Mr. Tabaeini also provided supplemental information about a particular disciplinary matter. He did not however provide information about new references or updated contact information for his second reference, Mr. Sean Micks. [ 5 ] The court also heard from Officer Jones who amplified his reasons for refusing Mr. Tabaeini’s application.

He testified about his home visit with the applicant and made reference to the applicant’s failure to provide current contact information for his second reference. He also made reference to his consideration of the applicant’s prior history of mental instability which became known to him through police occurrence reports. He had access to the applicant’s CAF records and he placed considerable reliance on the applicant’s threatening and other misconduct that resulted in the two weapons prohibitions while in the CAF in assessing the merits of Mr.

Tabaeini’s application. [ 6 ] An application of this nature differs considerably from other applications this court routinely hears. It is in the nature of an

appeal, but as an administrative matter it raises different issues, engages broader rules of evidence, and requires the application of a very specific test. [ 7 ] These are the questions raised on the application that require consideration as a foundation for the hearing. Firstly, on what basis can an application for a gun license be denied? Secondly, who bears the onus on such an application to satisfy the court that the decision to refuse the license was or was not justified?

Third, what evidence can this court hear or consider in deciding whether the original decision to refuse the application to issue a gun license was correct? Can the court hear and consider “fresh evidence” or hearsay evidence? And lastly, what is the standard of review for reference hearing under s.74 of the Firearms Act? How much deference should be paid to the decision of the CFO’s refusal to issue the licence? The Basis for the Refusal [ 8 ] The Firearms Act (“the Act”) gives broad discretion to the Chief Firearms Officer to refuse to grant a license.

Section 68 of the Act reads as follows: “A Chief Firearms Officer shall refuse to issue a licence if the applicant is not eligible to hold one and may refuse to issue an authorization to carry or authorization to transport for any good and sufficient reason ”. [Emphasis added] The Reason for Refusing the Application [ 9 ] On April 24 th 2014, Officer Jones a designate of the CFO, informed Mr. Pouria that his application was denied for the following reasons: “Failure to meet the eligibility criteria under

section 5 of the Firearms Act, in particular, Subsection 5(1) - not in the interest of the safety of that or any other person. Failure to meet the eligibility criteria under

section 5 of the Firearms Act , in particular, subsection 5(2)(c) - history of behaviour that includes violence or threatened or attempted violence against any person”. [ 10 ] Specifically, Mr. Tabaeini was informed that the reasons for refusal were related to:

a) the weapons prohibitions imposed on him by the CAF;

b) his failure to disclose these in his application;

c) the fact that his reference denied accepting to act as a reference and also denied signing the application;

d) that the second reference provided could not be located; and

e) that after an exhaustive investigation, reviewing police reports and interviewing and communicating with the applicant, Officer Jones concluded that the applicant was not a suitable candidate for a Canadian Firearms Licence. [ 11 ] The applicant was informed that in the opinion of the Officer Jones it was not desirable in the interests of Mr. Tabaeini or public safety that he be issued a firearms licence. He was informed that he “needed to demonstrate a pattern of behaviour that would be favourable for you to have the privilege of possessing a firearms licence.” Finally, it was suggested that Mr.

Tabaeini wait for a period of five years with no significant police contact that would conflict with

Section C in the application relating to his personal history. Who bears Onus on the Application? [ 12 ] At a reference hearing such as this, the onus is on Mr. Tabaeini to satisfy this court on a balance of probabilities that the decision of the CFO “was not justified”. See: s.75(3) of the Act. What Evidence Can the Court Consider? [ 13 ] On a Reference hearing the court is not restricted to considering materials that were presented to the CFO on the application.

In terms of temporal limitations, the Court is not precluded from considering the personal history of an applicant beyond the five (5) year period referred to in s.5(2) of the Act. Lastly, hearsay evidence is permissible and it is a matter of weight. [ 14 ] Subsection 75(2) mandates that on a reference hearing the court consider “all relevant evidence” presented by or on behalf of the CFO, Registrar and the applicant”. The court of appeal in R. v. Henderson [2011] O.J. No.4946 held that: it is clear that the provincial court is to engage in its own fact finding process.

That is why it is described as a reference and not an appeal from the Registrar’s decision. Nor is it a hearing de novo, since the Registrar did not hold a hearing. Clearly the legislative intent is that the provincial court is to find its own facts and need give not deference to any facts recited in the reasons of the Registrar. [Emphasis added] [ 15 ] Since the case law makes it clear that a Reference Hearing is administrative in nature, hearsay evidence is admissible with any frailties being a matter of weight.

The Standard of Review on a Reference Hearing and Deference [ 16 ] The standard of review on a reference hearing is “reasonableness”. The reviewing court must determine whether the CFO’s decision to refuse the applicant’s license privilege was reasonable in all of the circumstances. See s.75(3) of the Act. [ 17 ] As well, the relevant case law confirms that considerable deference is to be paid to the decision of the CFO. In R. v. Morgan [1995] O.J. No.18 (Prov.

Court) Justice Fairgrieve found that in determining whether or not the test has been met to justify a refusal to grant a license, “it is sufficient if there is a legitimate concern the [applicant] lacks the responsibility and discipline the law requires of gun owners”. See also R. v. Bokhari, [2009] O.J. No. 5975 (Prov. Court) per Blacklock, J at para.10 [ 18 ] In Canada, (Attorney General) v.

Henderson, supra, the Court of Appeal for Ontario, at paras. 35-38, ultimately found that based on the language in the Act and the expertise of the CFO that in fact considerable deference should be paid to the CFO’s decision : The provincial court is to test that decision against the facts it has found. It is not to determine if it agrees with the decision, but whether it has been satisfied by the applicant that the decision is not reasonably defenceable. This mandates deference. (emphasis added) The Position of the Parties

[ 19 ] Mr. Tabaeini submits that the refusal to provide him with gun license was unreasonable in all of the circumstances. He contends that the CFO placed too much emphasis on some of the information considered such as his struggles in the past with mental health issues and misinterpretation of other information available to the CFO, such as his difficulties while in the CAF. He has provided this court with supplemental documentation as well as viva voce evidence that in his view undermines the justification for the refusal. In his own words, Mr.

Tabaeini submitted: “I am not just a bad guy who is crazy and who should not have a PAL”. [ 20 ] Ms. Krigas for the Crown submits that the refusal is not only reasonable all the circumstances, but that it was the only action the CFO was empowered to take under the Act . Furthermore, she submits that although the Applicant was afforded an opportunity to submit further or fresh evidence at the hearing, in the end the material he did submit was superficial and did not support his contention that the decision to refuse to issue a PAL was not justified.

The Relevant Legislative Background [ 21 ] The overall purpose and scheme of the Firearms Act is the promotion and protection of public safety. The legislation is designed to preclude persons from possessing firearms, if to permit them to do so would compromise public safety.

One of the means by which the Act seeks to protect public safety is to provide for a scheme or process for the issuance of licenses under which persons may possess firearms in circumstances that would otherwise constitute ab offence under subsection 91(1) , 92(1) , 93(1) or 95(1) of the Criminal Code . [ 22 ] The statutory regime grants firearms officials and reference judges with a vast amount of discretion to deny firearms licenses when “in the interests of safety”. This broad discretion is necessary given the wide range of possible circumstances that may arise in a given case. See: R. v.

Davidson, 2011 ONSC 249 , at para.30

Summary of the Information Relied on Original Application [ 23 ] There were five primary sources of information the CFO reviewed and relied upon in assessing the merits of the application and referred to in the Notice of Refusal.

See: Exhibit #1 (tab 3, p.4) are the following: 1) Records from the Toronto Police Service relating to the Applicant’s struggles in the past with Mental Health between 1999-2000 (three attempted suicides); 2) Records from the Canadian Military relating to his conduct, difficulties adapting to military life, interactions with other personnel, concerns about his mental health, and disciplinary action taken against him under the National Defence Act; 3) An interview conducted by the CFO with Mr.

Tabaeini on December 2013 at his residence and further communications with him in March 2014; 4) A follow-up with Brennan Maddison, one of the two references provided by Mr. Tabaeini in support of the application for a licence. The other reference, Sean Micks, could not be reached at the contact number Mr. Tabaeini provided; and 5) Various Medical Reports, including from:

a) Dr. Aref Vaezi, the applicant’s family physician indicating that the applicant’s bipolar disorder is currently in remission;

b) Dr. Landry, relating to an assessment by National Defence. It references a suspected personality disorder and concerns about the applicant making bad choices. This lead to an appointment with psychiatrist Dr. Joshi in New Brunswick;

c) Dr. Joshi, dated December 2012 in the aftermath of the November conviction and weapons prohibition. It indicated that the applicant had no current psychiatric symptoms suggesting active psychiatric condition. A conflicting diagnosis with previous bi-polar disorder and information of stability for last 10 years with no suicidal thoughts. The report suggested that weapons restrictions could be removed with progressive re-integration into work in the military. The Applicant’s Personal Circumstances [ 24 ] Mr. Tabaeini is thirty one (31) years old.

He has no dependants and at the time of the hearing was living with his father. He is a full time student. He currently receives a disability pension (“ODSP”) as a result of a prior mental health diagnosis. He has no criminal record, but does have two convictions under the National Defence Act, the “NDA”. [ 25 ] In June 2012, Mr. Tabaeini enlisted in the Canadian Armed Forces (the “CAF”). He was stationed in New Brunswick. By his own account, Mr. Tabaeini had a difficult time in the forces. In short, he testified that he was not shown any respect.

Not surprisingly then, it was far from a fulfilling or natural fit for him. He painted a picture of someone who was routinely picked on and who was treated unfairly by his fellow soldiers and his superiors. By his account he was often the victim of verbal and physical abuse rather than the aggressor or instigator of the numerous altercations in which he became involved. [ 26 ] CAF records reviewed by Officer Jones in assessing the merits of the application cast Mr. Tabaeini in a different light.

The CAF records disclose a number of misconducts as well as more serious conduct including assaultive and threatening behaviour. [ 27 ] By November of 2012, five months after he joined the CAF, he was referred for a medical assessment related to a threat and his possession of an “abnormally high amount of knives”. He also had difficulty maintaining his barrack room in an orderly fashion. This relatively minor issue with orderliness appears to corroborate Officer Jones’ observations that Mr. Tabaeini’s residence was in a state of disorder when he attended there to interview the applicant. Mr.

Tabaeini explained that he had tidied up before the officers’ visit and

suggested that the officer’s observations could be explained by differences in standards of household order and tidiness. [28] The CAF records document the various problems and disciplinary issues Mr. Tabaeini experienced that finally culminated inhis decision to apply for a voluntary discharge. [29] In May of 2013, he disobeyed a lawful command of a superior officer and was sentenced to $300 and 12 days confinement tobarracks and was not permitted to possess weapons. [30] He failed to disclose either of the “no weapons” prohibitions on his PAL application.

His explanation for not disclosing thatinformation was that he did not believe these to be akin to “prohibitions” such as those under the Criminal Code. [31] In November of 2013, approximately one year ago, he was voluntarily discharged from the military on the basis that he“determined that he is ill-suited to the military lifestyle, and seeks voluntary release to pursue full time education”. [32] As of September 3rd 2014, Mr. Tabaeini enrolled as full time student at the University of Toronto. He has aspirations ofbecoming a police officer or working as a transit operator.

He has also recently renewed his application to rejoin the CAF. [33] Toronto Police Service records confirm that Mr. Tabaeini has a history of mental health issues dating back to March 1999. Hishistory includes at least three attempted suicides (once in 1999 and twice in 2000), assaultive behaviour involving family members,diagnosed Manic Depression, and apprehensions under the Mental Health Act. [34] In the last 10 years Mr. Tabaeini’s mental health has been stabilized and he is currently symptom-free. Supplemental Evidence Adduced by the Applicant [35] Mr.

Tabaeini was given an opportunity to present supplemental evidence to this court. Some of the supplemental material hesubmitted related to the CAF’s disciplinary investigation relating to a hockey incident that seemed to touch a nerve in Mr. Tabaeini’ssense that he was unfairly treated in this incident and many others in the CAF. In respect of this particular incident, he was adamant thathe was the innocent victim in the affair. [36] Other material Mr. Tabaeini submitted consisted of his more current his academic records; a Certificate of results from theOntario Association of Chiefs of Police certifying that Mr.

Tabaeini had completed the pre-interview Assessment Phase of the ConstableSelection System in August of 2014, and generic correspondence from the CAF acknowledging Mr. Tabaeini’s renewed employmentapplication and requesting proof of age and citizenship. [37] Notably, Mr. Tabaeini did not provide alternate references or other more current contact information for the reference that theOfficer Jones was unable to reach, Mr. Micks. Conclusion and Findings [38] I find that the firearms officer conducted a thorough investigation of Mr. Tabaeini’s background to determine if he was anappropriate candidate for a PAL.

The scope of the investigation was broad and included Mr. Tabaeini's mental health challenges in 1999and 2000, as well as the circumstances that led to his voluntary discharge from the CAF in November of 2013. [39] I have concluded based on the relevant case law that the temporal scope of the inquiry permits me to go beyond the five yearperiod set out in the s. 5(2) of the Act in reviewing the correctness of the CFO’s decision. See R. v. Curtis, (ON SC),[2004] O.J. No. 4088 (S.C.); R. v. Corrigan, [2010] No. 3509 (C.J.) [40] People can and do change over time.

Many people are able to overcome significant challenges and to thrive despite their pastdifficulties. [41] Mr. Tabaeini had serious mental health issues going back more than five years. A psychiatrist has determined that Mr. Tabaeiniin 2013 did not display symptoms of his past mental health issues and that he is mentally stable. However, it appears that Mr. Tabaeinicontinues to struggle with emotional difficulties. On more than one occasion while he was in the military, concerns were raised about hismental health and his suitability for service.

In that sense, his difficulties in the military cannot be considered in a vacuum. They aresomewhat informed by his prior history. [42] I find that even putting his prior mental history aside, Mr. Tabaeini’s application raised a number of red flags. Firstly, it lackedthe necessary two references. One was not available at all and the other denied having agreed to be a reference or placing his signatureon the application. If true, this demonstrates very troubling deceitful conduct that is not in keeping with the level of responsibility that isrequired of gun owners.

Even giving the Applicant any benefit of the doubt regarding the authenticity of Mr. Maddison’s signature, thefact remained that the only reference that could be contacted was utterly unsupportive and expressed an opinion that Mr. Tabaeini was anunsuitable candidate for a PAL. He is the reason Officer Jones delved deeper into Mr. Tabaeini’s military history. [43] I find that the picture that emerged from a review of that history was that of someone who was quite ill-suited to a life of strictdiscipline. He admitted as such in his discharge letter.

His difficulties in following orders belie his contrarian tendencies. He argued withhis driving instructor, he argued with his instructor on a shooting range professing to know better how to set up at a range. These are notin my view reflective of minor incidents or simple differences in opinion. They more likely, I find, are a character trait that whencombined with a quick temper should raise concerns about Mr. Tabaeini’s suitability as a candidate for a gun licence. [44] It is difficult to accept, as he has suggested, that he was entirely blameless in the disciplinary issues he faced.

I find that it ismore likely that his emotional immaturity and temperament directly impacted his ability to cope, adapt and get along with others in hisshort-lived efforts to establish a military career. Mr. Tabaeini’s earlier mental health challenges are therefore relevant to that limitedextent. It is to be noted then that I placed diminished weight on that that part of Mr. Tabaeini’s history that stretches back further than

five years ago. [ 45 ] Mr. Tabaeini is to be commended for his dedication to pursuing his studies. He is doing well and while no doubt studying requires discipline, I find that it requires a different type of discipline and responsibility than that required of gun owners. [ 46 ] In any event, his scholastic success in 2014 must be considered in the context of his discharge from the CAF. His altercations with his fellow soldiers demonstrated a continuing inability to control emotions or to react calmly to diffuse volatile or heated situations.

To some extent then, I find that the hearsay evidence of his purported reference, Brennan Maddison, that Mr. Tabaeini has a “short fuse”, appears to have some merit. As well, Mr. Tabaeini’s documented inability or reluctance to follow rules or orders and his outright defiance, on occasion, to follow orders underscores that he lacks the qualities required of a gun owner: responsibility, respect for rules and discipline. [ 47 ] It may be said that Mr. Tabaeini has matured since his time in the military and will display different personality traits in difficult situations in the future.

That said, based on the materials reviewed of his history within the last five years, I have not been persuaded by the Mr. Tabaeini that the decision of the CFO was not the correct one. [ 48 ] Unlike the military where there is some level of supervision, a civilian gun owner has no one regularly looking over their shoulder to enforce rules that regulate safe gun storage, for example. This is why the public interest in safety requires that the CFO conduct a careful and thorough but fair process in assessing the merits of a licence application.

After the licence is granted, a high degree of trust is placed in the licensee to follow all the regulations to ensure the public safety is not placed at risk. [ 49 ] I, therefore, confirm the decision of the Chief Firearms Officer in refusing the applicant a license under

section 5 of the Act . [ 50 ] The Applicant’s suitability for a PAL may change over time and the application may be renewed for consideration after the requisite five year time frame set out in the Act has passed. Released: 2014-12-18 Signed: “Justice F. Bhabha”