R. v. Tesacek Date:, 2010 BCPC 409

Citation: R. v. Tesacek Date: 20101206 2010 BCPC 0409 File No: 53884-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAN TESACEK ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. J. RODGERS Counsel for the Crown: S. Bennett Counsel for the Defendant: D. Birch Place of Hearing: North Vancouver , B.C. Date of Judgment: December 6, 2010 [ 1 ] THE COURT: This application is brought by Jan Tesacek seeking an order cancelling a decision of a firearms officer. It is necessary to outline the statutory framework which governs the application brought by Mr.

Tesacek. [ 2 ] The Firearms Act sets out the requirement that an individual must hold a licence in order to lawfully possess a firearm. Section 5(1) of the Firearms Act states: A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition. [ 3 ] Subsection (2) states: In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under

section 74, a provincial court judge shall have regard to whether the person, within the previous five years, has been convicted or discharged under

section 730 of the Criminal Code of an offence in the commission of which violence against another person was used, threatened or attempted, an offence under this Act or

Part III of the Criminal Code ,

an offence under

section 264 of the Criminal Code (criminal harassment), or an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act ; has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person. [ 4 ]

Section 7 of the Act permits a chief firearms officer to revoke a licence for any good and sufficient reason including, and the Act goes on to set out a number of considerations. [ 5 ]

Section 74 of the Act sets out the procedure by which a person who has been subject to a decision by the chief firearms officer to revoke a licence may bring an application before a Judge of the Provincial Court. The hearing of the reference is set out under s. 75 of the Act . The authority of the Provincial Court Judge hearing such a reference is set out in s. 76 of the Act . [ 6 ] On the 27th of January, 2010, Mr. Jeff Harrison, a firearms officer, duly authorized pursuant to the provisions of the Firearms Act , cancelled the licence held by Mr. Tesacek to possess certain firearms. Mr.

Tesacek was first granted a licence to possess firearms on the 30th of June, 2001. The licence is described as a “possession only” licence. This licence was renewed on the 8th of February, 2007. [ 7 ] The Notice of Revocation of a Firearms Licence, dated January 27th, 2010, prepared by Mr. Harrison, sets out the reasons for the decision of Mr. Harrison to revoke the licence of Mr. Tesacek. [ 8 ] The first factor considered by Mr. Harrison was the reports made by Mr. Tesacek to the North Vancouver Detachment of the Royal Canadian Mounted Police. Mr.

Tesacek had made various complaints to the North Vancouver RCMP concerning suspicious activities at his residence. Constable Dick had attended at Mr. Tesacek's residence and spoken with him. Mr. Tesacek complained that persons unknown to him had entered his house and had taken certain items, such as a non-activated Visa card, a camera and film. In addition, items within the house, such as magazines and tea towels had been moved. There was no evidence obvious to the police of unauthorized entry into Mr. Tesacek's home. [ 9 ] After Mr. Harrison reviewed the reports of the RCMP, including reports concerning Mr.

Tesacek's mental health, Mr. Harrison began a second process. Mr. Harrison wished to speak to medical professionals who had been treating Mr. Tesacek. Mr. Harrison contacted Mr. Tesacek who agreed to provide a release of medical information by his medical practitioners to Mr. Harrison. [ 10 ] After the release of medical information had been provided, Mr. Harrison spoke firstly to Dr. Hayward. Dr. Hayward has been the family physician of Mr. Tesacek for over 30 years. Dr. Hayward said that Mr. Tesacek suffers from fixed delusions. Dr. Hayward's concern was that if the mental health of Mr.

Tesacek were to deteriorate, then he was not certain what would happen next. Dr. Hayward also expressed concerns to Mr. Harrison about Mr. Tesacek being in possession of firearms. This interview of Dr. Hayward by Mr. Harrison occurred on the 14th of December, 2009. Dr. Hayward also sent Mr. Harrison medical reports from various doctors which were completed in 2007, 2008 and 2009. [ 11 ] It is the opinion of the medical practitioners, including Dr. Sevary (phonetic), a psychiatrist, and Dr. Tramanson (phonetic), a psychiatrist, that Mr. Tesacek suffers chronic paranoid psychosis. Dr.

Sevary states in his report that Mr. Tesacek is obviously quite troubled by his delusions, and in spite of the decreased frequency of his perception of home invasion, he has maintained a consistent longstanding relationship with the RCMP officers in the form of multiple complaints. [ 12 ] Dr. Tramanson, in his report of February 2nd, 2007, confirms that Mr. Tesacek is clearly paranoid and delusional. The diagnostic impression of Dr. Tramanson is that Mr. Tesacek suffers a chronic paranoid psychosis which has been in existence for many years, and is not likely to change. Dr. Tramanson was aware that Mr.

Tesacek was in possession of firearms. Dr. Tramanson writes (as read in): The police have not expressed any concern over this. I have no evidence from my interview with him that his possession of hunting rifles presents a danger. There is no history of violence, nor does there appear to be any inclination in that direction on the part of Mr. Tesacek. [ 13 ] The next step taken by Mr. Harrison was to interview Mr. Tesacek. On December 7th, 2009, Mr. Tesacek attended at the Surrey Office of the Canadian Firearms Program and met with Mr. Harrison. Mr.

Tesacek confirmed that he owned two non-restricted firearms which were stored in the basement in a locked cabinet. It is not disputed that at all times the firearms were lawfully stored by Mr. Tesacek. Mr. Tesacek confirmed the reports of the Royal Canadian Mounted Police in response to Mr. Tesacek's belief that someone had been entering his home. [ 14 ] Based on all of the information collected by Mr. Harrison, he concluded that he had good and sufficient reasons to revoke the firearms licence lawfully held by Mr. Tesacek. [ 15 ] Mr. Harrison testified at the hearing of Mr. Tesacek's application. Mr.

Harrison testified that when exercising his discretion he would error on the side of caution. He said that if the medical condition of Mr. Tesacek should improve in the future then Mr. Tesacek could make an application for a firearms licence. [ 16 ] In cross-examination Mr. Harrison was questioned concerning the exercise of his discretion under the provisions of s. 5 of the Firearms Act . Mr. Harrison agreed that Mr. Tesacek had not been involved in any incident of violence, or any incidents where violence had been threatened. Mr. Harrison confirmed that Mr.

Tesacek had never been convicted or had received a discharge for any criminal offence. Mr. Harrison confirmed that Mr. Tesacek had never contravened any provisions of the Firearms Act , such as unsafe storage or unsafe handling of a firearm.

[ 17 ] Mr. Harrison confirmed that the rifle and shotgun owned by Mr. Tesacek were firearms commonly used for hunting both big game and upland birds in Canada. [ 18 ] Mr. Harrison was questioned as to whether there was any evidence of a deterioration in the mental health of Mr. Tesacek. This series of questions put to Mr. Harrison arose from the comments of Dr. Hayward. Dr. Hayward had expressed concern that if the medical condition of Mr. Tesacek were to deteriorate then there could be serious consequences. Mr. Harrison testified that he did not know if there was any deterioration of Mr.

Tesacek's mental health. [ 19 ] Mr. Harrison had noted the comments of Constable Dick of the RCMP made in August of 2007 where the officer wrote that in her opinion Mr. Tesacek may be suffering a deterioration in his mental health. [ 20 ] Mr. Harrison was quite clear in his testimony. His concern was that there was a potential risk of harm to Mr. Tesacek or other persons in the community if there was a deterioration in Mr.

Tesacek's mental health. [ 21 ] The issue before the Court is to determine, in part, whether a potential risk of harm to an individual or other persons is a factor to be considered by a firearms officer pursuant to the provisions of s. 5 of the Firearms Act . [ 22 ] It is useful to consider the background of Mr. Tesacek. He is 64 years of age. He was born in what was then Czechoslovakia and he came to Canada in 1970. He moved to North Vancouver in 1988 where he purchased a home. He attended high school in Czechoslovakia and received some training as a machinist.

In Canada he has been employed as a painter since 1972. He is a member of a local union. He has been employed by the same company for the past six years. He works as a painter of the interior of commercial offices. He earns approximately $45,000 per year. He has no family in Canada, but he has a brother and sisters in the Czech Republic. [ 23 ] Mr. Tesacek testified that he purchased the rifle and the shotgun which he presently owns for the purposes of hunting with friends. Mr. Tesacek has never been involved in any criminal activity. He does not make threats or get involved in fights.

He says that he no longer contacts the RCMP concerning people breaking into his home. Mr. Tesacek suffers from high blood pressure and a throat infection. He takes medication for those two ailments. He confirms that it has been recommended by doctors that he take medication for his mental health issues. Mr. Tesacek has declined to take such medication as he does not wish to mix one medication for high blood pressure with another medication for his paranoia. Mr. Tesacek is neither suicidal nor homicidal. [ 24 ] In cross-examination Mr.

Tesacek confirmed that he had made reports to the police about people breaking into his home and stealing things. He believed that there was a group who were involved in these break-ins. He was unable to identify exactly who this group might be.

He believed that the psychiatrists whom he had been speaking to had been in contact with the police and would give effect to what the police wanted. [ 25 ] An application for a review by a Provincial Court Judge of a decision of a firearms officer to revoke the firearms licence requires the Court to apply the following test: Is the original decision of the firearms officer one that was reasonable, even if the judge does not agree with it? [ 26 ] In the case of the British Columbia Chief Firearms Officer v.

Fahlman , 2004 BCCA 343 (CanLII) , [2004] B.C.J. 1246 , the British Columbia Court of Appeal considered the provisions of s. 5(1) and 5(2) of the Firearms Act . That decision assists this Court when measuring whether or not the decision of Firearms Officer Harrison to revoke the licence of Mr. Tesacek was reasonable. At paragraph 25 of the Fahlman decision the Court stated as follows: Section 5(1) creates a broad safety standard for eligibility to hold a firearms licence or to continue to hold one following a revocation inquiry.

Section 5(2) requires a firearms officer or a Provincial Court Judge on a reference to 'have regard to' certain conduct by the applicant or licence holder. I do not read s. 5(2) as being exhaustive of the matters to be considered as affecting safety concerns under s. 5(1). There are many other things a firearms officer or a judge might consider that do not fit into s. 5(2) and that might logically and reasonably give rise to valid safety concerns.

I agree with the appellant’s submission that there is no statutory obligation to decide the safety issue in favour of the applicant or licence holder when none of the criteria in s. 5(2) is present; and that there is no obligation to refuse a licence or order a revocation if one or more of those criteria are present. A plain reading of the

section by itself evinces no such intention by Parliament. The firearms officer and the judge are entitled to consider anything about the background or conduct of the applicant or licence holder that is relevant to public safety. [ 27 ] With respect to the application of Mr. Tesacek, Firearms Officer Harrison addressed his mind to both s. 5(1) and s. 5(2) of the Firearms Act . Mr. Harrison considered the reports from the RCMP, the reports of various medical practitioners, and the results of his interview with Mr. Tesacek. [ 28 ] I find that Mr.

Harrison was entitled to take into consideration the potential of risk to the safety of Mr. Tesacek and to the safety of members of the public. The potential of risk to public safety is a factor which a firearms officer may lawfully consider. However, that potential for risk must have some basis in fact. The potential of risk argument cannot be used to prohibit the possession of firearms by citizens in general.

While possession of firearms is not a right but a privilege, that privilege must not be revoked lightly or capriciously. [ 29 ] For all of those reasons I find that the original decision of the firearms officer was reasonable. Although I am not required to express an opinion, I find that I agree with the decision of the firearms officer. In the circumstances then the application of Mr. Tesacek is dismissed. [ 30 ] I wish to speak directly to Mr. Tesacek. Mr. Tesacek, you must not conclude that in some way you are viewed by this court as being a criminal. That is not the case.

You are an upstanding citizen of this country and of this community. You have maintained employment and you have at all times been a lawful member of this society. There is a mental health issue here which is not of your making. I hope that in the future, after receiving appropriate medical treatment, your mental health condition will improve. If that occurs then it is open to you to make another application for a firearms licence. [ 31 ] Mr. Birch, I wish to thank you for very able submissions in a difficult brief. Thank you, too, Ms. Bennett, for your review of the

law. [ 32 ] MR. BIRCH: Thank you, Your Honour. (REASONS FOR JUDGMENT CONCLUDED)