Her Majesty the Queen - v. -, 2013 SKPC 199

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 199 Date: December 3, 2013 Location: Regina _____________________________________________________________________________ IN THE MATTER OF An Application pursuant to s. 117.05 of the Criminal Code of Canada Between: Her Majesty the Queen - and - Jeremy Robertson Appearing: M. Landry For the Crown J. Ellergodt For the Accused DECISION B. TOMKINS, J [ 1 ] The Crown applies, pursuant to

section 117.05 of the Criminal Code , for an order for the disposition of a firearm seized from Jeremy Robertson and for an order prohibiting him from the possession of weapons for one year. [ 2 ] The circumstances that led to the Crown's application are these.

[ 3 ] On December 19, 2012, Constable Slater of the Regina Police Service was dispatched to the home Linda Robertson shared with her son Jeremy. Ms. Robertson reported that she and her son had had a heated argument and in the course of the argument, Jeremy brought out a box of ammunition, set it on the table and said, "Do you want me to kill myself?" [ 4 ] This alarmed Ms. Robertson, especially because she knew that Jeremy had recently purchased a firearm; she believed his words to her might have been a suicide threat. [ 5 ] By the time police arrived, Jeremy had gone to work and Ms.

Robertson was alone in the house. She explained to police that she had been having trouble with her son for some time, mostly regarding loans she made to him and purchases she made for him. Apparently they argued frequently and she felt Jeremy's behaviour toward her was mentally abusive. [ 6 ] She also advised that she thought Jeremy exhibited signs of depression but said he refused to seek help. [ 7 ] Cst. Slater left the residence to consult with senior officers about the complaint and to learn what course of action might be available in the circumstances. At the office, Cst. Slater learned that Mr.

Robertson had obtained a Firearms Certificate; she put a hold on it. (While there was no evidence in this respect, I understand that the "hold" remains in effect pending this decision.) [ 8 ] Cst. Slater also learned that

section 117.04(2) allowed her to seize the weapon in these circumstances. However, her shift had by then ended so she forwarded the file to another officer. [ 9 ] Constable Tillotson received the file. He attended at the Robertson residence on December 22, 2012. When he arrived, Ms. Robertson escorted him to Mr. Robertson's room. Mr. Robertson had been sleeping but awoke and dealt with the officer. [ 10 ] Mr. Robertson was entirely cooperative. He agreed he had purchased a firearm and showed it to the officer. It was a Robinson Arms XCR, 308 calibre.

The trigger lock was on and the key was stored separately, away from the location of the rifle. [ 11 ] The officer located one box of ammunition and Mr. Robertson volunteered that he had two others and retrieved them and gave them to the officer. [ 12 ] Mr. Robertson told the officer that he was sad and depressed about his poor relationship with his mother. He said he did not think he was suicidal. Nonetheless, he agreed to attend to the hospital with Cst. Tillotson for a psychiatric assessment. [ 13 ] En route to the hospital, Cst. Tillotson and Mr. Robertson talked about the rifle. Mr.

Robertson said he had purchased it for just less than $3,000.00 about four days earlier. It seemed to Cst. Tillotson that Mr. Robertson was new to firearms as he did not seem to be familiar with different firearms and different calibres. Also, although Mr. Robertson said he intended to shoot the rifle at a range, he did not know what ranges in the area he could shoot this rifle at. [ 14 ] Cst. Tillotson asked if he intended to add accessories to the firearm and Mr. Robertson said that he did not. Cst. Tillotson found it alarming when Mr.

Roberson said that he knew you could not lawfully have a magazine larger than five rounds but "if you were going to shoot a bunch of people", it wouldn't matter if you had a five-round magazine or a larger capacity magazine, you'd just have to change the magazine more often. He also talked of historical incidents when authorities had taken guns from their citizens and spoke of a potential political crisis in the United States. He said if the latter happened, he might need the firearm to protect himself and his family. [ 15 ] At the hospital, Mr. Robertson was examined by a psychiatrist. Cst.

Tillotson spoke to the psychiatrist afterward. Dr. Givingy expressed no concerns about Mr. Roberson's mental health and released him with no instructions. She said only that Mr. Robertson had a bad relationship with his mother.

[ 16 ] After the examination, Cst. Tillotson took Mr. Robertson home. [ 17 ] On these facts, the Crown has applied under

section 117.05 for an order as to the disposition of the Robinson Arms XCR rifle that was seized from Mr. Robertson's possession. In addition, the Crown seeks an order that Mr. Robertson be prohibited for a period of one year from possessing any weapons, as they are defined in the Criminal Code . JURISDICTION [ 18 ] The portions of

section 117.05 which are relevant in this hearing read as follows: 117.05

(1) Where any thing or document has been seized under subsection 117.04(1) or (2), the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.

(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.

(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall (

a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and (

b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order. [ 19 ] A hearing pursuant to

section 117.05 arises where application is made after seizure of firearms under

section 117.04(1) or (2) of the Criminal Code . If the weapon at issue was not seized pursuant to either of these subsections, the Court will be without jurisdiction. [1] Those sections read as follows: 117.04

(1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person. [ 20 ] Therefore,

section 117.04(2) allows the police to seize a weapon without warrant when "by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant". In this case, the police purported to seize the rifle pursuant to

section 117.04(2) without warrant in light of exigent circumstances.

[ 21 ] Mr. Robertson argued that the police had ample time to and should have obtained a warrant to seize the weapons. He argued that the manner in which the police dealt with this matter suggests that the police themselves did not believe the circumstances were urgent at the time of the seizure on December 22, 2012. [ 22 ] I am inclined to agree. No evidence was presented which might indicate why the police could not have obtained a warrant in this case. The complaint was received and the initial investigation took place on December 19, 2012, but the weapon was not seized until December 22, 2012.

While it may be that the risk, if there was one, continued, it is difficult to conclude that the police viewed the situation as urgent given their delay in acting. [ 23 ] If the seizure without warrant pursuant to

section 117.04(2) was not valid, a question arises as to whether the Court has jurisdiction to hear the application. The question is whether: • the Court is without jurisdiction because, although the Crown purported to seize the weapon pursuant to

section 117.04(2), that seizure did not meet the prerequisites of the section; or • the matter is to be resolved by resort to a Charter application respecting Mr. Robertson's

section 8 right to be secure against unreasonable search or seizure. [ 24 ] Neither counsel raised or argued this matter and no Charter notice was served. No direct objection was raised as to the Court's jurisdiction to hear the matter. As I can dispose of this application without determining the jurisdictional issue, I will refrain from further comment. ANALYSIS [ 25 ] In this hearing, although the relevant sections are included in the Criminal Code , it is not a criminal proceeding; Mr. Robertson has not been charged with any criminal offence.

As such, the burden of proof in this case is proof on a balance of probabilities. [ 26 ] In addition, in light of R. v. Zeolkowski , [2] hearsay evidence is admissible in a hearing of this kind, although the judge will assess the weight to be given to hearsay evidence. I have heard both direct and hearsay evidence in the course of this hearing and will, subject to comment below, accept all of it. [ 27 ] The authorities are in conflict as to the test to be met when application is made under

section 117.05. [3] In R. v. Dagenais [4] , my brother Judge Labach concluded that the test is "whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners." I also accept that this is the appropriate test and it is the test that both counsel argued in their submissions. [ 28 ] I also accept that

section 117.05(4) "requires the determination of the sufficiency of the evidence relied upon to support the application as at the date of hearing rather than the date of the commencement of the application." [5] [ 29 ] On the basis of and applying these principles, I turn to the evidence. [ 30 ] Mr. Robertson had an argument with his mother during which he put a box of ammunition on the table and said "Do you want me to kill myself?" I believe this question, issued in the course of a heated argument, is equivocal at best and does not necessarily constitute a suicide threat.

It might equally be or be perceived as an expression of frustration or an attempt to make his mother feel guilty about challenging him. Certainly, Mr. Robertson took no steps toward suicide at or near that time and in fact he went to work shortly after the statement was made. There is no evidence that Mr. Robertson has made any threat of suicide or taken any steps in that respect in the eleven months that have passed since the incident that drew the police's attention.

[ 31 ] While Mr. Robertson and his mother apparently had many arguments and had a poor relationship, there is no suggestion that Mr. Robertson had at any time became or threatened to become physical with his mother. Indeed, she referred to his conduct as mentally, not physically, abusive. [ 32 ] Further, I was not provided with any evidence as to the nature of their relationship now or during the intervening eleven months.

I am not aware whether they continue to reside in the same home or whether the nature of their relationship has improved, worsened or changed at all. [ 33 ] No evidence was called suggesting that Mr. Robertson has had arguments or difficulties with anyone other than his mother. He has no criminal record at all and no reputation for violence. [ 34 ] As to mental health, while Mrs. Robertson suggested that her son showed signs of depression, there is no evidence as to what she observed in her son's conduct that led her to believe he was depressed. On the other hand, Mr.

Robertson also said he was depressed and sad but related these feelings to his relationship with his mother, not his mental health generally. [ 35 ] Dr. Givingy, a psychiatrist, after examining Mr. Robertson released him without instructions and advised the officer that his problem lay in his relationship with his mother, perhaps confirming Mr. Robertson's insight. In any event, she did not diagnose depression or any other mental illness or psychiatric disorder. She did not suggest any follow-up care. [ 36 ] The weapon in question is legal for private ownership in Canada and Mr.

Robertson had obtained a Firearms Certificate authorizing him to possess and use it. [ 37 ] The weapon was stored lawfully. It was in a case, the trigger lock was on and the key for the lock was stored separately. Ammunition was stored separately from the rifle. [ 38 ] Some of Mr. Robertson's reported comments are of concern. I refer especially to his suggestion that if a person wanted to shoot "a bunch of people", he could do so as easily with a five-round magazine as with a larger magazine. However, I am reminded that this conversation took place in the context of a question as to whether Mr.

Robertson intended to add accessories to the weapon and can be taken as an explanation of his statement that he did not intend to do so; it illustrated, in effect, his belief that there would be no significant gain in adding accessories. [ 39 ] While that statement and other comments about defending oneself when governments remove weapons from their citizens may be disturbing, there was nothing in the evidence before me which might suggest that Mr.

Robertson had any plans for the rifle beyond shooting it at a range. [ 40 ] It is also of interest that someone apparently new to the possession and use of firearms chose a weapon of this nature - a military-style rifle with, according to Cst. Tillotson, no practical purpose for a civilian other than range shooting. However, every weapon owner was once a first-time owner and the weapon Mr. Robertson chose was legal for possession, was legally stored and was not unlawfully used (or used at all). [ 41 ] The circumstances in this case are very different from those in R. v.

Devigne [6] where the police seized a number of weapons and sought their disposal pursuant to

section 117.05 . In that case, Mr. Devigne and his wife had a very volatile relationship. Mr. Devigne had attempted suicide on the date the police were called to the residence and Mrs. Devigne had attempted suicide only ten days earlier and again four months later. None of these suicide attempts involved the use of weapons. [ 42 ] The judge in that case concluded that the risk continued even thirteen months after the seizure due to three actual suicide attempts and the continuing volatility of the relationship. While there was expert psychiatric evidence that Mr.

Devigne did not suffer psychiatric illness, was no longer suicidal and was not at risk for possessing his gun collection, that evidence was dated. Also, the judge noted that there was no such evidence regarding Ms. Devigne. [ 43 ] In our case, there is no evidence as to the nature of the ongoing relationship between Mr. Robertson and his mother nor, in

fact, any evidence as to whether that relationship continues at all. Further, in Devigne , there were three actual suicide attempts whereas Mr. Robertson has not attempted suicide and there is no evidence suggesting he is at risk to do so. CONCLUSION [ 44 ] In all these circumstances, I am not satisfied on a balance of probabilities that Mr. Robertson lacks the responsibility and discipline that the law requires of gun owners.

That being the case, it has not been shown that it is not "desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing." [7] [ 45 ] The Robinson Arms XCR will be returned to Mr. Robertson and the Firearms Certificate regarding it shall be reinstated. Dated at Regina, Saskatchewan this 3rd day of December, 2013. _________________________________ B. Tomkins, J