2016 SKPC 155, 2016 SKPC 155

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 155 Date: November 23, 2016 Location: Regina _____________________________________________________________________________ IN THE MATTER OF an Application pursuant to

section 117.05 of the Criminal Code of Canada Between Her Majesty the Queen and Patrick McGuigan Appearing: Ms. T. Denluck For the Applicant Mr. C. Demmans For the Respondent _____________________________________________________________________________ DECISION M. HINDS , J INTRODUCTION [ 1 ] The Crown has made an application pursuant to

section 117.05 of the Criminal Code for

an order for the disposition of certain items that Sgt. Westerman seized from Patrick McGuigan on April 20 and 21, 2015 and for anorder prohibiting Patrick McGuigan from the possession of any weapon, ammunition, prohibited ammunition and explosive substance orany such thing for five years. [2] The nine items seized by Sgt. Westerman include: a Cooey 22 calibre rifle, a 22 calibre bolt action rifle, three Katana swords, two martial arts sais, a machete or type of axe, a hunting knife and miscellaneous ammunition. [3] In R v Dagenais, 2009 SKPC 113, 342 Sask R 188 [Dagenais] Judge Labach (as he then was) provided a helpful

summary of the nature of the hearing, the burden of proof and the type of admissible evidence pursuant tosection 117.05 of the Criminal Code at paragraphs 2 to 6: This application comes before the Court pursuant to s. 117.05 of the Criminal Code, This

section sets forth a specific regime for dealing with weapons seized in very specific circumstances. 3 Although this provision is found in the Criminal Code, the Respondent is not accused of having committed a criminal act. Parliament did not intend that a hearing under this

section be conducted in the manner of a criminal trial. As a result, the burden the Applicant bears at this hearing is not proof beyond a reasonable doubt, but rather proof on a balance of probabilities. R. v. McWhirter (1982), (NS CA), 51 N.S.R. (2d) 181 (C.A.); R. v.

Zeolkowski, (SCC), [1989] 1 S.C.R. 1378 (S.C.C.). 4 In Zeolkowski, supra,the Crown, in a hearing for an Order prohibiting possession of firearms, ammunition or explosives, had sought to lead a police officer's evidence that he had been told by the Respondent's wife that she had been threatened by the Respondent and that she believed the Respondent would use the weapons against her. The Provincial Court Judge hearing the application ruled that this proposed evidence was inadmissible and dismissed the application. 5 The Crown's appeal to the Court of Queen's Bench was dismissed, [1986] M.J.

No. 654, as was a further appeal to the Court of Appeal, [1987] M.J. No. 74. The Crown appealed further to the Supreme Court of Canada. 6 Mr. Justice Sopinka, speaking for the Court, held on this point that hearsay evidence was admissible in a hearing of this nature. It was not intended that the judge strictly apply the rules of evidence. The words "all relevant evidence" as they appear in the

section meant all facts which are logically probative of the issue. The general rule is that all relevant evidence is admissible subject to certain exceptions including the rule against hearsay evidence. The effect of exclusionary rules is left to the judge in determining the issues on the hearing. In this process the trial judge should consider what weight, if any, is to be given to hearsay evidence. I adopt this analysis of the law.

[ 4 ] During this application t he Crown called four witnesses: Charles Maher, Constable Colin Schellhorn, Constable Erin Black and Sergeant Bryant Westerman. Their evidence included both direct as well as hearsay evidence. No one testified on behalf of the respondent, Patrick McGuigan. I have considered all evidence, direct and hearsay, in reaching my decision in this application. THE FACTS [ 5 ] Charles Maher is the Manager of Real Estate and Industrial Land Development for the City of Regina. Mr. Maher is also responsible for the enforcement of tax title properties acquired by the city.

In the month of February 2015, Mr. Maher received the Certificate of Title to a residence located at 1439 Victoria Avenue, Regina from the Provincial Mediation Board. The Certificate of Title signified that 1439 Victoria Avenue was now owned by the City of Regina. This property had been previously owned by Patrick McGuigan who had been in arrears on taxes owing to the City of Regina. Mr. McGuigan was subsequently notified that he was no longer the registered owner of 1439 Victoria Avenue and was now a tenant who was required to pay rent while he remained in the premises.

In the meantime the City of Regina made arrangements to dispose of the property. Mr. McGuigan believed the property was rightfully his and the city was not entitled to have this property. Mr. McGuigan remained in the premises and did not pay rent to the City of Regina. As a result the City of Regina applied for and obtained an eviction notice from the Provincial Mediation Board. [ 6 ] On April 14, 2015 Mr. Maher enlisted the assistance of members of the Provincial Deputy Sheriff Service and the Regina Police Service to serve Mr. McGuigan with the eviction notice and remove him from 1439 Victoria Avenue. Mr.

Maher did this because there was talk at city hall that Mr. McGuigan had come in and indicated that if anyone came onto his property, he would neutralize them. Mr. Maher also asked that Family Mobile Crisis be present to assist Mr. McGuigan once he was removed from the property. [ 7 ] The members of the Deputy Sheriffs tried to enter the house first. They were not successful in gaining access to the back of the premises. The police were then called upon. Constables Schellhorn and Young forced the front porch door open. While doing this they observed that Mr.

McGuigan was crouching in the porch holding a metal bar and he moved from the porch area to the inside of the house. The officers proceeded into the house, took Mr. McGuigan to the ground, removed a four foot long metal bar from him and arrested him for assault. Following the arrest Constable Schellhorn observed that Mr. McGuigan had a knife in a sheath on his right hip. Constable Schellhorn also testified that 1439 Victoria Avenue was a small house which was “cluttered with stuff”. Following the removal of Mr.

McGuigan from the premises a Deputy Sheriff issued a certificate indicating the City of Regina now had possession of the premises. [ 8 ] Constable Shellhorn further testified that when he was in the premises on April 14, 2015 he was not looking for firearms and that he did not see any firearms nearby that were accessible. [ 9 ] Mr. McGuigan was initially taken to the Regina Police cells. During their interaction with Mr. McGuigan police noted that Mr. McGuigan made several statements to them that they considered indicative of poor mental health. These statements included:

(1) The police were trespassing on his property and he did not want the police on his property.

(2) He wanted to contact the RCMP and the Royal family as they knew what was going on.

(3) He was a medical physician but not licenced by the Canadian Medical Association.

Mr. McGuigan was also observed to be unkempt, had poor personal hygiene and had a strong body odour. The officers decided to take Mr. McGuigan to the Regina General Hospital for a mental health assessment. While at the hospital Constable Schellhorn heard Mr. McGuigan say that he was refusing treatment, he would be charging $2,000.00 per hour for his time, his property (1439 Victoria Avenue) was the sovereign state of Euforia and that he had an agreement with Canada for military assistance. [ 10 ] Dr. Jameson and Dr. Eisa saw Mr. McGuigan at the hospital. Dr. Eisa decided to hold Mr.

McGuigan at the hospital for 72 hours for further assessment. [ 11 ] After Mr. McGuigan was removed from 1439 Victoria Avenue on April 14, 2015 Mr. Maher on behalf of the City of Regina took possession of the property. Mr. Maher testified that the premises was in terrible condition. He described Mr. McGuigan as being a “ typical horder ” . Photographs taken of the premises on April 14, 2015 reveal it was very cluttered and unsanitary. Mr.

Maher testified that the water and electrical services had been shut off for some time and that there was human stool and urine stored in containers within the house, which resulted in an “ incredible stench ” . As a result Mr. Maher contacted a company called Restorex Disaster Restoration (Restorex) to clean up the premises, remove items of no value and to store anything that had value, so that the city could put that property up for sale. [ 12 ] Mr.

Maher also testified that the Regina Police Service advised him there was a chance that firearms or ammunition could be found in the premises and if such items were found he was to notify the police. Mr. Maher passed this information on to Restorex. He asked Restorex to immediately contact him if they found any firearms or ammunition in the cleaning process. [ 13 ] Constable Erin Black was also at 1439 Victoria Avenue on April 14, 2015 to assist the Deputy Sheriffs with the civil forfeiture of the property to the City of Regina. Constable Black was present when Mr. McGuigan was arrested.

Constable Black testified that police reports on Mr. McGuigan revealed that he had “ sovereign land beliefs ” and there were concerns he may attempt to return to his former home. Constable Black further testified that police checks on Mr. McGuigan indicated that no firearms were registered to Mr. McGuigan. [ 14 ] Constable Black spoke to Mr. McGuigan ’ s father, mother and brother who advised her that they were concerned with Mr. McGuigan ’ s mental health and that they were planning to obtain a Power of Attorney respecting Mr. McGuigan and move him closer to family.

Constable Black was also told that the parents had attended the police station years earlier saying that they had very significant concerns for Mr. McGuigan ’ s health as well as for public and police safety, if police went onto his property . The parents wanted a way to flag their son ’ s address so that police would not be harmed if they went into his property. Constable Black also contacted Mr. McGuigan ’ s treating psychiatrist and other staff, while Mr. McGuigan was in the hospital. Constable Black was also told by a family member that Mr.

McGuigan ’ s psychiatrist at the General Hospital said he was believed to be a schizophrenic. [ 15 ] Constable Black testified that on April 20, 2015 and April 21, 2015 respectively, Mr. Maher contacted her and advised her that the Restorex cleaning crew working at 1439 Victoria Avenue had located firearms and some other property that they wanted to turn over to the police. Constable Black was off duty and contacted Sergeant Westerman. [ 16 ] Sergeant Westerman received a call from Constable Black on April 20, 2015 to attend 1439 Victoria Avenue to retrieve a firearm and other property from Restorex. He did so.

He was advised by Restorex personnel that they found a loaded Cooey 22 calibre single rifle in the living room. The rifle did not have a trigger lock, nor was it stored in a cabinet. Restorex personnel unloaded the Cooey rifle and gave it to Sgt. Westerman. On April 20, 2015 Restorex personnel also located and gave the following additional items to Sgt. Westerman: 1. A three foot long Katana Sword in a decorative box. 2. Another Katana sword and sheath.

3. Another Katana sword and sheath. 4. Two Martial Art Sais (found on 1 st floor). 5. A machete or type of axe (found on 1 st floor). 6. A hunting knife. 7. Miscellaneous ammunition (found on 1 st floor). [ 17 ] On April 21, 2015 Sgt. Westerman attended 1439 Victoria Avenue to retrieve a loaded 22 calibre bolt action rifle which Retorax personnel found in a front room bedroom. The rifle did not have a trigger lock, nor was it stored in a locked container. [ 18 ] Sgt. Westerman testified that he seized all of the afore-mentioned items pursuant to

section 117 of the Criminal Code . He also testified that Mr. McGuigan was not charged with any criminal offences in relation to these matters. THE LAW [ 19 ]

Section 117.05 of the Criminal Code reads 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. (2 ) A justice may proceed Ex parte to hear and determine an application made under subsection (1), in the absence of the person from whom the thing or document was seized in the same circumstances as those in which a

summary conviction court may, under

Part XXVII, proceed with a trial in the absence of the defendant.

(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

(5) Where a justice does not make an order under subsection (4), or where a justice does make such an order but does not prohibit the possession of all of the things referred to in that subsection, the justice shall include in the record a statement of the justice's reasons.

(6) Section 113 to 117 apply in respect of every order made under subsection (4).

(7) Where a justice makes an order under subsection (4) in respect of a person, or in respect of any thing that was seized from a person, the person may appeal to the superior court against the order.

(8) Where a justice does not make a finding as described in subsection (4) following the hearing of an application under subsection (1), or makes the finding but does not make an order to the effect described in paragraph (4)(b), the Attorney General may appeal in the superior court against the failure to make the finding or to make an order to the effect so described.

(9) The provisions of

Part XXVII, except

section 785, 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsection (7) or (8) with such modification as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court. [ 20 ] Sections 117.04(1) and (2) of the Criminal Code 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. 117.04(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. [21] In Dagenais at para 25 the court found that as a precondition to the Court’s ability to conduct a hearing pursuant to

section 117.05, the firearms in question must have been seized under subsection 117.04 (1) or (2): 25 As a pre-condition to this Court's ability to conduct a Forfeiture and Prohibition Hearing under s. 117.05, the firearms in question must have been seized under s. 117.04(1) or (2). If they were not seized pursuant to one of these two subsections then this Court does not have jurisdiction to entertain a s. 117.05 application. R. v. Merchant (1991), 64 C.C.C. (3d) 316 (Alta. C.A.); R. v. Peacock - McDonald (2007), 2007 ONCA 128 , 46 C.R. (6th) 163 (Ont.

C.A.). [22] In R v Robertson [2013] SKPC 199 at paragraph 19 , 2013 SKPC 199 , 434 Sask R 178 Judge Tomkins also made a similar determination: 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 theCriminal Code. If the weapon at issue was not seized pursuant to either of these subsections, the Court will be without jurisdiction. [23]

Section 117.04(1) permits the police upon obtaining a warrant to search a building, receptacle or place and seize a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive.

On the other handsubsection 117.04(2) allows the police to search for and seize any weapon, prohibited device, ammunition, prohibited ammunition orexplosive substance without warrant in exigent circumstances when "by reason of a possible danger to the safety of that person or anyother person, it would not be practicable to obtain a warrant". [24] In the present application the police did not obtain a warrant pursuant to subsection 117.04(1). As a result the court must closely examine whether or not the items were seized pursuant to subsection 117.04(2) of theCriminal Code. ANALYSIS - JURISDICTION

[ 25 ] In R v Peacock- McDonald , 2007 ONCA 128 , 218 CCC (3d) 257 [ Peacock-McDonald] Justice Cronk of the Ontario Court of Appeal had occasion to consider

section 117.04(2) of the Criminal Code and stated as follows at paragraph 18: 18 Warrantless searches are presumptively unlawful. However, s. 117.04(2) of the Code authorizes the search and seizure of weapons, without the necessity of a warrant, where: (

i) 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 in the possession of any weapon, or any other person, to continue to possess that weapon; (ii) the grounds for obtaining a warrant set out in s. 117.04(1) of the Code exist; and (iii) it is impracticable to obtain a warrant because of a possible danger to the safety of the person in the possession of the weapon, or any other person. [ 26 ] In this case I am of the view on the evidence before me that Constable Black and in turn Sergeant Westerman were satisfied that there were reasonable grounds to believe that it was not desirable in the interests of the person in possession of the firearms, weapons and ammunition (Restorex personnel) or any other person (Mr.

McGuigan), to continue to possess the firearms, weapons and ammunition. [ 27 ] A potentially volatile situation existed on April 14, 2015. The City of Regina obtained an eviction notice respecting Mr. McGuigan and his continued occupation of 1439 Victoria Avenue. There is some hearsay evidence that Mr. McGuigan would “neutralize” anyone coming onto his property. The Deputy Sheriffs were unable to enter the back of the premises. The police were called upon to forcibly enter the front of the house. Prior to entering the house Mr. McGuigan was seen by police crouching in the porch area with a four foot long bar.

While he did not use the bar against the police when they entered the house, the fact that Mr. McGuigan was holding onto the bar increased the risk of violence which lead the police to take him to the ground. The police disarmed Mr. McGuigan who was agitated and displaying signs of mental instability. Mr. McGuigan was taken to the hospital where a psychiatrist determined he should be held for 72 hours . In addition there was a police concern that there may be firearms in the house and that Mr. McGuigan might attempt to return to his former home. [ 28 ] Following April 14, 2015 Restorex personnel were hired by Mr.

Maher to clean up 1439 Victoria Avenue and to be on the look-out for firearms within the house. Police concerns about firearms being in the house were realized six days later on April 20, 2015 when Restorex personnel found a loaded Cooey 22 calibre single rifle in the living room, along with three swords, two martial arts sais, a machete or type of axe, a hunting knife and ammunition. Restorex personnel contacted Mr. Maher who in turn requested the police remove these weapons. On April 21, 2015 Restorex personnel located another loaded rifle which was also removed by police.

Restorex personnel quite rightly did not want to possess these items or store them in the home or elsewhere. In addition, given all of these circumstances I am of the view that the former owner of the home, Mr. McGuigan, should not have been allowed to possess these weapons. [ 29 ] I am also of the view that the grounds for obtaining a warrant set out in subsection 117.04(1) of the Criminal Code existed on April 20, 2015. [ 30 ] However, in this case I am of the view that the third pre-condition for a warrantless search and seizure of the firearms, weapons and ammunition pursuant to

section 117.04(1) has not been met. Unlike the circumstances before the courts in Dagenais (two mounties recently killed and killer on the loose) and Peacock-McDonald (suicidal person) in this case there were no exigent circumstances on April 20 and 21, 2015 which would have permitted a warrantless search and seizure. No evidence was presented which might indicate the police could not have obtained a warrant six and seven days after the eviction of April 14, 2015.

[ 31 ] I am of the view that on April 20 and 21, 2015 the police could have and should have obtained a warrant to seize the firearms, weapons and ammunition which Restorex found at 1439 Victoria Avenue. While police expressed their concerns that Mr. McGuigan might attempt to return to his former home after his eviction on April 14, 2015, there is no evidence before me that suggests that at any time Mr. McGuigan attempted to return to his former residence. [ 32 ] The evidence indicates Dr. Eisa had Mr. McGuigan held at the Regina General Hospital for 72 hours beginning on April 14, 2015. The whereabouts of Mr.

McGuigan on and after April 17, 2015 are not in evidence before the court. However, as I have stated there is no evidence to suggest he was at or near 1439 Victoria Avenue following April 17, 2015. [ 33 ] I find that the firearms, weapons and ammunition were not seized pursuant to subsections 117.04 (1) or (2) as a result this Court does not have jurisdiction to entertain a

section 117.05 application. [ 34 ] What becomes of firearms, weapons and ammunition? [ 35 ] Subsections 117.06(1) and (2) of the Criminal Code read as follows: 117.06(1) Any thing or document seized pursuant to subsection 117.04 (1) or (2) shall be returned to the person from whom it is seized if (

a) no application is made under subsection 117.05(1) within thirty days after the date of the execution of the warrant or of the seizure without warrant, as the case may be; or (

b) an application is made under subsection 117.05(1) within the time period referred to in paragraph (a), and the justice does not make a finding as described in subsection 117.05(4)

(2) Where, pursuant to subsection (1), any thing is returned to the person from whom it was seized and an authorization, a licence or a registration certificate, as the case may be, is revoked pursuant to subsection 117.04(4), the justice referred to in paragraph (1)(

b) may order that the revocation be reversed and that the authorization, licence or registration certificate be restored. [ 36 ] I am also aware that there may be an appeal of my findings in this case to the superior court. [ 37 ] Given the above, I order that the firearms, weapons and ammunition seized by Sgt. Westerman from 1439 Victoria Avenue on April 20 and 21, 2015 shall be held be by Regina Police Service until the expiration of any appeal period or alternatively until such time as all initiated appeals have been completed. As the evidence before me revealed that Mr.

McGuigan did not have a firearms registration certificate in relations to the fire arms or an authorization or licence (if required) for the other weapons and ammunition, it appears there may be an issue as to whether Mr. McGuigan can lawfully have possession of these items. If nothing prohibits Mr. McGuigan from possessing the firearms, weapons and ammunition at the expiration of any appeal period or until all initiated appeals have been completed, these items will be returned to Mr. McGuigan.

____________________________ M. Hinds, J