Robert Filion - v. -, 2013 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 039 Date: March 21, 2013 Location: Moose Jaw _____________________________________________________________________________ IN THE MATTER OF A REFERENCE HEARING PURSUANT TO

SECTION 74 OF THE FIREARMS ACT , S.C. 1995, c. 39 Between: Robert Filion - and - Attorney General of Canada Representing the Chief Firearms Officer for the Province of Saskatchewan Appearing: Self-Represented For the Applicant Gwen MacIsaac For the Crown DECISION M. GORDON , J INTRODUCTION [ 1 ] On August 9, 2012, Firearms Officer Bruce Hill issued a Notice of Revocation of the applicant’s firearm licence pursuant to

s. 5 and 70 of the Firearms Act S.C. 1995, c. 39 (the Act). The applicant brings this application pursuant to s. 74(1) of the Act submittingthat the decision of the Firearms Officer was not reasonable. THE LAW [2] It is clear from the case law including a fairly recent decision of my colleague Judge Matsalla in Canada v. Boon, 2012SKPC 55, that the standard view by this Court is one of “reasonableness”.

At paragraph 12, Judge Matsalla states as follows: It is clear that a reference hearing is not a hearing de novo in which a consideration of the evidence afresh can be conducted with little orno deference to the decision of the Registrar. Rather the courts have determined that the standard of review that is applicable is that of“reasonableness”. That is, the applicant must show, on the balance of probabilities, that the Registrar’s decision was unreasonable andthe judge, in deciding the matter, is required to show deference to the initial decision of the Registrar.

The decision made at the referencehearing is to be based on the record as amplified by the evidence heard during the hearing. [3] Pogson v. Alberta (Chief Firearms Officer) at (2005), 2005 ABQB 179 , 369 A.R. 121 (Alta. Q.B.), offers athorough analysis of the issue and comes to the same conclusion. As well in Alberta (Chief Firearms Officer) v. Holland (2004), 2004ABQB 44 , 350 A.R. 194 (Alta.

Q.B.), Judge Sanderman puts it another way: After amplification, the reviewing provincial court judge must decide whether the original decision is a reasonable one that can bejustified even if the reviewing judge does not agree with it. If it is reasonable and can be justified, it must stand. If not, the reviewingprovincial court judge can change it. In this scheme deference to the original decision must be shown and it can only be altered andchanged if the record and relevant evidence heard reveals that the original decision cannot be justified.

Then interference is permitted. [4] An “amplified” record would include information that was not initially before the registrar. [5] The following sections of the federal Firearms Act are applicable to these proceedings, namely s. 5, 55, 70, 72, 74, 75 and76. I will not reproduce the sections here. Mr. Filion is familiar with them and was provided with a printed copy of these sections withhis Notice of Revocation and supporting affidavit and case law material by the Crown.

ISSUE [6] The only issue is whether the decision of Firearms Officer Bruce Hill was reasonable based on the evidence as amplified atthis hearing. POSITION OF THE PARTIES [7] The applicant Robert Filion submits that Firearms Officer Hill made too much of the medical information and opinion fromDr. Suberu, a psychiatrist with whom Mr. Filion did not see eye to eye. In fact Mr. Filion reported this doctor to the College ofPhysicians and Surgeons. However, the complaint was dismissed. Mr. Filion suggested that more weight should have been given to thecomments by Dr. Oberholzer. Mr.

Filion also said he was prepared to give up his case against the Kaufmans which seemed to haveinitiated the concern on the part of Firearms Officer Hill. In addition, Mr. Filion pointed out he has no criminal record, he has never beena problem and has made no threats or done any acts of violence to anyone in the community and in particular to the Kaufmans. Mr.Filion pointed out that in the past year he has had many stressful events in his life and he has still been able to respond to handle themappropriately.

[8] Counsel for the Crown argued that Firearms Officer Hill had ample evidence to come to his decision. The officer relied onthe medical reports of Dr. Oberholzer, Dr. McCollam, Dr. Suberu and Dr. Mirchandani. The Crown also suggested that Mr. Filion isalready exhibiting paranoid behaviour by his preoccupation with the Kaufmans, his concerns that the phones were tapped, that his ECGresults had been tampered with and that the Kaufmans had poisoned the water and two elderly gentlemen had died.

ANALYSIS AND DISCUSSION [9] The function of the provincial court judge is to determine if the decision under review was justified in the record asamplified by the relevant evidence heard on review. British Columbia (Chief Firearms Officer) v. Fallman, 2004 BCCA 343 ,187 CCC (3d) 495 at paragraph 23, discusses what is an unreasonable decision and refers to R. v. Eagnotta, 2001 BCSAC 444, where atparagraph 62, the Court states: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.

Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect,if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to bedrawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contraryto the overwhelming weight of the evidence.

An example of the latter kind of defect would be a contradiction in the premises or aninvalid inference. [10] Further the case goes on to hold at paragraph 25: The firearms officer and the judge are entitled to consider anything about the background or conduct of the applicant or licence holderthat is relevant to public safety. [11] Section 5(1) creates a broad safety standard for eligibility to hold a firearms licence or to continue to hold one following arevocation inquiry. [12] Mr. Filion was calm and prepared for the hearing.

He cross-examined Firearms Officer Hill with respect to certain points,many of which Mr. Hill agreed with. Mr. Filion also called Cst. Steve Currin from the Bengough RCMP. Again Mr. Filion asked thepolice officer relevant questions and had the officer explain why it was still his opinion that the firearms licence should be revoked. Exhibit P-1 is an affidavit of Firearms Officer Bruce Hill which outlines the background information, procedure and inquiries thatFirearms Officer Hill made with respect to obtaining information on this matter.

The copies of the letters from the various medicalpersonnel are attached as exhibits. It is Officer Hill’s conclusion that given the totality of the responses he obtained from the medicalpeople over a significant amount of time as well as information from the Bengough RCMP that he concluded he had good and sufficientreasons under s. 5 of the Firearms Act to revoke Robert Filion’s firearms licence. The Notice of Revocation sent to Mr. Filion datedAugust 9, 2012, sets out with some detail Officer Hill’s concerns. [13] Mr.

Filion suggested that nothing has happened and that perhaps Officer Hill is reading in too much to the concerns expressedby some of the medical personnel, especially Dr. Suberu. Mr. Filion testified that he had been through some trying times in the past year(his mother passed away, his cat died, he has had computer problems, to name a few) and that the mere possibility that something couldhappen is not sufficient. He said that Officer Hill is being too cautious. [14] This cuts both ways. Mr.

Filion rightly points out that he has no criminal record, no history of engaging in overtly disruptiveor threatening or violent behaviour. Dr. Mirchandani, the consultant psychiatrist, describes Mr. Filion as a loner, shy, introverted andnever worried. He is a non-smoker, drinks occasionally at a dance, no drug usage. I am acutely aware that a person cannot and shouldnot be penalized if he does not agree with the mainstream culture or if he exhibits what is often commonly called eccentric behaviour. However, Firearms Officer Bruce Hill had concerns and I share those concerns.

These are as I say, outlined in the very detailed affidavitprovided by Officer Hill and filed as Exhibit P-1. I will briefly comment on the medical information that Officer Hill had and used inmaking his decision.

[ 15 ] First of all there is Dr. Suberu who is a consultant psychiatrist at the Sun Country Health Region and works out of the Weyburn Mental Health Centre. His first assessment dated August 24, 2010, relates that Mr. Filion in the last few months had been “incessantly making inquiries both from his family’s physician as well as Tania Huel regarding some concerns he has over a couple who live in his neighbourhood”. He goes on to describe the concerns that these neighbours who turned out to be the Kaufmans have been engaging in malicious and covert activities to try to take over his family farm. Mr.

Filion also accused the Kaufmans of tampering with his health information such as blood tests and that Mr. Kaufman being well-versed with computers might be able to hack into the health region’s computer network. Mr. Filion also relates his fear that this couple might have been involved in killing two elderly gentlemen by poisoning the water supply. Mr. Filion related he had made several attempts to express his concerns to the police but they have not taken him seriously and there is no proof to substantiate any of his concerns. However, Mr.

Filion remained firm that there was some conspiracy with the Kaufmans and possibly the health care system. Mr. Filion at that time was quite frustrated as the health care and justice system were not responding to his concerns. [ 16 ] Dr. Suberu had two sessions with Mr. Filion. Dr. Suberu states further in his assessment as follows: Other than his tendency for over suspicious and apparently baseless concerns, he appears to have been functioning relatively satisfactorily in the community. His family situation is rather unusual, he lives with his elderly parents and his mother is quite physically unwell at present.

Robert has three siblings all of whom are diagnosed with enduring psychotic illnesses. He comes across as rather odd and somewhat lacking in adequate social attributes that would enable him to fit very well within the social circles. It will appear that he has spent most of his life on the farm and his orientation and view on life reflects this. [ 17 ] He states that he has some “health” issues but was unable to describe any factual medical disorder which he reports to be suffering from. [ 18 ] On the diagnosis with respect to Dr.

Suberu’s conclusions in August 2010, the psychiatrist says: Robert’s overall presentation would indicate the presence of some red flags to suggest a future psychotic breakdown especially given his very strong genetic loading for an enduring psychotic disorder. His current mental state appears dominated by over suspicious thinking which at the moment does not appear to amount to a frank psychotic illness but seems significant enough to cause him some level of distress.

Unfortunately he is not willing to consider any psychiatric intervention at this point by way of medication to forestall the emergence of a frank psychotic breakdown. I do not have sufficient evidence to conclude that he poses a significant risk of harm to either himself or others. I also do not believe the intensity of his symptoms warrant compulsory treatment. On a good note he has agreed to continuing to be seen by us although I would suspect that he might change his mind in the near future should an issue arise on which we both greatly disagree.

In the meantime he will continue to see Tania Huel in the community and I would also be seeing him in my clinic in roughly three months time. [ 19 ] On March 20, 2012, Dr. Suberu was requested a follow up progress report. Dr. Suberu writes in his progress notes dated November 29, 2010 that Robert had been seeing Tania on a fairly regular basis although his attitude has not changed despite these sessions. Robert had been recording one of the last meetings with Dr. Suberu. The doctor stated this was entirely inappropriate. Mr. Filion suggested he needed to record the conversation to prove that Dr.

Suberu was acting in an unprofessional manner. He noted Mr. Filion did not seem as preoccupied with his neighbours the Kaufmans. Mr. Filion felt that his blood results, although they were normal, had been tampered with. Dr. Suberu still remained of the opinion that and I quote “his over suspiciousness and high genetic loading for psychotic illness would put him at risk of developing frank psychotic illness in the future”. Mr. Filion was still against taking any type of medication. There were no other future appointments booked. [ 20 ] In late June 2012, Firearms Officer Hill wrote to Dr.

Suberu asking for an update with respect to Mr. Filion’s medical history in relation to the application for a firearms licence by Mr. Filion. Officer Hill had a subsequent telephone conversation with Dr. Suberu and summarised the key points in a letter to which Dr. Suberu confirmed that this was his assessment. The key points are outlined in Tab J to Officer Hill’s affidavit and are as follows: 1) the presence of red flags to suggest a future psychotic breakdown especially given his strong genetic loading to an enduring psychotic disorder;

2) current mental state appears to be dominated by over suspicious thinking, appears significant enough to cause him some level of distress; 3) he is not willing to consider any psychiatric intervention at this point by way of medication to forestall the emergence of a frank psychotic breakdown. [ 21 ] While the doctor was not able to give any time frame where Mr. Filion may have a breakdown and possible violent episode, the doctor was still concerned given Mr. Filion’s paranoid nature of thoughts, his refusal to consider a psychiatrist and the doctor’s opinion if Mr.

Filion is left untreated, his psychosis will only worsen. The doctor of course was not able to say anything more than the prognosis is that “all it would take is a specific event which could lead to a violent outcome”. [ 22 ] Mr. Filion was seen by Dr. Werner Oberholzer and the doctor’s report letter is dated July 2, 2012, and is found at Tab G in the affidavit. This doctor notes he only saw Mr. Filion once, on January 16, 2012. At the time Mr. Filion wanted a second opinion regarding various ECGs and other tests.

He felt that these tests had been tampered with and that his psychiatrist had not been acting in a professional manner. Mr. Filion went on to explain his complaints that he had made to the local RCMP with respect to his neighbours the Kaufmans. Mr. Filion also went on to explain various concerns regarding the mental health system and his concerns that the water might have caused the death of two elderly men and that the water was also causing him some gallbladder problems. Dr. Oberholzer told Mr.

Filion that he was definitely displaying signs of “paranoia and possible schizophrenia and that he should be seen by a mental health worker or psychiatrist”. [ 23 ] He was encouraged to follow up with his family physician as he did not want to see anyone locally. Dr. Oberholzer made it clear that given the short interaction he had with the patient, he could not say that he was a danger to himself or others at that time. However the doctor went on to say he has concerns that Mr. Filion has possible schizophrenia with paranoid ideas given his family history. [ 24 ] Dr.

Mary McCollam is a general practitioner at the Weyburn Health Centre. Her letter dated July 10, 2012, is at Tab H of Officer Hill’s affidavit. She is the one that had referred Mr. Filion to the psychiatrist Dr. Suberu because of symptoms suggestive of paranoia and the possibility of an underlying psychiatric diagnoses. She said that she had seen Mr. Filion on a number of occasions and his self-reported symptoms largely remain unchanged. She recommended that he have a repeat psychiatric evaluation because of the ongoing symptoms. Mr. Filion refused to see Dr.

Suberu but he has an appointment with a psychiatrist in Regina, Dr. Mirchandani, August 2012, in regards to his ongoing symptoms. She noted that Mr. Filion had not attended to the emergency room or to her office for any psychotic symptoms but she still felt there was a risk of progression of symptoms to the point where he could develop a psychotic breakdown. She concludes her opinion by saying: In view of this there would certainly ( sic ) a potential concern with the possession of firearms and this would need to be very carefully considered. [ 25 ] Dr.

Mirchandani is a consultant psychiatrist at the Dewdney East Medical Clinic in Regina. He provided his report October 23, 2012 and it can be found at Tab K of Officer Hill’s affidavit. The assessment with this psychiatrist was done over a period of three interviews, namely September 4, September 19 and October 17, 2012. Dr. Mirchandani notes that he did not read any of the material that was sent to him at the time of referral as he wanted to make his own independent judgment. The patient provided a history which I have already outlined as well as receiving a letter that Mr. Filion gave him from Dr.

McCollam and letters that Mr. Filion had sent to Dr. McCollam and Dr. Oberholzer. Dr. Mirchandani read these letters and is only prepared to comment that these reflect Mr. Filion’s opinions and that Mr. Filion did not make any direct accusations or slanderous statements. The doctor noted he did not show that Mr. Filion showed no evidence of depression but had appropriate presentation and had no biological features of depression. The doctor concluded that “other than the overvalued ideas and these are held very firmly, no other frank psychotic symptoms elicited. Cognitions were within normal limits”. [ 26 ] Cst.

Steve Currin is a RCMP officer and has been stationed at Bengough, Saskatchewan since May 2010. He was approached by Mr. Filion in the summer of 2010 with concerns that the postmistress an Alana Kaufman had been tampering with his mail. The detachment had received many faxes from Mr. Filion as well all centred around the Kaufmans and Mr. Filion’s concerns with their activities such as tampering with mail, tampering with Mr. Filion’s health test results and tampering and poisoning two elderly men and concerned the Kaufmans were going to try to buy the Filion farm. Cst. Currin estimated that contacts with Mr.

Filion and follow ups takes approximately 10 percent of his time. While he admitted he certainly has no medical training, his general impression was that Mr. Filion’s mental health had spiralled downhill since he had first contact with him. Cst. Currin further indicated that in the past six months, Mr. Filion had contacted the RCMP approximately 20 times and every time Mr. Filion came to the office it is at least a two or

two and a half hour visit. Mr. Filion apparently offered to speak to the RCMP psychologist but of course this is only available for members as part of their overall health care plan. Cst. Currin never talked to anyone in the health care system about Mr. Filion. He investigated allegations that Mr. Filion had raised and found them unsubstantiated. [ 27 ] Mr. Filion took the stand and testified that he recorded his last visit with Dr. Suberu. He also made a complaint to the College of Physicians and Surgeons and was told that it could take up to three years to finalize.

He said no one considered the possibility that Dr. Suberu was acting improperly and he felt that the investigation had been one-sided. Mr. Filion obviously has no confidence in Dr. Suberu and has not been back to see him or the community mental health person, namely Tania Huel. [ 28 ] On cross-examination he was asked about the Kaufmans and some of his allegations. He admitted now that Alana Kaufman was not involved in the ECG tests.

However, he felt that Tania Huel, the community mental health nurse, knew Alana Kaufman because when he asked her this she looked away from him so this must mean that she is dishonest. Mr. Filion believes Dr. Suberu refused to see him anymore because he would not take any medication. Mr. Filion liked Dr. Mirchandani’s opinion because the doctor agreed with him that no medication was required, that there was no need for Mr. Filion to return and that he did not have schizophrenia.

His concern with respect to medication is that if he was on medication like his siblings, it could reduce a person’s physical abilities as much as 40 to 95 percent and if that happened, he would not be able to work hard enough and he could lose the farm to the Kaufmans. He said that he was willing to walk away from the allegations with respect to the mail fraud and Alana Kaufman. He said that he did not need counselling and said that if his thoughts became obsessive, he should and would talk to a family doctor and get medication. He was strongly of the opinion that any application was not in order at this time.

CONCLUSION [ 29 ] As I have stated at the beginning, the standard for review in Provincial Court is one of reasonableness based on an amplified record and relevant evidence. There are no guarantees as to how a person will behave in the future. Therefore, in my view, it is the red flags, the past actions and preoccupations and attitudes that have to be considered. It is the best that we have to predict future behaviour. In my view there is sufficient evidence from several doctors that do raise some concerns as to Mr.

Filion’s mental health and whether he should be allowed to have a firearms licence pursuant to the Act . Having the benefit of hearing Mr. Filion give evidence and reading the very thorough Exhibit P-1, hearing viva voce evidence from Firearms Officer Hill and Cst. Steve Currin, I am not satisfied that Robert Filion’s application can succeed. He has not met the evidentiary burden which is the balance of probabilities. Firearms Officer Hill had evidence obtained over a period of time from a variety of individuals that had come into contact with Mr. Filion in the health care system as well as the police.

All the doctors were very careful and very restrained in giving their opinions and assessments in a rather difficult area. This is much different than whether one will completely recover from a broken leg for example. Firearms Officer Hill was very fair in his dealings with Mr. Filion and in the inquiries made of the health care providers. There is no indication that Officer Hill had anything but an open mind to this investigation.

In my view there is no evidence to support he had any agenda or had already made up his mind. [ 30 ] As was said by Judge Rogers of the Provincial Court of British Columbia in Regina v. Jan Tesacek (File #53884-1, Registry of North Vancouver, December 6, 2010), and I adopt his words: 29 Although I am not required to express an opinion, I find that I agree with the decision of the Firearms Officer. [ 31 ] At paragraph 30, Judge Rogers goes on to address Mr. Tesacek as follows: You must not conclude that in some way you are viewed by this Court as being a criminal. This 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.

[ 32 ] I adopt those words and suggest that Mr. Filion take those words to heart and he can reapply in the future. M. Gordon, J