r v. CHIEF FIREARMS OFFICER, 2011 QCCQ 3221

R.C. c.

Chief Firearms Officer JW 0143 Reference re revocation of firearms licence and registration certificate, S. 5 of Firearms Act Mixed juridiction of Provincial Court : judicial review and appeal de novo History of marital conflict Mental illness and false charges by spouse of Petitioner Suicidal threats of Petitioner Application dismissed 2011 QCCQ 3221 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-38-013461-099 DATE: April 7, 2011 ______________________________________________________________________ BY THE HONOURABLE JUANITA WESTMORELAND-TRAORÉ , J.C.Q. ______________________________________________________________________ R.C.

Petitioner v. CHIEF FIREARMS OFFICER Respondent ______________________________________________________________________ JUDGMENT ON PETITIONER'S APPLICATION FOR REVISION OF THE REVOCATION OF A FIREARMS LICENCE PURSUANT TO

SECTION 74 OF THE FIREARMS ACT , L.C., 1995, C. 39 [ One paragraph expurged] ______________________________________________________________________ [ 1 ] On October 6, 2009, Petitioner was notified of the cancellation of his licence to possess firearms. He was subsequently notified of the revocation of their registration.

The weapons are described as follows: Make Type Serial number - Remington Rifle D 6210981 - Baikal Shotgun C 39293 - Remington Rifle 2411834 - Beretta Shotgun L 437253 [ 2 ] Petitioner seeks a decision annulling the revocation of his licence and the registration certificate pursuant to ss. 71 and 74 of the Firearms Act (the Act ); these decisions were dated October 1, 2009 and October 5, 2009 respectively.

[ 3 ] Petitioner seeks an order enjoining the Chief Firearms Officer and the Royal Canadian Mounted Police (RCMP) to reissue to Petitioner the firearms licence and registration certificate. [ 4 ] Petitioner is also seeking an order enjoining the Chief Firearms Officer and the RCMP to return to Petitioner the firearms described in the notice of the revocation of the registration certificate. The question [ 5 ] This Court must decide whether, considering the whole of the evidence, including new evidence submitted at this hearing, the decision of the Chief Firearms Officer is justified.

Submissions of the parties [ 6 ] The Firearms Officer representing the Chief Firearms Officer submits that the possession by Petitioner of firearms is not safe for the public or for himself; she also invokes the history of the behaviour of the Petitioner which includes many allegations and complaints of violence or threatened violence against his spouse.

She invokes a hospital examination of Petitioner for suicidal threats and non disclosure of drug use at the time of a psychiatric examination for the Director of Youth Protection as well as the seizure of weapons by the police in the home of Petitioner following a complaint of conjugal violence. The continued cohabitation of the parties was also an important consideration. [ 7 ] On the contrary, the Petitioner submits that his possession of firearms has not in the past given rise to any illegal usage, nor does he have any criminal record.

The many calls by his spouse to the police and the many complaints of conjugal violence initiated by her are explained by her mental illness; moreover it has been shown that she was dishonest in complaints to police officers. The Petitioner has been awarded custody of two children of the marriage; a third child is placed with Petitioner's brother. Petitioner attends group therapy sessions for the families of persons with mental illness. Since Petitioner and his spouse are now separated, any sources of conflict are considerably reduced.

The evidence [ 8 ] Firearms Officer Magali Duvernois, the representative of the Chief Firearms Officer, testified before me; she produced the document

Summary of Facts, which also contains an analysis, as Exhibit I-2; this document is undated, but signed by her. [ 9 ] The Notes to File of Firearms Officer Duvernois were produced as Exhibit I-3. [ 10 ] The reasons for revocation of the firearms licence are stated as, " Failure to meet the eligibility criteria under

section 5 of the Firearms Act , subsection 5(1) – not in the interests of 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." [ 11 ] The reasons for revocation of the registration certificate is stated as the absence of a firearms licence, pursuant to sections 71 and 13 of the Act. [ 12 ] Officer Duvernois based her decision on her conclusion that the Petitioner R.C. and his wife D.R. had a conflictual and unstable marital relationship and a history of family violence. [ 13 ] Mrs.

D.R. had filed for divorce and reinstated her proceedings on three separate occasions. [ 14 ] Mrs. D.R. was diagnosed with bipolar illness but was not following her treatment or taking her medication regularly. [ 15 ] On the other hand, Mr. R.C., according to the conclusion of the Firearms Officer, seemed to have exhibited both physically and psychologically violent behaviour towards his spouse Mrs. D.R. since 2003. [ 16 ] Mr.

R.C. had followed several therapies for anger management. [ 17 ] In 2005, the Petitioner was taken to Lakeshore General Hospital by ambulance for making suicidal threats. [ 18 ] Petitioner testified that he was sent home from the hospital in May 2005 and not admitted; the hospital record which was filed as Exhibit I-1 indicates that there was no evidence of suicidal or homicidal ideation and that Petitioner was not delusional. [ 19 ] The hospital record also indicates that Mrs.

D.R. stated that the Petitioner was not a threat to her. [ 20 ] The hospital record shows that Petitioner was taking Celexa (30 mg) as prescribed by his general practitioner since March, or for approximately two months. As a follow-up plan, Petitioner was to seek further therapy for himself and probably marital therapy thereafter. [ 21 ] The record also notes that Mr.

R.C. said that he had taken cannabis the night before his examination at the Hospital; after consuming the cannabis "memories from his past confused him, as he thought he had been sexually molested in the past". [ 22 ] According to Petitioner's brother-in-law, G.R., in 2008 the Youth Court judge had issued an order concerning the three children

of the marriage; according to G.R., that order had prohibited Mr. R.C. from being in the family domicile. [ 23 ] Because of the conflictual relationship between Petitioner and his spouse, numerous calls had been placed to the local police station; between March 2008 and September 2009, Mrs. D.R. had made 19 calls relating to conjugal violence. [ 24 ] On one occasion, the weapons owned by Mr. R.C. were voluntarily removed from his home by a relative and a friend, remitted to the police but subsequently returned to him within 48 hours.

In September 2007, following a new complaint of conjugal assault and a complaint of illegal storage of a weapon, five weapons were seized by police officers and an application was made under S. 111 C. Cr. for an order prohibiting Petitioner from possessing firearms and other weapons and devices. The four weapons registered by R.C. remain under seizure; the fifth weapon which was not registered nor properly stored was confiscated. [ 25 ] On October 25, 2008, Petitioner laid a complaint of assault against his spouse for an incident earlier that day when Mrs.

D.R. entered Petitioner's bedroom while he was sleeping and allegedly attempted to remove money from his wallet without his permission; these charges were later withdrawn. This charge was laid after Mrs. D.R. had gone to the police station in the afternoon to lay a charge of assault against her husband. The officers realized that the same morning they had transported Mrs. D.R. by ambulance to the hospital because she was disorganized. During the transportation she told them that she was "acting" and that she had lied to draw attention to her husband and get him into trouble.

The police reports and declarations of Petitioner and his spouse were filed as R-1. [ 26 ] Petitioner was acquitted of charges of assault and uttering threats which had been made by his spouse. [ 27 ] When he was acquitted in 2009, the petition for an order prohibiting Petitioner from possessing firearms was withdrawn. [ 28 ] Officer Duvernois based her testimony on the police reports, the consultation with officers at station PDQ 1 and the detective Robert Miloteau. Officer Duvernois also consulted the Court records and studied the evolution of the many complaints laid by Mrs. D.R.

She studied the Lakeshore General Hospital record concerning the incident of May 27, 2005.

She also retained as important the fact that the couple was still living together, despite divorce proceedings. [ 29 ] During her inquiry, however, Officer Duvernois did not meet with the Petitioner nor his spouse, nor was she required to do so. [ 30 ] Officer Duvernois did not have access to the record at the Youth Court nor did she know the terms of the orders of the Youth Court. [ 31 ] When she concluded that the firearms licence and registration certificate should be cancelled, she was not aware of several additional facts. [ 32 ] Since the notices of cancellation of the licence to possess firearms and the registration certificate, the Petitioner and his wife have separated. [ 33 ] In May 2009, the two younger children of the family were entrusted to Petitioner; the oldest son was entrusted to Petitioner's brother. [ 34 ] Petitioner has attended sessions regularly with the Friends of Mental Illness and his parental skills and care of his family were commended by this organisation.

A letter from Friends of Mental Illness and Family dated March 11, 2009 was filed as R-5. [ 35 ] Petitioner also filed a psychiatric evaluation by Dr. S.C. dated August 19, 2005 as R-3; the conclusions of the evaluation are positive concerning the parenting skills of Petitioner and his spouse; the evaluation concludes that at that time, neither Petitioner nor his wife presented a risk for the health, security or development of their children or of each other. [ 36 ] When Petitioner testified, he declared that he had enjoyed hunting with his father since he was thirteen years old.

He also enjoyed hunting with the family of his estranged wife, although in the recent past he has not been on good terms with his brother-in-law. The Law [ 37 ] The relevant sections of the Act are the following: 5.

(1) 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. Criteria

(2) 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, (

a) has been convicted or discharged under

section 730 of the Criminal Code of (

i) an offence in the commission of which violence against another person was used, threatened or attempted, (ii) an offence under this Act or

Part III of the Criminal Code , (iii) an offence under

section 264 of the Criminal Code (criminal harassment), or

(iv) 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 ; (

b) 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 (

c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person. Reference to judge of refusal to issue or revocation, etc. 74 .

(1) Subject to subsection (2), where (

a) a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import, … the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides. 75 .

(1) On receipt of a reference under

section 74, the provincial court judge shall fix a date for the hearing of the reference and direct that notice of the hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or holder of the licence, registration certificate, authorization or approval, in such manner as the provincial court judge may specify. Evidence

(2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder. Burden of proof

(3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified. 76. On the hearing of a reference, the provincial court judge may, by order, (

a) confirm the decision of the chief firearms officer, Registrar or provincial minister; (

b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or (

c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under

section 67. [ 38 ] The objective of the Firearms legislation is clearly to insure public security. ( Patrick Bélanger c. Denise St-Laurent , 2009, QCCQ 14457 , l’honorable Jean-Paul Decoste). [ 39 ] Case law holds that possession of weapons is not a right ( Lapointe c. Contrôleur des armes à feu, 2008 QCCQ 5278 , par. 66 ); also Jean c. Rioux ,

(2005) CarswellQue 8997 , decision of my colleague the Honourable Gabriel de Pokomandy, rendered September 9, 2005. [ 40 ] The Chief Firearms Officer exercises a discretionary power. [ 41 ] Courts are required to show deference because of the nature of the power and the expertise of the firearms officers. [ 42 ] Licences and registration can be revoked even in the absence of any criminal convictions. In the case of R. c. Harton (No. 500- 38-012885-090) rendered by my colleague the Honourable Robert Marchi on May 31, 2010, on an application for prohibition under S. 111 Cr.

C., the respondent had had frequent charges of conjugal violence. He had benefited from a peace bond under S. 810 Cr. C. on two occasions. He acted admittedly under the influence of alcohol which is not a defense but which can be relevant on sentencing. The prohibition order was issued nevertheless. [ 43 ] In the case of Poitras v. Contrôleur d'armes à feu ( 2009 QCCQ 14890 ) , a case of revocation under the Firearms Act , the petitioner had been acquitted of assault and confinement. The facts of the case are particularly stark.

The victim had been obliged to take refuge in a car, in winter, after escaping from the petitioner's house bare foot and half naked. Shortly after, the petitioner smashed the window of the car and forcibly brought the victim back into the house; the victim's sister claimed that she had seen blood on the victim's clothes. At trial, the victim retracted her allegations and declared that she had lied.

Despite the retraction, the Court found that the respondent lacked credibility and that he had not discharged the burden of showing that the decision of the firearms officer was not founded. [ 44 ] Since the decision of the Supreme Court of Canada in the leading case of Dunsmuir v. Nouveau-Brunswick (2208 CSC 9), decisions are divided on the application of the criteria for determining the norm for the exercise of judicial review on a reference under the Act . In the decision Lapointe c. Contrôleur des armes à feu , ( cited above ) the Honourable Marc Bisson analyzes the powers of the

Chief Firearms Officer according to the new criteria established in Dunsmuir and concludes that the Chief Firearms Officer possesses broad discretionary powers and is entitled to deference. The norm of rationality applies. Le Tribunal rappelle qu'en présence d'une question touchant aux faits, au pouvoir discrétionnaire ou à la politique, la retenue s'impose habituellement d'emblée, comme le rappelle la Cour suprême dans ce passage tiré de l'arrêt Dunsmuir c. Nouveau Brunswick , précité: La cour de révision se demande dès lors si la décision et sa justification possèdent les attributs de la raisonnabilité.

Le caractère raisonnable tient principalement à la justification de la décision, à la transparence et à l'intelligibilité du processus décisionnel, ainsi qu'à l'appartenance de la décision aux issues possibles acceptables pouvant se justifier au regard des faits et du droit. ( Lapointe , précité, par. 98 ) [ 45 ] The more recent decision of my colleague the Honourable Isabelle Rheault also applies the judgment in Dunsmuir. In Pierre c.

Le Contrôleur des armes à feu du Québec , No. 500–38–011317-087 rendered on October 27, 2009, my colleague decided that the powers of the Court of Quebec upon a referral are of the nature of a judicial review, and applied the standard of reasonableness. Judge Rheault cites the presence of a privative clause in the Firearms Act as indication of the presence of one of the criteria for determining the scope of the discretionary powers of the firearms officer and the extent of the judicial duty of deference. The petitioner had been twice convicted of assault, in one case inflicting a broken jaw.

The use of alcohol was also present. Both incidents involved wilful and reckless actions by the Petitioner. The Petition in revocation of the cancellation was dismissed. [ 46 ] For the other line of cases, the jurisdiction of the Provincial Court on referral of a decision by the Chief Firearms Officer is a mixed jurisdiction, combining powers of review and powers of a hearing de novo.

This conclusion flows from the powers attributed to the court, namely to review the decision of the Chief Firearms Officer, but also to hear the evidence presented by the parties with no requirement for prior authorisation. [ 47 ] The case of Guay v. Contrôleur des armes à feu, decided by my colleague the Honourable Danielle Côté after an equally refined analysis of the decision in Dunsmuir, follows the decision of the Alberta Court of Queen's Bench in Pogson, ( 2005 ABQB 179 , par. 47 ). Judge Côté cites the decision in R. c. Kecala, Plus récemment, dans R. c.

Kecala , ( 2009 ONCJ 603 ), la Cour de justice de l'Ontario reformule ainsi l'approche suggérée par Pogson : [26] In Pogson v. Alberta (Chief Firearms Offices ) 2005, 195 C.C.C. (3d) at 434, the Alta. Q.B. found that the hearing of a reference before a provincial court judge is neither a pure de novo hearing nor an appeal, and it is not analogous to an application for judicial review. If the evidence generally supported the firearms officer's factual assumptions, and his reasoning was reasonable, no interference is justified.

However, where the provincial court judge has significant and meaningful evidence that was not before the firearms officer, or the evidence showed that the factual assumptions of the firearms officer were clearly wrong, a two-stage process is called for. First, the judge should still examine the firearms officer's decisions; if that decision is reasonable, it was entitled to some deference. Second, the provincial court judge should examine the new evidence to see whether it undermined the factual assumptions and inferences drawn by the firearms officer.

If so, the judge would be entitled to interfere with the original decision, even if that decision was reasonable. ( Kecala , par. 28 , tel que cité dans Guay, par. 48) [ 48 ] In Q. v. Cvetkovic , a decision of the Superior Court of Montreal ( 2008 QCCS 1968 ), the Honourable Justice Pierre Isabelle, adopts this position. Referring to the decision in Dunsmuir, Justice Isabelle decided, Or, cette situation juridique ne change rien au présent débat.

En effet, le renvoi devant la Cour du Québec d'une décision d'un contrôleur des armes à feu prévoit un système mixte mettant en application les principes de la révision judiciaire, donc ceux applicables en droit administratif et les principes du procès de novo, c'est à dire l'écoute d'une preuve nouvelle.

Selon l'avis de l'Honorable juge Coté, ...les principes du droit administratif s'appliquent lorsque la preuve est la même que celle sur laquelle s'est basé le Contrôleur et ceux s'inspirant des règles du procès de novo s'appliquent lorsqu'une nouvelle preuve est entendue, en faisant les adaptations requises. ( Guay, précité, par. 52) [ 49 ] The decision in Pogson was also followed in the P.C. v. Claude Bussière (EYB 2008 - 133011), a decision of the Court of Quebec, rendered buy la juge de paix magistrat Christine Auger, May 6, 2008.

The Respondent was granted revocation of the cancellation of his firearms permits because of the exceptional circumstances in the case. Respondent owned land neighbouring on a newly developed baseball park. He suffered the loss of the peaceful enjoyment of his property and became increasing upset with the lack of recourse. He finally committed an assault. As this was a single occurrence of violence, in exceptional circumstances, the cancellation was revoked by the Court. ....

a) si le Tribunal a en main une preuve significative et convaincante absente au moment de la décision du contrôleur ou que les présomptions factuelles découlant de cette preuve étaient erronées, il s'agit d'une nouvelle preuve. Le Tribunal doit donc procéder à un examen à deux étapes, à savoir:

i) il y a examen la décision du contrôleur afin de vérifier si elle est raisonnable avec l'information disponible au moment de la décision et la nouvelle preuve. Dans l'affirmative, aucune intervention n'est justifiée. ii) si après examen de la nouvelle preuve, elle est significative de sorte qu'elle touche les présomptions factuelles et ébranle le fondement de la décision et les présomptions tirées par le contrôleur, le Tribunal doit intervenir.

( Bussière, par. 33, citing Pogson ,) [ 50 ] In Bussière, the new fact was a psychological evaluation report. [ 51 ] The case of Francoeur c. Contrôleur des armes à feu (EYB 2010 - 178744) , decided by the Court of Quebec on August 23, 2010 also concerns a single incident. [ 52 ] The decision in Daniel Killens c. Gérard Champagne, No. 500-38-014008-105, rendered by the Honourable Michel Belhumeur on December 20, 2010 analyzes the facts on the referral of a retired person convicted of a single case of assault against his spouse. The evidence revealed the influence of voyants on the reasoning of the complainant.

The revocation of the cancellation of the permit was granted. [ 53 ] It is impossible to establish a connection between the love of hunting and the objective of protecting public security. Jean c. Rioux, (cited above at paragraph 39). [ 54 ] When there is a considerable delay between the decision to revoke and the court hearing, the court is also entitled to consider a change in the facts between the two dates. Analysis [ 55 ] The Court considers that the decision to cancel the firearms licences and registration was based on an incomplete study of Petitioner's circumstances.

The decision of the firearms officer could not properly assess the security issues. [ 56 ] Moreover the Court observes that the decisions to cancel the firearms permit and registration were made in October 2009, one year before this hearing in October 2010. New facts also occurred during this period which justify the intervention of the Court. History of allegations of family violence [ 57 ] The Court considers that the Petitioner has difficulties controlling and managing his anger. [ 58 ] In December 2004, Mrs. D.R. called the local police station and complained of assault by the Petitioner.

At the time, she declared that she did not fear the Petitioner. [ 59 ] Mrs. D.R. reported to the police that the Petitioner had been following anger management therapy with Dr. S.M. since 2003 and that his behaviour had improved. [ 60 ] The officers, aware of the presence of firearms, observed nevertheless that they were registered and stored legally. They did not remove the weapons. [ 61 ] In 2007, 2008 and 2009 several reports of conjugal violence are made to the police officers. [ 62 ] In August 2007, Mrs.

D.R. reported that the Petitioner kicked her in the abdomen; on another occasion, he kicked her, propelling her into the dresser in the bedroom. She stated that she was injured on her arm and leg; however there were no marks observed by the police officers. [ 63 ] Mrs. D.R. reported again in September that Petitioner had buried her head in a pillow. In the same month, Mrs. D.R. reported that the Petitioner had thrown a T.V. remote control at her and had gripped her forearm very tightly.

On this occasion she stated that she feared the Petitioner and that he had made death threats against her. [ 64 ] On September 22, 2007, Police officers seized a rifle, a 20 calibre Cooey rifle, that was illegally stored and not registered. The four other weapons in the home were legally registered and stored. Nevertheless, on the strength of Mrs. D.R.'s description of the four incidents, the officers decided to seize these four weapons also. [ 65 ] In October 2008, Mrs. D.R. was taken by police officers to the Lakeshore General Hospital where she was admitted and remained for several months.

She was diagnosed with bipolar mental illness. In June 2009, Mrs. D.R. returned to her conjugal home. In September the marital problems recommenced. On another occasion, she made allegations of shoving and slapping by Petitioner. [ 66 ] As a result of her illness, she was sometimes unable to present a clear version of her complaints. On one occasion, on September 16, 2009, she attended at the local police station but was unable to express herself and give details. She promised to return to the station within 30 minutes but failed to do so.

The next day, instead of completing the complaint, she attempted to place a complaint against the police officers. [ 67 ] In a statement signed September 17, 2009, Mrs. D.R. declared that her husband had been abused in his youth by both his father and mother. She further declared that he repeatedly accused her of gaining advantages through sexual favours. [ 68 ] In the report, Mrs. D.R. states "I am tired of forgiving and would like the legal authorities to protect me because he is capable of killing me and had threatened my life several times of which the most recent is March 2009.

I have been threatened and reminded by his allusion to hunting." Exhibit I-11. [ 69 ] Mrs. D.R. filed for divorce in October 2004, reinstated the proceedings in June 2005, October 2008 and September 2009. [ 70 ] Between March 2008 and September 2009, nineteen (19) calls were made to the local police station. Exhibit I-9.

[ 71 ] On the 7 of May 2008, G.R., Petitioner's brother in-law, called the police to tell them that the Petitioner went to Mrs. D.R.'s home despite the fact that he was supposed to be under an order from Youth Court not to be in her presence. A witness present when police arrived did not see any pushing or assault by Petitioner against his brother-in-law. There was a police report, but no charges were laid. [ 72 ] G.R. expressed his concern to the police officers, who noted that he considered that Petitioner should be watched. Exhibit I-8. [ 73 ] On October 25, 2008, Mrs.

D.R. went to the local police station to lay a complaint against her husband for an assault. However, the police officers recalled that earlier in the day and according to another police report, Mrs. D.R. had been taken to the Lakeshore General Hospital by ambulance; during the transportation, she stated that she had been "acting" and that she had lied in order to draw attention to her husband and give him trouble. On the strength of this prior report, the officers concluded that Mrs.

D.R. was making a false complaint and could be charged with public mischief. [ 74 ] At her request, they accompanied her to her home. They took a statement from her husband who laid a complaint of assault against her. She was then arrested. On this complaint, his oldest son was indicated as a witness. Petitioner claimed that his wife had come into his room and attempted to take his money from his pocket without permission. She had attacked him and pushed him to the ground. Exhibit R-1. [ 75 ] On November 12, 2008, Mrs.

D.R. is also charged with a breach of her conditions in this file; although she was under a restraining order, she picked up her children and took them to the cinema. Exhibit R-2. [ 76 ] On March 17, 2009, Mrs. D.R. was acquitted of these charges because no proof was made. Exhibit I-13. [ 77 ] In her analysis of the file of Petitioner, Officer Duvernois does not refer to this revelation concerning the admission of fabrication by Mrs. D.R. This is a significant omission. [ 78 ] Earlier in 2008, Mrs. D.R. had suffered a manic depressive crisis while on a family holiday in the Dominican Republic.

According to a medical report dated March 28, 2008, filed as Exhibit R-6, during the vacation Mrs. D.R. suffered from progressive anxiety with symptoms of aggression and manic depressive emotional upset. She became disoriented and feverish and was treated with medication. She had to return prematurely and was confined to a wheel chair for travel. [ 79 ] Mrs.

D.R. refers to this incident in her complaint of September 2009, (cf. below, par. 80), declaring that she had been subjected to serious physical abuse during the vacation and believes she would have been killed had it not been for the presence of her children. Exhibit I-11. Her declaration is weakened by the presence of the Medical Report described above at paragraph 78. At the same time, this medical report is based on facts and medical history reported to the doctor. No explanation is given of the cut and swelling on her lip other than falling from her bed. There is evidence of the injury, not the cause.

The Court finds however that the travel in the wheel chair was necessary because of her condition. [ 80 ] A similar incident of disorientation took place in March 31, 2009. After receiving a call from Community Police Station No. 3 during which D.R. stated she feared for her life because of threats from her husband, officers went to that station. Since she was no longer there, they did research in the police data bank (CRPQ) and went to her home. Failing to find her at home, they went to the next reported address but could not locate her.

When they called her cell phone number they retraced her at the Community Police Station No. 21. Exhibit I-10. [ 81 ] In September 2009, Mrs. D.R. again went to the police station complaining of assault and threats against her life; however, she was not able to describe the events in detail. She stated to the police that she considered that her husband had made a threat when he had told her that he was going hunting. In her mind, she wondered whether he would be hunting deer or hunting her. She called the station repeatedly. Petitioner also called to have Mrs.

D.R. removed from the home. [ 82 ] On April 1, 2009, Mrs. D.R. was found wandering in Lacolle area; when she called the police, they took her to the Lakeshore General Hospital. [ 83 ] In 2008 and 2009, it is clear that Mrs. D.R. suffered from mental illness and that her condition did account for many of the complaints which she made against Petitioner. Nevertheless, the Court remarks that the history of conjugal difficulties dates from 2003, a period during which Petitioner also followed personal therapy. [ 84 ] The Court considers that Petitioner's difficulties in managing his anger are of serious concern.

While the mental illness of his spouse may have led to false accusations in the period of 2008 and 2009, Petitioner had previously exhibited difficulties in controlling his anger. The reports filed by Mrs. D.R. in 2004 reveal her real concerns. While she did call the police she did not lay complaints at that time. These findings justified the decision of the firearms officer in October 2009; however additional evidence produced by Petitioner, including his testimony before this Court, requires intervention and reassessment of all the evidence on this referral.

Difficulties with anger management [ 85 ] Before this Court, in support of this petition, Petitioner filed the psychiatric expertise of Dr. S.G. dated August 19, 2005, (cf above, par 33). This report was prepared for the Director of Youth Protection and it presents a history of Petitioner's efforts to resolve marital difficulties and personal issues. [ 86 ] This Court has already noted that Petitioner followed therapy with Dr. S.M.

He was evasive concerning the object of this therapy, stating that it addressed personal issues. [ 87 ] Petitioner acknowledges that he suffered tension and difficulties in his conjugal relationship and was very anxious during the later years of the marriage because of the deteriorating health of his wife. He noticed changes in her humour and observed that she had

great difficulties sleeping. [ 88 ] While the report of Dr. S.G. was prepared in August 2005, it does not appear that Petitioner described to Dr. S.G. the incident of suicidal threats which caused him to be transported by police to Lakeshore General Hospital on May 27, 2005. Although Petitioner was not hospitalized at this time, it was nevertheless a serious matter since his spouse reported that he made suicidal statements which made her fearful. His close friend and his brother-in-law came to the house and with Petitioner's consent removed his weapons, thereby demonstrating their concerns.

They remitted the weapons to police officers who after 24 hours returned them to Petitioner. [ 89 ] The Tribunal recalls that the hospital also recommended follow-up therapy for personal and marital issues. [ 90 ] Dr. S.G. does however mention that Petitioner indicated that he had consulted Dr. T.L. of a local Medical Centre. Petitioner indicates that this consultation took place in the beginning of March 2005. Dr Gauthier's report further indicates that Petitioner was prescribed an antidepressive medication, Celexa, initially at a strength of 20 mg but subsequently increased to 40 mg per day.

The psychiatrist's report indicates that Petitioner decreased his medication and ceased taking medication one week prior to this psychiatric evaluation. However, further reading of the report of the Lakeshore General Hospital reveals that Petitioner indicated in May that he was already on Celexa 30 mg prescribed by his general practitioner. [ 91 ] In the hospital record, it is indicated that Petitioner stated that he had taken cannabis the night previous to his transportation to the Hospital. Petitioner revealed that he had marital problems and attributed them to his spouse's controlling behaviour.

The doctor at the hospital recommended marital counselling for both parties. [ 92 ] This Hospital report indicates that Petitioner stated that he had consumed marijuana, whereas in the expertise of Dr. S.G., Petitioner indicated that he did not smoke and did not use any drugs. The Court notes that the two reports are made within an interval of three months; it is obvious that Petitioner did not fully disclose his situation to Dr. S.G. [ 93 ] Furthermore, according to the report of Dr.

S.G., Petitioner denied having suffered any fear or phobia or having ever taken drugs or having had addiction of any kind. [ 94 ] The Court notes however that Petitioner did take antidepressant medication and did mention that he was taking his medication when he was taken to the Lakeshore General Hospital in May 2005. Dr. S.G. records that Petitioner feigned surprise when confronted with Dr. T.L.'s diagnosis of "un état dépressif ainsi que des éléments de phobie et d'addiction". Petitioner dismissed these conclusions as a hasty and unfounded diagnosis. [ 95 ] Dr.

S.G.'s expertise then indicates that Petitioner and his spouse were following a therapy with Mrs. D. K.G., a psychologist, on a weekly basis. [ 96 ] Petitioner would also have presented himself at the Centre d'intervention et de recherche en violence familiale where he was to begin a group therapy which was scheduled for fourteen weeks. The Court observes that these group therapy sessions were part of a Court order of therapy for conjugal violence; nonetheless, Petitioner testified that he felt that these sessions were unnecessary. [ 97 ] The court notes that in Dr.

S.G.'s report, Petitioner mentioned that he was following a therapy, and that he intended to continue these sessions. [ 98 ] Dr. S.G.'s report concludes that he did not observe any suicidal preoccupation and that Petitioner functioned at a level of medium intelligence; as well, his judgment and critical capacity were sound. Dr. S.G. did not find any problems of memory or concentration nor any problems with personality. [ 99 ] The doctor concluded that Petitioner did not require any further medication and that he should continue to follow the conjugal follow-up with Mrs. K.G. and participate in group sessions.

He also concluded that Petitioner had an adaptation trouble accompanied with anxiety resulting from the family and conjugal difficulties which existed during the last year. [ 100 ] With the information at his disposal, Dr. Gauthier concluded as follows : " En ce qui concerne la capacité parentale de M. R.C., elle m'apparaît positive et importante, et M.

R.C. est très attaché à son épouse et à leurs enfants, il s'implique activement et de façon importante auprès d'eux et il ne représente aucun risque pour la santé, la sécurité, le développement et le fonctionnement des enfants ni pour la sécurité de son épouse ." Of great significance to this petition is the fact that D S.G. also examined Mrs. D.R. …. [ 101 ] This diagnosis would change in the following years as can be seen from Mrs. D.R.'s hospitalisation subsequently at Lakeshore General Hospital because of this bipolar mental health illness. [ 102 ] Mrs.

D.R. participated in weekly therapy sessions with her husband. [ 103 ] The evidence also shows that Petitioner followed both voluntarily and on the recommendation of the Hospital or the order of the Court, sessions for personal issues as well as conjugal violence. [ 104 ] While he was diagnosed by Dr. S.G. as having an adaptation problem with anxiety humour due to family and conjugal

difficulties over the previous year, the positive aspect to his psychiatric evaluation is that the doctor concludes that there is no risk for the health, security, development or functioning of the children nor of his spouse. [ 105 ] The Court, while retaining the fact that Petitioner failed to disclose two important facts in his life, namely the fact that he consumed marijuana and the fact that he had recently been transported to emergency because of suicidal threats, nevertheless observes that Dr. S.G.'s description of Mrs.

D.R.'s declining mental health dates from 2004 confirming Petitioner's testimony on this point. [ 106 ] The Court also considers the fact that Petitioner's suicidal ideation occurred 5½ years ago. At the same time, the Hospital intake report records "Significant personal issues. The patient realized for the first time he thinks mom sexually abused him and brother. He became very anxious to call his siblings feeling panicky he told his wife 'call my brother or I'll kill myself'.

She got scared and called the police." [ 107 ] This report indicates that the patient denied suicidal intent, homicide or delusions. [ 108 ] In her testimony before the Court, Mrs. D.R. declared that Petitioner continues to consume marijuana. While she did not make any direct evidence of this, she deduced it from certain indications such as Petitioner's periods of absence from the home. False allegations of conjugal violence [ 109 ] It has been proved by Petitioner that in 2008 and 2009 Mrs.

D.R. made false allegations of conjugal violence against him. [ 110 ] While these false allegations are contemporaneous with the deterioration of her mental health, they are also characterized by Petitioner as occurring when D.R. is in one of the crises. She goes to great lengths in describing fictitious assaults by Petitioner during the period of declining mental health.

Although these allegations are unfounded, they could cause Petitioner to experience anxiety and dismay as well as anger. [ 111 ] Petitioner also laid a complaint against his spouse for assault and later a complaint for breach of conditions; at the same time the Court concludes that the relationship between the parties was conflictual as described both in the Hospital report, and the evaluation of Dr. S.G.; this state required ongoing attendance in marital therapy sessions. The Court notes that both parties attended these sessions. This may or may not prove that both parties had anger management difficulties.

In the overall, however, the evidence proves that Petitioner had anger management difficulties. Were it not for the admission of Mrs. D.R. that she deliberately fabricated allegations of conjugal assault, the Court would find that the history of complaints, even in the absence of convictions, combined with the stress and anxiety inevitably caused by Mrs. D.R.'s illness would justify the decision of the firearms officer to revoke the permits and cancel the registration of Petitioner's firearms. This was not a situation of isolated incidents of family violence. The fabrication of Mrs.

D.R., however, casts a different light on the facts in this case. Brother in-law's allegation against Petitioner [ 112 ] The Court considers the allegation of G.R. on May 7, 2008 as evidence of concerns expressed by a third party. Although G.R. is Mrs. D.R.'s brother and therefore not an independent observer, he is nevertheless a former friend and companion of Petitioner who did assist Petitioner when he was taken to the Hospital in 2005.

Although there was no complaint taken or charges made at the time of this incident, the Court is entitled to consider the concerns of the brother-in-law in evaluating the grounds for cancellation of the firearms permit and registration certificate.

Possession of firearms [ 113 ] Petitioner maintained a firearms license and the registration for the four firearms legally in his possession. [ 114 ] He voluntarily remitted his firearms to the police during the incident of suicidal ideation in 2005; the weapons were returned to him in two days. [ 115 ] Despite the fact that the police officers were aware of the presence of firearms in Petitioner's home from the outset, these firearms were not seized until September 2007. When he was acquitted of pending charges in 2009, the application for an order prohibiting Petitioner from possessing firearms was withdrawn.

The fact of the application remains relevant, however it was undoubtedly withdrawn by the police officers since they did not consider that in the circumstances they would succeed on their application. The contrary would be inconceivable. Nonetheless, the firearms remain under seizure. [ 116 ] One firearm was found in the home of Petitioner without a licence; nor was it properly stored. Petitioner's explanation was that he had just received it as a gift. This arm was seized along with the others. [ 117 ] Petitioner possesses these firearms for hunting.

The Court does not consider that Petitioner has a right to possess his firearms for this purpose. The Court retains this evidence as a legitimate reason for possession of the firearms. Court Orders [ 118 ] Petitioner testified that Mrs. D.R. refused to take her medication and that he was obliged to obtain a Court order for forced treatment when necessary. [ 119 ] Petitioner was entrusted with his two younger sons; the eldest was entrusted to Petitioner's brother. [ 120 ] Until November 2010, Mrs. D.R. was only permitted supervised visits with the children.

[ 121 ] Mrs. D.R. breached a Court order when she picked up her children to take them to a movie. [ 122 ] There was renewed conflict on October 19, 2010, between Petitioner and Mrs. D.R. when she was moving possessions out of the conjugal domicile in the summer 2010. [ 123 ] Mrs. D.R. exhibits obsessive behaviour calling the guardian of her sons during the night.

She demonstrated obsessive behaviour with her children during her manic state. [ 124 ] Petitioner considers that some of his eldest son's poor behaviour is caused by his greater awareness of his mother's changing mental health and the effect of the changes upon him. He also considers that Mrs. D.R. unduly influences this son. This is a source of on going conflict. [ 125 ] On August 13, 2010, Mrs. D.R. drove to the local police station making accusations of verbal and physical abuse against Petitioner. She was transported by the police to Lakeshore General Hospital where she was admitted to the psychiatric ward.

She was discharged three days later. Conclusions [ 126 ] Despite the additional evidence, the Court concludes that the decision of the Firearms Controller to revoke the firearms licence and registration certificate was justified. [ 127 ] Upon this review, the Court must decide if it is in the interest of the safety of Petitioner or any other person that a firearms licence be granted to him, or reinstated. The evidence of the false complaints laid by Petitioner's wife are relevant to the history of his behaviour, however the Court cannot eliminate systematically all her complaints. Evidence was made that Mrs.

D.R. refused to lay a complaint, or made many 911 calls without any formal complaint. [ 128 ] Nevertheless, her admission in October 2008 of acting and laying false charges to put her husband in trouble weakens her credibility; however the standard of review differs from the standard of proof beyond a reasonable doubt in criminal law. The Court must decide if the revocation of the licence and the registration, in the whole of the evidence, is justified according to the standard of reasonableness. [ 129 ] While the parties are no longer cohabiting, sources of conflict remain.

In August 2010, conflict occurred when Mrs. D.R. insisted on conducting the moving of furniture and personal effects from the former common domicile despite the order for her not to visit the home. Petitioner left the premises. [ 130 ] Petitioner called the police when, in breach of an order, Mrs. D.R. again entered the home to take her sons to a show. Petitioner finally agreed that the children remain to view the film with a mutual friend. [ 131 ] Mrs. D.

R.'s unwillingness until recently to take medication to control her illness is another source of concern. [ 132 ] Disagreement remains between the parties on the education and discipline of their eldest son. [ 133 ] Under the Act, t he Court must consider the many allegations of conjugal violence, even in the absence of convictions, or the presence of an admission by the complainant on one occasion that she was acting. [ 134 ] It must be proved on a balance of probabilities that the mental illness of the complainant is systematically the cause of the complaints. Mrs.

R.D. testified before me that she did indeed lay charges during her periods of mania however the Court has already explained that her credibility is weakened. Moreover, in situations of on-going conjugal relations, the complainant has been known to retract her complaint in order not to make evidence against her spouse. This highly common occurrence before the courts can be considered judicial notice. [ 135 ] Moreover, this Court takes into account the personal issues of the accused. It is not in the best interests of the accused that he possesses firearms if he suffers from anxiety or depression.

The record shows that he was diagnosed with depression and a state of phobia in 2005; he was prescribed medication for this condition. He was on another occasion taken to hospital in an emergency because of suicide threats. At that time he spoke of deep seated issues, issues which were repeated by his wife on her complaint in September 2009. [ 136 ] Since 2007 Petitioner has not been in possession of firearms.

The concern about security has therefore been minimized during this period. [ 137 ] Petitioner's denial of drug consumption at the time of his psychiatric evaluation in 2005 is troubling, especially since he attributed his anxiety or panic attack at the time of his hospital visit on May 27, 2005 to consumption of marijuana the previous evening.

Petitioner's credibility is also weakened by his non-disclosure of important factors at the time of this evaluation, namely prior marijuana consumption, instances of phobia and depression, while at the same time invoking this evaluation during the hearing before this Court. [ 138 ] Petitioner was also evasive when questioned about participation in anger management therapy. [ 139 ] The Court also observes that an unregistered firearm was found in Petitioner's home at the time of the seizure of his firearms; even if this firearm had been acquired recently, it should have been stored lawfully. [ 140 ] Given the recent separation of Petitioner and Mrs.

D.R., the bipolar illness of Mrs. D.R., the anger expressed in the incident with his eldest son who is now entrusted to his paternal uncle, the Court considers that a preventative approach requires that the revocation of the firearms licence and registration certificate remain.

[ 141 ] Nonetheless, both Petitioner and Mrs. D.R. are to be commended for their efforts at overcoming the obstacles experienced because of Mrs. D.R.'s mental illness. Petitioner has been consistent in seeking support for marital problems and problems arising from the illness of his wife. The Court trusts that in five years, the causes of concern will no longer be as evident. [ 142 ] Even though Mrs. D.R.'s mental illness leads to unpredictable and sometimes distressing behaviour, her illness also makes her a vulnerable person in need of protection.

FOR THESE REASONS, the Court dismisses Petitioner's Application. __________________________________ JUANITA WESTMORELAND-TRAORÉ , J.C.Q Me Cynthia Chenie r Petitioner's Attorney Me Isabelle Mercier Attorney of the Direction of Criminal and Penal Prosecution Dates of hearing October 26, 2010, November 19, 2010, January 12, 2011