R. v. L.K., 2023 BCPC 258

Citation: R. v. L.K. 2023 BCPC 258 Date: 20231121 File No: 77673 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. L.K. RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: J. Turner Counsel for the Defendant: L. Cooper Place of Hearing: Prince George , B.C. Date of Hearing: June 14, and October 20, 2023 Date of Judgment: November 21, 2023

INTRODUCTION [ 1 ] This is a hearing on the Crown’s application pursuant to

section 117.05 of the Criminal Code for an order disposing of various weapons seized by Prince George Royal Canadian Mounted Police on October 26, 2022, pursuant to

section 117.04 (2), and an order prohibiting the possession of any weapons for a period of up to five years pursuant to

section 117.05 (4)(

a) and (b) . The Respondent L.K. seeks the return of the seized items, and submits the Crown has not met its burden to satisfy this Court that an order of prohibition should be made. ISSUE [ 2 ] The issue before me is whether the test for imposing an order under s. 117.05(4) against L.K. is met as of the date of the Crown’s application hearing. BACKGROUND FACTS [ 3 ] L.K. is [omitted for publication] years old, having been born on [omitted for publication].

In 2022, she was residing in a house on [omitted for publication], Prince George, B.C. (the “Residence”), which is in [omitted for publication]. [ 4 ] Earlier in 2022, L.K. resided in the Residence with her elderly mother-in-law, who owned the Residence. The owner was suffering from dementia and was transferred to the hospital. As the owner did not return to the Residence, Ms. K. continued to reside alone in the Residence. [ 5 ] L.K. has a history of mental illness, which includes paranoid and delusional behaviours.

She has called the police in the past to report incidents which, upon investigation, the police determined did not occur. [ 6 ] In support of its application, the Crown has called three witnesses: J.G., Constable Baldwin, and Corporal Driscoll. [ 7 ] The defence did not call any witnesses or adduce any evidence at the hearing. EVIDENCE OF J.G. [ 8 ] J.G. is L.K.’s stepmother. She has known L.K. for 14 years. She is aware L.K. has a history of mental illness. In the past when in crisis, L.K. reached out to J.G. Typically, J.G. would leave what she was doing and go visit L.K. and calm her down.

Prior to October 26, 2022, J.G. believes she saw L.K. approximately once per month. [ 9 ] On October 26, 2022, J.G. received a telephone call from L.K., who was in distress. L.K. claimed her brother-in-law S. had pulled a gun on her the previous day. L.K. said she had a gun and that all of her windows were shot out. L.K. thanked J.G. for everything; she asked J.G. to say goodbye to her father for her and hung up. J.G. perceived this as a suicide call. [ 10 ] J.G. tried calling L.K.’s father but was unable to reach him.

J.G. called the non-emergency police number and asked the police to conduct a wellness check on L.K. They transferred J.G. ’s call to 911. J.G. explained to the officer who responded to her call that L.K. may or may not have a gun, but in the circumstances she did not feel comfortable going to L.K.’s aid herself. [ 11 ] The police agreed to check on L.K., which they did immediately. The police informed J.G. they had taken L.K. to the hospital. The following day (October 27, 2022), J.G. went to visit L.K. in the University Hospital of Northern British Columbia (“UHNBC”). L.K. was angry and agitated.

She did not want to be in the hospital and asked to be discharged. This was the last time J.G. saw L.K. until the hearing on June 14, 2023. J.G. did, however, speak to L.K. on the telephone during that interval. [ 12 ] Following the October 26, 2022 incident, J.G. received a voicemail and letter from UHNBC advising her that L.K. would be hospitalized for 30 days. J.G. talked to L.K. briefly at the hearing of this matter. J.G. cannot say whether or not L.K.’s mental health appears to have improved from when she last saw her on October 27, 2022.

CONSTABLE KENNETH BALDWIN [ 13 ] At approximately 1:00 p.m. on October 26, 2022, Constable Baldwin, a member of the Prince George RCMP, was dispatched to the Residence. He was advised that the female inside the Residence procured a firearm. He knew this was L.K. ’s Residence and had previous dealings with L.K. in June 2022 when she was experiencing paranoid and auditory hallucinations. She heard voices and believes “things were happening that weren’t”. [ 14 ] Three RCMP officers responded to the call to attend the Residence, including Constable Baldwin and Corporal Driscoll.

L.K. had come outside of her Residence unarmed in response to Corporal Driscoll’s request. [ 15 ] Constable Baldwin testified that when a person is barricaded inside their residence with a firearm, it is risky for the officers to simply walk up and knock on the door. It may surprise the distressed person and cause them to use their firearm. It is for this reason Corporal Driscoll called L.K. on her cell phone in an effort to establish communication.

Corporal Driscoll advised Constable Baldwin that L.K. told her she was chasing someone around the Residence with a gun, and then she would come to the door. [ 16 ] For safety’s sake, the RCMP Officers remained at the tree-line on the perimeter of the Residence, approximately 75 metres from the front door. Eventually, L.K. came out of the Residence. She was not carrying any weapon. Constable Baldwin told L.K. they attended the Residence in response to a report that she was suicidal. [ 17 ] L.K. invited the RCMP inside the Residence.

They sat L.K. at the kitchen table and invited Corporal Driscoll and the Nurse from Car 60 to enter the Residence.

[ 18 ] Constable Baldwin cleared the Residence of any other persons who may be inside. There was no one present but L.K. [ 19 ] Constable Baldwin then searched the Residence for firearms. On the floor of the bedroom, Constable Baldwin found a two- barrelled break apart shotgun with its action closed. He opened the shotgun to find it loaded with two unspent shells. [ 20 ] Constable Baldwin also found in the Residence a crossbow, a pair of sharpened swords, a canister of bear spray, and two airsoft pistols.

He noted the crossbow was present when he was in the Residence in June 2022, but had not seized it at the time because it had a broken bow string and therefore was not functional. Since then, the crossbow had obviously been mended and was now functional. [ 21 ] On October 26, 2022, Constable Baldwin seized from L.K. ’s Residence at [omitted for publication], Prince George, B.C.: 1. One Boito Amantino A680 shotgun, with serial number C85514517; 2. Two Stinger airsoft pistols; 3. One Excalibur Crossbow with four bolts; 4. Two Score ammunition shotgun shells; 5. Two two-bladed sharpened swords; and 6.

One canister of Sabre wild bear spray. [ 22 ] Three photographs of the items Constable Baldwin seized from the Residence on October 26, 2022, were marked in the hearing as Exhibit 1. [ 23 ] Constable Baldwin also observed a six- to eight-inch circular hole in the front window of the Residence which he believed was consistent with someone discharging a shotgun shell at the window. [ 24 ] It appears that L.K. was in possession of a firearm without a Possession and Acquisition Licence (“PAL”) contrary to s. 91(1) of the Criminal Code , and had carelessly stored the firearm (i.e., the shotgun) contrary to s. 86(1) of the Criminal Code .

Because L.K. was apprehended under s. 28 of the Mental Health Act, RSBC 1996, c 288 , Constable Baldwin did not arrest her for the firearms offences. [ 25 ] Constable Baldwin saw L.K. again on November 27, 2022, when he personally served her with a copy of the Crown’s application pursuant to s. 117.05 of the Criminal Code filed in these proceedings. During their encounter, L.K. appeared calm and grounded. She advised Constable Baldwin she intended to apply for her PAL. She said she did not believe a woman living alone should be without firearms.

CORPORAL DRISCOLL [ 26 ] Corporal Meghan Driscoll is a 19-year veteran of the RCMP. She is assigned to Car 60, which is an unmarked police vehicle that operates as a mobile crisis-response unit. Corporal Driscoll is paired with a psychiatric nurse. Car 60 provides emergency mental health services to persons in distress within the City of Prince George. [ 27 ] For six to eight months prior to the October 26, 2022 incident, L.K. had been on the police radar as someone suffering from mental health issues. Early in 2022, L.K. and her elderly mother-in-law regularly summoned the police to the Residence.

The two residents believed there were people in their backyard – people trying to break into the Residence. The police and Car 60 attended and did not find any evidence of intruders. There were no footprints in the snow indicating anyone had been in their yard. The surveillance footage showed the complaints were unfounded. [ 28 ] In June 2022, the RCMP and Car 60 had been called to the Residence to deal with L.K. specifically, who was experiencing paranoid behaviour. She thought people were after her.

On that occasion, after speaking with her, Corporal Driscoll decided not to apprehend L.K. under the Mental Health Act . [ 29 ] On October 26, 2022, Car 60 was dispatched to [omitted for publication] in Prince George. Corporal Driscoll was responding to J.G.’s call to the police that L.K. was suicidal and had a gun. This was not the first time that Car 60 had responded to incidents involving L.K. On multiple occasions in the past, Car 60 had responded to L.K. ’s distress calls.

On two or three occasions, Corporal Driscoll had attended at [omitted for publication] when L.K. was experiencing delusional and paranoid thoughts that someone was attempting to break into the Residence. The threats were unfounded. [ 30 ] On October 26, 2022, Corporal Driscoll parked Car 60 two blocks from the Residence. As J.G. had provided the police with L.K. ’s cell phone number, Corporal Driscoll called L.K. Corporal Driscoll asked her to come outside of the Residence. L.K. told her she was chasing someone around her house, but that she would come to the door.

Corporal Driscoll says L.K. ’s speech was erratic and she was unable to communicate properly over the telephone. [ 31 ] After Constable Baldwin and other officers entered the Residence, Corporal Driscoll and the psychiatric nurse went inside and spoke with L.K. Corporal Driscoll apprehended L.K. under s. 28 of the Mental Health Act , which states: Emergency procedures 28

(1) A police officer or constable may apprehend and immediately take a person to a physician or nurse practitioner for examination if satisfied from personal observations, or information received, that the person (

a) is acting in a manner likely to endanger that person's own safety or the safety of others, and

(

b) is apparently a person with a mental disorder. . . . [32] Corporal Driscoll said she believed L.K. was a danger to herself and others because: She had a gun to her head and reported that to her stepmom. Members did find a firearm in the residence. Given her behaviour I did feelshe did suffer from an apparent mental disorder, and those two things, allow me to detain her under MHA. [33] Corporal Driscoll said she observed the following indicia of L.K. experiencing mental health issues: Her speech was erratic. She believed people were watching her through the cameras.

She believed the police were hired by someoneelse. She said that out loud. She thought police were sent there to get her. These were her words. She looked around erratically, she wassweating. She was displaying paranoid behaviour. [34] Corporal Driscoll told L.K. she was apprehended under the Mental Health Act. L.K. responded, “No, no, I'm not going to thehospital”, and started to run towards the bedroom.

Corporal Driscoll immediately followed L.K., caught up with her, struggled with herbriefly, brought her under control, and handcuffed her. [35] As they were walking to Car 60, L.K. made comments about wanting Corporal Driscoll to shoot her. She was yelling andscreaming. The other RCMP officers present helped Corporal Driscoll get L.K. into Car 60. Once she had been placed in Car 60,Corporal Driscoll and the psychiatric nurse transported L.K. to the UHNBC, a trip of 10 to 15 minutes. [36] At UHNBC, L.K. was examined by an emergency room doctor who referred her to a psychiatrist.

After she was assessed by thehealth professionals, L.K. was certified under ss. 22 and 23 of the Mental Health Act and involuntarily detained in the UHNBCpsychiatric unit for 30 days. [37] Corporal Driscoll did not see L.K. again until the hearing date (June 14, 2023). [38] Corporal Driscoll confirmed she reviewed the police files and learned there were other times when the police attended at L.K.’sResidence, but Corporal Driscoll was not personally involved. Corporal Driscoll says L.K. had been previously apprehended by policeon at least five occasions under s. 28 of the Mental Health Act.

I find Corporal Driscoll’s hearsay evidence to be credible and reliable. [39] At the hearing, the Crown adduced no criminal record or expert medical opinion. LEGISLATIVE FRAMEWORK [40] The Crown seeks an order pursuant to s. 117.05(4) prohibiting L.K. from possessing firearms and that the weapons seized beforfeited to the Crown or otherwise disposed of.

Section 117.05(4) states: Forfeiture and prohibition order on finding

(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests ofthe safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibiteddevice, 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. [41]

Section 2 of the Criminal Code defines “weapon” as follows: weapon means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thingused, designed to be used or intended for use in binding or tying up a person against their will; [42] The Crown bears the burden of proof under s. 117.05 of the Criminal Code on the civil standard of “a balance of probabilities”rather than the criminal standard of “proof beyond a reasonable doubt”. This is not an onerous standard: R. v. Zeolkowski, (SCC). [43] In R. v. Kuleczka, 2023 ONSC 3876 , Justice Woollcombe J., citing R. v. Vardomskiy, 2013 ONSC 4113, states at para.23, “The purpose of

section 117.05(4) ‘is the protection of the public from the destructive force of firearms in the hands of persons notequipped morally, mentally, or emotionally to handle them.’” [44] The sufficiency of the evidence respecting the forfeiture and prohibition under

Section 117.05(4) is of the date of the forfeiturehearing, not the date the items were seized from the respondent or the date that the forfeiture application was commenced: R. v. Peacock-McDonald, 2007 ONCA 128, at para. 40. The court can consider all relevant evidence, including any hearsay evidence the court findscredible and trustworthy: R. v. Zeolkowski, (SCC), at p. 1386; R. v. Britt, 2016 BCPC 329 , para. 34.

[45] The order the Crown seeks is preventative. The goal is to protect L.K. and any other person from her possessing destructiveweapons. There is no requirement for the Crown to show she will use the weapons in a dangerous way: Zeolkowski. There is norequirement that the Crown adduce evidence of criminal behaviour, mental illness or a violent past: R. v. Sandoval, 2023 BCPC 180, at para. 4, and R. v. Britt, 2016 BCPC 329, at para. 9; R. v.

Joyce, 2022 NLPC 0822PA00011, citing Britt, at para. 18. [46] It bears reiteration that this is not a criminal trial and I do not have to be satisfied beyond a reasonable doubt. L.K. is not facing acriminal conviction and her liberty interests are not engaged; nor is it a judicial interim release hearing. It is a proceeding where, as thehearing judge, I must be satisfied on a balance of probabilities after hearing all relevant evidence on the matter, that it is not desirable forL.K. to possess any weapons, including firearms. In R. v.

Ginter, 2021 MBQB 56 , Justice Chartier cites with approval thefollowing passage from Elson J.’s ruling in R. v. Peters, 2015 SKQB 151 : [35] . . . the preventative nature of ss. 117.05(4), coupled with the use of the words “desirable in the interests of safety”, suggests that ahearing judge is justified in casting a relatively broad net in the assessment of possible disposition and prohibition orders. . . . [47] The evidence before me strongly indicates L.K. suffers from a mental disorder and that she is irresponsible in her use of firearms.Specifically: a.

L.K. did not have a possession and acquisition licence authorizing her to possess a firearm, in this case, a shotgun; b. The shotgun was found loaded on the bedroom floor; hence, it was stored in a careless and illegal manner. See Sandoval, at para. 66,wherein Judge Lee states: [66] Under the Firearms Act, the Regulation governing the storage of firearms is called the Storage, Display, Transportation andHandling of Firearms by Individuals Regulations.

It provides that firearms are to be stored unloaded, rendered inoperable by specifiedmeans, and stored in a container, receptacle or room that is kept securely locked. c. L.K. told her stepmother she was going to use the shotgun to kill herself; d. L.K. told Corporal Driscoll she was chasing someone around her Residence with a gun; e. When apprehended, L.K. asked Corporal Driscoll to shoot her; and f.

Constable Baldwin noted a six- to eight-inch circular hole in the front window of the Residence which he concluded was consistentwith a shotgun shell having been fired into the window. [48] The Crown has adduced no expert evidence from a qualified physician that L.K. suffers from any specific mental disorder.Rather, the Crown asked the court to infer from evidence proffered by the police and lay witnesses that L.K.’s behaviour is indicative ofsomeone who suffers from a mental disorder. Although cogent medical evidence would be preferable, it is not mandatory.

There is nodispute the police were asked to attend at the Residence multiple times in the past. The evidence before me suggests L.K.’s mentalillness manifests itself in paranoid delusions causing her to fear and react to non-existent intruders. L.K. believes that some unnamedpersons sent the police to her Residence to “get [her]”. [49] I have no evidence that L.K. has actually acted violently with respect to a firearm and no evidence of her having a criminalrecord.

Nevertheless, s. 117.05 authorizes me to make the order the Crown seeks, if satisfied it is not desirable in the interests of thesafety of L.K. or of any other person that she should possess any weapon, prohibited device, ammunition, prohibited ammunition andexplosive substance, or of any such thing, for a period up to five years. [50] I take guidance from Justice Woollcombe’s appellate decision in Kuleczka, wherein he upheld the trial judge’s decision imposinga one-year weapons prohibition and forfeiting the seized items. In that case, there was no history of violence. Mr.

Kuleczka adducedmedical letters confirming he had never posed a threat to himself or others. Nevertheless, Justice Woollcombe states: [49] Finally, the reasons as a whole make clear that the Justice’s conclusion was not based at all on any suggestion that the appellant hadever demonstrated any actual violence. He knew that there was no history of violence. That was not what drove his conclusion. Norcould it.

What was also important was that the Justice was satisfied that the hallucinations that the appellant had experienced, which theletters from the physicians left wholly unexplained, gave rise to concerns about his possession of firearms. It was clear from the evidenceas a whole that the appellant believed what he had reported to police in his two calls. His unexplained detailed hallucinations aboutviolence and firearms raised real concerns about what might happen were he to hallucinate again and have access to firearms.

The Justicefound, reasonably in my view, that the combination of having firearms and the potential for recurring hallucinations raised public safetyconcerns. [51] On October 26, 2022, the Prince George RCMP were dispatched to the Residence upon receiving information the RespondentL.K. was inside, suicidal, and possessed a gun. When they arrived, L.K. told Corporal Driscoll she was chasing someone around theResidence.

Constable Baldwin understood from his conversation with Corporal Driscoll that L.K. was chasing someone with her firearm.This presented a highly volatile and dangerous situation for L.K., anyone else who might have been inside the Residence, and the police.The threat to public safety was not diminished because the police suspected L.K. was mentally ill and prone to hallucinations. The RCMPstill had to deploy an emergency response team to the Residence and treat the situation seriously.

L.K. believed there were people whosent the police to “get [her]”. [52] In Joyce, Judge Porter notes (at para. 28) that s. 117.05(3) of the Criminal Code requires that “the justice shall hear all relevantevidence, including evidence respecting the value of the thing in respect of which the application was made.” There was no evidence ledby the Crown nor L.K. as to the value of the items seized by the police.

I assume they must have some modest monetary value. [53] I have considered all the relevant evidence presented at the 117.05 hearing, which consisted of the evidence of the respondent’sstepmother and Officers Baldwin and Driscoll. This evidence indicated that L.K. suffers from delusions and paranoia, that she believes

someone is breaking into her house and has sent the police to get her. She can react with anger, screaming and yelling, and resists the police officer’s attempt to bring her under control. She also believes that because she is a woman living alone, she should possess firearms. [ 54 ] The evidence before me of L.K.’s current circumstances is scant. Corporal Driscoll had no interaction with L.K. after October 26, 2022. She said she had read police reports of five interventions, but did not specify the dates of these events.

The only concrete evidence I have is that when Constable Baldwin served her with the s. 117.05 Application, L.K. was calm and grounded. [ 55 ] The issue before me is whether the Crown’s evidence is sufficient to conclude that as of the date of the s. 117.05 hearing, the conditions exhibited by L.K. when she was detained on October 26, 2022, continued to exist, such that it was not desirable in the interests of L.K.’s own safety or the safety of others that she continue to possess weapons. The evidence in support of the Crown’s application as of October 26, 2022, is overwhelming.

The Crown’s evidence of L.K.’s circumstances and mental state in the subsequent six months is thin. Nevertheless, given the seriousness of the October 26, 2022 incident, I find the conditions precedent to a s. 117.05(4) order are satisfied. However, given the paucity of evidence as to L.K.’s current mental health, I will not order a lengthy prohibition under s. 117.05(4)(b). [ 56 ] This Court orders the following weapons seized by the RCMP from L.K. at [omitted for publication], Prince George, BC, on October 26, 2022, be forfeited to His Majesty or be otherwise disposed of: a.

One Boito Amantino A680 shotgun, with serial number C85514517; b. One Excalibur Crossbow with four bolts; and c. Two Score ammunition shotgun shells. [ 57 ] The shotgun, cross bow, and ammunition are listed as 1, 3, and 4 on the Report to a Justice filed November 14, 2022.

The Crown does not seek forfeiture of the airsoft pistols, the two swords, and bear spray, which are listed as items 2, 5, and 6 on the Report to a Justice, so these items will be returned to L.K. [ 58 ] This Court further orders that L.K. is prohibited from possessing any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, for two years from the date of this order. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia