R. v. Ginter, 2018 MBPC 52

CITATION: R. v. Ginter , 2018 MBPC 52 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Mark Kantor, for the Crown ) - and - ) ) Lucas Ginter ) Martin Glazer, for Mr. Ginter ) ) Judgment delivered: October 10, 2018 C. DEVINE, P.J. Introduction [ 1 ] Following an incident alleging domestic violence and a threat of suicide with guns, the police seized several firearms from the residence of Lucas Ginter, on March 4, 2017. The Crown has brought an application for disposition of the firearms and an order prohibiting Mr.

Ginter from possessing any firearms for the maximum period allowed under the Criminal Code section, five years. [ 2 ] Mr. Ginter is opposed to the order. He wants the return of his firearms and he does not want to be prohibited from possessing firearms in the future. [ 3 ] The application by the Crown is brought pursuant to

section 117.05 of the Criminal Code . The application was properly brought within one month of the seizure of the firearms, as required. [ 4 ] The substantive issue is whether, following the hearing, I am satisfied that “it is not desirable in the interests of the safety of the person whom the thing was seized or of any other person that the person should possess any weapon….” [ 5 ] I do not have to be satisfied beyond a reasonable doubt. This is not a criminal trial. Mr. Ginter is not facing a criminal conviction.

Nor are his liberty interests engaged; it is not a decision where I am determining whether he should be released on bail. It is a hearing where the Court must be satisfied on a balance of probabilities after hearing all relevant evidence on the matter, that it is not desirable for him to possess guns. [ 6 ] I have determined that the Crown has met its onus in satisfying me that the firearms should not be returned to Mr. Ginter and that he should be prohibited from possessing any firearms for a period of five years. [ 7 ] The guns were seized as a result of a domestic violence emergency in which Mr.

Ginter assaulted his wife and threatened to blow his brains out with a gun in front of her. I am satisfied that this incident occurred and I am not satisfied that there have been any significant changes in the circumstances of Mr. Ginter or his relationship with his wife that would lower his risk to possess firearms. [ 8 ] The hearing took place over several months between February 15 and August 29, 2018. Some of the Crown’s evidence was tendered in the context of a voir dire and there were several contested hearings about the admissibility of evidence within the hearing.

I admitted into evidence the recording of the 911 call made by Jennifer Ginter and the videotaped statement she provided to police (with accompanying transcripts). I also admitted photographs of injuries she allegedly sustained in the assault on March 4, 2017. I heard from the 911 supervisor who listened to and created the disc of the 911 call. I also heard evidence from the police officer who was on the 911 call with Ms. Ginter and then interviewed her. I also received an affidavit from Ms. Ginter and she testified at the hearing. There was testimony from Mr.

Ginter’s mother and from a friend who is another gun enthusiast. Finally, there was testimony from Dr. Kent Somers, a psychologist who was qualified to provide an opinion on clinical psychology, mental health, psychological or psychometric testing, risk assessment and personality diagnosis. [ 9 ] The main issues in this case involved analysis of the credibility and weight to be placed on the evidence and the witnesses’ testimony. The domestic violence context in which these events occurred played a significant role in understanding and assessing the evidence.

Facts [ 10 ] On March 4, 2017 at 7:41p.m. the RCMP in East Selkirk were contacted by 911 emergency services who had received an emergency call from Mr. Ginter’s wife, Jennifer Ginter. A very distraught, frightened and crying Ms. Ginter called because she was frightened for and by Mr. Ginter – he had just assaulted her and threatened to blow his brains out. Mr. Ginter is an avid sports marksman and owns several firearms. He was on the Canadian Olympic Skeet Shooting Team.

It is his avocation and he unquestionably loves it. [ 11 ] The 911 call made by Jennifer Ginter was played in court and a transcript of the recording was filed and both are in evidence in

this application. Likewise, the statement of Jennifer Ginter, given to the RCMP later that day was also filed in evidence in this matter. [ 12 ] Within days, Ms. Ginter recanted both the 911 call and her statement to police and she testified in this hearing, further recanting her evidence. [ 13 ] The RCMP seized the guns without a warrant as provided by

section 117.04(1) of the Criminal Code . An application for a search warrant was impractical because of the immediate danger to the safety of Mr. Ginter or other persons. Pursuant to

section 117.05 of the Criminal Code , the police subsequently initiated an application for an order of disposition of the firearms and a prohibition order preventing him from possessing firearms for five years. The police and Crown are opposed to the seized firearms being returned to Mr. Ginter pursuant to

section 117.05(4) on the basis that it is not desirable in the interests of his safety or any other person. [ 14 ] Essentially, the 911 call and statement of Jennifer Ginter paint a picture of ongoing serious domestic violence and domestic abuse exacted by Mr. Ginter on his wife. The initial complaints were quickly recanted by Ms. Ginter, which appears to be consistent with a cycle of domestic violence. There was also expert testimony which did not take into account the domestic violence nor assess the domestic violence, nor determine whether it was present in this case.

The expert psychologist provided an opinion to the court that Mr. Ginter was not a danger to himself or others, such that he should have a return of his guns and the Crown’s application for a prohibition should be denied. Cycle of Violence [ 15 ] The cycle of violence within domestic relationships is now well-known, and the Court takes judicial notice of the indicia of the cycle of violence within the domestic context. Our police forces, courts and the law have responded across the country in recent decades to address the problem of domestic violence. It is within the context of domestic violence that Mr.

Ginter’s behaviour towards Ms. Ginter, and her behaviour within the context of the relationship, including her recantation, can be understood. Ms. Ginter’s evidence during the application can be better understood through the lens of understanding the cycle of violence.

The Ginter relationship appears to have all the hallmarks of a relationship that is deeply affected by domestic abuse. [ 16 ] The most well-known study into domestic violence in Canada is The Study of Domestic Violence and the Justice System in Canada - Commission of Inquiry into the Death of Rhonda Lavoie and Roy Lavoie - a study of domestic violence and the justice system in Manitoba , report of the Honourable Mr. Justice Perry W. Schulman, Commissioner, June 27, 1997. The report at pages 15 and 16 outlines the hallmarks of domestic violence which are important in this case.

There is a cycle of violence in many abusive relationships. The cycle of violence has three distinct phases: a tension-building phase, an explosive incident, and a honeymoon phase. In the tension-building phase a man begins to feel angry, frustrated or out of control, often as a result of incidents or experiences that are external to his relationship. The man is unable to express his feelings or to connect them to his external experiences, and so he tries to legitimize his feelings by blaming them on real or imagined things that his partner has said or done.

The man may release his growing anger and frustration by initiating minor abusive incidents, such as pushing, shoving, or calling the woman names, which become more frequent and intense as time goes on. At the same time, the man may become increasingly jealous of the woman and attempt to exert more and more control over her activities and interactions with other people . The woman often does not understand why the man is angry and frustrated.

She may blame the man’s behaviour on outside forces, such as pressures at work or the consumption of alcohol, but she may also wonder whether she is in some way contributing to his anger and frustration. As the man’s behaviour becomes less and less rational, the woman may begin to believe, at some level, that the abuse is legitimately directed at her. The woman attempts to handle the man by being placating or conciliatory, or by trying to stay out of his way.

Her goal is to prevent further abuse by diffusing the man’s tension and anger, in the belief that if she waits long enough, the situation will change and the abusive behaviour will stop. Despite the woman’s efforts, the man’s tension inevitably builds to the point where he loses control and an explosive incident occurs. The abuse is again often triggered by an external event in the life of the man, but is blamed on or related to one or a number of complaints about the woman or the woman’s behaviour that the man raised in the tension-building phase .

The first explosive incident which occurs may be relatively minor, such as the man pushing the woman or calling her a hurtful and abusive name. Subsequent abusive incidents become more and more significant, and may ultimately involve serious violence including punching, choking , rape, and the use of weapons or objects. If sexual assault is involved, particularly when objects are used during the assault, the likelihood increases that even greater acts of violence against the woman will follow. The police or other service agencies are generally contacted at this point, if at all.

Shock, disbelief and denial follow the explosive incident for both the man and the woman . They try to rationalize the seriousness of the incident: the man may attempt to reduce his feeling of responsibility for the abuse by emphasizing the woman’s behaviour which he believes triggered the incident; the woman may minimize the extent of her physical and emotional injuries or convince herself that the abuse was somehow warranted. At this time the woman invariably experiences depression and feelings of helplessness. The honeymoon phase follows. The man becomes contrite and behaves in a charming and loving manner.

He apologizes for the abuse, asks the woman for her forgiveness, and promises that further abuse will never occur. Typically, he reinforces his apologies with candy, flowers, cards and other gifts, or promises to change behaviours, such as consuming alcohol or working overtime, which the woman believes contributed to problems in the tension-building phase. The honeymoon phase of the cycle of violence gives the woman a false sense of hope and power. She sees the positive characteristics of the man she fell in love with, and she feels she has the power to force the man to seek help for his abusive behaviour.

As the woman becomes more committed to saving her relationship, she isolates herself from relationships with friends or family which were a source of the man’s jealously in the tension-building phase. The man and the woman become increasingly emotionally dependent on each other and convince themselves they can resolve their problems alone. At this time a woman who has called in the police will often urge the Crown to drop charges which were laid against the man as a result of the explosive incident.

As time goes on, tension mounts, another incident occurs, another honeymoon follows: the cycle of violence repeats itself. The cycle may take days, weeks, months, or even years to be completed. However, it often grows shorter over time, and the severity of the explosive incident generally increases with each cycle. Each cycle a woman passes through tends to lower her self-esteem and impair her judgment.

It becomes more and more difficult for her to leave the relationship, or to recognize that she is not responsible for the violence in the relationship. [Emphasis added.] [ 17 ] It is within this context that the facts and evidence in this case must be understood. Evidence Ms. Ginter’s 911 Call [ 18 ] Ms. Ginter called 911 some time after 7:00 p.m. that night. Her first words were breathlessly and urgently spoken, “Hi. I’m calling, my husband said he was gonna to blow his brains out.” Her husband was still in the home and she had fled in a vehicle. The dispatcher asked Ms.

Ginter if her husband had called her and told her this. No, no, I was in the house and he, he grabbed me. . . He was trying to get me to the gun safe and he’s going to do it in front of me. I wouldn’t be able to get away but then I called. [ 19 ] Ms. Ginter’s voice ranged from weepy and frightened to distraught and sobbing during the call and she was speaking with urgency throughout. She told the operator that Mr. Ginter was sober and that he had been physical with her in the past and had forced her out of the house before, but had never made a threat to kill himself.

She was asked if he had been physical with her that day and she said, “Yeah.” She was asked if she was hurt. She was crying and said she was okay. She was asked if Mr. Ginter had used any weapons or anything on her and she answered that he had not, but was grabbing her and telling her that he was going to shoot his brains out and she was going to watch. [ 20 ] Constable Brian Pociuk, an RCMP officer of 18 years in the East St. Paul detachment, was patched through on the 911 call to speak directly to Ms. Ginter because she was driving in a car. He confirmed early on in the call that she had reached Mr.

Ginter and then Ms. Ginter advised that Mr. Ginter thought the police were coming and he hung up on her. She was telling Cst. Pociuk, Yeah, but he told me he was gonna do it and that you know, that it’s gonna ruin his whole life now. . . . he sounded so scared that I called and that he wished I wouldn’t have called. [ 21 ] During the 911 call Ms. Ginter detailed ongoing abuse, control, bullying and violence by Mr.

Ginter. [ 22 ] She described it as a cycle, “and it’s a cycle, it’s something that we’ve been dealing with for so many years.” [ 23 ] She talked about him being abusive with her three or four nights before and then that day. He had kicked her out of their bedroom, and then out of the house but after she let him cool down, she came into the house and she slept in another room. [ 24 ] He tried to say he was sorry about the things he had said and done in the days before but she told him she found it very difficult.

The thing that triggered him she said, was that she had been telling him that she didn’t deserve the abuse; that she just wanted him to love her. [ 25 ] She went back to their bedroom so she could watch television, but Mr. Ginter came and told her to get out; he did not want her in their bedroom.

He forced her out of the bedroom and forced her into the hallway and she said, “I usually don’t resist because it just gets worse,” and then she was sobbing, saying, “I can’t handle him doing this to me and then I fought back for a bit but that just makes things worse.” And then he threw me into the other bedroom and grabbed my neck. And I got scared and he almost, you know, I almost passed out but, like I didn’t, like he, he let me off.

He’d done that before but I mean there’s probably a handful of times where he’s actually let it, where the strength is there, just long enough it really scares me.” (some of which is difficult to hear because of sobbing.) [ 26 ] Ms. Ginter was still sobbing, And then he told me I needed to stay in that bedroom and he stood by the door and he’s just yelling all these awful things at me.

He uses language like I “don’t deserve anything,” “get the fuck out.” [ 27 ] He confined her in the room for about 20 minutes. [ 28 ] Then grabbed her by the hair and dragged her from the back bedroom and said he was going to blow his brains out right in front of her and he was yelling and screaming and she was trying to resist. “He said he wanted me to die, and all this stuff like, I just, I still feel bad.” [ 29 ] Ms.

Ginter was terrified he was going to hurt himself: He was so serious and then I was resisting and he had me on the ground, he was picking me up and I was trying to like, make it difficult for him to drag me, you know? And then he said ‘You’d rather run away and let me do it myself’ and I was like ‘No’ but I knew my phone was in my car. [ 30 ] She was asked by the officer whether she knew where the keys for the gun safe were and she explained that she did not,

because Mr. Ginter had hidden the keys from her the previous month after he found her diary. She used the diary to write about the abuse, rather than telling friends and family: I kept a journal because when I’m in the other room and there’s no TV and after a cycle like this happens I need to write down my feelings, instead of sharing it ‘cause I can’t share it with my friends or family. So I wrote it down and he ended up finding it so I think he put it there and he didn’t want me to have access to it.

That is, he put it in the big safe with the guns. [ 31 ] Other important information that came out during that call was that Mr. Ginter was on the Canadian Skeet Shooting Team and he had never threatened to use his guns before because he did not want them taken away. [ 32 ] Mr. Ginter was texting Ms. Ginter during the 911 call. The first text he sent her was right after she “was able to get away.” He wrote, “I’m sorry I said those things. I was not thinking straight. Please don’t call anyone for my sake. I promise I won’t do anything.” He also texted that it was not good if she called someone.

He directed her to call him and confirm she had not called anyone. [ 33 ] Throughout the 911 call Ms. Ginter was crying. At times she was sobbing. She sounded inconsolable. She was distraught. Ms. Ginter’s Videotaped Police Interview [ 34 ] Later that evening, Ms. Ginter provided a videotaped statement to the RCMP. Her statement was consistent with the information she provided in the 911 calls, both about the events that day and the eight-year troubled relationship, marked by domestic violence and abuse.

She provided great detail about the events that day, including the background of the precipitating three or four days, Mr. Ginter’s escalating anger, and the violent and ongoing assault that day, culminating in his threat to shoot himself while making her watch. Throughout the interview, Ms. Ginter’s demeanor is concerned, crying and upset. [ 35 ] In the context of showing Cst. Pociuk photos of her injuries from previous assaults, Ms. Ginter described years of abuse at the hands of Mr. Ginter. She said she keeps the photos in Google Drive now, because in the past Mr.

Ginter had discovered the photos on her phone and he had smashed three of her phones. [ 36 ] She recounted an incident when he was throwing her around and found her journal. He was furious about it, took the journal and put it in the gun safe. [ 37 ] As she had in the 911 call, she identified this as a cycle of violence. She told the officer in her statement that most of the time the cycle was every three days. She said that he could handle things when he was seeing a counsellor . . . for his anger management. It would be – he could handle it.

But as soon as work got really busy he’d start (inaudible) and then something would happen every two months and then every month at the most. And then I – I couldn’t bounce back. . . and it would just keep happening. And so that’s where we’re at right now. [ 38 ] She described him demeaning her, for example, telling her that she did not deserve his family. [ 39 ] She described him expecting her to serve him, and her inability to do so to his satisfaction, precipitating the incident that had occurred three or four days before. She is a full time high school teacher.

When she became pregnant, she found that she was more fatigued and nauseous for the first month and a half of the pregnancy, and found it difficult to do all the housework and cooking. Mr. Ginter was frustrated that she was tired and sleeping. She described the violent incident from three to four days earlier, which was triggered by her not having his supper on the table when he came home from work. It culminated in him calling her “bitch” and “cunt” and physically throwing her out of the house, dragging her by the hair.

She described his extreme controlling behaviour. [ 40 ] She described an incident that had occurred just over a month before, when Mr. Ginter assaulted her because she played in a mixed hockey tournament while he was in British Columbia on a snowmobiling trip. She had previously told him about the tournament and even asked him to play too. He found out when he returned and was really upset. He grabbed her neck, pulled her hair and slapped her in the face. She had a black eye and a big chunk of her hair came out in the shower. She stayed in the house for three or four days waiting for him to apologize.

When he did not, she left and stayed with a girlfriend. [ 41 ] Ms. Ginter also told police about Mr. Ginter’s post-assaultive behaviour. She said that after his “last episode” his behaviour was “everything I wanted in a relationship”; he asked her two days in a row how her day was, saying “thank you” and “I love you.” [ 42 ] The incident on March 4, 2017 was precipitated over paper work for Mr. Ginter’s construction business. Ms. Ginter would organize all the materials and receipts for Mr. Ginter to pay for his business, organizing them and laying them out for him in his office.

She was asking him a question to make sure he had been thorough, but she noted, “He hates when I ask him questions because he feels that I’m questioning his authority.” Mr. Ginter started yelling at her to stop being such a bitch, to shut the hell up, “He was the boss and I am so far out of line and he’s really much smarter than me.” She told him to stop yelling at her, but he continued, using language like “cunt” and “bitch” and told her that she needed to start listening to him. She went to the bathroom. She mentioned the bathroom has a new door, because Mr. Ginter had punched and smashed the previous one.

She talked about how he does not like her to go into the bathroom because she can lock the door. He followed her into the bathroom and cornered her. She put her hands up to protect herself, “He doesn’t like my hands being up.” He knocked her hands aside and continued to berate her and then left and went back to his office and yelled at her to come and help him. She went back and told him firmly that this had to stop. He kicked her onto the ground and the assault began. [ 43 ] While she was in the interview with police she was checking her phone and noted that Mr. Ginter had just blocked her.

She stated, “He does it for power and control, right?” [ 44 ] Ms. Ginter said in her statement that she was afraid of Mr. Ginter “when he gets in these episodes,” because he is unpredictable.

Ms. Ginter’s Testimony in Court [ 45 ] Ms.

Ginter testified at the hearing of this Application that on March 4, 2017 she had an emotional breakdown, she was angry, she thought her husband was going to leave her and she called 911 “without thinking” and “out of impulse.” [ 46 ] She also said that she called because she misperceived his comment “that he was going to end this” to mean he might harm himself. [ 47 ] She testified that, And I perceived it as I thought Luke meant something that he didn't, but my perception caused me to want to call 911 because of a doubt that I had, and I always saw the emergency system as, you know, when in doubt, call.

And without thinking, impulsively, I called frantically and... Q. What was your perception at the time? A. My perception was that my marriage was ending, that my husband was wanting to leave me, and he made a comment that instantly it went to me taking it or perceiving it as he could hurt himself, and that is when I reacted. [ 48 ] Her explanation for how she received marks on her neck is that she grabbed his leg as he was walking away from her and, . . . I had a good grip and I wrapped myself around his leg, one leg, and he was trying to keep going so I was dragging because I was holding on to his leg.

And he was able to pry me off because he was yelling at me to let go, and he pried me off, but that was after we - - like, I was holding on for a long time. And then he pried me off, and then I ran out the front door, and I went to my vehicle and I got my phone and I called 911. [ 49 ] She went on to testify that she called 911 because her husband wanted to end their marriage: And then he pried me off, and then I ran out the front door, and I went to my vehicle and I got my phone and I called 911. Q. Why? A. Because of what I perceived him to say. Q. And what did you perceive him to say? A.

What he said was, ‘I'll end this, right’? Q. Is that the exact verbatim, ‘I'll end this’? A. Yeah. Q. Okay. There's nothing else he said? A. Well, we were arguing -- Q. Okay. A. -- and, and that's what got me -- that's what heightened my emotions, was he was telling me that he was going to leave me, he didn't want to be married to me anymore. I was two months pregnant -- we were two months pregnant, and for me, I couldn't believe that my husband would want to leave me.

In every other area of my life I have always strived for success, and the thought of my husband leaving me, two months pregnant, I felt failure, I was embarrassed, I was angry. How could he? And I got frantic and I don't know how else to explain it. I was two months pregnant, and I was very hormonal and emotional, but on top of that, I think the failure of my marriage being over ... I don't know if that answers your question. [ 50 ] A few moments later in her direct examination, Ms. Ginter testified that the reason she called 911 was because her husband threatened to end his life.

She went on to tell her husband’s lawyer that “I met with you on July 27 and I verbally told you – my lawyer was there and Victim Services, and I told you that there was no mention of any guns, and that I don’t know why I brought guns into the question.” Analysis of Jennifer Ginter’s Testimony [ 51 ] Because of the inconsistency between Ms. Ginter’s calls to 911 and police interview at the time of the March 4, 2017, and her testimony in court, an analysis of the credibility and reliability of these varying accounts is necessary. [ 52 ] I believe that what Ms.

Ginter said in the 911 call and the police interview, but I do not believe her testimony in court. [ 53 ] The 911 call is a recording of events as they unfolded on March 4, 2017. I admitted the 911 call in evidence during a voir dire in this application on the basis that it is relevant evidence on the issue of whether it is not desirable in the interests of safety that Mr. Ginter should possess firearms. There is no better way to convey the information or history than through the call itself. [ 54 ] Likewise, the police interview was admitted into evidence on the voir dire .

It provided more information about the events that day and the history of domestic violence in the relationship. [ 55 ] Both are highly relevant to this application.

[ 56 ] The Crown correctly observed that Ms. Ginter did not tell the Court she lied to the police, but rather that her perception was off. The Crown invited the Court to accept the 911 call and the videotaped interview as a true account of what occurred that day. [ 57 ] It is compelling evidence of the progress of an emergency. [ 58 ] During the 911 call, Ms. Ginter told police that Mr. Ginter grabbed her and choked her to the point of almost unconsciousness. Over the objections of counsel the Crown also filed photographs of the injuries of Ms. Ginter.

I allowed the evidence on the basis that they were taken during a rapidly unfolding situation in which the police had to make a decision about whether to locate the guns and seize them. The 911 call evidenced a distraught wife talking about what had happened minutes before, between her and her husband in which the husband indicated that he was going to kill himself with guns and force her watch. The 911 call was still in progress when the police had a conversation with Ms. Ginter and very shortly thereafter, within a couple of hours, police interviewed her and took photographs of her injuries.

The photographs of the injuries are consistent with what Ms. Ginter told the police in her 911 call and later in her statement. The photographs show red marks on the right side of her neck. [ 59 ] The 911 recording is compelling evidence that Ms. Ginter was very upset, crying and concerned about her husband’s safety and that he was going to hurt himself. Her later recantation is not believable in light of this most believable and credible call to the police. [ 60 ] At no point does she sound calm, calculating or angry. Everything about her voice registers this as a true emergency.

She is distraught, sobbing and terrified. [ 61 ] She says nothing about Mr. Ginter wanting to end their marriage either in the 911 call or the interview with police. [ 62 ] The 911 call and the information she relayed to police in the interview are believable and credible. [ 63 ] The allegations are detailed and comprehensive. [ 64 ] In her testimony at the hearing she testified that Mr. Ginter’s verbatim words were “I’ll end this.” She did not say that in the 911 call. Nor did she say it two hours later during her interview with police. [ 65 ] Her testimony was internally inconsistent.

Within moments in her testimony she testified both that she understood that he wanted to end their marriage when he said, “I’m going to end this” and that when he said “he was going to end this” clearly he meant their marriage, but at the time, she thought he meant he was going to hurt himself. Ms. Ginter’s testimony on this point was confused and conflated. [ 66 ] It is incredible that she believed “end this” meant both the marriage and his life. [ 67 ] I do not accept that Mr. Ginter’s words were “I’ll end this,” which she somehow misinterpreted.

The first thing she told the 911 dispatcher was that her husband threatened to blow his brains out. [ 68 ] During her testimony she said the call was revenge and pay back, . . . an emotional rant about everything I could think of that was wrong with my husband and in our life. I was so angry. [ 69 ] The complainant in the 911 call and interview with police does not sound careful like someone creating a complaint against her husband because she is spiteful and angry at him, or confused and “hormonal” and “emotional,” as suggested at the hearing.

She sounds extremely upset and, consistent with a wife who has just been assaulted by her husband who, for the first time, has threatened to kill himself using one of his many guns. [ 70 ] Both in the 911 call and in the police interview, Ms. Ginter described in some detail Mr. Ginter becoming enraged after she told him he deserved to feel bad for abusing her, and tried to drag her to the gun safe. In the interview she said, “and that triggered him. He – his eyes looked like they were fire.

He grabbed me by the neck and said that he was going to blow his brains out.” [ 71 ] Her testimony that “there has never once been a situation where guns have ever been brought up to threaten, to intimidate in any way. . .

I don’t know why I brought that subject into the equation.” [ 72 ] Many of the things she told the police are hallmarks of relationships caught in a cycle of domestic violence: him saying he was smarter than her, controlling her, secrecy, isolating, him telling her she has to start listening to him, him getting mad when she puts her hands up, when she goes in the bathroom which has a lock on the door and him blocking her phone. [ 73 ] Ms. Ginter’s call and statement to the police demonstrated her fear of him and his eruptions. She said that he is unpredictable.

She talked about the history of abuse starting eight months into their relationship, which began in 2009, eight years before this event occurred. [ 74 ] The post-assaultive behaviours Ms. Ginter told police about are also typical of the “honeymoon phase” in abusive relationships. [ 75 ] While being questioned by Mr. Ginter’s lawyer, Ms. Ginter testified that she was not in touch with reality on March 4, 2017.

That she did not know why she called 911, other than she would jump on anything she could to have her husband know that it was wrong of him to want to leave her. [ 76 ] Her 911 call and interview with the police are not angry. [ 77 ] They demonstrate that she is frightened. Concerned. Weepy. She is concerned that the police will arrest her husband. Ms. Ginter is crying and upset. Her demeanor is consistent with the content of what she is telling the police.

[ 78 ] Both are believable. Both are extremely compelling. [ 79 ] Ms. Ginter’s recantation is consistent with the behaviour of victims caught in the cycle of domestic violence. [ 80 ] She had another reason to backtrack from her initial account – Mr. Ginter’s passionate avocation is shooting guns – to hunt and for competitive sport. It is clear from as early as the 911 call and the police interview that Ms. Ginter was very concerned that Mr. Ginter would have his guns taken away as a result of her complaints. Within two days she returned to the police station to recant her account. She hired a lawyer.

She went to Victim Services. She met with the Crown Attorney. The criminal charges against Mr. Ginter were stayed by the Crown because of Ms. Ginter’s recantation.

During her testimony, she implored, “I’m trying to have the Court understand that I made a mistake and that I tried everything that I could do to right it.” She detailed her efforts, in hiring a lawyer and on the basis of what he told her Victim Services does, declined to meet Victim Services and then met with her lawyer, “So I really tried to be aggressive in stopping this from happening and for having this go on as far as it has.” [ 81 ] But, interestingly, she did not tell her parents of the complaints. She resisted answering the question about whether she had told them.

She finally answered, only when required to do so by the Court. [ 82 ] In conclusion, I find the evidence of the 911 call and the police interview to be more probative of the issue I have to determine in this Application. I generally accept that evidence. I do not accept the evidence in Ms. Ginter’s affidavit or testimony at the hearing. The Evidence of Mr. Ginter’s Mother and friend Ryan Tritheart I put no weight in the evidence of these witnesses. Neither of them were made aware of any domestic violence within the relationship. The Evidence of Dr. Kent Somers [ 83 ] Dr.

Somers sat throughout the hearing and reviewed all the evidence tendered by the Crown, including the 911 call and the police interview with Ms. Ginter. [ 84 ] In preparation of his report which was filed in the hearing, he saw Mr. Ginter several times and administered psychometric tests on him. He spoke with Mr. Ginter’s friend Ryan Tritheart and spoke with Mr. Ginter’s mother. He also met with Jennifer Ginter. [ 85 ] His opinion was that Mr. Ginter did not represent a safety risk to possess firearms. [ 86 ] Unfortunately, I did not find the opinion to be helpful. Dr.

Somers did not conduct an analysis of the initial account of domestic violence on March 4, 2017 and the allegations of a long-standing history of domestic violence outlined by Ms. Ginter that day and the subsequent recantations in her Affidavit and on the witness stand. [ 87 ] Dr. Somers did not assess Ms. Ginter. He could not testify as to whether what she told the police was true or not. [ 88 ] Even after hearing the sobbing, terrified and distraught Jennifer Ginter during the 911 call and her police statement, Dr. Somers testified that his assessment that Mr.

Ginter was a low risk to possess firearms would have been the same on March 4, 2017. [ 89 ] He assessed Mr. Ginter after one interview and subsequent psychometric testing. He assessed Mr. Ginter not to have a mental disorder and with no substance abuse concerns. [ 90 ] Dr. Somers spoke to Mr. Ginter’s parents on the telephone for about a half hour. He did not believe they knew about the domestic violence allegations; he only had a note that they opined that “things were being blown out of proportion,” which he agreed meant that they had been told by Mr. or Ms. Ginter.

He disagreed that it would be important for them to know the full details of the domestic violence and Mr. Ginter’s threat to shoot himself if he was to rely on their information in the assessment of their son. [ 91 ] He agreed that Mr. and Ms. Ginter are private people and that in a domestic context where the couple is private, there is a concern that people on the outside may not know what is going on in the relationship, but he stated, You know, there’s a - - I, I suppose there’s a line that one draws because private is meant to be private.

What happens between two people, we, we want to as much as possible allow them to have that, and where there’s no particular elevated concern that one is sort of, sort of categorically at an advantage over another person where there’s a potential, you know, clear potential for abuse, that privacy I think should be intact. [ 92 ] The following question and answer perhaps illustrates my concerns further: Q. . . .

It’s possible, Doctor, that in a domestic context if there’s violence with the relationship itself, that the person who is committing the violence may not necessarily have or exhibit violence outside of the home or outside of that relationship? A. Many things are possible. [ 93 ] Dr. Somers did not speak with Jennifer Ginter’s parents, nor any of her friends or other family members, including friends she stated she had stayed with during past incidents of violence. [ 94 ] He stated that he administered a Spousal Assault Risk Assessment (SARA) Guide with respect to the Mr.

Ginter’s risk of being violent in the domestic relationship. There are 24 factors that SARA considers. A

section of the factors has to do with the vulnerability of the victim. In the case of Ms. Ginter, Dr. Somers found that there were no appreciable barriers to Ms. Ginter’s security, independence and interpersonal resources since she had a telephone, safe haven, a job, and access to supports such as Mr. Ginter’s parents. While he recognized that there is a distinction between a potential victim having access to external resources and actually accessing them, he did not question her as to the resources she accessed. Nor did he assess whether her isolation could impact on the risk assessment.

[95] Given what Ms. Ginter told police about keeping the domestic violence in their marriage a secret, and instead of talking to herfamily or friends to get support or help, using a journal to write about the abuse, this is a serious gap. [96] Dr. Somers also used as an example of Ms. Ginter accessing resources the fact that she had received counselling from Mr. JakeSchmidt at Keystone Counselling Services. It was agreed Mr. Schmidt is not a psychologist; he is a counsellor. Dr. Somers did not knowif Mr.

Schmidt had been provided with the background and details of the 911 call and police interview on March 4, 2017. [97] Mr. Schmidt did not see Ms. Ginter alone. He saw her with Mr. Ginter in couples’ counselling. [98] Dr. Somers testified about the tolerance to violence/inability to take self-protective measures on the SARA Guide. Dr. Somersread from the manual: This factor reflects problems related to emotions, attitudes or behaviours that may interfere with the victim’s ability, opportunity ormotivation to take self-protective action.

So examples of this are, victim’s fear for her safety or feelings of helplessness or hopelessnessprevent her from reporting interpersonal violence to police. The victim is…(p. 71) [99] Dr. Somers testified that this was not relevant in Ms. Ginter’s case, because there was no protective order in place and she wasvery committed to the relationship. [100] Dr. Somers looked for examples of “controlling behaviour” on the part of Mr. Ginter from the 911 call and police interview andhe suggested blaming her for things, saying he’s the boss, and saying he is smarter than her. He made one brief note about that.

Whendirected to several other examples of controlling behaviour in the transcripts of the 911 call and interview, Dr. Somers testified that hedid not find them to be controlling. [101] There were other shortcomings in the report and evidence that I found concerning, but the major concerns have been outlinedabove. [102] Overall, I found the opinion of Dr. Somers to be of no assistance in determining whether Mr. Ginter still represents a danger topossess firearms. His opinion that Mr.

Ginter’s risk to possess firearms was low to none on the date of the incident, that is, on March 4,2017, is difficult to reconcile with the compelling evidence that he made a frightening threat to kill himself with a gun and force his wifeto watch that day. [103] That this evidence was not assessed or taken into account renders the opinion meaningless, as does the report and the witness’slack of appreciation of the detailed account and evidence of ongoing domestic violence. Law [104]

Section 117.05(4) states: Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests of thesafety 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. [105] The police made an application within 30 days of the seizure in March, 2017. The judge is to hear all relevant evidence adducedby the parties and may proceed ex parte in some circumstances. [106] Justice Green in the relatively recent case of R. v.

Douglas, 2013 ONCJ 649, trenchantly stated the purpose of the provision: I begin with the obvious: firearms are dangerous. Their possession by persons who are unstable or disposed to physical anger, violence,intemperate behaviour or poor impulse control cannot be countenanced. In the language of s. 117.05(4), such persons’ possession offirearms is “not desirable”. In applying this provision one must not forget, as said analogously of s. 117.04(1) in R. v. Hurrell , supra, atpara. 31, that it “is preventative in nature.

Its primary purpose is the prevention of serious injury and death resulting from the use offirearms and other dangerous objects.” (at para. 56) [107] The Supreme Court of Canada considered the nature of the prohibition hearing in 1989 in the case of R. v. Zeolkowski, (SCC), [1989] 1 S.C.R. 1378. The prohibition is part of a comprehensive legislative scheme enacted in 1977 to govern thepossession and use of firearms as a public safety measure.

Justice Sopinka noted in Zeolkowski at paragraph 14 that although the purposeof the prohibition provisions was clear, courts had been struggling with the nature of the hearing in several cases, including appellatecases. It should be noted the Zeolkowski case arose in Manitoba. [108] The facts of that case were similar to the case at bar. The defendant’s wife told a police officer that he had threatened to assaulther and she feared he would use a firearm against her. The particular issue was whether the police officer’s testimony about what thewife had told him was admissible in the hearing.

It was hearsay evidence. The Supreme Court determined that hearsay evidence wasadmissible in these types of prohibition hearings. [109] In this case, the evidence underlying the police and Crown’s reason for making the application is not hearsay evidence. It is theactual 911 call and the statement given by Jennifer Ginter to the police on the day of the incident. The Crown chose to file this evidencerather than relying on the hearsay evidence of Cst. Pociuk who spoke with Ms. Ginter during the 911 call and then interviewed her.

[ 110 ] I had already ruled that the 911 call and videotaped statement were admissible in voir dires during the hearing. I reiterate that this type of evidence is admissible in this hearing for the several reasons outlined by the Supreme Court in Zeolkowski : - The defendant in a prohibition hearing is not facing conviction of a criminal offence, nor is his liberty affected; - The prohibition hearing under

section 117.05 is not a criminal trial, nor is it intended to be conducted like a criminal trial (at para. 17); - The

section directs the judge to hear “all relevant evidence”; - The

section does not address exclusionary rules of evidence, nor the weight to be assigned to evidence; that is left up to the judge presiding at the hearing (at para. 18); - It was not intended that the judge strictly apply the rules of evidence (at para. 16); - The ultimate determination is whether it is “not desirable in the interests of safety”; - The standard of proof is on a balance of probabilities (at para. 17). [ 111 ] Additionally, I observe that 911 calls and police statements are admissible in bail hearings, where the liberty interests of accused persons are at stake. [ 112 ] The public safety assessment under subsection 117.05(4) is to be made at the time of the hearing, not at the time of the events given rise to the application. ( R. v.

Douglas , 2013 ONCJ 649 at paras. 45 and 57 .) In the Zeolkowski case it appears that the hearing was close in time to the seizure of the gun by the police, therefore the court was essentially reviewing whether the police officer had reasonable grounds to seize the guns. [ 113 ] In this case, over 18 months have passed. Therefore it is important to consider not only what happened on the day the guns were seized, but what has happened since that time to reduce or eliminate the safety risk that Mr. Ginter posed that day. Decision [ 114 ] On March 4, 2017, Mr.

Ginter was not behaving violently and abusively because of a mental illness or as a result of substance abuse. [ 115 ] I believe that a serious and dangerous incident occurred on March 4, 2017 in the context of a marriage marked by domestic violence and caught in the cycle of violence. I believe from the evidence I admitted in this hearing that there had been ongoing abuse, and in the heat of the moment, Mr. Ginter threatened to “blow his brains out” by using one of his firearms. [ 116 ] I believe that generally, Mr. Ginter is a very controlled, careful and responsible firearms owner.

He has built a sports reputation on his excellence as a marksman, and he has always conducted himself professionally and responsibly as a hunter, sports marksman, mentor and firearms owner. [ 117 ] In the private context of his home and marriage however, I do not believe that it is safe nor desirable for Mr. Ginter to possess firearms. [ 118 ] There is nothing to suggest that any changes have occurred since March 4, 2017 to reduce the risk of him harming himself or someone else with firearms.

Although there has been some psychological assessment and therapeutic intervention, these have apparently taken place without knowledge of or taking into account the cycle of domestic violence present in Mr. Ginter’s marriage. I am not satisfied that these therapeutic interventions have reduced the risk of a similar occurrence taking place in the future. [ 119 ] Therefore, the risk of using firearms in an improper and dangerous manner today remains unchanged as it was on March 4, 2017. [ 120 ] The Crown’s application is granted.

Pursuant to subsections 117.05(4) and (6), the firearms and ammunition in the possession of Mr. Ginter that were seized by police in March 2017 are ordered forfeited to Her Majesty. Mr. Ginter is prohibited from possessing any firearm, weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of five years. He is ordered pursuant to

section 114 to surrender any other firearms in his possession not seized by the police, to the Selkirk RCMP. “Original signed by:” C. Devine, P.J.