Chmielewski v. Attorney General of Canada, 2020 BCPC 271

Citation: Chmielewski v. Attorney General of Canada 2020 BCPC 271 Date: 20201203 File No: 9079-1 Registry: Mackenzie IN THE PROVINCIAL COURT OF BRITISH COLUMBIA In the matter of a Reference Hearing under

section 74 of the Firearms Act BETWEEN: RAYMOND CHMIELEWSKI Applicant and ATTORNEY GENERAL OF CANADA (REPRESENTING THE CHIEF FIREARMS OFFICE OF BRITISH COLUMBIA) Respondent REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.A. MCDERMICK Appearing for the Applicant: R. Chmielewski Counsel for the Defendant: R. Haines Place of Hearing: Mackenzie , B.C. Date of Hearing: November 13, 2020 Date of Judgment: December 3, 2020

A Corrigendum was released by the Court on February 9, 2021. The corrections have been made to the text and theCorrigendum is appended to this document. I Overview: [1] Mr. Chmielewski applied for a firearms licence. After reviewing such application, Brigitte Willman, the assigned firearmsofficer, denied his application. Her Notice of Refusal to Issue a Firearms Licence has been filed as Exhibit 1, tab 2 in these proceedings. [2] Pursuant to

section 74 of the Firearms Act (hereinafter, the “Act”), Mr. Chmielewski has applied to this Court for a review ofofficer Willman’s decision. The Court’s options are narrowly circumscribed by

section 76 of the Act. Mr. Haines on behalf of theAttorney General of Canada submits I should confirm the decision of the firearms officer, while Mr. Chmielewski argues that I ought todirect the Chief Firearms Officer to issue him a firearms licence. The onus is on the applicant to establish that the refusal to issue thelicence was not justified. [3] This is not a hearing de novo, a fresh hearing, but rather a review of the decision of the firearms officer, as amplified by relevantevidence. The test is the reasonableness of the officer’s decision. British Columbia (Chief Firearms Officer) v.

Fahlman, 2004 BCCA343 , instructs as follows at para. 22 and para. 23: [22] With respect, I do not agree that the Provincial Court reference is a hearing de novo of the matter determined by the firearmsofficer in the first instance, that is, refusal to issue a licence or revocation of a licence. I do not think that s. 75 of the statute provides forsuch a hearing. An appeal or hearing de novo by definition is one in which the reviewing judge considers only what is presented in his orher court without regard to the decision of the lower court, tribunal or administrative decision-maker.

If Parliament intended that thereference was to be an entirely new hearing of the issue it would have said so in explicit terms. The imposition of the onus on theapplicant for a licence or the holder of a licence, as the case may be, is inconsistent with a de novo hearing.

The onus on the persondissatisfied with the decision of the firearms officer to establish that the decision was not justified clearly indicates that the judge mustreview the decision, not conduct a fresh hearing. [23] In my opinion, because the judge must determine whether the decision under review was justified based on the record as amplifiedby relevant evidence heard on the review, the test is one of reasonableness.

I think that Dorgan J. properly stated the test in Pagnotta,supra, at para. 62: Regardless of the specific term used, the question that the Provincial Court judge must ask is, given all the relevant evidence, is theoriginal decision of the firearms officer one that was reasonable, even if the judge does not agree with it. In Southam the court providedsome guidance for a court applying the standard of reasonableness simpliciter, and it is, therefore, relevant to the approach that should betaken under the Act: ...

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probingexamination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons supportit. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions aresought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or thatwas contrary to the overwhelming weight of the evidence.

An example of the latter kind of defect would be a contradiction in thepremises or an invalid inference. The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect isapparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significantsearching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. II What this hearing is not: [4] This hearing has no commerce with whether Mr.

Chmielewski has done anything wrong either morally or criminally. Early inthe proceedings Mr. Chmielewski repeatedly mentioned “defending himself.” This Court respectfully reminds Mr. Chmielewski that heis not charged, whatsoever, with any wrongdoing. Mr. Chmielewski is not on trial. Additionally, these proceedings are not a re-visitationof the regrettably challenging family law proceedings that he has had to endure, and in that vein, I summarily conclude that Mr.Chmielewski was and is a capable and loving father.

I am emboldened in this conclusion by the heartfelt testimony of his son in theseproceedings, Ryan Chmielewski, plainly showing his unconditional love and support for his father. Additionally, I carefully reviewed allthe materials filed by Mr. Chmielewski, and I note the “views of the children” reports provided by ABA Counselling Services Ltd. ofFebruary 12, 2008, and November 20, 2007, wherein both children repeatedly spoke highly of their father. Finally, this hearing is notabout this Court’s own opinion or decision with respect to whether Mr. Chmielewski ought to possess firearms.

It is narrowly and solelya review of the firearms officer’s decision, see para. 22 of Attorney General (Canada) v. Leclair, 2019 BCSC 2183: A reference to the Provincial Court is not to be conducted as a new hearing: Fahlman at para. 22. The judge is to review the firearm’sofficer’s decision. If the decision was reasonable then it must be upheld, even if the reference judge would have come to a differentconclusion. III

Summary and materials: [5] Officer Willman gave evidence in these proceedings, setting out and amplifying to some extent the history of this matter and herdecision making process. Mr. Chmielewski gave evidence on his own behalf. He filed a significant volume of materials field as Exhibit 2in these proceedings and I have carefully reviewed his testimony and these documents. Ryan Chmielewski, Mr. Chmielewski’s son, alsotestified in support of his father’s position corroborating in part his father’s testimony and offering his unconditional support of him,testifying strongly in his favour that he should be issued a possession and acquisition licence. In

summary, while most of the materialsMr. Chmielewski filed and the testimony he proffered do not directly address the reasonableness of officer Willman’s decision, it wasimportant to the overall process to fully hear and receive Mr. Chmielewski materials and testimony. At the very least, they demonstrate

that Mr. Chmielewski has had great challenges in his life, including, inter alia, the sad dissolution of his marriage, significant challengesin family court proceedings and challenges with respect to co-parenting after separation. He has faced physical obstacles culminatingwith a head and\or facial injury of significance in 2014. He has had employment and financial difficulties including a protracted strugglewith WCB and finally, he has endured a fierce dispute with two of his tenants. He has this Court’s sympathies.

IV The decision itself: [6] As articulated in her Notice of Refusal to Issue a Firearms Licence dated February 11, 2019, officer Willman indicated to Mr.Chmielewski that she was refusing to issue him a firearms licence. She set out the factual background, which I don’t intend to fullyreiterate here, but in

summary, it consisted of mental health concerns of significance and unfounded complaints to the RCMP. Morespecifically, she noted she had received information from Dr. Penman on March 8, 2016, indicating that he had been his treatingphysician since October 2012. He noted material mental health frailties including psychotic disorder with severe paranoid delusions,generalized anxiety and depression. He opined unambiguously that he did not support Mr. Chmielewski’s application to possessfirearms. He recommended obtaining further input from Dr.

Kane, his new psychiatrist, to clarify his current mental health diagnosis inrelation to firearms safety. In turn, Officer Willman requested Mr. Chmielewski provide this follow up information from Dr. Kane, butnone was ever provided. This culminated with her decision: “Pursuant to

section 68 of the Firearms Act I must refuse to issue a licence if you are not eligible to hold one.

Section 5 of the FirearmsAct sates that a person is not eligible to hold a licence if it is not desirable in the interests of safety. In your case, due to concerns aboutyour mental health, we requested and were provided information from your doctor, Dr. Penman. He advised that you have a history ofpsychotic disorder with severe paranoid delusions, generalized anxiety and depression your anxiety and depression are currently inremission, but you have poor compliance in taking your medication and limited insight into your mental health conditions. He does notsupport you having a firearms licence.

He advised you are under the care of a new psychiatrist, Dr. Kane and recommended input fromDr. Kane be further clarify [sic] your mental health diagnosis in relation to firearms safety. This information was requested, but notreceived form Dr. Kane. As such, I find that It would not be desirable in the interests of safety that you be issued a firearms licence at this time. Accordingly, Irefuse to issue you a licence. V Analysis: [7]

Section 5 of the Act states: 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 personnot 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 undersection 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), (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, or (

v) an offence relating to the contravention of subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1)of the Cannabis Act; (

b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not theperson was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on thepart 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. [8] Generally speaking, courts should show a degree of deference to the firearms officer.

See for example, para. 28 of R. v.Pagnotta, 2001 BCSC 444: [28] The overarching considerations when determining the standard of review to be applied to the firearms officer’s decision, are theshift in the legislative approach to the possession of firearms, the fact that the Act provides for a reference to the Provincial Court, not ahearing de novo, and the general principle that a higher or reviewing court should extend deference to the fact-finder: see Stein et al. v.The Ship “Kathy K” et al. (1975), (SCC), 62 D.L.R. (3d) 1 (S.C.C.).

Deference to the original fact-finder is a properconsideration not only because he or she will be in a position to see and hear the witnesses (or those interviewed, as is the case here) butalso because it serves the intent of the legislation that he or she make the first decision. This Act contemplates that the firearms officermake the initial determination of an applicant’s eligibility. [9] See also Henderson, v.

Canada (Attorney General), 2011 ONCA 696 at para. 35: [35] However, having done that, s. 75(3) of the Act directs the provincial court to decide, in light of the facts it has found, if theapplicant has satisfied it that the Registrar's refusal was "not justified". That is, the applicant must do more than show that, given the

facts found, the decision was wrong. Rather, the provincial court must be satisfied that the refusal was not justified. In my view, thisreflects the legislative intent that the provincial court accord deference to the Registrar's decision. I say this for several reasons... [10] Possession of firearms in Canada is a highly regulated regime. A firearms licence is not a right, but a privilege (Basic v. Canada(Attorney General), 2014 BCSC 1903, para. 14).

Pagnotta is instructive at para. 51: [51] In broad terms, the purpose of the Act is to provide a process whereby “licences, registration certificates and authorizations” areissued, allowing a person to possess firearms “in circumstances that would otherwise constitute an offence”. [11] In considering an application, the firearms officer is entitled to consider a broad range of factors, as noted in para. 25 ofFahlman: [25] I read s. 5 differently. Section 5(1) creates a broad safety standard for eligibility to hold a firearms licence or to continue to holdone following a revocation inquiry.

Section 5(2) requires a firearms officer or a Provincial Court judge on a reference to “have regard to”certain conduct by the applicant or licence holder. I do not read s. 5(2) as being exhaustive of the matters to be considered as affectingsafety concerns under s. 5(1). There are many other things a firearms officer or a judge might consider that do not fit into s. 5(2) and thatmight logically and reasonably give rise to valid safety concerns.

I agree with the appellant’s submission that there is no statutoryobligation to decide the safety issue in favour of the applicant or licence holder when none of the criteria in s. 5(2) is present; and thatthere is no obligation to refuse a licence or order a revocation if one or more of those criteria are present. A plain reading of the sectionby itself evinces no such intention by Parliament.

The firearms officer and the judge are entitled to consider anything about thebackground or conduct of the applicant or licence holder that is relevant to public safety. [12] It is not controversial that mental health issues and concerns are valid considerations for a firearms officer: Basic, R. v.McFadden (01 March 2016), Kamloops 99885-1 (B.C.P.C.) and R. v. Tesacek (06 December 2010), North Vancouver 53884-1(B.C.P.C.). See also

section 5 of the Act. [13] As to the reasonableness of officer Willman’s decision, with respect to Dr. Penman, he is the subject’s treating physician, andaccordingly he is well suited to provide the information he provided. His observations are first hand and there are no prima facieconcerns about his qualifications or nexus with the patient – he is a qualified physician and he was the treating physician. There is noability or reason to doubt on its face his unequivocal, unambiguous diagnosis, opinions, and concerns of significance. [14] He suggested follow up with the current physician.

Officer Willman in turn asked for such follow up which was unrequited. This,in part, informed her ultimate decision. There is nothing wrong with this decision making process per se. It is reasonable. I amemboldened in this approach and conclusion by the McFadden and Basic decisions. Although no two cases are the same, there arestructural similarities at least to some extent in both decisions where concerns about the applicants’ mental health were received, followup was requested and none was forthcoming. Such facts informed, in part, the officers’ decisions.

Likewise, in the case at hand, theabsence of follow up left Dr. Penman’s concerns totally unaddressed, which funnelled into the officer’s decision making process. Thereis nothing unreasonable about that. [15] Mr. Chmielewski draws the Court’s attention to the letter in his materials from Dr. Botha of April 9, 2009 indicating that there“is no concerns in Ray possessing firearms.” While this submission has a degree of force to it, it is met by the response of officerWillman who indicated that the dated nature of the letter diminishes its potency; she required current information.

When it comes tomental health, this is reasonable. In

summary, her reasoning process is sound throughout her decision and decision making process and Isee no reason to disturb it. Accordingly, I dismiss the application, and confirm her decision. VI The pathway forward: [16] I wish to encourage Mr. Chmielewski. He has done nothing wrong. As noted by both Mr. Haines and officer Willman, he mayapply for a licence at any time in the future. Nothing in this narrow review precludes that.

Such application may or may not involve hisreconnecting with professionals (mental health, legal and\or otherwise) and working closely and responsively with the Chief FirearmsOfficer’s designate officer to alleviate any concerns they may or may not have. ________________________________ The Honourable Judge P.A. McDermick Province of British Columbia CORRIGENDUM - Released February 9, 2021 In the Reasons for Judgment dated December 3, 2020, the following changes have been made: [1] In paragraph [3] the citation was changed from R. v.

Fahlman, 2004 BCCA 34 to British Columbia (Chief Firearms Officer) v.Fahlman, 2004 BCCA 343 . [2] In paragraph [8] the word defence was changed to deference. [3] In paragraph [12] the citations: Basic, R. v. McFadden, Kamloops Registry File Number 99885-1, and R. v. Tesacek, NorthVancouver Registry File Number 53884-1 were changed to: Basic, R. v. McFadden (01 March 2016), Kamloops 99885-1 (B.C.P.C.) andR. v. Tesacek (06 December 2010), North Vancouver 53884-1 (B.C.P.C.).

________________________________ The Honourable Judge P.A. McDermick Province of British Columbia