R. v. Mahar, 2017 ONCJ 752

ONTARIO COURT OF JUSTICE CITATION: R. v. Mahar, 2017 ONCJ 752 DATE: 2017·11·10 COURT FILE No.: Peterborough 141665 BETWEEN: HER MAJESTY THE QUEEN — AND — PAUL MAHAR Before Justice S.W. Konyer Heard on October 24, 2017 Reasons for Judgment released on November 10, 2017 Mr. F. Schwalm ...................................................................................... counsel for the Crown Mr. D.

McFadden ....................................................... counsel for the defendant Paul Mahar KONYER J.: [1] This is an application by the Crown pursuant to s.117.05 of the Criminal Code for an order of forfeiture of a firearm seizedby police from Paul Mahar on August 3, 2014, as well as an order prohibiting Mr. Mahar from possessing “any weapon, prohibiteddevice, ammunition, prohibited ammunition and explosive substance or any such thing” for a period of 5 years. Mr.

Mahar has opposedthe application, and what follows is my decision in the matter. [2] The test I must apply to decide whether to make either of the orders sought is set out in ss. 117.05(4): whether “it is notdesirable in the interests of the safety of the person from whom the thing was seized or any other person that the person should possessany weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing”. In this case, the Crownargues that it is not desirable in the interests of public safety that Mr. Mahar possess any of the enumerated items.

The Crown bears theonus, on a balance of probabilities, to prove that this is so: R. v. Zeolowski, (SCC), [1989] S.C.J. 50, at para. 17. If theCrown meets this onus, I must order forfeiture of the firearm seized by police: s. 117.05(4)(a). Further, if the Crown meets its onus, Imust also consider whether “the circumstances warrant” a prohibition order: s. 117.05(4)(b). [3] At the hearing of this type of application, “the justice shall hear all relevant evidence”: s. 117.05(3). The strict rules ofevidence governing criminal trials do not apply, and hearsay evidence is admissible, so long as it is relevant.

In assessing the weight toplace on hearsay evidence, “the judge must scrutinize the evidence to ensure that it is credible and trustworthy”: Zeolowski, supra, para.18. [4] I agree with the observation of Melvyn Green J. in R. v. Douglas, [2013] O.J. No. 5430 (C.J.), that the meaning of the phrase“not desirable” is less than straightforward. I also agree with his analysis of this phrase in the context of decided cases and other relatedfirearms legislation, and his conclusion that the phrase incorporates an objective standard of reasonableness.

The question to be decidedin this case, therefore, is whether there are reasonable grounds to believe that it is not desirable in the interest of public safety that Mr.Mahar possess a weapon or other enumerated item. I also adopt, as did Melvyn Green J., the following conclusion reached by Durno J.in R. v. Day, [2006] O.J. No. 3187 (S.C.J.), at para. 36: “the appropriate test is whether there are legitimate concerns the person lacks theresponsibility and discipline the law requires of gun owners”.

[5] At the hearing before me, the Crown called one witness, PC Richard Nie of the Peterborough OPP. On August 3, 2014, PCNie and a second officer were tasked to investigate a complaint of a vehicle being shot in a remote area of Peterborough County. Theshooting had occurred the previous evening. The officers travelled by truck and ATV to a remote area near a lake where a number ofhunting camps are located. They spoke to the complainants, who occupied one camp. The complainants described a verbal altercationthat had occurred the previous day with an adult male.

The male was on an ATV, and in the company of an adult female, two smallchildren, and two dogs. From the information received by the officers, it appears the dispute was about who was entitled to use theparticular campsite, and the behaviour of the dogs. Things escalated to the point where profanities were shouted before the male and hisgroup left the campsite. [6] Later that evening, at around 9:20 p.m., the complainants heard a series of gunshots from the area where their vehicles wereparked. They heard an ATV being driven towards the area immediately before the gunshots were heard, and then driven away after.

They later discovered that one of their pickup trucks had been shot. They showed the truck to police, who confirmed that the truck hadbeen shot. Police also recovered 30-30 shell casings from the immediate area. The complainants suspected that the person responsiblewas the same male they had argued with earlier in the day, though no one had witnessed the shooting. [7] While waiting for forensic officers to arrive, PC Nie and his partner checked the surrounding area in an effort to locate thesuspect. A short distance from the complainant’s campsite, they encountered another occupied campsite.

At this site were a male andfemale, as well as two dogs who generally matched the descriptions provided by the complainants. PC Nie spoke to the male, who waslater identified as Paul Mahar, and told him that he needed to speak to him about what had occurred at the complainant’s campsite. Hetestified that Mr. Mahar admitted being at the complainant’s campsite with his wife and grandchildren. [8] PC Nie told Mr. Mahar that he believed that he had returned to the campsite on his ATV and had shot at the complainant’struck. Mr. Mahar responded by asking “what gun?” PC Nie said he told Mr.

Mahar that he had never seen anything like this in his then14 years of policing – that someone would become so angry at another person that they would shoot at a vehicle. He said that inresponse Mr. Mahar lowered his head and shoulders, sighed and said “yeah, ok, it was me, but they were fucking rude”. PC Nie tookthis to be an admission by Mr. Mahar that he was responsible for shooting the complainant’s truck, and he arrested him for possession ofa weapon for a purpose dangerous to the public peace. [9] PC Nie said he then asked Mr. Mahar which gun he used, and was told that it was a 30-30 rifle. He told Mr.

Mahar that theywould need to seize the gun. Mr. Mahar cooperated, brought the officers inside the cabin, and pointed out a 30-30 rifle which wasproperly stored amongst other firearms in a gun cabinet. The police seized only the 30-30 rifle after satisfying themselves that Mr.Mahar’s spouse had a valid PAL [Possession and Acquisition Licence], and because PC Nie “did not feel the need” to seize the otherweapons. [10] In cross-examination, PC Nie agreed that he had no evidence that Mr. Mahar had ever stored or kept any firearm in an unsafemanner, nor did he have any evidence that Mr. Mahar had ever been suicidal.

The officer agreed that Mr. Mahar never explicitlyadmitted that he was the person who shot the complainant’s truck. He also agreed the he charged Mr. Mahar with weapons offences,and released him on an undertaking which included a condition prohibiting him from possessing any weapons. That condition remainedin effect until the conclusion of his trial on the weapons offences before Rosenberg J. in the Ontario Court of Justice at Peterborough onAugust 16, 2017. The trial ended with the charges being dismissed after Rosenberg J. excluded Mr.

Mahar’s statement to PC Nie as wellas the seized firearm from evidence at his trial. [11] Mr. Mahar did not testify on this application, nor did he call any viva voce evidence. His counsel was permitted to file, overobjection from the Crown, a transcript of Rosenberg J.’s Reasons for Judgment at Mr. Mahar’s trial on August 16, 2017. I allowed thetranscript to be filed because s.117.05(3) requires me to consider “all relevant evidence” and the outcome of related proceedings is ofsome potential relevance to the issues before me on this application. I did not permit Mr.

Mahar’s counsel to cross-examine PC Nie onthe transcript, however, as I agreed with Crown counsel that it would not be useful for me, in deciding the issues I need to decide on thishearing, to have the witness cross-examined on credibility findings made by another Judge: see R. v. Ghorvei, (ONCA), [1999] O.J. No. 3241 (C.A.), at para. 31. [12] In applying the law to the evidence I have heard on this application, the first issue I have to decide is whether there arereasonable grounds to believe it is not desirable, in the interests of public safety, to allow Mr. Mahar to possess the firearm seized bypolice.

Section 117.05 of the Criminal Code is preventative in nature, designed to reduce the risk of harm through the use of firearms orother inherently dangerous weapons. I agree with Melvyn Green J. when he said in Douglas, supra: “I begin with the obvious: firearmsare dangerous. Their possession by persons who are unstable or disposed to physical anger, violence, intemperate behaviour or poorimpulse control cannot be countenanced. In the language of s. 117.05(4), such persons’ possession of firearms is ‘not desirable’.” I mustdetermine whether at the present time there are legitimate concerns that Mr.

Mahar lacks the responsibility and discipline expected of agun owner. [13] I find that PC Nie had reasonable grounds to believe that Mr. Mahar was the person responsible for shooting thecomplainant’s truck. He admitted his involvement in the earlier verbal dispute on the complainant’s campsite. Even at his criminal trial,as I read the reasons of Rosenberg J., this statement was not challenged. He also matched the description of the male involved in thatdispute, and was discovered at a site a short ATV ride from the location of the shooting.

The police had grounds to believe the shooterattended and left the scene of the shooting on an ATV. Clearly, they had legitimate grounds to suspect that Mr. Mahar was the shooter. [14] It is the uncontradicted evidence of PC Nie that he confirmed his suspicion through a conversation with Mr. Mahar. Although his failure to accurately record the details of that conversation was fatal to its admissibility at Mr. Mahar’s criminal trial, I amrequired to apply a much different test. Rosenberg J. was required to determine whether the Crown had proven beyond reasonable doubtthat Mr.

Mahar’s statement to PC Nie was voluntary. Although she did find an absence of threats or inducements, she also found that theCrown failed to prove the contents of the statement beyond reasonable doubt. Since the Crown could not prove what Mr. Mahar actuallysaid to the officer with specificity, it could not meet its burden to prove the statement voluntary. [15] What I am required to determine, on the other hand, is whether I am satisfied, on a balance of probabilities, that reasonable

grounds exist to believe it is not desirable in the interests of public safety that Mr. Mahar possess the firearm seized by police. The reasonable grounds threshold can be satisfied through “any relevant evidence”, including hearsay and other forms of evidence that may not be admissible at a criminal trial. This is consistent with the different purposes of s. 117.05 , which is preventative, as compared to a criminal trial, which is punitive. [ 16 ] I am satisfied on a balance of probabilities that PC Nie had reasonable grounds to believe it was not desirable that Mr.

Mahar possess the firearm which the police ultimately seized. It is not disputed that he subjectively believed that Mr. Mahar was responsible for the shooting. In my view, his subjective belief was objectively reasonable based on a totality of the circumstances. These include the proximity of Mr. Mahar to the site of the shooting, the fact that an ATV was present at Mr.

Mahar’s location, his admitted involvement in an earlier dispute with the complainant’s, his admission to PC Nie that he was responsible for shooting the truck in retaliation for the rudeness of the complainants’, and the fact that the gun he turned over to police was the same caliber as the casings recovered at the scene of the shooting. [ 17 ] In short, I share PC Nie’s concern, at the time, that Mr. Mahar lacked the responsibility and discipline required of gun owners. In my view, his concern was reasonable and legitimate. The fact that the evidence marshalled at Mr.

Mahar’s criminal trial did not amount to proof beyond reasonable doubt does not undermine the legitimacy of this concern. It was reasonable for PC Nie to believe that Mr. Mahar was the shooter. Based on my assessment of the evidence, I would conclude that Mr. Mahar likely was the shooter. I find that the Crown has met its onus on this application of establishing, on a balance of probabilities, that it is not desirable in the interests of the safety of the public, that Mr. Mahar possess the firearm seized by the police on August 3, 2014.

I order that firearm to be forfeited to the Crown pursuant to s. 117.05(4)(a). [ 18 ] The Crown is also asking for an order that Mr. Mahar be prohibited from possessing weapons for a period of 5 years from today’s date. That is the maximum period of prohibition permitted by law under s. 117.05 . The events giving rise to this application occurred roughly three and a half years ago. This application was not brought to a hearing until after the conclusion of Mr.

Mahar’s criminal trial. [ 19 ] In my view, if the Crown intends to seek a prohibition order whether or not there is a conviction in related criminal proceedings, it has an obligation to bring the prohibition application to a hearing expeditiously.

It is manifestly unfair to an accused person subject to both criminal charges and a prohibition application arising from the same incident to have the Crown proceed with the application years later seeking the maximum period of prohibition, particularly when the accused has been subject to a weapons prohibition as a result of bail conditions in the interim. [ 20 ] The Crown has not presented any evidence that the conduct giving rise to this application is part of a pattern of similar conduct, nor did the Crown present any evidence that Mr.

Mahar has any history of violence, anger, or poor impulse control. [ 21 ] In these circumstances, based on delay in bringing this application to a conclusion, the fact that Mr. Mahar has been effectively prohibited from possessing any weapons since August 3, 2014, and the lack of any evidence of a pattern of troubling behaviour, I decline to make a weapons prohibition order under s. 117.05(4)(b). Released: November 10, 2017 Signed: “Justice S.W. Konyer”