R. v. Murphy, 2011 ONCJ 297

COURT FILE No.: Elliot Lake, File #10-175 Citation: R. v. Murphy , 2011 ONCJ 297 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN, Applicant — AND — JAMES H. MURPHY, Respondent IN THE MATTER of an application to an Ontario Court of Justice Judge for an order prohibiting James H. Murphy from possessing firearms, weapons, ammunition, explosives, etc. pursuant to

Section 111 of the Criminal Code . Before Justice R. Villeneuve Application Heard on May 9, 2011 in Elliot Lake Reasons for Judgment released on May 31, 2011 Dana Peterson ............................................................................................ for the applicant Crown Ken Walker ........................................................................... for the respondent James H. Murphy VILLENEUVE, J.: [ 1 ] On this date, the Court heard evidence in support of the Crown’s application pursuant to

Section 111 of the Criminal Code of Canada for an order prohibiting James Murphy (hereinafter referred to as the respondent) from possessing, among other things, guns and ammunition and other items referred to in

Section 111 of the Criminal Code of Canada.

The respondent resists this application and seeks an immediate return of firearms and ammunition seized at his place of residence in Elliot Lake on March 11, 2010. [ 2 ] The Crown bears the onus of satisfying the court on the balance of probabilities of whether or not it is desirable in the interests of the safety of the subject in this case, the respondent, or any other person, that the respondent not possess firearms or other weapons. [ 3 ] The Crown led evidence of police involvement leading up to the date of seizure of the firearms and ammunition on March 11, 2010 and thereafter led evidence of an incident in June of 2010 at which time the respondent was hospitalized for mental health evaluation as a result of certain comments made to his first cousin, Jane Miller, who was a Crown witness at this hearing. [ 4 ] Counsel for the respondent provided this Court with the decision of R. v.

Lovatt, a decision of Crane J. of the Ontario Superior Court of Justice dated November 5, 2002. In that decision, Justice Crane thoroughly reviewed the law as it pertains to prohibition applications, both under the Firearms Act and the Criminal Code of Canada . The onus on the Crown on the civil standard of proof on the balance of probabilities is explained and referred to in that decision. In addition, and perhaps more importantly as it relates to this application, the “ De Novo ” nature of this hearing is explained and confirmed by Justice Crane.

I say that because this will be explained briefly in a review of the facts. The more compelling evidence in support of the Crown’s application today came after the seizure of the respondent’s weapons and ammunition on March 11, 2010. [ 5 ] The Crown relied on the evidence of Constable Denis Villebrun of the Elliot Lake Detachment of the Ontario Provincial Police and Jane Miller, a first cousin of the respondent. The respondent testified at this hearing as well. [ 6 ] The evidence may be summarized as follows. [ 7 ] The respondent continues to reside at 83 Hirshhorn Avenue in the City of Elliot Lake.

He and his spouse, Linda Murphy, who, prior to this date, had been together for approximately 40 years, relocated to the city of Elliot Lake approximately 5 years ago from southern Ontario. There was evidence called and this was confirmed by the respondent, that following his retirement, he and his spouse chose to relocate to Elliot Lake where, prior to their relocation, they had visited on a seasonal basis. Jane Miller, the second Crown witness, is a first cousin to the respondent. Prior to the March 2010 incident and since that date Ms.

Miller has maintained regular contact with the respondent. [ 8 ] The respondent by his own admission is a life-long alcoholic and as will be noted from a

summary of the police involvement in this family, alcohol played a key role throughout.

[ 9 ] Constable Villebrun based his evidence on his own dealings with the respondent and his spouse and on a review of other incidences attended to by other police officers. It should be noted that hearsay evidence is permissible in this type of an application. [ 10 ] Without getting into any great detail on the evidence, it is apparent and not denied by the respondent that the police in Elliot Lake were involved with the respondent and his spouse dating back to late 2009. It is important to note that no criminal charges have ever been laid despite the numerous attendances by the police at the Murphy residence.

A common factor however, during those attendances, both by Constable Villebrun and fellow officers, was that Mr. Murphy was at all times, when the police dealt with him, intoxicated. Mr. Murphy was described as being argumentative and belligerent. His obvious state of intoxication was noted by Constable Villebrun and his colleagues on each of the calls to the residence. [ 11 ] Most of the occasions upon which the police were called to attend the Murphy residence, they were called on the insistence of the respondent who lodged various complaints regarding his spouse, Linda Murphy.

On one occasion, he complained of the theft of his motor vehicle to the police. That motor vehicle was located in the care of Ms. Murphy who was at bingo on the occasion in question. In cross-examination of the respondent, it was noted that he in fact did not have a license to operate a motor vehicle as his license had been suspended for medical purposes and in fact, Ms. Murphy drove the family vehicle almost exclusively. [ 12 ] On at least two occasions, the police had to facilitate Ms.

Murphy removing some of her belongings from the home after which she relocated to either a friends’ residence or the residence of one of her children in southern Ontario. [ 13 ] On March 11, 2010, the date during which the firearms were seized, the police were called to the Murphy residence at which point Mr. Murphy reported a domestic assault. He was intoxicated and his spouse appeared to be distraught and upset. It was clear to Constable Villebrun that these parties were in the midst of a domestic dispute as a division of property was referred to.

Officer Villebrun stood by as the respondent’s spouse loaded items into her vehicle and left the residence. Despite the complaint by the respondent of a domestic assault the police found no grounds to support such a charge and no charges were laid. In fact, Constable Villebrun described the respondent as the aggressor throughout his dealings with the parties on March 11, 2010. [ 14 ] As a result of that call, the intoxicated state of the respondent and his attitude towards the police and his spouse, Constable Villebrun decided to seize the respondent’s firearms and ammunition. A total of 15 firearms were seized.

A list of those firearms was submitted at trial as exhibit 1. [ 15 ] Constable Villebrun testified that he made that decision on March 11, 2010 in view of his personal knowledge and that of fellow officers of the volatile nature of this relationship and the obvious, to him at least, problems with alcohol on the part of the respondent. [ 16 ] Constable Villebrun testified that he had no further dealings with the respondent after the March 11, 2010 encounter. [ 17 ] The Crown’s next witness was Jane Miller. As indicated earlier, she is a first cousin to the respondent.

On June 11, 2010 she received a phone call from Linda Murphy who had expressed concerns for the respondent’s emotional and physical well being. Ms. Murphy had received several phone calls from the respondent. Ms. Miller agreed to check on the respondent during her school prep time. She did go to the respondent’s residence later that morning to check on him. The information she had received from Linda Murphy was that the accused was distraught and had called to say goodbye to his daughter with whom Ms.

Murphy was residing with at the time. [ 18 ] Upon arriving at the respondent’s residence, she was allowed to enter the home. She noted that the respondent had been drinking. He was pleasant however was very emotional. She described him as being “in and out of tears”. The respondent was clearly upset and made reference to Ms. Miller of having lived long enough and that he did not wish to go on. He made reference to the fact that he could not shoot himself as the police had seized his weapons but that he could end his life with a knife, motioning to Ms. Miller a stabbing motion to the stomach. [ 19 ] Ms.

Miller continued to speak to the respondent in an attempt to calm him down and reason with him. She remained in the residence for approximately an hour and a half. She pleaded with the respondent to get some help and reminded him that he was only 62 years old. She tried to convince him to go to the hospital to seek medical attention at which point the respondent replied “I am done, I am tired”. Ms. Miller was required to return to school at the end of her prep time and indicated that she would return at 3 p.m. to check on him, at which point the respondent told her that he would not be there. [ 20 ] Ms.

Miller clearly felt that the comments made by the respondent were as a result of his over consumption of alcohol. Having left the residence, she felt uneasy in leaving the respondent in that state and called the police. The police intervened and the respondent was held at the ICU department of St. Joseph’s General Hospital under guard for two or three days. Thereafter, he was admitted to the Algoma Hospital in Sudbury for what she thinks was a mental health assessment. She confirmed that on June 11, 2010 there was alcohol on the counter when she arrived at the respondent’s home.

She agreed with the Crown’s suggestion that the respondent was an alcoholic. She further confirmed that since that incident in June, 2010 she had not personally witnessed the respondent consuming alcohol. Ms. Miller took it upon herself to look into treatment facilities for her cousin but to date he has refused to seek that treatment. [ 21 ] In cross-examination, it was suggested to her that the respondent had been to approximately 25 A.A. meetings. While

confirming that the respondent has been attending A.A., she was surprised that the total number of visits would have amounted to that number. [ 22 ] At the close of the Crown’s case the respondent testified and confirmed his ongoing struggles with the consumption of alcohol. His abuse of alcohol by his own evidence goes back many years and it has been a constant strain on his relationship with his spouse and his children. [ 23 ] He did not deny the incident of June 11, 2010 with Ms. Miller as he had no clear recollection of the events of that day due to his consumption of alcohol.

He denied however ever having any intention to commit suicide on that date. [ 24 ] In his evidence he confirmed that Ms. Murphy has returned to the residence having returned shortly after the June 11, 2010 incident. They remain together in the matrimonial home in Elliot Lake however in the respondent’s own words, they are not living as husband and wife but rather sharing these accommodations. His disdain, if I might call it that, for his spouse was evident in testimony. It is clear to this Court that there is no effective husband and wife relationship between the respondent and his spouse.

He merely appears to tolerate her presence in the matrimonial home despite having paid out some $136,000.00 to his spouse in the form of an equalization payment. I was unable to ascertain why Ms. Murphy would remain in the matrimonial home and why the respondent would allow her to do so in view of the obvious lack of affection according to the respondent between the parties. Her presence in the home nevertheless does cause a concern to this Court. [ 25 ] The respondent testified that he has not sought treatment for his alcoholism choosing instead to remain sober since June of 2010 and attending A.A. meetings.

He made reference in his testimony to having attended between 20 and 25 meetings and referred to documentary evidence to support that. No such evidence was filed during this hearing. What is evident is that the respondent has chosen to deal with his life-long addiction to alcohol on his own terms and those terms do not involve an assessment or treatment for alcohol abuse, save for the attendance at A.A. meetings. [ 26 ] As stated at the outset, the onus in this hearing is on the Crown on the balance of probabilities that making an order pursuant to

Section 111 of the Criminal Code is desirable on the interests of the safety of the respondent or any other person that the respondent not possess firearms or other weapons.

The onus is not upon the respondent to show why his firearms and ammunition should be returned to him. [ 27 ] The Court is required to examine the circumstances behind the seizure of the respondent’s firearms but in addition, it may consider any other evidence that it deems pertinent to its ultimate decision on this hearing. [ 28 ] The Crown concedes that at no time during the police dealings with the respondent and his spouse were criminal charges ever laid. Furthermore, the Crown concedes that in the respondent’s 62 years he has incurred no criminal record.

The Crown relies upon the respondent’s abuse of alcohol, the constant friction in the home between the respondent and his spouse as evidenced by the police while the respondent was consuming alcohol. In addition, the Crown relies upon the evidence of Jane Miller and her recounting of the incident of June 11, 2010. [ 29 ] The respondent points out that at no time were criminal charges ever laid despite the number of times the police were called to the residence. The respondent further reminds the Court that on most of the occasions that the police were called, they were called at the insistence of the respondent.

The respondent denies any intention to commit suicide on June 11, 2010 and relies upon the fact that since June of 2010 by his own evidence and confirmed somewhat by Ms. Miller, the respondent has not been drinking. I say somewhat confirmed by Ms. Miller as she has not been in the home on a constant basis. Neither the respondent nor the Crown chose to call Linda Murphy who has been back in the home since June of 2010. [ 30 ] The Court is concerned with the volatile nature of the respondent’s relationship with his spouse.

The number of calls responded to by the police at the behest mostly of the respondent prior to their separation in March of 2010, gives this Court cause for concern that that relationship is not a stable one. The fact that Ms. Murphy has resumed residence in the matrimonial home is of concern to this Court.

The respondent’s evidence seems to indicate that he tolerates her presence but that clearly, as far as he is concerned in any event, they are no longer husband and wife. [ 31 ] The Court is concerned that aside from A.A. meetings the respondent has not sought any therapy, assessment, or counselling for his avowed life-long struggle with alcoholism. Evidence of the effects of alcohol on the respondent is not denied. While intoxicated the respondent is clearly argumentative, belligerent, and obnoxious.

This caused frequent temporary break-ups of his relationship with his spouse. [ 32 ] The respondent’s consumption of alcohol, I conclude, led to a legitimate concern on the part of Jane Miller, that the respondent was seriously contemplating suicide on June 11, 2010. Had the weapons been in the home at that time, one can only shudder to think what might have happened. The respondent downplayed Ms. Miller’s observations and conclusions. She testified in a forthright manner and her affection and concern for the respondent was evident.

She clearly, in my view, was not called as a witness to take sides against the respondent but rather expressed her concern based on her observations of the respondent on June 11, 2010. She is concerned that he never did seek treatment despite her efforts to line it up for him.

She did not appear to be convinced of the efforts made by the respondent since June of 2010 in dealing with his alcoholism while confirming that since that date she has not personally seen him consume alcohol. [ 33 ] If this application had been brought based on the evidence accumulated up to March 11, 2010 the outcome of this application may have been entirely different. Despite the numerous calls to the residence there were no incidences of domestic violence.

There are many alcoholics who possess firearms and so long as those firearms never come into play in any incident they are left in the possession of their owners.

[ 34 ] Given the “ De Novo ” nature of this hearing however, the Court is very concerned with the suicide threat which I find to have been legitimate in June of 2010. The Court is further concerned that the source of the respondent’s frustrations up to the breakdown of the relationship, namely Ms. Murphy, is back in the matrimonial home. They are not, in the words of the respondent, living as husband and wife, and her presence in the home I find is being tolerated by him. [ 35 ] It may be that the respondent has kicked his addiction to alcohol. It may be that alcohol is no longer a factor in his life.

It has been some 11 months since his last drink by his own admission. [ 36 ] When I consider the totality of the Crown’s evidence I find that the Crown has met its burden on the balance of probabilities, that it is desirable in the interests of the safety of the respondent and his spouse, that the respondent not possess firearms or other weapons pursuant to

Section 111 of the Criminal Code of Canada . [ 37 ] The Crown is seeking a prohibition in a range of 1 to 5 years. The respondent has been without his firearms since March of 2010. It has been almost one year since his talk of suicide. It is this Court’s decision that a further prohibition period of 1 year be imposed. Upon the expiration of that period it is hoped that the respondent will have been sober for close to 2 years.

Whether the respondent chooses to seek any professional help for his alcoholism beyond A.A. is up to him but I find that the imposition of this additional 1 year period does address the interests of the safety of both the respondent and his spouse. [ 38 ] Accordingly, there shall be a prohibition period of 1 year from the date of the signing of the prohibition order which will be signed by the respondent at his next court appearance.

The respondent shall be allowed a period of 120 days to arrange for the transfer of all firearms and ammunition seized to a third party lawfully entitled to receive and possess those firearms, failing which, the firearms and ammunition shall be forfeited to Her Majesty the Queen for destruction. Date Released: May 31, 2011 Signed: “Justice R. Villeneuve”