Karatopis v. Ontario (Chief Firearms Officer), 2014 ONCJ 687

COURT FILE NO.: St. Catharines - 2111-998-13-S0888-00 DATE: 2014·12·15 Citation: Karatopis v. Ontario (Chief Firearms Officer) , 2014 ONCJ 687 ONTARIO COURT OF JUSTICE BETWEEN: STEFANOS KARATOPIS Applicant — AND — CHIEF FIREARMS OFFICER OF ONTARIO Respondent Before Justice D.A. Harris Heard March 17, 20 and 21, 2014; July 28, 2014; September 29, 2014 Reasons for Judgment released December 15, 2014 C. Du Vernet and C. McGoogan ...................................................... counsel for Applicant J.

Strecansky ................................................................................... counsel for Respondent REASONS FOR JUDGMENT HARRIS J.: INTRODUCTION [ 1 ] On February 14, 2013 firearms officer Tony Furness revoked Stefanos Karatopis’ Licence to Possess and Acquire Firearms pursuant to

section 70 of the Firearms Act [1] . [ 2 ] Mr. Karatopis then referred the matter to the Ontario Court of Justice pursuant to

section 74 of the Firearms Act and applied for an order pursuant to

section 76 of the Act cancelling that revocation of his licence. [ 3 ] I heard evidence over four days during this reference. The firearms officer Tony Furness and Police Constables Lisa Isherwood and Richard Feor testified on behalf of the Respondent, although it appeared that they were called to testify at the request of the Applicant. Mr. Karatopis and Sandra Sherman testified on behalf of the Applicant.

Between them, the parties produced 29 exhibits [2] which were entered into evidence. [ 4 ] I propose to review the law governing decisions by a firearms officer, the law regarding this reference, the issues raised by counsel for the Applicant and finally, an analysis of those issues and the evidence that was placed before me. THE LAW GOVERNING THE CHIEF FIREARMS OFFICER [ 5 ]

Section 70 of the Firearms Act states: 70.

(1) A chief firearms officer may revoke a licence, an authorization to carry or an authorization to transport for any good and sufficient reason including, without limiting the generality of the foregoing, (

a) where the holder of the licence or authorization

(

i) is no longer or never was eligible to hold the licence or authorization, (ii) contravenes any condition attached to the licence or authorization, or (iii) has been convicted or discharged under

section 730 of the Criminal Code of an offence referred to in paragraph 5(2) (a); or (

b) where, in the case of a business, a person who stands in a prescribed relationship to the business has been convicted or discharged under

section 730 of the Criminal Code of any such offence. [ 6 ]

Section 99 of the Firearms Act states: A chief firearms officer may designate a firearms officer to perform any of the duties and functions of the chief firearms officer under the Firearms Act or the Criminal Code . [3] [ 7 ] In order to determine if a person is no longer or never was eligible to hold the licence, it is necessary to refer to

section 5 of the Firearms Act . The relevant parts of that

section state: 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 person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.

(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under

section 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), or (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 ; (

b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part 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 ] The language used in

section 111 of the Criminal Code (dealing with an application for a firearms prohibition order) [4] and the language used in

section 117.05 (dealing with an application for forfeiture of firearms) [5] are both very similar to that used in section 5(1) of the Firearms Act . For this reason, previous court decisions dealing with any one of these three provisions are relevant in determining the test to be applied. [ 9 ] In R. v.

Morgan , Fairgrieve J. stated that In my view, it is not necessary that the Crown prove the likelihood that the respondent will use his firearms or weapons in a dangerous way. … [I]t is sufficient that there be a legitimate concern that the respondent lacks the responsibility and discipline the law requires of gun owners. [6] [ 10 ] This test has been adopted in numerous cases in Ontario and may be viewed as settled law here. [7] [ 11 ] In determining this issue, it must always be kept in mind that the Supreme Court of Canada has stated that the ownership, possession or use of firearms in Canada is not a right, but a privilege. [8] [ 12 ] The Supreme Court of Canada has also said that the Firearms Act “in ‘pith and substance’ is directed to enhancing public

safety by controlling access to firearms through prohibitions and penalties”. [9] Guns are restricted because they are dangerous. [10] All guns are capable of killing or maiming.

It follows that all guns pose a threat to public safety. [11] The Act addresses those aspects of gun control which relate to the dangerous nature of firearms and the need to reduce misuse. [12] The Firearms Act is a valid exercise of Parliament’s jurisdiction over criminal law. [13] [ 13 ] The Supreme Court of Canada also made it clear that these comments apply equally to a provincial court judge hearing a reference from a decision by a firearms officer, saying that “The courts will interpret the words ‘good and sufficient reason’ … in line with the public safety purpose of the Act, ensuring that the exercise of discretion by the chief firearms officer … is always wed to that purpose.” [14] [ 14 ] There are conflicting decisions by the Superior Court of Justice in Ontario on the issue of whether a firearms officer or a judge can consider evidence of events that occurred outside the five-year period specified in section 5(2) of the Firearms Act .

There is no Ontario Court of Appeal authority on the point. [ 15 ] In R. v. D.L.B., supra, Durno J. said that section 5(2) restricts the chief firearms officer and provincial court judges to a consideration of those incidents within five years of the decisions to revoke. [15] [ 16 ] In R. v. Curtis, supra, Dawson J. reached the opposite conclusion and held that the mandatory consideration of events falling within the five-year window did not preclude a permissive consideration of the same factors present outside the five-year period.

He rejected the argument that Parliament did not contemplate a more extensive inquiry because “people change over time.” In his view, courts and firearms officers can consider such evidence and, in appropriate circumstances, assign diminished weight to it. [16] [ 17 ] The view of Dawson J. in Curtis, supra has been adopted in a clear majority of the Ontario cases decided since then . [17] [ 18 ] None of these cases were referred to by counsel for Mr. Karatopis in either his written or oral submissions. He referred to only one case ( R. v.

Q.(R.) [18] , which was decided by Renaud J. of the Ontario Court of Justice prior to any of the above decisions being released) citing it as authority for the position that only criminal records falling within the preceding five years could be considered. [ 19 ] I agree with Justice Dawson’s decision in Curtis, supra and find that there is no reason why evidence that must be considered if it is within five years must be excluded if it is outside that timeframe.

This seems to be an artificial restriction that is not in keeping with the emphasis on public safety that is paramount in section 5(1) . [ 20 ] As Beaudoin J. stated in R. v. Davidson, supra : … the

interpretation of Dawson J. in Curtis is more consistent with the overall purpose and scheme of the Firearms Act in promoting and protecting public safety. The statutory regime grants firearms officials and reference judges with a vast amount of discretion to revoke or deny firearms licences. They may revoke firearms licences for any "good and sufficient reason" and may refuse to grant a licence when in the "interests of safety". This broad discretion is necessary given the wide range of possible circumstances that may arise in a given case. An

interpretation of the Act which hinders the exercise of this discretion by imposing temporal limits on the consideration of evidence flies in the face of the Act's purpose and could result in harmful and tragic consequences. [19] [ 21 ] I am satisfied that section 5(2) of the Firearms Act is not an exhaustive list. [20] [ 22 ] There is a requirement of procedural fairness on the part of the firearms officer as he is making a determination. It must be stressed however that the firearms officer investigates and makes a determination. He does not conduct a hearing.

He does not have to provide every piece of information to the person being investigated. In fact that person might not need to be involved in any way prior to the decision being made. That determination must be made on a case by case basis. The contents of the duty of fairness will depend on the context in each case. [21] [ 23 ] Both a firearms officer making a determination, and a judge, either hearing an initial application or upon a reference, may consider information that may not be admissible under the ordinary rules of evidence. Hearsay evidence, for example, is admissible.

Any frailties in the evidence should be considered in determining the weight to be given to the evidence. [22] THE LAW GOVERNING A REFERENCE TO THE ONTARIO COURT OF JUSTICE [ 24 ]

Section 74 of the Firearms Act permits anyone whose licence has been revoked to refer the matter to the Ontario Court of Justice. [ 25 ]

Section 75 sets out the procedure to be followed in a reference: 75.

(1) On receipt of a reference under

section 74 , the provincial court judge shall fix a date for the hearing of the reference and direct that notice of the hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or holder of the licence, registration certificate, authorization or approval, in such manner as the provincial court judge may specify.

(2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.

(3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.

(4) A provincial court judge may proceed ex parte to hear and determine a reference in the absence of the applicant or holder in the same circumstances as those in which a

summary conviction court may, under

Part XXVII of the Criminal Code , proceed with a trial in the absence of the defendant. [ 26 ]

Section 76 then sets out the options open to the judge hearing the reference: 76. On the hearing of a reference, the provincial court judge may, by order, (

a) confirm the decision of the chief firearms officer, Registrar or provincial minister; (

b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or (

c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under

section 67. [ 27 ] The burden of proof on the Applicant referred to in section 75(3) is on the balance of probabilities. [23] [ 28 ] In Ontario, the applicable standard of review precludes the reviewing court from interfering with the decision referred for review unless that decision was “clearly wrong”. [24] [ 29 ] Slatter J. of the Alberta Court of Queen’s Bench stated in Pogson v.

Alberta (Chief Firearms Officer) that while the reference process is not a hearing de novo , neither is it a pure appeal. [25] Finally, it is not directly analogous to judicial review. [26] “It seems therefore that the reference process is somewhat sui generis .” [27] [ 30 ] Slatter J. went on to state: 41. Where the evidence before the provincial court judge is substantially the same as the evidence before the firearms officer, then the standard of review should be reasonableness simpliciter.

As was stated in Southam, supra , at paras. 27 and 28, the applicant must show that the firearms officer was "clearly wrong". The provincial court judge is not entitled to reverse the decision simply because he or she would have arrived at a different conclusion. Merely because the provincial court judge would give different weight to some of the evidence, or would balance the public safety considerations differently, does not justify interference.

But where, as Southam notes, there exists a serious defect in the evidentiary foundation of the decision, or a defect in the logical processes used by the firearms officer, that would justify interference if the overall effect was to show that the decision was unreasonable. However, if the evidence generally supports the factual assumptions of the firearms officer, and his reasoning is reasonable, no interference is justified. 42.

On the other hand, where the provincial court judge has before him or her significant and meaningful evidence that was not before the firearms officer, or the evidence on the reference shows that the factual assumptions of the firearms officer were clearly wrong, a different process is called for. That significant and meaningful evidence might be evidence that was simply not before the firearms officer, or it might relate to events that have occurred or circumstances that changed after the initial decision was made. In cases of "new evidence" a two-stage process is called for: (

a) since the reference is not a hearing de novo , the provincial court judge should still examine the decision of the firearms officer, to see if it was reasonable based on the evidence that was before the firearms officer. If the decision was reasonable, some deference should still be given to it. (

b) The provincial court judge should then examine the new evidence to see whether it is significant enough to undermine the factual assumptions or inferences drawn by the firearms officer. If so, the provincial court judge would be entitled to interfere even if the decision, as originally made, was reasonable. Of course the mere fact that the record discloses grounds for interfering with the decision of the firearms officer does not necessarily mean that the provincial court judge should simply substitute his or her opinion for that of the firearms officer.

In many cases it will be appropriate to refer the matter back to the firearms officer for reconsideration.

This would particularly be the case when changed circumstances are alleged, and particularly where the firearms officer has not had a fair opportunity at the reference hearing to marshal evidence that might rebut the suggestion of changed circumstances . [28] [ 31 ] This approach has been adopted in several cases before the Ontario Court of Justice. [29] However, at least two judges in that court have declined to follow this, and decided that the standard of review is reasonableness. [30] [ 32 ] Both counsel here adopted the approach proposed in Pogson . [31]

[ 33 ] I too accept that where the evidence before me is substantially the same as the evidence before the firearms officer, then the standard of review should be reasonableness simpliciter and the applicant must show that the firearms officer was "clearly wrong". [ 34 ] If I am satisfied that the firearms officer was not clearly wrong, I should then examine the new evidence to see whether it is significant enough to undermine the factual assumptions or inferences drawn by the firearms officer. If so, I will be entitled to interfere even if the decision, as originally made, was reasonable.

THE ISSUES RAISED BY THE APPLICANT [ 35 ] Counsel for Mr. Karatopis argued that the original decision by the firearms officer was not reasonable. [ 36 ] He argued further that the evidence presented at the reference showed that there had been incomplete, inaccurate and untrue information before the firearms officer, which further undermined his decision . [ 37 ] With respect to the original decision, counsel argued more particularly that the firearms officer: 1. Gave weight to irrelevant evidence; 2. Engaged in unbridled speculation; 3. Drew adverse inferences which were not supported by the evidence; and 4.

Exhibited prejudice against Mr. Karatopis. [ 38 ] With respect to the evidence before me, counsel argued that it overwhelmingly reinforced his submission that the firearms officer’s decision was unreasonable. ANALYSIS THE CASE BEFORE THE FIREARMS OFFICER [ 39 ] The firearms officer set out his specific reasons for the decision to revoke Mr. Karatopis’ firearms licence as follows: You have a criminal record dating back to 1989.

You have had a number of charges for such things as assault, fail to comply with recognizance, fail to comply with undertaking and four charges of criminal harassment withdrawn for various reasons. I have read over 70 incident reports written by various officers of the Niagara Regional Police Service. You have been involved in a bitter feud with your cousin for many years in which you both have demonstrated some very questionable behaviour. I am very concerned with the fact that you have faced four charges of criminal harassment, two in 2008 and now again, much more seriously in my view in 2012.

You received a one-year common-law peace bond in 2009 with a condition not to possess any weapons for a period of one year for the original two criminal harassment charges. However due to the fact that the complainant in the most recent allegation of criminal harassment, Carol Elliott, recanted her statements to the police the Crown was forced, once again, to accept a plea bargain. Once again you received a one-year common-law peace bond, only this time without a condition not to own or possess any weapons, which I believe was a serious oversight.

The fact that the complainant recanted her statement does not mean that it did not happen. In fact I have reviewed some of the emails you sent to her, that were provided to police prior to her recanting. I found your ramblings to be erratic and unsettling leading me to believe that your obsession with Carol Elliott was an unhealthy one. You are a calculating individual that will do anything to manipulate the people around you. This was borne out when you made a half- hearted attempt to hang yourself in order to make Elliott feel guilty about the split and hopefully get back together with you.

This type of behaviour also, in my mind, brings your mental stability into question. You sent huge numbers of emails and texts over a three week period and Elliott described you as becoming more controlling and starting to act out in alarming ways. One of the more rambling text demands that Elliott listen to the lyrics from an Eminem (rap artist) song where a male stalks an ex-girlfriend, shooting and killing the ex-girlfriend before he turns the gun on himself. You indicate many times that you want Elliott to kill you as you have nothing to live for as a result of the failed relationship.

As a result of this particular email my concerns for public safety escalated. Over the years you have demonstrated that you are unpredictable which makes you volatile one minute and desperate the next. It is this escalating history of aggressive and sometimes irrational behaviour that concerns me greatly with regards to the risk of public safety. You have run the gamut from simply being aggressive, to threatening, to assaultive and most recently to being irrational and threatening.

In this latest development you verbally berated a PCL employee under contract with Niagara Region to survey old electrical poles in the area, by screaming “what the fuck you doing here, get the fuck off my property”. You were extremely upset and approached him in a threatening manner. When police arrived you were irrational and demanded that the police arrest the worker but it was determined he was simply trying to do his job.

Any one of these incidents looked at individually would not appear to be that significant but taken in their totality there is an intensified risk to public safety that needs to be dealt with. Your overall conduct is concerning since police are involved repeatedly and others are in fear of their safety. As a result, I have determined that there is a significant risk to public safety and I am revoking your firearms licence . [32]

[ 40 ] Counsel argued that the firearms officer gave weight to irrelevant evidence. [ 41 ] More particularly, counsel argued that the firearms officer considered Mr. Karatopis’ previous criminal record and that it was improper to have done so since that record was more than five years old. [ 42 ] I agree that the firearms officer did consider the record. For the reasons discussed earlier [33] I disagree with the submission that he could not do so where the record was more than five years old.

It was proper for the firearms officer to consider the record subject to the need to consider its age in determining what weight it should be given. [ 43 ] Counsel argued that the firearms officer had considered police reports that were not relevant to Mr. Karatopis but rather referred to his cousin Paul Antoniou. [ 44 ] I agree that the firearms officer considered such reports. I disagree with the suggestion that they were irrelevant. They were extremely relevant to a complete understanding of the relationship between Mr. Karatopis and his cousin.

This was part of the factual basis for the firearms officer’s statement in his Reasons for Revocation of a Licence that “You have been involved in a bitter feud with your cousin for many years in which you both have demonstrated some very questionable behaviour.” [ 45 ] I also agree with the firearms officer’s assessment of the relationship between Mr.

Karatopis and his cousin and also note that the two antagonists lived very close to one another. [ 46 ] Counsel argued that the firearms officer gave weight to undiagnosed mental health issues despite the fact that no mental health professional had been consulted. [ 47 ] I note and emphasize the word “undiagnosed”. The firearms officer was aware that none of the sources of his information were qualified mental health professionals.

None of them purported to make a “diagnosis”. [ 48 ] Constable Feor stated in an email appended to the decision of the firearms officer that “As a police officer, I have dealt with countless personality types and cultures. Mr. Karatopis displayed numerous traits that subjects with a mental health disorder typically have”. [34] [ 49 ] I am satisfied that he was qualified to make that observation. [ 50 ] Constable Isherwood stated that Mr.

Karatopis “appears to have exhibited irrational and paranoid behaviour which could be due to unresolved mental health issues.” [35] [ 51 ] However, she preceded that with “I do not know if Mr. Karatopis has been diagnosed with any type of mental health issue” but “[f]rom the reports, I understand that he is alleged to have stated that he has been depressed and attempted suicide after a girlfriend broke up with him.” [36] [ 52 ] Constable Isherwood provided the following explanation for her belief that Mr.

Karatopis had exhibited paranoid behaviour: His car is alleged to be outfitted with cameras, and it is alleged he records people with his cell phone during any interactions. He is reported as having unprovoked verbal confrontations with people he suspects are not acting in his best interest. [37] [ 53 ] She further noted that after reporting to the police that a female was blackmailing him for sex: He refused to give a videotaped statement or consents to police looking at his computer to view the numerous emails and texts that he allegedly received.

He eventually provided a limited number of messages from the female, one of which stated “u started this with a bullet between my eyes, remember’. I interpreted this as something that Mr. Karatopis previously said to the female. [38] [ 54 ] Constable Feor also described Mr. Karatopis as displaying “a paranoid, anti-police state of mind”.

He elaborated stating “As I stood present with the complainant speaking to Karatopis by telephone, he repeatedly stated ‘You’re trying to be a tough guy because she’s right there, eh?’ … He was both ignorant and immature during even basic conversation”. [39] [ 55 ] I do not take the comments of Constables Feor and Isherwood as being attempts at a psychiatric diagnosis. I see the police officers to be using the word “paranoid” in the same way that any other lay person might. [ 56 ] The Oxford Canadian Dictionary includes two

definitions of “paranoia” being: (1) “a mental illness characterized by delusions of persecution, unwanted jealousy, or exaggerated self-importance” and (2) “a tendency to suspect and distrust others or to believe oneself unfairly used.” [40] [ 57 ] There is a clear distinction between these two

definitions. Only a qualified mental health professional should be allowed to express an opinion that a person suffers from any mental illness, including paranoia. On the other hand, lay people can and often do refer to someone being “paranoid” in the sense that he tends to suspect and distrust others or to believe himself unfairly used. [ 58 ] I have no difficulty at all with the two police officers using the word “paranoid” in that sense in reference to Mr. Karatopis.

Nor do I have any difficulty with them questioning his mental health so long as they set out, as they did, the basis for their beliefs. [ 59 ] I do note that the firearms officer did not use the word “paranoid”, nor did he conclude that Mr. Karatopis was mentally ill. He said that Mr. Karatopis’ behaviour “brings [his] mental stability into question”. He was qualified to reach that conclusion. [ 60 ] Quite frankly, in light of the fact that the information before the firearms officer included the allegation that Mr.

Karatopis had tried to kill himself because of emotional distress, I find that this conclusion was an eminently reasonable one.

[ 61 ] Counsel argued that there was no evidence before the firearms officer that Mr. Karatopis had ever been accused of or found to have misused firearms, or that he stored them improperly or that he ever threatened to do any of these things. [ 62 ] That argument is correct. It ignores, however, the fact that it was not necessary that the firearms officer be satisfied that it was likely that Mr. Karatopis would use his firearms or weapons in a dangerous way.

On the contrary, it was “sufficient that there be a legitimate concern that [he] lacks the responsibility and discipline the law requires of gun owners.” [41] [ 63 ] There was much before the firearms officer to support such a concern here. [ 64 ] I saw nothing in the reasons of the firearms officer to support the allegation that he either engaged in unbridled speculation or drew adverse inferences which were not supported by the evidence. [ 65 ] Counsel’s argument with respect to these allegations relied upon evidence that was before me but not before the firearms officer.

Accordingly, I will address these issues later. [ 66 ] I must note that I am not comfortable with the comment in the reasons of the firearms officer that “The fact that the complainant recanted her statement does not mean that it did not happen.” My concerns are lessened here however where the firearms officer had considerable documentary evidence before him indicating that something untoward had in fact happened even if it did not constitute the criminal offence originally charged. [ 67 ] Counsel argued that the firearms officer was prejudiced against Mr. Karatopis.

He provided no evidence to support this allegation. Instead, he relied upon circular reasoning. The firearms officer made an unreasonable finding against Mr. Karatopis, therefore he must have been prejudiced against Mr. Karatopis which is then relied upon as support for the argument that the firearms officer’s decision was unreasonable, and round and round it goes. [ 68 ] Counsel argued that rather than obtaining input from Mr. Karatopis, the firearms officer had presumed what Mr. Karatopis would say and then rejected that explanation. The firearms officer had however presumed that Mr.

Karatopis would deny any allegations made against him. In fact, Mr. Karatopis did just that when he testified before me. It was open to the firearms officer to accept the allegations against Mr. Karatopis based on the strength of the case placed before him, just as it was open for me to do so. [ 69 ] In the circumstances of this case, I saw no error in the decision of the firearms officer to neither interview Mr.

Karatopis or ask for his input prior to making a decision. [ 70 ] Counsel made much of the fact that firearms officer Furness was the area firearms officer for Hamilton rather than for Niagara and suggested that this somehow impugned his independence. I fail to see his point in that regard. Mr. Karatopis had sued the Niagara Regional Police. He had included the Niagara firearms officer Detective Angelo Blancato personally as a defendant in one of his lawsuits. [42] He had complained about the alleged failure of the Niagara Regional Police to respond to his complaints. The relationship between Mr.

Karatopis and the Niagara Regional Police was clearly not an amicable one. Any reasonable person would have concluded that the Niagara Regional Police had recruited an outside firearms officer instead of using their own in order to ensure that there could be no suggestion that the firearms officer in this case was prejudiced against Mr. Karatopis. [43] [ 71 ] I am satisfied that there was and is no evidence that the firearms officer was prejudiced against Mr. Karatopis in any way. [ 72 ] To summarize, the case before the firearms officer included, amongst other things, the following. [ 73 ] Mr.

Karatopis had a criminal record. The most recent conviction was more than 20 years old. Not much weight should have been given to the record in light of its age. However, Mr. Karatopis was charged with criminal harassment in 2008 and in 2012. These charges did not result in convictions but did lead to “peace bonds” on both occasions. That was two more “peace bonds” than most people enter into in a lifetime. [ 74 ] Mr. Karatopis sent numerous emails and texts over a three week period to his girlfriend, Ms. Elliott.

One text demanded that she listen to the lyrics from an Eminem (rap artist) song where a male stalks an ex-girlfriend, shoots and kills the ex-girlfriend, and then turns the gun on himself. [ 75 ] He had her informed that he had attempted to hang himself. [ 76 ] He had been involved in a bitter feud with his cousin for many years in which both of them demonstrated some very questionable behaviour. [ 77 ] He had behaved in an irrational and threatening fashion when dealing with others including the Niagara Regional Police and a PCL employee under contract with the Niagara Region to survey old electrical poles in the area. [ 78 ] The firearms officer considered all of these facts cumulatively, as he should have, and concluded that he was legitimately concerned that Mr.

Karatopis lacked the responsibility and discipline the law requires of gun owners. [ 79 ] The decision of the firearms officer was clearly reasonable. He was not wrong in his decision. THE CASE ON THE REFERENCE [ 80 ] Counsel for Mr. Karatopis has argued that the evidence introduced on this reference greatly undermined the decision of the firearms officer. [ 81 ] I propose to address his specific arguments with respect to the evidence as it came out from the specific witnesses. Tony Furness

[ 82 ] Counsel argued that the first set of criminal harassment charges were not withdrawn against Mr. Karatopis as stated by the firearms officer but were in fact dismissed. [ 83 ] He is correct in that but in the particular circumstances of this case, I find that this is a distinction without a difference. [ 84 ] First of all, the presumption of innocence remained in effect whether the charges were dismissed or withdrawn. [ 85 ] Secondly, the complainants in the case where the charges were dismissed were the cousin Paul Antoniou and his domestic partner. Whether Mr.

Karatopis criminally harassed them or not, there was still ample evidence for the firearms officer’s finding that “You have been involved in a bitter feud with your cousin for many years in which you both have demonstrated some very questionable behaviour.” [ 86 ] Justice Nadel expressed a similar sentiment in his decision to dismiss the charge where he stated, “As a result of feeling unjustly abused by his cousin, actually on both sides, each side apparently feels that way, each may have over read and over complained about the conduct of the other.” [44] [ 87 ] Finally, while Justice Nadel found Mr.

Karatopis not guilty of criminal harassment, he did order him to enter into a “peace bond” recognizance for a year. One term of that recognizance prohibited Mr. Karatopis from possessing any firearms. Justice Nadel stated his reasons for doing this as follows: However, this is a family, indeed neighbours in discord and dispute. There is a history of complaint and apparently cross-complaint. This community should be afforded some peace from their bickering. Today, I can only control Mr. Karatopis. On another occasion, in another circumstance, it may be that the complementary order will be made against Mr.

Antoniou. But for today’s purposes, I conclude that I must exercise my common law jurisdiction to keep the peace in this community by binding Mr. Karatopis over on a Common Law Peace Bond which is not a conviction and not a finding of guilty, but rather an attempt, by me, using the authority that I am entitled to exercise to try to keep these cousins apart. [45] [ 88 ] As the firearms officer observed in his evidence before me, this “peace bond” which included a condition not to possess firearms, should, in and of itself, have been a red flag to anyone who had to decide whether Mr.

Karatopis should continue to be licensed to possess firearms. [46] [ 89 ] If that was the case, the second “peace bond” entered into only three and a half years later should have set off even louder alarm bells, even when it did not include a condition prohibiting the possession of firearms.

As I stated earlier, two “peace bonds” are two more than most people enter into in a lifetime. [ 90 ] Counsel argued that as the Respondent had not introduced into evidence at the reference the numerous emails referred to in the reasons of the firearms officer, I should not be satisfied that they existed or that they said what they were purported to say. [ 91 ] I note however that the onus is on the Applicant to bring forward any favourable evidence at a reference. [47] It was up to Mr.

Karatopis to arrange for the emails to be put before me if he wished to argue that they did not support the decision of the firearms officer. Constable Richard Feor [ 92 ] Counsel argued that any information that had been provided by Constable Feor should now be rejected on the basis that Constable Feor’s evidence was not consistent with a recording of a conversation between him and Mr. Karatopis.

He argued that Constable Feor had lied in his report to the firearms officer and in his evidence before me. [ 93 ] I disagree. [ 94 ] The recorded conversation [48] was inconsistent with Constable Feor’s evidence. [ 95 ] Mr. Karatopis said that the recording was complete and accurate. Constable Feor however disagreed with that suggestion. [ 96 ] As I noted above, the onus is on Mr. Karatopis to prove his case in this reference. [49] That would include proving the accuracy of the recording. On this issue, I am not prepared to accept his word over that of Constable Feor.

In fact, for reasons I will set out more fully later, I am not prepared to accept his word over that of pretty much anyone else. I am on the other hand prepared to accept that Mr. Karatopis was capable of having altered the recording in some way.

Constable Lisa Isherwood [ 97 ] Counsel argued that Constable Isherwood tailored her evidence in this proceeding to avoid injuring her employer’s position in the civil proceeding against the Niagara Regional Police. [ 98 ] He based this argument on the fact that her initial statement to the firearms officer had been reviewed by the lawyer defending the Niagara Regional Police in the lawsuit brought by Mr.

Karatopis and that she had revised her statement after receiving his advice. [ 99 ] I have reviewed both statements [50] and do not find them to be different to anywhere near the degree suggested by counsel for Mr. Karatopis. In addition, I would not characterize the contents of the revised statement as working to the detriment of Mr. Karatopis. If anything, the contents of that statement had the opposite effect. [ 100 ] For example, the revised statement included the sentence “By way of full disclosure, you should be aware that I am a

named defendant in a civil claim commenced by Mr. Karatopis against myself and the Service”. [51] [ 101 ] This was incorrect as she was not a named defendant, but the more important fact here is that her declaration should have alerted any reader to the possibility that Constable Isherwood might be personally biased in her view of Mr. Karatopis.

That would not benefit the Niagara Regional Police in any way. [ 102 ] I am satisfied that there was no improper purpose behind Constable Isherwood submitting her statement to civil counsel. [ 103 ] Constable Isherwood made no effort to hide the fact that she had submitted her statement to counsel before forwarding the final version to the firearms officer. [ 104 ] Before me, she answered the questions that were asked of her in what appeared to be a candid and fair fashion. For example, she admitted quite freely that she had very limited contact with Mr.

Karatopis and that she had no medical or psychiatric qualifications. [ 105 ] I saw nothing that would support the allegation that she had tailored her evidence in this proceeding to avoid injuring her employer’s position in the civil proceeding. [ 106 ] I saw nothing that would support an allegation that she had tailored her evidence in any way at all. Dr. Mark Pearce [ 107 ] Counsel argued that the report from Dr. Pearce put to rest any suggestion that Mr.

Karatopis suffered from a mental illness. [ 108 ] This was correct but overlooks certain facts. [ 109 ] First of all, as I stated earlier, the firearms officer never concluded that Mr. Karatopis was mentally ill. He only found that Mr. Karatopis’ behaviour “brings [his] mental stability into question”. The firearms officer was justified in reaching that conclusion based on the information that he had before him. [ 110 ] Secondly, while the report of Dr. Pearce does conclude that Mr. Karatopis does not suffer from a major mental illness, it does not work entirely to Mr.

Karatopis’ benefit. [ 111 ] The pertinent parts of the report state that: Based on my interview with Mr. Karatopis, and the collateral information reviewed, it is not my opinion that this gentleman suffers from a major mental illness. He has not experienced significant mood, anxiety or psychotic symptoms and he has not required psychiatric care. While he may have abused alcohol several decades ago, there has been no suggestion of alcohol or other substance misuse as of late. …. Mr. Karatopis is the product of a stable family of origin.

He was not conduct disordered as a youth and he was able to matriculate from high school and even attend college. While he incurred criminal charges and convictions during his late adolescence and/or early 20s, he has not been convicted of a criminal offence in over 20 years. Interpersonally, Mr. Karatopis presents as mildly grandiose and a Judge has noted that he fails to accept responsibility for his actions. He can be manipulative at times and/or insensitive, at least in the context of intimate relationships.

I note that he cohabited very rapidly with two prior partners and that certain relationships may have been intense or unstable. However, this gentleman has otherwise maintained meaningful relationships and he remains close with family members. He has seemingly been able to maintain gainful employment and he has been involved in municipal politics and various landowner associations. Overall, and while he likely harbours certain narcissistic personality traits, I cannot conclude that he meets full criteria for a personality disorder.

Individuals with narcissistic personality traits present with a pattern of grandiose sense of self-importance, a sense of entitlement, as somewhat interpersonally exploitative, and as lacking empathy. In conclusion, this gentleman does not suffer from a major mental illness or a substance use disorder.

He does not meet full criteria for a diagnosis of a personality disorder . [52] [ 112 ] Quite frankly, I do not think that anyone who “likely” presents “with a pattern of grandiose sense of self-importance, a sense of entitlement, as somewhat interpersonally exploitative, and as lacking empathy” possesses the degree of responsibility and discipline that the law requires of gun owners. [ 113 ] I also recognize a particular weakness in the report itself, being that Dr. Pearce relied upon information reported by Mr. Karatopis himself. [ 114 ] I will now address the issue of Mr. Karatopis’ credibility.

Stefanos Karatopis [ 115 ] Counsel argued that I should accept the evidence of Mr. Karatopis whenever that evidence conflicted with that of another witness. [ 116 ] I am not prepared to do so.

[ 117 ] Mr. Karatopis was not a credible witness. [ 118 ] His evidence made it clear that there was and is a poor relationship between him and the Niagara Regional Police. [ 119 ] Mr. Karatopis sued them twice. [ 120 ] He wrote to M.P.P. Jack MacLaren [53] to complain that the Niagara Regional Police had neglected their duties when they did not lay charges against his cousin for what Mr. Karatopis believed to be very serious offences. [ 121 ] He accused the police of possibly recording a conversation with him. [ 122 ] He then recorded that conversation himself.

He did not tell Constable Feor that he was doing so. [54] [ 123 ] He stated during his examination-in-chief that he did not trust the Niagara Regional Police because of difficulties he had been having with them starting from about 2008. [55] [ 124 ] During cross-examination, he backed away from this, saying “it’s not that I don’t trust them, I’ve had difficulties with them, and they’re continuing”. [56] [ 125 ] Later during cross-examination, he reversed course again and stated that he had no trust in the police force at all. [57] [ 126 ] He stated that he recorded the conversation with Constable Feor because of the difficulties he was having with the police. [58] [ 127 ] During his examination-in-chief he also expressed the opinion that the Niagara Regional Police Service was a corrupt service.

He based this opinion on news reports of court cases where members of the police service were involved in cheese smuggling, drug smuggling, steroid smuggling and, finally, even leaking information to the Hells Angels. [59] [ 128 ] I am aware of most of the cases he referred to and know that they did in fact occur. I do find it telling though that where many people might see these corrupt police officers as being a few rotten apples, Mr.

Karatopis chose to see them as proof that the whole Niagara Regional Police Service was corrupt. [ 129 ] After the Niagara Regional Police did not charge his cousin with anything, but did charge Mr. Karatopis, Mr. Karatopis sued the cousin and others for malicious prosecution. [ 130 ] Justice Walters of the Ontario Superior Court of Justice presided over the ensuing trial. She found much of the testimony of the parties to be not credible and more particularly found that Mr.

Karatopis had exaggerated and over-inflated the alleged inappropriate conduct engaged in by the defendants. [60] [ 131 ] When confronted with parts of Justice Walters’ Reasons for Judgment Mr. Karatopis quite unrepentantly replied “That is under appeal right now”. [61] [ 132 ] The Ontario Court of Appeal however dismissed that appeal two weeks later. [62] When confronted with that fact on the next day that he testified, Mr. Karatopis responded that: now that you bring that up, I do believe they found what I appealed on was correct, but it was just that you cannot appeal on credibility or something like that.

So I didn’t meet that test because she had ruled on credibility. So, they upheld it, of course. [63] [ 133 ] The Court of Appeal did rule that Justice Walters’ decision was entitled to deference but did not find that what Mr. Karatopis appealed on was correct. [64] [ 134 ] In fact the Court of Appeal quoted from p. 13 of Justice Walters’ reasons, where she had found: In considering those three circumstances, I am satisfied that with respect to the first circumstance, I’m not satisfied that the defendants desired or intended that the plaintiff be prosecuted.

Instead, after being the subject themselves of a number of unfound police attendances, complaints to the fire department, complaints to the Humane Society and appeals to OMB, the defendants just wanted the behaviour of the plaintiff to stop. [65] [ 135 ] The next paragraph in the appeal endorsement stated that “We do not accept the submission that the trial judge misapprehended the evidence in reaching this conclusion.” [66] [ 136 ] Mr. Karatopis also misrepresented what happened when he entered into a “peace bond” before Justice Kerrigan- Brownridge of the Ontario Court of Justice at St.

Catharines on July 23, 2012. [ 137 ] In his evidence, Mr. Karatopis said that “Before I did accept the offer, I asked Her Honour at that point, that if there was, if, if me accepting the offer insinuated that I was guilty in any event and I was told no, it did not”. [67] [ 138 ] None of this is contained in the transcript of the proceedings before Justice Kerrigan-Brownridge. [68] [ 139 ] When questioned about this during his cross-examination, Mr.

Karatopis repeated that “I asked Her Honour that, if it implied guilt in any way, and she told me no, it did not, and that saved me expenses and is not guilt.” Crown counsel then asked him if that was done on the record in the courtroom and Mr. Karatopis answered that “I don’t know if they were doing that before that or, or when the record started”. [69] [ 140 ] As I said before, the record discloses no such conversation. It makes it clear as well that the case was called for the first

time just before the “peace bond” proceedings began. Finally, I am prepared to take judicial notice of the fact that judges in the Ontario Court of Justice in Niagara do not engage in conversations of the sort described by Mr. Karatopis other than on the record. [ 141 ] Based on all of the above, I am satisfied that Mr.

Karatopis continually refuses to take “no” as an answer from anyone, and especially from the Niagara Regional Police. [ 142 ] It was apparent to me that he still did not accept the “no” that had come from Justice Walters. [ 143 ] He also minimizes the import of proceedings such as those where he entered into the peace bond before Justice Kerrigan- Brownridge. [ 144 ] All of this is quite consistent with him alleging, through his counsel, that the firearms officer was prejudiced against him, and that Constable Isherwood tailored her evidence in this proceeding to avoid injuring her employer’s position in the civil proceeding, and that Constable Feor had lied in his written statement and in his evidence before me. [ 145 ] It is also consistent with the fact that when he was accused of offending against his cousin, he responded by not just denying guilt, but by accusing his cousin of offending against him. [ 146 ] Similarly, when he was accused of offending against the PCL employee, he responded by not just denying guilt, but by accusing that man of assaulting him. [ 147 ] Also, when accused of behaving badly with Carol Elliott, he again responded by not just denying responsibility, but by accusing her of behaving badly and being responsible for their breaking up. [ 148 ] I wrote earlier that one definition of “paranoid” is one who tends to suspect and distrust others or to believe himself unfairly used. [70] [ 149 ] I still find that the word “paranoid” might be applied to Mr.

Karatopis in that sense of its meaning. [ 150 ] His every observation of anything done by anyone but especially by the Niagara Regional Police is distorted by the prism through which he looks at the world and as a result, his observations cannot be relied upon. [ 151 ] I note as well that he was often argumentative in his responses to questions asked by Crown counsel. [ 152 ] As I observed Mr. Karatopis giving evidence, I was struck by the similarities with the behaviour described by Constable Feor in his evidence. [ 153 ] I also noted instances where Mr.

Karatopis was not completely forthright in his evidence. [ 154 ] For example, his evidence in chief left me with the impression that he had been an avid hunter for much of his life starting when he was a child. [71] [ 155 ] However, during cross-examination, it came out that he had not hunted much since he was a child and not at all in the past dozen years. [72] [ 156 ] The most telling factor in assessing Mr. Karatopis’ credibility, however, is to be found in his conflicting versions of whether he had tried to kill himself or not. [ 157 ] He told Carol Elliott that he had attempted to kill himself.

In court he said that this was a lie. He only told her that to “get her to call” or to “spur a response from her, an explanation”. [73] [ 158 ] Whichever version is true, Mr. Karatopis has branded himself as a liar. [ 159 ] I cannot say that I believe him now but in any event, this evidence is devastating to his credibility. He either lied before me or else he lied to Ms. Elliott in order to get what he wanted from her.

If the latter is correct, there is no reason for me to believe that he would not lie before me in order to get what he wants here. [ 160 ] Of course, if he lied to me, then not only is his credibility questionable, so is the factual basis upon which Dr. Pearce made his diagnosis of Mr. Karatopis. [ 161 ] I am not however proceeding on the basis that Mr. Karatopis lied before me. As I stated before, I cannot say, with any degree of certainty, when he was telling the truth and when he was lying. [ 162 ] Proceeding on the basis that he lied to Ms.

Elliott in order to spur a response from her, however, I note that such action could be in keeping with the narcissistic personality traits described by Dr. Pearce. Sandra Sherman [ 163 ] Counsel argued that Mr. Karatopis’ sister, Sandra Sherman, corroborated her brother’s testimony. [ 164 ] I disagree. [ 165 ] There were many areas where she simply did not know anything about the matters she was questioned on. These included the fact that Mr.

Karatopis had a criminal record and the fact that he and his cousin, Paul Antoniou, had called the police about each other on numerous occasions or of accusing each other of criminal offences. [74]

[166] More importantly, she was the person who told Carol Elliott that Mr. Karatopis had tried to kill himself. She did thisdespite believing that this statement was a lie. She did so because she “wanted him to see what a heartless user she was”.[75] [167] Just as his lie to Ms. Elliott hurt Mr. Karatopis’ credibility, Ms. Sherman’s lie damaged hers to the point where I am notprepared to credit her testimony. CONCLUSION [168] The decision of the firearms officer was clearly reasonable.

It was, in fact, the correct decision. [169] The new evidence before me did nothing to undermine the correctness of that decision. [170] If anything, it strengthened the case against Mr. Karatopis. [171] I find that there was, and is ample reason for legitimate concern that Mr. Karatopis lacks the responsibility and disciplinethe law requires of gun owners. [172] The application is dismissed. Released: December 15, 2014 Signed: “Justice D.A. Harris” _________________________ Justice D.A. Harris CASES CITED R. v. Morgan, [1995] O.J. No. 18 (Ont. C.J.) per Fairgrieve J. R. v. Biscope, [2001] O.J. No. 628 (Ont.

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Davidson, [2011] O.J. No. 1199 (Ont. S.C.J.) per Beaudoin J. R. v. Douglas, [2013] O.J. No. 5430 (Ont. C.J.) per Green J. R. v. Wiles, 2005 SCC 84 , [2005] S.C.J. No. 53 (S.C.C.) per Charron J. Reference re: Firearms Act (Can.), 2000 SCC 31 , [2000] S.C.J. No. 31 (S.C.C.) R. v. Caruso, [2005] O.J. No. 3771 (Ont. S.C.J.) per DiTomaso J. R. v. Kyrkos, [2007] O.J. No. 5345 (Ont. C.J.) per Krelove J. R. v. Edwards, [2012] O.J. No. 5518 (Ont. C.J.) per Kenkel J. R. v. Q.(R.), 2001 CarswellOnt 1780 (Ont. C.J.) per Renaud J. R. v. Ricci, 2008 ONCJ 301; [2008] O.J. No. 2539 (Ont. C.J.) per Wake A.C.J.

Canada (Attorney General) v. Gardiner, 2013 ONSC 7878 R. v. Sekhon, 2014 SCC 15

Roncarelli v. Duplessis, 1959 Can LII 50 (S.C.C.) R. v. Donald Bachensky, an unreported decision of Gregson J. of the Ontario Court of Justice at St. Catharines on November 26, 2014. R. v. Wellheiser, [2005] O.J. No. 585 (Ont. S.C.J.) per Gordon J. Cardinal v. Kent Institution, (SCC), [1985] 2 S.C.R. 643 (S.C.C.) Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 (S.C.C.) Pogson v. Alberta (Chief Firearms Officer), [2005] A.J. No. 281 (Alta. Q.B.) per Slatter J. R. v. Zeolkowski, (SCC), [1989] S.C.J. No. 50 (S.C.C.) per Sopinka J. Messina v.

Ontario (Attorney General), [2000] O.J. No. 417 (Ont. S.C.J.) per McIsaac J. Akinwenzie v. Ontario (Chief Firearms Officer), [2001] O.J. No. 3943 (Ont. S.C.J.) per Belleghem J. R. v. Fischer, [2004] O.J. No. 3890 (Ont. S.C.J.) per Snowie J. Nikitczuk v. Ontario (Ministry of Community Safety and Correctional Services), [2006] O.J. No. 4341 (Ont. C.J.) per Nadel J. R. v. Kecala, [2009] O.J. No. 5415 (Ont. C.J.) per Beatty J. R. v. Stefanos Karatopis, an unreported decision of Nadel J. of the Ontario Court of Justice at St. Catharines on March 3, 2009. R. v.

Stefanos Karatopis, an unreported decision of Kerrigan-Brownridge J. of the Ontario Court of Justice at St. Catharines on July 23,2012. Karatopis v. Antoniou, [2014] O.J. No. 1855 (Ont.

C.A.). [4] Section 111(1) of the Criminal Code states : “A peace officer, firearms officer or chief firearms officer may apply to a provincialcourt judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibiteddevice, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chieffirearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the orderis sought or of any other person that the person against whom the order is sought should possess any such thing.” [5]Section 117.05(4) of the Criminal Code states that: “Where, following the hearing of an application made under subsection (1), thejustice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person thatthe person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any suchthing, the justice shall …” [17] R. v.

Caruso, [2005] O.J. No. 3771 (Ont. S.C.J.) per DiTomaso J. at para. 40; R. v. Kyrkos, [2007] O.J. No. 5345 (Ont. C.J.) perKrelove J. at para. 13: R. v. Spadidakis, supra at para. 63; R. v. Kecala, [2009] O.J. No. 5415 (Ont. C.J.) per Beatty J. at para. 25; R. v.Corrigan, supra at para. 37; R. v. Davidson, supra at para. 30; R. v. Edwards, [2012] O.J. No. 5518 (Ont. C.J.) per Kenkel J. at para. 7.