R. v. Tauber, 2023 BCPC 86 (CanLII)
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2023 BCPC 86 |
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Date: |
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File No: |
7095-1 |
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Registry: |
Masset |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
APPLICATION UNDER SECTION 111(1) OF THE CRIMINAL CODE
REX
v.
CLINTON DEREK TAUBER
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE D. PATTERSON
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Counsel for the Crown: |
S. Clouston |
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Appearing on his own behalf: |
Clinton Tauber |
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Place of Hearing: |
Masset, B.C. |
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Date of Hearing: |
April 26, 2023 |
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Date of Judgment: |
April 27, 2023 |
[1] THE COURT: This is my decision on a s. 111 Criminal Code application by Constable Grant Wercholuk of the Masset Royal Canadian Mounted Police (RCMP) detachment. I reserve the right to order a transcript and edit these reasons to make them grammatically correct and more reasonable, but the result and substance of my decision will not change.
I. Introduction
[2] On January 15, 2022, at approximately 2:00 p.m., officers with the Masset RCMP attended the residence of the now 44-year-old Clinton Derek Tauber in Masset, British Columbia, with a warrant to search unrelated to the subject matter of the present application.
[3] Mr. Tauber identifies as a member of the Haida Nation. He possessed a valid Canadian firearms licence, also known as a Possession and Acquisition Licence. Upon searching his house, the police located what they thought were 24 possible non-restricted firearms and four antique firearms. A great deal of what the police believed to be ammunition, much of it in calibres for rifles and other firearms not present in Mr. Tauber's house, was also located by the police. The firearms and ammunition were not stored in compliance with the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations made under s. 117(h) of the Firearms Act.
[4] The RCMP only sent three firearms to the lab for analysis for reasons not explained to the court. The RCMP also sent the ammunition they had located with the same three firearms to the lab for analysis.
[5] The certificates of analyst from the firearms lab confirmed that the firearms and ammunition were:
1. A Ruger model All Weather 77/22 bolt-action rifle in .22LR calibre with two .22LR calibre cartridges;
2. A Winchester model 1973 .44-40 Win. calibre lever action rifle with nine .44-40 Win. calibre cartridges; and
3. A Schmidt-Rubin model 1931 7.5x55mm calibre straight-pull bolt-action rifle with twenty-nine 7.5x55mm calibre cartridges.
[6] All three rifles were test-fired. All the ammunition sent to the lab for analysis met the Criminal Code definition of "ammunition." The lab confirmed that all three rifles met the Criminal Code definition of a "firearm" and "non-restricted firearm."
[7] On December 12, 2022, Constable Wercholuk, the RCMP exhibit officer, applied according to s. 111 of the Criminal Code to the court seeking an order prohibiting Mr. Tauber from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for a period of up to five years. The B.C. Prosecution Service confirmed today that they are seeking a five-year prohibition.
2. Evidence Called During The Hearing
[8] The B.C. Prosecution Service called one witness during the hearing, Constable Wercholuk. He testified that he is unfamiliar with firearms and had had no exposure to guns before becoming an RCMP officer in 2021. He also testified about the photographs and video he took of Mr. Tauber's house showing where the various firearms, antique firearms and ammunition were located. The B.C. Prosecution Service also filed a 159-page affidavit sworn by Constable Wercholuk as an exhibit, which the constable referred to during his testimony.
[9] Mr. Tauber took the stand and testified in opposition to the application. Of note, Mr. Tauber was quite knowledgeable about firearms and ammunition. He explained in detail the background and non-working condition of several guns and antique firearms that the RCMP seized from his house. He also described why the various guns and ammunition – including the three non-restricted firearms that the RCMP sent to the lab for analysis – were out in the open and not locked in a safe or otherwise stored in a manner consistent with s. 5 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations. Section 5 reads:
Storage of Non-Restricted Firearms
5(1) An individual may store a non-restricted firearm only if
(a) it is unloaded;
(b) it is
(i) rendered inoperable by means of a secure locking device,
(ii) rendered inoperable by the removal of the bolt or bolt-carrier, or
(iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and
(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.
(2) Paragraph (1)(b) does not apply to any individual who stores a non-restricted firearm temporarily if the individual reasonably requires it for the control of predators or other animals in a place where it may be discharged in accordance with all applicable Acts of Parliament and of the legislature of a province, regulations made under such Acts, and municipal by-laws.
(3) Paragraphs (1)(b) and (c) do not apply to an individual who stores a non-restricted firearm in a location that is in a remote wilderness area that is not subject to any visible or otherwise reasonably ascertainable use incompatible with hunting.
I note that s. 5 does not apply to antique firearms as set out in s. 4(5) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations.
[10] This is not a criminal trial. While the prosecution may have proved beyond a reasonable doubt that Mr. Tauber violated s. 86(1) and s. 86(2) of the Criminal Code on January 15, 2022, that is not the issue for the court to decide today. What I need to determine today is, based upon the facts as known by Constable Wercholuk and given to the court in evidence yesterday, does Constable Wercholuk currently have a subjective belief that is objectively reasonable that it is not desirable in the interests of the safety of Mr. Tauber or any other person that Mr. Tauber should possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance?
3. Analysis
Evidentiary Considerations and Proof Requirement
[11] The leading decision in Canada related to a police officer applying for an order prohibiting a person from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance or all such things remains the unanimous decision of the Supreme Court of Canada in R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378. On pages 1383 and 1384 of Zeolkowski, Justice Sopinka set out some background concerning the then s. 98 of the Criminal Code, which is now s. 111 of the Criminal Code:
Section 98 was enacted as part of the Criminal Law Amendment Act 1977 … This legislation added Part II.1 (Firearms and Other Offensive Weapons) to the Criminal Code. This Part sets out a code of requirements governing all aspects of behaviour respecting firearms and other offensive weapons … While firearms have been regulated in some form in Canada since 1892, the amendments of 1977 were intended as a more comprehensive approach to protecting the public from firearm misuse … In my opinion, Lane Co. Ct. J. accurately stated the purpose of the legislation in R. v. Anderson (1981), 1981 CanLII 3219 (ON SC), 59 C.C.C. (2d) 439, at p. 447:
The recognized intent of s. 98 as a whole is to remove, or to prevent the acquisition of firearms from those members of the population who have committed offences, or who it may be reasonably anticipated may commit an offence.
The pre-emptive prohibition created by s. 98(4) and (6) is in keeping with this purpose. As the results of a review of Canada's gun control legislation indicate, the prohibition can be useful, particularly in recurring domestic or neighbourhood confrontations … It is also relevant to note that the subject of such a prohibition is not accused of an offence. Neither does the application of the section affect the subject's liberty interests.
I note that the then s. 98(4) is now s. 111(1) of the Criminal Code and that the then s. 98(6) is now s. 111(3) of the Criminal Code.
[12] Considering the admissibility of hearsay evidence and the burden of proof at the hearing of an application made under what was then s. 98(4), Justice Sopinka held that:
1. hearsay evidence is admissible at the hearing unless such a result is precluded by the words "all relevant evidence" as set out in the then s. 98(6); and
2. the burden that the applicant bears at the hearing is not that of proof beyond a reasonable doubt but simply proof on a balance of probabilities.
[13] Judge Gorman of the Provincial Court of Newfoundland and Labrador set out a succinct summary of the Zeolkowski principles in R. v. House, 2017 CanLII 86947:
I would summarize the principles applicable to a section 111 Criminal Code application in the following manner:
1. the onus of proving that a prohibition should be issued rests with the Crown;
2. the onus of proof is on a balance of probabilities;
3. hearsay evidence (or other evidence considered reliable) is admissible, but the form of the evidence may affect its weight;
4. the assessment which must be made by the application judge involves a preemptive analysis;
5. the test is an objective one;
6. the Crown must establish that it is not desirable for the respondent to possess the items listed in the provision; and
7. this requires proof that possession of any of these items would be unsafe for the public; the respondent; or any other person.
[14] In addition to the principles set out in Zeolkowski, Judge Harris at paragraph 38 in R. v. Britt, 2016 BCPC 329, agreeing with the Ontario Court of Justice decision in R. v. Douglas, 2013 ONCJ 649, confirmed that the desirability issue in s. 111(1) is related to the individual at the time of the s. 111(1) hearing and not at the time of the seizure of the firearms:
[38] Finally a decision on whether or not an individual should be prohibited is based on a finding at the time of the hearing not at the time of the seizure. In other words, the judge must consider, if at the time of the hearing they are satisfied that it is not desirable for the individual to possess firearms: R. v. Douglas, supra, at para. 45.
[15] In R. v. Piper, 2019 BCPC 70, Judge Doulis, in her usual informative manner, set out the law related to s. 111. In paragraph 114, in dealing with the term "not desirable" as used in s. 111(1), Judge Doulis noted that:
Section 111 requires the Crown to prove on a civil standard it is not desirable or in the interests of the safety of Lydia Piper or any other person to possess firearms. In R. v. Hurrell, 2002 CanLII 45007 (ON CA), the Ontario Court of Appeal constitutionally upheld s.117.04, finding the term "not desirable" was not void for vagueness. Moldaver J.A. (as he then was) held, at paras. 45 and 49, in part:
[45] Turning to his second argument, the appellant submits that s. 117.04(1) is impermissibly vague because the word "desirable" is amorphous and injects a subjective criterion into the provision that could lead to the issuance of a warrant based on irrational or emotional rather than objective grounds. With respect, I disagree. The word "desirable" is not a free-standing criterion. It is an adjective firmly anchored to the objective concept embodied by the words "reasonable grounds to believe", which precede it, and the public safety concept contained in the words "the interests of the safety of the person, or of any other person", which follow it. …
[48] Applying that reasoning to this case, I am satisfied that when the words "not desirable", which in my view simply mean "not advisable", are read in context, they can hardly be described as so subjective, vague and amorphous that they fail to provide an adequate basis for legal debate. The fact that language may be open to judicial interpretation does not render it impermissibly vague. Flexibility and vagueness are not synonymous . . . Moreover, because s. 117.04(1) is procedural and does not carry with it the threat of a criminal record or imprisonment, the need for precision is diminished . . . Finally, to the extent that the police or the issuing justice need a framework within which to assess the "non-desirability/public interest" component of s. 117.04(1), Parliament itself has provided guidance in ss. 5(1) and (2) of the Firearms Act …
[16] Justice Levine, writing for a unanimous Court of Appeal of British Columbia in R. v. Christiansen, 2006 BCCA 189, had the opportunity to consider what facts should inform a Provincial Court judge's decision to impose an s. 111(5) prohibition order. Ms. Christiansen had appealed the Provincial Court judge's decision to a Supreme Court justice and again to the Court of Appeal. Ms. Christiansen argued that the court should not impose a prohibition order under s. 111 unless the case facts fell within one of the three criteria in s. 5(2) of the Firearms Act. Section 5 of the Firearms Act reads:
Public safety
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 crossbow, 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 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 [which is] (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 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;
(c) has a history of behaviour that includes violence or threatened … violence …
Exception
(3) Despite subsection (2), in determining whether a non-resident who is 18 years [of age] or older and by or on behalf of whom an application is made for a 60-day licence authorizing the non-resident to possess non-restricted firearms is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge may but need not have regard to the criteria described in subsection (2).
[17] In dismissing Ms. Christiansen's appeal, Justice Levine set out her reasoning in paragraphs 4 to 10 of Christiansen. Justice Levine held that the criteria set out in s. 5 of the Firearms Act are not exhaustive as to the circumstances in which a chief firearms officer may refuse to issue a Possession and Acquisition Licence or as to when a prohibition order subject to s. 111(5) of the Criminal Code may be made. Accordingly, a s. 111(5) prohibition order can be made even though none of the circumstances set out in s-ss. 5(2)(a), (b), or (c) of the Firearms Act are present. In other words, as per Justice Levine's holding in paragraph 7 of Christiansen:
… there can be a firearms prohibition without criminal conduct, a history of real or threatened violent behaviour or a documented mental disorder that leads to violence.
[18] Finally, five years ago, in R. v. King, 2018 ONCJ 190, a decision out of the Ontario Court of Justice, Justice Wheeler provided insight into how to approach the analysis of determining if the person before the court should receive a s. 111(5) prohibition:
[19] I find that s. 111 requires that the Crown establish concrete reasons why firearm possession is not desirable for the person who is the subject of the application. The concerns have to be tied to the particular person. It would not be enough for the Crown to raise concerns about guns in general without evidence that shows that there are particular reasons why it is not a good idea for the respondent before the court to possess guns, whether those reasons arise from the person's conduct with guns, or from their behaviour or mental state otherwise that gives rise to legitimate concern about their potential future behaviour if they did have access to firearms. Furthermore, based on Hurrell, supra, I should start the analysis by asking whether any of the three criteria set out in s. [5] of the Firearms Act are present.
4. Indigenous Persons
Section 35 of the Constitution Act, 1982
[19] Although not advanced by Mr. Tauber, I have considered whether s. 111, as applied to Mr. Tauber, infringes Mr. Tauber's rights as an Indigenous person as guaranteed by s. 35 of the Constitution Act, 1982. Section 35 of the Constitution Act, 1982, states:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
[20] I have considered s. 35 of the Constitution Act, 1982, because:
a. the Haida Nation claimed title of parts of Haida Gwaii; and
b. the Crown has admitted as part of its case that Mr. Tauber is Haida and identifies as a member of the Haida Nation.
[21] Section 35 of the Constitution Act, 1982, recognizes and affirms existing Indigenous rights but does not define them. What Indigenous rights include has been the topic of much debate and discussion. Indigenous rights have been defined over time through various court decisions and interpreted to include a range of cultural, social, political, and economic rights, including the right to land and fish, to hunt, to practice one's own culture, and to establish treaties.
[22] In Nunavut Tunngavik Inc. v. Canada, 2003 NUCJ 1, Justice Kilpatrick of the Nunavut Court of Justice dealt with an application by Nunavut Tunngavik Inc. for an interlocutory stay of application of implementation of the Firearms Act and related offence provisions. In dealing with the application, Justice Kilpatrick commented on the interplay between s. 35 of the Constitution Act and s. 111 prohibition applications involving Inuit people. Relevant to Mr. Tauber's situation in the present case are paragraphs 4, 5, 26, 50, and 51:
[4] From time immemorial, Inuit survival in a harsh and unforgiving arctic environment has depended upon nomadic hunting activities. It is this activity that today defines the Inuit's social and cultural identity as a people. In the 21st century, Inuit language, art, traditional clothing, and diet continue to reflect the profound relationship of a people to the land, and to all the creatures of air, sea and land that have given life and meaning to Inuit for centuries. The protection of an individual's right of harvest, in the Inuit perspective, remains fundamental to the preservation of Inuit culture.
[5] Change has come swiftly to the Eastern Arctic. Within a short span of approximately 75 years, the Inuit have moved from scattered hunting camps to organized settlements. They now struggle as a people to adjust to sophisticated space age technologies, and a complicated and growing government infrastructure. Adrift upon this sea of change, the Inuit today insist that their hunting practices and traditions be respected by all levels of government as a means of ensuring their survival as a people, and as a culture. If a right of harvest is a birthright of all Inuit, it is now a birthright that is constitutionally protected by the Nunavut Land Claims Agreement through s. 35 of the Constitution Act 1982.
[26] It is said that the resulting inability to access firearms will substantially impair the Inuit's ability to harvest, given the importance of firearm technology to contemporary harvesting activity in Nunavut. It is argued that this will mean less country food available to those Inuit hunters directly affected, and their families. This will mean less country food available for distribution to elders and extended family. This will mean less food available for distribution in the community generally. Finally, this will also mean that there is a much heavier burden upon those Inuit who have been able to comply thus far with the provisions of the Act to supply those in need.
[50] The relief requested would temporarily limit the ability of the Firearms Center to screen all persons presently possessing ordinary firearms in Nunavut for public safety concerns. However such an order, if granted, would not preclude prohibition applications being made by the authorities under s.111 of the Criminal Code where warranted "in the interests of safety." Given the very small size of settlements in Nunavut, local police detachments are in a good position to monitor circumstances that impact on public safety and so trigger applications of this kind. The anonymity associated with life in the urban south is simply not present in the smaller settlements of Nunavut. The onus in seeking such a prohibition order would be upon either the local police or firearm authorities. This is not unreasonable, particularly given the impact that such an order may have on a beneficiary's treaty right of harvest.
[51] While there is clearly a significant public interest attached to enforcement of public safety legislation of this kind, the Federal Government on the facts of this case cannot be said to have a "monopoly" on public interest considerations. This broad category includes not only the concerns of society generally, but also the particular interests of a large identifiable group within Nunavut.
[23] I would say the same holds true for the Haida People. Nine years after Nunavut Tunngavik Inc. was decided, Judge Seidemann III, my predecessor at the Prince Rupert courthouse, had occasion in R. v. Sjolund, 2012 BCPC 393 (CanLII), 2012 BCPC 0393, to consider the interplay between s. 35 of the Constitution Act, 1982, and firearms licencing requirements for Haida People here in Haida Gwaii.
[24] Judge Seidemann III undertook the analysis called for by the three-part test in R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, related to the infringement of treaty rights. Judge Seidemann III found in Sjolund that licencing requirements were a reasonable limitation aimed at ensuring public safety and that firearm regulations which contained provisions to accommodate Indigenous hunters did not impose an undue hardship on Indigenous persons. Judge Seidemann III also held that the firearm regulations do not deny Indigenous persons their preferred means of exercising hunting rights.
[25] As Canada comes to grips with its history with its Indigenous Peoples, including the legacy of cultural assimilation, violence, abuse, addictions, low self-esteem and suicide, Canadian society, along with the law, need to adapt and provide remedies for past and current wrongs. The residential school experience was a significant contributor to the systemic issues that continue to plague Canada's Indigenous Peoples to this day. The residential schools were influential in the breakdown of family and cultural knowledge including the skills of parenting and living off the land. Many Indigenous children were exposed to cultural, physical, emotional, and sexual abuse while attending residential schools.
[26] Furthermore, the frustration at the lack of opportunity and transgenerational trauma felt by Indigenous Peoples continues to manifest through violence and substance addictions today, further deteriorating social bonds. Much of the history of widespread social and economic dysfunction among Canada's Indigenous Peoples can be attributed to colonialism and the residential school system.
[27] Although some people have tried to argue that firearm licencing requirements should not apply to Indigenous people, I agree with Judge Seidemann III and his assessment in Sjolund that firearm and weapon licencing requirements are a reasonable limitation on Indigenous persons. Licencing requirements aim to ensure public safety. The law contains provisions to accommodate Indigenous hunters while not imposing undue hardship on Indigenous persons or denying them their preferred means of exercising firearm ownership and hunting rights. It is my opinion that, in the context of a s. 111(1) application to a judge involving an Indigenous person, the court needs to objectively view the situation from the viewpoint of a reasonable person fully informed as to the history of Canada's Indigenous Peoples generally and the realities of the life of the Indigenous person who is the subject of the 111(1) application specifically.
5. Sustenance Hunter
[28] Section 113 of the Criminal Code provides a Provincial Court judge with some options regarding lifting prohibition orders for sustenance or employment, including s. 111(5) prohibitions. Section 113 expressly applies to persons who are or will be persons against whom a prohibition order is made.
[29] I am going to decline to deal further with s. 113 as I accept Ms. Clouston at her word that if I were to impose a prohibition order in this case, the Crown would entertain a request by Mr. Tauber for an exemption for sustenance hunting.
6. Decision
[30] I am approaching the issue from a practical point of view and considering the matter in two stages:
1. Does Mr. Tauber currently pose a danger to the safety of any other persons?
2. Does Mr. Tauber currently pose a safety danger to himself?
Danger to the Safety of Others
[31] I am satisfied, based upon the totality of this evidence that I have received during the s. 111(1) hearing that Mr. Tauber did on January 15, 2022, pose a danger to the safety of other persons by the way the firearms and ammunition were stored or, rather, improperly stored at his residence. However, I believe that Mr. Tauber currently does not pose a danger to the safety of any other persons. Finally, there is nothing in the evidence before me to suggest that Mr. Tauber will be a danger to the safety of other persons in the future.
[32] I base my conclusions regarding Mr. Tauber not posing a danger to the safety of other persons now or in the future on the totality of the evidence, including, but not limited to, the affidavit provided to the court by Constable Wercholuk, the in-court evidence of Constable Wercholuk, and the in-court evidence of Mr. Tauber. I note that Mr. Tauber did not threaten to harm other people. Mr. Tauber was never aggressive or violent with the police officers. Mr. Tauber is well trained in handling and operating firearms, and Mr. Tauber is positively connected to the Haida Nation.
Conclusion to Stage 1
[33] The Crown has not discharged the onus on it regarding the first stage of the inquiry; that is, the Crown has not proven on a balance of probabilities that Mr. Tauber possessing firearms and weapons would be unsafe for any other person. Consequently, I cannot find that it is desirable in the interests of the safety of other persons to prohibit Mr. Tauber from possessing firearms or weapons. In the result, I find that Constable Wercholuk does not currently have objectively reasonable grounds to believe that it is not desirable in the interests of the safety of persons other than Mr. Tauber that Mr. Tauber should possess firearms and weapons as of today.
Danger to the Safety of Himself
[34] I now move to the second stage of the test. Does Mr. Tauber currently possess a safety danger to himself? In doing so, I keep in mind that for me to impose a s. 111(5) prohibition, I have to find that Constable Wercholuk has an ongoing and current objectively reasonable belief that it is not desirable in the interests of the safety of Mr. Tauber that Mr. Tauber should possess firearms and weapons. I appreciate Constable Wercholuk's concern on January 15, 2022, concerning other persons and the unsafe storage of firearms and ammunition by Mr. Tauber. However, as I indicated earlier, there is no evidence that Mr. Tauber ever committed or threatened to commit an act of physical violence or harm to another person or himself. There is no evidence that Mr. Tauber ever attempted suicide or otherwise harmed himself physically.
Conclusion to Stage Number 2
[35] The Crown bears the burden of proving on a balance of probabilities that Constable Wercholuk has reasonable grounds to believe that it is currently not desirable in the interests of the safety of Mr. Tauber that Mr. Tauber should possess firearms and weapons. In my view, the Crown has not discharged the onus on it regarding the second stage of the inquiry; that is, that Crown has not proven on a balance of probabilities that Mr. Tauber possessing firearms and weapons today or into the future would be unsafe for Mr. Tauber. Consequently, I cannot find that it is desirable in the interests of the safety of Mr. Tauber to prohibit Mr. Tauber from possessing firearms and weapons.
[36] In the result, I find that Constable Wercholuk does not currently have objectively reasonable grounds to believe that it is not desirable in the interests of the safety of Mr. Tauber that Mr. Tauber should possess firearms and weapons.
[37] For the above reasons, I dismiss Constable Wercholuk's application to a judge.
Section 117 of the Criminal Code
[38] Mr. Tauber has not asked me to consider an order under s. 117 of the Criminal Code. I am not going to consider a s. 117 application at the current time. There may be other lawful reasons that the Crown is holding on to the firearms and ammunition that police seized from Mr. Tauber on January 15, 2022. If no legal excuse for the further detention of the seized firearms and ammunition exists, the Crown should provide for the return of the firearms and ammunition to Mr. Tauber in a safe and legally permissible manner. Otherwise, the Crown is bound by the terms of the Criminal Code.
[39] That is my decision.
(REASONS CONCLUDED)