Diagolon Gun Grab, Part 4: Caselaw Makes It Surprisingly Easy To Do

This continues the series on the “meme group” Diagolon, and the threat that it poses to gun ownership in Canada. Part 1 focused on the ruling of Gary Schill, which saw his privileges suspended for 5 years. Part 2 and Part 3 covered the testimony given by Detective Constable Ernest Carmichael.

The short version is that an Ontario Judge decided it was in the public interest to suspend Schill’s licence because of what he might do. This wasn’t because of a criminal conviction, or ties to terrorism or sedition. He was an administrator of the Diagolon Telegrams, and his posting came to police attention.

Yes, he was arrested for assault, and it was dropped. But it was the content he had posted online, his associations, his views, and making ammunition at home which led to the ban.

The hearsay evidence of his then-wife was also considered at the hearing, despite her not testifying at all. She had told police that a militia was being formed.

Now, how easy is it to suspend or revoke gun rights (or privileges) in Canada? Looking at the cases cited in the Schill decision, it’s actually pretty straightforward. Cases cited are listed at the bottom of the article, although not all are available on CanLII.

Starting with the Supreme Court of Canada:

(1) R. v. Wiles, 2005 SCC 84 (CanLII), [2005] 3 SCR 895

[9] I agree with the Court of Appeal. Mr. Wiles has not established that the imposition of the mandatory weapons prohibition orders constitutes cruel and unusual punishment. As noted by the Court of Appeal, the prohibition has a legitimate connection to s. 7 offences. The mandatory prohibition relates to a recognized sentencing goal — the protection of the public, and in particular, the protection of police officers engaged in the enforcement of drug offences. The state interest in reducing the misuse of weapons is valid and important. The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege. It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one. In Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power. If Parliament can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so. It is sufficient that Mr. Wiles falls within a category of offenders targeted for the risk that they may pose. The sentencing judge’s insistence upon specific violence, actual or apprehended, in relation to the particular offence and the individual offender takes too narrow a view of the rationale underlying the mandatory weapons prohibition orders.

To state the obvious: the above case dealt with a mandatory prohibition following a criminal conviction, whereas Schill had his charge dropped. So there is a difference.

Nonetheless, there are strong parallels in the reasoning. The Supreme Court ruled that owning firearms is not a right, but a privilege. There’s a valid principle of public safety at stake, and Parliament has the right to regulate firearm use and possession. Now, many people would take issue with this, but that is what was said.

By stating the firearm ownership is a privilege and not a right, it means there will always be the possibility of having them seized.

(2) R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378

A police officer made application in provincial court, pursuant to s. 98(4) of the Criminal Code, for an order prohibiting respondent from possessing any firearms or ammunition or explosive substances. Prior to the calling of any evidence, counsel for the respondent requested a general ruling as to the admission of hearsay evidence. The “custom” in Manitoba provincial courts had been to permit hearsay testimony at hearings on applications for a firearm prohibition. When the judge ruled that evidence at a firearm prohibition hearing was to be limited to what would be admissible at a criminal trial, counsel for the Crown, who had intended to rely on hearsay evidence as to threats made by respondent, called no evidence and the application was dismissed. The ruling as to admissibility was upheld on appeal by the Crown, first by the Court of Queen’s Bench, and then by a majority of the Court of Appeal.

However, the Supreme Court would decide otherwise and allow the Appeal.

Hearsay evidence is admissible at a firearm prohibition hearing under s. 98(6) unless such a result is precluded by the words “all relevant evidence”. The provincial court judge’s role in such hearings is to confirm the existence of the reasonable grounds which led the peace officer to launch the application, as proved on a balance of probabilities. It was not intended that the provincial court judge strictly apply the rules of evidence.

The expression “all relevant evidence” means all facts which are logically probative of the issue. The rules of evidence as to admissibility signify that the fact is relevant and that it satisfies auxiliary tests and extrinsic policies. Parliament, by using the phrase “all relevant evidence”, required only that the evidence at the firearm prohibition hearing be relevant; it did not address the question of exclusionary rules. The effect of the exclusionary rules is left to the provincial court judge as part of the whole body of evidence on which the provincial court judge determines whether reasonable grounds exist. Frailties in the evidence are a matter of weight.

When an Application is filed to revoke someone’s guns and licence, the standards are nowhere near as stringent as in a criminal trial. Yes, the basis for the Application is based on the Criminal Code of Canada, but it follows different rules.

Specifically, the standard of “proof beyond a reasonable doubt” has been replaced by “on the balance of probabilities”, which would be the civil test. Additionally, hearsay evidence which would typically be excluded in criminal cases is permitted here, but with the Judge typically giving less weight to it.

This is a 1989 case, so it’s been around for a very long time.

(3) B.C. (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343 (CanLII)

[25] I read s. 5 differently. Section 5(1) creates a broad safety standard for eligibility to hold a firearms licence or to continue to hold one following a revocation inquiry. Section 5(2) requires a firearms officer or a Provincial Court judge on a reference to “have regard to” certain conduct by the applicant or licence holder. I do not read s. 5(2) as being exhaustive of the matters to be considered as affecting safety concerns under s. 5(1). There are many other things a firearms officer or a judge might consider that do not fit into s. 5(2) and that might logically and reasonably give rise to valid safety concerns. I agree with the appellant’s submission that there is no statutory obligation to decide the safety issue in favour of the applicant or licence holder when none of the criteria in s. 5(2) is present; and that there is no obligation to refuse a licence or order a revocation if one or more of those criteria are present. A plain reading of the section by itself evinces no such intention by Parliament. The firearms officer and the judge are entitled to consider anything about the background or conduct of the applicant or licence holder that is relevant to public safety.

The Court of Appeal for British Columbia had held that the Firearms Officer and the Judge are allowed to consider anything about the licence holder. The only question is whether their decisions are seen as “reasonable”.

(4) R. v. Christiansen, 2006 BCCA 189 (CanLII)

[7] After reviewing these statutory provisions and the authorities cited on this appeal (other than Fahlman, which supports his reasoning and conclusion), the appeal court judge found (at paras. 35 – 37) that s. 111 of the Code does not “exclusively deal with behaviour that could be characterized as involving criminal conduct or acts of violence against others.” Nor do the three criteria set out in the Firearms Act operate as “exhaustive criteria” for the application of s. 5 of that Act. Thus, a provincial court judge conducting a hearing under s. 111 of the Code is not confined to a determination of whether the three criteria set out in s. 5(2) of the Firearms Act are met in order to impose a prohibition. He concluded that the provincial court judge had made no error “in holding that 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.”

This is also from the Court of Appeal for British Columbia. Firearms prohibitions can happen even without a history of violent behaviour or a documented mental disorder. It’s very subjective.

(5) R. v. Hurrell, 2002 CanLII 45007 (ON CA)

[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: see Reference re Criminal Code, Sections 193 & 195.1(1)(c), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123 at p. 1156, 56 C.C.C. (3d) 65 at p. 89 and French Estate v. Ontario (Attorney General) (1998), 1998 CanLII 1771 (ON CA), 38 O.R. (3d) 347 at p. 361, 157 D.L.R. (4th) 144 (C.A.); application for leave to appeal dismissed, [1998] S.C.C.A. No. 139). 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: see French, supra, at p. 363 O.R. 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, S.C. 1995, c. 39. These provisions deal with the eligibility for holding a firearms licence and read as follows:

The Court of Appeal for Ontario ruled that the language used was not unconstitutionally vague. The Court does go on to explain what examples are provided, but they are not exhaustive.

These are just a few of the cases that were used as a basis to have Schill’s guns taken away. The list is provided below, though some rulings aren’t published online. The short version of this is that it can happen for nearly any reason, hearsay evidence may be used, and it’s a low burden of proof.

Schill may be the first person to have his firearms taken away because of his “association” with Jeremy MacKenzie and Diagolon. But he won’t be the last.

Next up: the Public Emergency Order Commission (PEOC) hearings.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

PEOC HEARINGS:
(1) https://publicorderemergencycommission.ca/
(2) PEOC Report, Volume 1: Overview
(3) Public Order Emergency Report Volume 1 Overview
(4) PEOC Report, Volume 2: Analysis (Part 1)
(5) Public Order Emergency Report Volume 2 Analysis Part 1
(6) PEOC Report, Volume 3: Analysis (Part 2)
(7) Public Order Emergency Report Volume 3 Analysis Part 2 Recommendations
(8) PEOC Report, Volume 4: Process and Appendices
(9) Public Order Emergency Report Volume 4 Process And Appendices
(10) PEOC Report, Part 5: Policy Papers
(11) Public Order Emergency Report Volume 5 Policy Papers

MOSLEY DECISION:
(1) https://www.canlii.org/en/ca/fct/doc/2024/2024fc42/2024fc42.html#par41

CASELAW ON REVOKING FIREARMS PERMITS:
(1) R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.J. No. 50, at para 12, 16, 17, 18
(2) British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, at para 25.
(3) R. v. Christiansen, 2006 BCCA 189, at para 7.
(4) R. v. Bokhari, 2009 ONCJ 691, at para 10, relying on R. v. Day, [2006] O.J. No. 3187 (S.C.J.) and R. v. Morgan, [1995] O.J. No. 18 (Ont.Ct.(Prov.Div.)).
(5) R. v. Peacock-McDonald, 2007 ONCA 128, at para 40
(6) R. v. Douglas, 2013 ONCJ 649, at paras 45, 57.
(7) R. v. Mourtzis, 2015 ONCJ 74, at para 25.
(8) R. v. Roman, 2018 ONCJ 344, at para 89.
(9) R. v. Hurrell, 2002 CanLII 45007 (ON CA), [2002] O.J. No. 2819, at para 48.
(10) R. v. Christiansen, supra, at para 7.
(11) Fahlman, supra, at para 25.
(12) R. v. Peacock-Macdonald, supra, at para 40.
(13) R. v. Roman, supra, at para 89.
(14) R. v. Wiles, 2005 SCC 84, at para 9.