IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On June 30, 2020, Constable Ryan Ferris of the Terrace Royal Canadian Mounted Police (“RCMP”) filed an Application to a Judge pursuant to s. 111(1) of the Criminal Code in the Terrace Court Registry. The BC Prosecution Service has conduct of the matter for the Crown and is seeking a s. 111(5) Criminal Code order prohibiting P.P.B. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for a period up to five years from the date of the order.

[2]         The hearing of the Application to a Judge began on August 11, 2020. It continued on October 30, 2020 and February 22, 2021.

[3]         Constable Ferris testified in support of the Application to a Judge. P.P.B. testified against the making of a s. 111(5) order and filed a number of exhibits in support of his argument that the court should not make a s. 111(5) order. P.P.B. would also like his firearms and Firearms Licence returned to him.

[4]         The Crown has not charged P.P.B. with a criminal offence. This is not a criminal trial. In many respects, it is unfortunate that the Government of Canada has placed s. 111, which is public interest legislation enacted to

[5]         I am able to and I do take judicial notice of certain facts concerning Canada’s Indigenous peoples, the Gitanyow people, mental health, mental illness, anxiety, depression, and suicide. I rely upon R. v. Spence, 2005 SCC 71 as authority for doing so. The facts that I am taking judicial notice of are generally accepted. The facts I rely upon are not the subject of debate among reasonable persons. Furthermore, they are facts that are capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[6]         According to the Canadian Mental Health Association (CMHA) at <https://cmha.ca/blogs/mental-health-what-is-it-really> (February 22, 2021):

[7]         According to the Public Health Agency of Canada at <https://www.canada.ca/en/public-health/services/chronic-diseases/mental-illness.html> (February 22, 2021):

[8]         According to the Government of Canada at < https://www.canada.ca/en/public-health/services/about-mental-health.html> (February 22, 2021):

[9]         According to Psychology Today at <https://www.psychologytoday.com/ca/basics/anxiety> (February 22, 2021) :

[10]      According to Healthline at <https://www.healthline.com/health/anxiety> (February 22, 2021), “Anxiety is your body’s natural response to stress. It’s a feeling of fear or apprehension about what’s to come.”

[11]      According to The Centre for Addiction and Mental Health at <https://www.camh.ca/en/health-info/mental-illness-and-addiction-index/depression> (February 22, 2021) :

[12]      According to the Public Health Agency of Canada at <https://www.canada.ca/en/public-health/services/chronic-diseases/mental-illness/what-depression.html> (February 22, 2021):

[13]      Also according to the Public Health Agency of Canada at <https://www.canada.ca/en/health-canada/services/healthy-living/your-health/diseases/mental-health-depression.html> (February 22, 2021):

[14]      According to The Centre for Addiction and Mental Health at <https://www.camh.ca/en/health-info/mental-illness-and-addiction-index/suicide> (February 22, 2021) :

[15]      According to the Public Health Agency of Canada at <https://www.canada.ca/en/public-health/services/suicide-prevention/about-suicide.html#a1> (February 22, 2021) :

[16]      I note at the onset that although the term “Aboriginal,” for many years perhaps the least contentious and most inclusive general term used in Canada, is used in some of the case law and legislation that I will be referring to in these Reasons for Judgment, I will, unless I am quoting from case law or another source, be using the term “Indigenous.”

[17]      I appreciate that terminology is a complex and sometimes-contentious issue and that definitions have legal implications; nevertheless, I believe that the term Aboriginal, at least in Canada, has now come to be supplanted by the word Indigenous.

[18]      Furthermore, I will be using the term “First Nations” when referring the most populous of the three distinct groups of Indigenous peoples in Canada. I do so regardless of whether or not the Government of Canada considers the person “status” or “non-status” under the Indian Act, the person lives on reserve or off reserve, and whether or not they have a close connection to their First Nations’ culture.

[19]      The other two distinct Indigenous peoples in Canada are the Inuit and the Métis.

[20]      In coming to my determination as to the terminology I am using in these Reasons for Judgment, I rely upon:

[21]      According to the 2016 Statistics Canada Census of Population, as of 2016, there were 1,673,785 Indigenous people in Canada, accounting for 4.9% of the total Canadian population. This was up from 3.8% in 2006 and 2.8% in 1996. Since 2006, the Indigenous population has grown by 42.5% -- more than four times the growth rate of the non-Indigenous population over the same period.

[22]      Canada’s First Nations population grew by 39.3% from 2006 to 2016, reaching a population of 977,230 people. In 2016, Canada’s First Nations population was concentrated in the western provinces, with more than half of First Nations people living in western Canada: British Columbia (17.7%), Alberta (14.0%), Manitoba (13.4%) and Saskatchewan (11.7%). By comparison, in 2016, 30.3% of Canada’s non-Indigenous population lived in the four western provinces.

[23]      First Nations people possess a rich cultural heritage of diverse languages, histories, and homelands. In Canada, there are more than 600 unique First Nations Governments and more than 70 Indigenous languages, many of which are further diversified into distinct dialects.

[24]      Gitanyow is a First Nations community located approximately 117 kilometres north of Terrace on the Kitwanga River. The name Gitanyow means “People of Many Numbers.” The Gitanyow people collectively are the Gitanyow Nation. The Gitanyow Nation’s traditional territory covers over 6,200 square kilometres of Northwestern British Columbia.

[25]      The Gitanyow Nation is governed by a traditional matriarchal system and it maintains Gitanyow laws and traditions. Sustaining the integrity of the land is central to sustaining Gitanyow culture and providing for their Nation’s economy. The Gitanyow Nation comprises two Pdeek (Clans), the Lax Gibuu (Wolf) and the Lax Ganeda (Frog/Raven), organized into eight Wilp (House Group).

[26]      According to the Government of Canada at <https://www.aadnc-aandc.gc.ca/eng/1357840941701/1360159292751> (February 22, 2021), the total registered population of Gitanyow is 790 people. The British Columbia Assembly of First Nations at https://www.bcafn.ca/first-nations-bc/north-coast/gitanyow states that the total population of Gitanyow is 857 people.

[27]      Constable Ferris’ testimony included:

[28]      Constable Ferris presented his testimony in a straightforward and calm manner, although there were obvious gaps in his evidence due to much of what he related to the court being hearsay, based upon what other police officers or persons had told him, written or otherwise witnessed. Nevertheless, I found Constable Ferris to be a credible and reliable witness.

[29]      Constable Ferris wrote two reports in relation to this matter:

[30]      The two documents are very similar and contain much of the same information; however, the Report to Crown Counsel Narrative is a step-by-step outline of the RCMP investigation from when the RCMP first responded to the 911 call on May 30, 2020.

[31]      On April 16, 2018, a police officer located P.P.B. in the driver's seat of a motor vehicle wearing only his underpants. Although the police officer did not locate or seize any alcohol from P.P.B. or his motor vehicle, Constable Evelyn administered an approved screening device test twice. P.P.B. failed both times. Constable Evelyn issued P.P.B. an immediate roadside driving prohibition for 90 days.

[32]      On May 15, 2018, police officers attended P.P.B.’s residence due to a domestic dispute. Based on what the police officers observed and what they were told at the residence -- including an apparent escalation of the arguments -- Constable Ferris and Constable Gonah agreed between them that they should seize P.P.B.’s firearms as a result of public safety concerns. They seized three firearms in total. All three firearms were non-restricted.

[33]      On October 13, 2019, Constable Gagnon received a report of a suicidal male. The information given to Constable Gagnon was that P.P.B. had sent a family member several Facebook messages and a photo of a shotgun. The Facebook messages had P.P.B. saying things such as "fuck everything.”

[34]      Constable Gagnon began trying to locate P.P.B. in order to intervene. Constable Gagnon was eventually able to get in touch with P.P.B., who told Constable Gagnon that he was not suicidal and that he was in the district municipality of New Hazelton (located approximately 133 kilometres northeast of Terrace).

[35]      Not satisfied with the information provided by P.P.B. and still fearing for P.P.B.’s safety, Constable Gagnon continued his investigation. Constable Gagnon arranged for a cellular ping of P.P.B.’s mobile phone, which revealed that P.P.B. was actually in Terrace.

[36]      Through RCMP patrols in the area of Terrace that the cellular ping identified as the location of P.P.B.’s mobile phone, police officers located P.P.B.’s motor vehicle in the driveway of a residence. A police officer spoke to P.P.B. while P.P.B. sat in his motor vehicle. Ultimately, the RCMP searched the motor vehicle that P.P.B. was in, but they did not locate any firearms.

[37]      During the course of the search of P.P.B.’s motor vehicle, P.P.B. insisted to the attending police officers that he did not intend to harm himself. P.P.B. went on to tell the police officers that he did not have a firearm and that he did not know why anyone would believe him to own a firearm contrary to previous RCMP interaction.

[38]      On May 30, 2020, at approximately 23:47 hours, Constable Cornfield responded to a report of a possible suicidal male. The complainant reported that she had been receiving text messages from her significant other, P.P.B., and that the text messages were saying that P.P.B. wished “to blow his head off.” One or more of the text messages included a photo of a large calibre rifle.

[39]      The RCMP responded with all available units, unsure as to the development of the situation. The RCMP attempted to locate P.P.B., but soon discovered that P.P.B. had gone for a walk after sending the text messages to his significant other.

[40]      The RCMP were eventually able to locate P.P.B. several hours later and police officers engaged P.P.B. in a discussion. During the discussion, P.P.B. appeared very distraught, had bloodshot eyes, appeared to have consumed alcohol, and was having difficulty formulating more than one-word responses.

[41]      The attending police officers felt that P.P.B. was showing very clear signs of being upset. As a result, Constable Cornfield determined pursuant to s. 28 of the Mental Health Act that a police officer should apprehend P.P.B. and take him to a physician for an examination to ensure the safety of P.P.B.’s wellbeing.

[42]      Discussions between the police officers and P.P.B. continued after Constable Cornfield apprehended P.P.B. During the conversation, P.P.B. told the police officers that he had multiple firearms in his house, as well as a Firearms Licence, often referred to as a Possession and Acquisition Licence (“PAL”).

[43]      Having learned that P.P.B. had firearms in his residence, the RCMP undertook two courses of action:

[44]      The police officers arrived at the hospital with P.P.B. for the s. 28 Mental Health Act examination. After the examination, Dr. Elhadi Mohammed medically cleared P.P.B. and a safety plan for P.P.B. -- which included P.P.B. staying with a family member -- was created.

[45]      While P.P.B. was at the hospital, Corporal Smith and Constable Cornfield attended to P.P.B.’s residence, entered it, and searched the residence for the firearms. Constable Cornfield and Corporal Smith located and seized two firearms from the residence: a Mossberg Model 88 12-gauge pump action shotgun and a Browning X-Bolt .30-06 rifle. Both firearms were lawfully stored as required by the regulations to the Firearms Act. Constable Cornfield and Corporal Smith also seized P.P.B.’s PAL.

[46]      Constable Ferris noted that:

[47]      Constable Ferris and other police officers failed to get copies of any of the text messages, photographs, screenshots or Facebook messages that Constable Ferris referenced in the Report to Crown Counsel Narrative.

[48]      Constable Ferris does not know when after the May 15, 2018 incident, the firearms seized on May 15, 2018, were returned by the RCMP to P.P.B.

[49]      There was no mention of Constable Ferris or any other police officer filing a Form 5.2 -- Return to a Justice with the court in relation to the seizure of the firearms on May 15, 2018 or the seizing of the firearms and P.P.B.’s PAL on May 31, 2020.

[50]      Constable Ferris at no point testified that police officers had located or seized ammunition during any of the incidents involving P.P.B.

[51]      During P.P.B.’s interactions with the RCMP on the multiple occasions Constable Ferris is aware of, P.P.B. was never aggressive or violent with police officers.

[52]      Constable Ferris did not provide evidence as to the cost, in terms of dollars and workforce hours, spent by the RCMP, the City of Terrace and Mill’s Memorial Hospital staff, in dealing with P.P.B. during the four police incidents.

[53]      Based upon the totality of what Constable Ferris knows of P.P.B., Constable Ferris believes that P.P.B. has some addiction issues, in that P.P.B. may be abusing alcohol.

[54]      There have not been any interactions between the RCMP and P.P.B. since the May 30, 2020 incident.

[55]      Based upon the facts as known by Constable Ferris, he believes that he has reasonable grounds to believe that it is not desirable in the interests of the safety of P.P.B. or of any other person that P.P.B. should possess firearms or weapons.

[56]      Specifically, Constable Ferris believes that the historical events involving P.P.B. that led up to the Application to a Judge, mean that it is not in P.P.B.’s or the public’s interest that P.P.B. continue to have access to firearms or weapons. Constable Ferris’ belief is that on several occasions P.P.B. has threatened his own life, using firearms as the base of the threat. In addition, Constable Ferris has concerns that P.P.B. may have deteriorating mental health and/or addiction abuse issues.

[57]      P.P.B. is a proud member of the Gitanyow First Nation and he enjoys taking part in his community. He presented his testimony in a straightforward and calm manner. At no time did I feel that P.P.B. was embellishing his evidence or trying to manipulate the facts to make himself look good to the Court. As such, I found P.P.B. to be a credible and reliable witness.

[58]      P.P.B. currently resides in Terrace, British Columbia. Right out of high school, at the age of 18, P.P.B. joined the Canadian military. He spent seven years with the Lord Strathcona’s Horse (Royal Canadians), including time as a recon soldier in Afghanistan where he also operated tanks.

[59]      P.P.B. is familiar with and understands the four golden rules of firearms:

[60]      P.P.B. has been employed in the mining industry since his release from the military 13 years ago. He currently works as a mineral processing technician. He receives ore from underground and uses a series of machinery to break down the material and extract the valuables from the material. He is required to be sober when at work.

[61]      P.P.B. separated from his daughter’s mother in 2017 and he is now in a new common-law relationship. He notes that the separation from his daughter’s mother has been stressful. Not only has he taken on the financial responsibilities for his new common-law partner and her two children, but he still has financial obligations to his 9-year old daughter and his former partner. As such, P.P.B. feels responsible to support two families.

[62]      During each of his interactions with the RCMP, P.P.B. was never in possession of a loaded firearm. He also confirmed that at the times in his life when he felt suicidal, he did not have a loaded firearm in his possession.

[63]      In regards to the May 30, 2020 incident, P.P.B. was having a tough time in the weeks preceding the incident as his mother had passed away on May 10, 2020 -- Mother’s Day.

[64]      Although currently not a member of any firearm club, P.P.B. is a hunter. He says that he needs a firearm and the ability to hunt moose in order to sustain his current family, as well as his daughter and her mother.

[65]      For the past five years, P.P.B. has also supported and provided game meat that he harvests for people who are unable to provide meat for themselves.

[66]      Because of the RCMP seizing his firearms and PAL on May 31, 2020, P.P.B. has not been able to provide meat for his families or the others in the community that rely upon him for their meat.

[67]      Exhibit 3 is a letter that Joel Starlund, Executive Director, the Gitanyow Hereditary Chiefs, wrote on October 26, 2020 on P.P.B.’s behalf. The letter states:

[68]      As part of P.P.B.’s involvement with the Gitanyow Nation, he takes great pride in his mentorship of Gitanyow youth. P.P.B. teaches youth about the mountains, ancient trails, camping, survival skills, the rigours of hunting, how to harvest, process and preserve meat, and other traditional values of the Gitanyow people.

[69]      When working with Gitanyow youth during the annual youth mountain hunting trip, P.P.B. is not the only adult present. Depending on the number of youth who participate in the program, organizers try to have a ratio of one adult guide for each three or four youth. Each of the adult guides is armed with a firearm. The adult guides are expected to teach not only firearm safety, but to lead by example. All adult guides show the youth how to hunt, including: identifying game trails, how to stalk animals, how to honour the animal that they are killing, how to utilize the entire animal, and so on.

[70]      Several months before the RCMP seized his firearms and PAL on May 31, 2020, P.P.B. recognized that he had a problem with alcohol consumption and so he approached his employer to request assistance through one of their employee assistance programs. He was allowed time off work to complete the program.

[71]      Exhibit 1 is the Certificate of Completion from the Adult Addiction Day Treatment Program at Northern Health that P.P.B. completed on February 21, 2020.

[72]      Following the completion of the Adult Addiction Day Treatment Program, P.P.B. enjoyed three months of sobriety. Unfortunately, he had a relapse the day before the incident of May 30, 2020. P.P.B. claims that he has not had a relapse since and remains sober.

[73]      In addition to the Adult Addiction Day Treatment Program that P.P.B. completed on February 21, 2020, P.P.B. has been:

[74]      P.P.B. says that Dr. Mohammed cares about him, has been very helpful, and that P.P.B. can be honest with him.

[75]      Exhibit 2 is a letter that Dr. Mohammed wrote on September 18, 2020 on P.P.B.’s behalf. The letter states:

[76]      In respect of the help that P.P.B. has been receiving at the Iskut Valley Health Society, P.P.B. feels that the counselling has definitely been beneficial to him. P.P.B. says that his counsellor Connie Nole brings perspective and helps him with the tools that he needs to deal with certain situations. He says that his counsellor has been beneficial to his mental health and that he enjoys a good connection with her. P.P.B. keeps in contact at least once a month with Connie Nole.

[77]      Exhibit 4 is a letter that Connie Nole, Healthy Living Support Counsellor with Iskut Valley Health Services, wrote on February 15, 2021. The letter states:

[78]      P.P.B. does not want the Court to impose a firearms and weapons prohibition.

[79]      P.P.B. would like his firearms and his PAL returned to him.

[80]      The leading decision in Canada related to a police officer applying for an order prohibiting a person from possessing any firearm, cross-bow, 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. c. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378.

[81]      At pages 1383 and 1384 of Zeolkowski, Justice Sopinka, writing for the Supreme Court, set out some of the background concerning the then s. 98 of the Criminal Code (now s. 111 of the Criminal Code):

[82]      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.

[83]      In considering the admissibility of hearsay evidence and what the burden of proof is at the hearing of an application made under what was then s. 98(4), Justice Sopinka held in Zeolkowski that:

[84]      Judge Gorman of the Provincial Court of Newfoundland and Labrador has set out a succinct summary of the Zeolkowski principles in R. v. House, 2017 CanLII 86947 (NL PC):

[85]      In addition to the principles set out 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, confirms 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 firearm(s):

[86]      In R. v. Piper, 2019 BCPC 70, Judge Doulis, in her usual informative manner, set out the law related to s. 111. At paragraph 114, in dealing with the term “not desirable” as used in s. 111(1), Judge Doulis noted that:

[87]      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 a 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’s argument was that the Court could not impose a prohibition under s. 111 unless the facts of the case fell within one of “three criteria” set out in s. 5(2) of the Firearms Act.

[88]      Section 5 of the Firearms Act reads:

[89]      In dismissing Ms. Christiansen’s appeal, Justice Levine set out her reasoning at 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 PAL or as to when a prohibition order pursuant to s. 111(5) may be made.

[90]      Accordingly, a s. 111(5) prohibition order can be made even though none of the circumstances set out in ss. 5(2)(a), (b), or (c) of the Firearms Act are present. In other words, as per Justice Levine’s holding at 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.”

[91]      Finally, three years ago in R. v. King, 2018 ONCJ 190, a decision out of the Ontario Court of Justice, Justice Wheeler provided insight as to how to approach the analysis of determining if the person before the court should receive a s. 111(5) prohibition:

[92]      Although not advanced by P.P.B., who has been assisted during this hearing by Ms. Roches and Mr. Taylor, both non-lawyers employed with the Terrace Native Court Workers Office, I have considered whether s. 111, as applied in P.P.B.’s case, infringes P.P.B.’s rights as an Indigenous person, as guaranteed by s. 35 of the Constitution Act, 1982.

[93]      Section 35 of the Constitution Act, 1982 states:

[94]      I have considered s. 35 of the Constitution Act, 1982 because:

[95]      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, as well as to fish, to hunt, to practice one’s own culture, and to establish treaties.

[96]      In Nunavut Tunngavik Inc. v. Canada (Attorney General), 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, 1982 and s. 111 prohibition applications involving Inuit persons.

[97]      Relevant to P.P.B.’s situation in the present case are paragraphs 4, 5, 26, 50 and 51 of Nunavut Tunngavik Inc.:

[98]      Nine years after Nunavut Tunngavik Inc., Judge Seidemann III 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 firearm licencing requirements for Haida people here in British Columbia. Judge Seidemann III undertook the analysis called for by the three-part test in R. c. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 SCR 1075 relating to an infringement of treaty rights.

[99]      Judge Seidemann III found in Sjolund that licencing requirements were a reasonable limitation aimed at ensuring public safety and that the Firearm Regulations, which contain provisions to accommodate Indigenous hunters, did not impose 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.

[100]   As Canada comes to grips with the reality of 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.

[101]   The residential school experience was a significant contributor to the systemic issues that continue to plague Canada’s Indigenous peoples to this day. Many Indigenous children were exposed to cultural, physical, emotional, and sexual abuse while attending the residential schools. The residential schools were influential in the breakdown of family and cultural knowledge, including the skills of parenting and living off the land. Furthermore, the frustration at the lack of opportunity and trans-generational trauma felt by Indigenous peoples continues to manifest itself through violence and substance addictions today, which further deteriorates 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.

[102]   Although some people have tried to argue that firearm licencing requirements should not apply to Indigenous peoples, I am in agreement with Judge Seidemann III’s assessment in Sjolund that firearm and weapon licencing requirements are a reasonable limitation on Indigenous persons. Licencing requirements aim to ensure public safety and the law contains provisions to accommodate Indigenous hunters, while not imposing undue hardship on Indigenous persons or denying Indigenous persons their preferred means of exercising firearm ownership and hunting rights.

[103]   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 s. 111(1) application specifically.

[104]   Section 113 of the Criminal Code provides a Provincial Court judge with some options regarding the lifting of 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. It reads:

[105]   For purposes of s. 113, I am a competent authority.

[106]   In P.P.B.’s case, the s. 111(1) Application to a Judge does not allege that P.P.B. has committed a criminal offence; rather, Constable Ferris is seeking the s. 111(5) order due to safety concerns: the safety of P.P.B. and the safety of others. Some of the s. 113 case law dealing with applications to lift or vary firearms and weapons prohibition orders made pursuant to s. 109 of the Criminal Code after convictions in criminal cases are instructive in relation to s. 111.

[107]   In R. v. Jararuse [2001] N.J. No. 431 (NLPC), a decision of the Newfoundland and Labrador Provincial Court, a 49 year old Inuk man applied pursuant to s. 113 to have his lifetime s. 109 prohibition terminated. Mr. Jararuse’s application was made three years after his release from jail. Mr. Jararuse wanted to be able to hunt for food, as hunting was part of his Indigenous culture. Mr. Jararuse had served a three-year jail term for three sexual assaults, none of which involved a firearm.

[108]   The evidence at the hearing established that Mr. Jararuse was no threat to the community or himself if he possessed firearms for hunting. Nevertheless, the Crown argued that Mr. Jararuse did not meet the test for designation as a "sustenance hunter" as required by s. 113 and as defined in the Federal Jurisdictions Policy Manual for Sustenance Hunter Licence Requirements.

[109]   At paragraphs 37 to 42 of Jararuse, Judge Igloliorte reviewed the law related to the lifting of s. 109 prohibitions as it applied to Indigenous peoples. Judge Igloliorte found that the Firearms Act and the related regulations acknowledged and gave credence to the traditional hunting practices of the individual’s Indigenous community, rather than relying on a restrictive definition.

[110]   In British Columbia, Justice Willcock came to a somewhat different conclusion nine years later in R. v. Conley, 2010 BCSC 1092. Mr. Conley had a long criminal record, including offences involving violence. On December 21, 1995, Mr. Conley was convicted of aggravated assault and having in his possession a weapon, a knife, for purposes dangerous to the public peace. He was sentenced to two years in jail in relation to the aggravated assault and one year, to be served concurrently, in relation to the weapons possession charge. The convictions resulted in Mr. Conley receiving a lifetime s. 109 prohibition. Mr. Conley applied pursuant to s. 113 to vary his lifetime s. 109 prohibition. There is no indication in Justice Willcock’s decision that Mr. Conley was an Indigenous person.

[111]   While finding at paragraph 34 that s. 113 permits an order being made terminating or varying a firearms and weapons prohibition upon the court being satisfied that the person subject to the prohibition order (i) needs to hunt or trap for sustenance or (ii) that a prohibition order would constitute a virtual prohibition against employment in the only vocation open to the applicant, Justice Willcock went on at paragraphs 39 and 40 to decide that s. 113 should not come to the aid of part time hunters or cultural or social hunters:

[112]   Not surprisingly, given the scope of the decision Justice Willcock had to make in Conley, there is no analysis of the interplay, if any, between s. 111 and s. 113 applications. While Justice Willcock did state that in his view s. 113 “should not come to the aid of part time hunters or cultural or social hunters”, he did not specifically addressed the issue of an Indigenous person wanting to avoid, terminate or vary a firearms and weapons prohibition so that they could participate in traditional Indigenous activities, including:

[113]   Most people think of the police as patrolling the streets of their community looking for criminals. Recently, in the popular press, another aspect of policing has come under the spotlight: police wellness checks. Many people do not realize that the police in their community respond regularly to emergencies involving suicidal or otherwise mentally unwell individuals.

[114]   On July 6, 2020, the CMHA released a statement on police and wellness checks at <https://cmha.ca/news/statement-on-police-and-wellness-checks> (February 22, 2021). The essence of the CMHA statement is that mental illness is not a crime.

[115]   In P.P.B.’s case, he was fortunate to have had a positive response in each of the four police incidents from well-trained and compassionate police officers with the Terrace RCMP. Nevertheless, I agree with the CMHA that:

[116]   Two days after the CMHA released its statement, the Contract and Indigenous Policing Section of the RCMP released a statement titled Police Intervention and Wellness Checks at https://www.publicsafety.gc.ca/cnt/trnsprnc/brfng-mtrls/prlmntry-bndrs/20201119/025/index-en.aspx. The RCMP statement highlights the fact that police officers have a critical role to play when responding to and interacting with people living with mental health problems and illnesses, but that police officers are not medical professionals and do not diagnose individuals.

[117]   Of note from the RCMP statement, police officers with the RCMP receive training to assist with their individual understanding of mental health illnesses, including signs and symptoms of distress, in order for police officers on the street to conduct effective risk assessments and de-escalate mental health crises when feasible.

[118]   In addition to the regular training that all RCMP officers receive, an online Suicide Prevention and Awareness course is available to all RCMP employees on the RCMP Intranet. The Suicide Prevention and Awareness course teaches the factors associated with suicide, crisis intervention techniques, and the importance of individuals in distress seeking help when they are living with mental health issues that are having a negative impact on their or another person’s well-being. Finally, a two-day Applied Suicide Intervention Skills Training course is mandatory for RCMP employees who are in positions where they are likely to encounter individuals living with serious mental stress.

[119]   The RCMP statement also confirmed that data shows an increase in mental health-related occurrences responded to by the RCMP over the past five years in all RCMP policing jurisdictions across Canada. The RCMP is quick to point out that there are a number of reasons for the increase in mental health-related occurrences responded to by the RCMP, including (i) more awareness and understanding by all Canadians, including police officers, of mental health illnesses and (ii) an increasing population.

[120]   On May 30, 2020, and at the time of the seizure of his firearms and PAL on May 31, 2020, P.P.B. held a valid PAL. As such, he was entitled, as a matter of law, to own and possess non-restricted firearms in accordance with the terms of his PAL.

[121]   During all interactions with the RCMP, P.P.B.’s firearms were stored and locked as required by Canadian law. Police officers did not seized any ammunition from P.P.B. or his residence. At no time did P.P.B. threaten to kill himself with a loaded firearm.

[122]   There is no evidence that the shotgun pictured in the photo of a shotgun that P.P.B. sent to a family member via Facebook on October 13, 2019, was ever in the physical possession of P.P.B., never mind that it was the same shotgun that was seized by the RCMP from P.P.B.’s residence on May 31, 2020.

[123]   There is no evidence that the large calibre rifle pictured in a photo of a large calibre rifle that was texted by P.P.B. to P.P.B.’s partner on May 30, 2020, was ever in the physical possession of P.P.B., never mind that is the same rifle that was seized by police officers from P.P.B.’s residence on May 31, 2020.

[124]   P.P.B. does not have a criminal record. P.P.B. has not been charged with, convicted of, or discharged under section 730 of the Criminal Code of:

[125]   Since May 31, 2020, when police officers took P.P.B. to Mills Memorial Hospital in Terrace for the s. 28 Mental Health Act examination, P.P.B. has been receiving treatment, including medication, by a physician for depression and anxiety. P.P.B. denies current suicidal thoughts or a desire to self-harm.

[126]   P.P.B. is currently seeing a counsellor regarding his mental health concerns and alcohol abuse.

[127]   Since completing the Adult Addiction Day Treatment Program at Northern Health on February 21, 2020, P.P.B. claims only a single relapse, on May 29, 2020, some 19 days his mother’s death on May 10, 2020, which led to his involvement with the RCMP on May 30 and 31, 2020.

[128]   P.P.B. has a history of behaviour that includes alcohol abuse and threatened violence to himself by way of utilizing a firearm to commit suicide.

[129]   P.P.B. has not committed violence, threatened violence or attempted violence against any other person.

[130]   There have been no interactions between the police officers and P.P.B. since the May 30, 2020 incident.

[131]   Based on the evidence before the Court, it is easy to see that P.P.B. is actively involved in his First Nations community. He is well intentioned. The Gitanyow Hereditary Chiefs and no doubt others appreciate P.P.B.’s participation within the Gitanyow Nation.

[132]   P.P.B. is not a sustenance hunter in the traditional settler way of viewing things, as encapsulated in most of the case law interpreting the meaning of sustenance hunting for purposes of s. 113, such as in the Conley decision. Yet viewed objectively from the viewpoint of a reasonable person who is fully informed as to the history of Canada’s Indigenous peoples generally, the Gitanyow Nation specifically, and the realities of P.P.B.’s life, the situation changes.

[133]   P.P.B. provides meat for his two families. He also provides moose and mountain goat meat for elders and others in the Gitanyow Nation. He participates in traditional hunts and cultural education with Gitanyow youth, an essential service and a great benefit to the larger Gitanyow community. In this context, it is difficult to argue against P.P.B. being a traditional Gitanyow sustenance hunter.

[134]   P.P.B. does not need a firearm to participate in hunting activities or to mentor young people. He can still attend hunts and participate in youth activities as a guide and advisor, without having to possess a firearm or pull the trigger of the firearm. Not having a firearm would make things more difficult for P.P.B. and perhaps the Gitanyow community that relies upon him for meat and leadership, but it is doable.

[135]   Nevertheless, P.P.B.’s ability to possess non-restricted firearms, hunt and mentor young persons by leading by example, adds considerable value to both the Gitanyow people specifically and Canadian society generally.

[136]   The issue regarding a s. 111(5) prohibition for P.P.B. really boils down to two questions: (i) how is P.P.B. doing today with regard to substance abuse, his depression and anxiety, and (ii) how will P.P.B. cope in the future with his substance abuse, depression and anxiety? What matters is P.P.B.’s safety and the safety of other persons if P.P.B. possesses firearms with ammunition capable of being discharged from the firearms he possesses.

[137]   I am approaching the issue from a practical point of view and considering the matter in two stages:

[138]   Entering the Canadian Army at the age of 18 and serving in Afghanistan with the Lord Strathcona's Horse (Royal Canadians) must have been both a fascinating and harrowing experience for P.P.B.

[139]   As noted on its website at <https://army.gc.ca/en/3-canadian-division/lord-strathconas-horse/index.page> (February 22, 2021): the Lord Strathcona's Horse (Royal Canadians) is a Regular Force armoured regiment of the Canadian Army based out of Edmonton, Alberta. The Lord Strathcona's Horse (Royal Canadians) regiment is comprised of a Regimental Headquarters, three tank squadrons, a reconnaissance squadron and Headquarters Squadron. The Lord Strathcona's Horse (Royal Canadians) provides tank and reconnaissance forces to the 1st Canadian Mechanized Brigade Group in Western Canada. The Lord Strathcona's Horse (Royal Canadians) were deployed to Afghanistan from 2002 to 2011. The regimental motto is “Perseverance.”

[140]   Based upon the evidence presented in this hearing, I am of the opinion that P.P.B. is living up to his regiment’s motto of Perseverance. Like many returning soldiers, he has struggled with life after military service in a foreign land. He has suffered anxiety, depression and suicidal thoughts.

[141]   Despite his struggles, and as he proceeds along this journey called life, P.P.B. is taking the steps in his life required to better himself, for himself, his two families and the Gitanyow Nation. He is a contributing member of society generally and the Gitanyow Nation specifically.

[142]   I am satisfied based upon the totality of the evidence that I have received during the course of the s. 111(1) hearing that P.P.B. did not in May of 2020 pose a danger to the safety of any other persons. Furthermore, I am of the opinion that P.P.B. 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 P.P.B. will be a danger to the safety of other persons in the future.

[143]   I base my conclusions regarding P.P.B. not posing a danger to the safety of other persons in May of 2020, now or in the future on the totality of the evidence, including but not limited to the facts that:

[144]   The Crown has not discharged the onus on it in regards to the first stage of the inquiry, that is: the Crown has not proven on a balance of probabilities that P.P.B. possessing firearms and weapons would be unsafe for any other person. Consequently, I am unable to find that it is desirable in the interests of safety to other persons to prohibit P.P.B. from possessing firearms and weapons.

[145]   In the result, I find that Constable Ferris does not and did not have objectively reasonable grounds to believe that it is not desirable in the interests of the safety of persons other than P.P.B. that P.P.B. should possess firearms and weapons.

[146]   I move now to the second stage of the test: Does P.P.B. currently pose a safety danger to himself? In doing so, I keep in mind that in order for me to impose a s. 111(5) prohibition, I have to find that Constable Ferris has an on-going and current objectively reasonable belief that it is not desirable in the interests of the safety of P.P.B. that P.P.B. should possess firearms and weapons.

[147]   I appreciate the concern that Constable Ferris had on May 30 and 31, 2020, with regard to P.P.B. and the possibility that P.P.B. was suicidal. Given what Constable Ferris knew then of P.P.B. and what Constable Ferris subsequently learned in the days following, it is not surprising that Constable Ferris came to the belief by June 30, 2020, that the combination of:

[148]   Fast forward to February 22, 2021.

[149]   The incident that gave rise to the May 30, 2020 police investigation occurred nine months ago. It is connected to P.P.B.’s relapse into alcohol abuse because of his mother’s death 19 day’s previous. P.P.B. has not had a relapse since.

[150]   None of the police incidents involved a loaded firearm.

[151]   On May 30, 2020, Constable Cornfield responded to a report of a possible suicidal male. P.P.B.’s partner reported to the RCMP that she had been receiving text messages from P.P.B. and that the text messages were saying that P.P.B. wished “to blow his head off”. One or more of the text messages included a photo of a large calibre rifle. There is no evidence before the court that P.P.B. owned or possessed the rifle in the photo.

[152]   The October 13, 2019, police incident involved P.P.B. sharing several Facebook messages and a photo of a shotgun with a family member. The Facebook messages had P.P.B. saying things such as "fuck everything". There is no evidence before the court that P.P.B. owned or possessed the shotgun in the photo. The attending police officers did not locate or seize any firearms during the October 13, 2019 incident.

[153]   The May 15, 2018, police incident involved police officers attending to P.P.B.’s residence due to a domestic dispute. There is no evidence as to what the domestic dispute was about or who the participants were. Based on what the police officers observed and what they were told at the residence -- including an apparent escalation of the arguments -- Constable Ferris and Constable Gonah agreed between them that they should seize P.P.B.’s firearms as a result of public safety concerns. There is no evidence as to what the public safety concerns were that Constable Ferris and Constable Gonah had. The attending police officers seized three firearms in total. All three firearms were non-restricted and there is no evidence that the firearms were unsafely stored.

[154]   The April 16, 2018, police incident did not involve a firearm. A police officer located P.P.B. in the driver's seat of a motor vehicle wearing only his underpants. Although police officers did not locate or seize any alcohol from P.P.B. or his motor vehicle, Constable Evelyn administered an approved screening device test twice. P.P.B. failed both times. Constable Evelyn issued P.P.B. an immediate roadside driving prohibition for 90 days.

[155]   When considered in their totality, the four police incidents show P.P.B. to be a man who has struggled with anxiety, depression, an alcohol problem, and a need to call attention to himself when he is unable to cope.

[156]   There is no evidence P.P.B. ever committed or threatened an act of physical violence or harm to another person.

[157]   There is no evidence P.P.B. ever attempted suicide or otherwise harmed himself physically.

[158]   P.P.B. does not have a criminal record.

[159]   The Crown did not charge P.P.B. with any criminal offences related to the four police incidents.

[160]   While P.P.B.’s alcohol intoxication, anxiety, depression, and verbalized suicidal thoughts played a role leading up to and during some of the four police incidents, it was not until the fourth police incident that P.P.B. was taken for a s. 28 Mental Health Act examination. P.P.B. was released back into the community on the same day.

[161]   Dr. Mohammed's letter of September 18, 2020, discloses no medical basis to believe that P.P.B. suffers from a mental disorder or disease of the mind.

[162]   Since the May 30, 2020 police incident, P.P.B. has been receiving on-going treatment by Dr. Mohammed and counselling from Connie Nole at the Iskut Valley Health Services.

[163]   P.P.B. has not had a relapse with alcohol and he has not exhibited violent, threatening, or other behaviour that raises concerns for his own or the public’s safety.

[164]    During the time period of the four police incidents, P.P.B. possessed only non-restricted firearms and he used them exclusively for traditional Gitanyow sustenance hunting and when mentoring Gitanyow youth.

[165]   P.P.B. has endured a number of personal crises: the trauma of war in Afghanistan, the loss of his mother, the breakup with his daughter’s mother, and his on-going battle with alcohol, anxiety and depression. Through it all, with the exception of the four police incidents, P.P.B. has sustained himself and his two families, avoided criminal misconduct, and been a pillar in the Gitanyow Nation.

[166]   The Crown bears the burden of proving on a balance of probabilities that Constable Ferris has reasonable grounds to believe that it is currently not desirable in the interests of the safety of P.P.B. that P.P.B. should possess firearms and weapons.

[167]   Given all that has transpired in P.P.B.’s life since May 31, 2020, I cannot say that when viewed objectively from the viewpoint of a reasonable person who is fully informed as to the history of Canada’s Indigenous peoples generally, the Gitanyow Nation specifically, and the realities of P.P.B.’s life, that P.P.B.’s life is similar today to what it was like on May 31, 2020.

[168]   As stated above, I appreciate and understand the concern that Constable Ferris had regarding P.P.B. following the events of May 30 and 31, 2020. However, given all of the steps taken by P.P.B. over the past nine months and the views as expressed by Dr. Mohammed, Connie Nole and the Gitanyow Hereditary Chiefs, I cannot see how Constable Ferris could today, February 22, 2021, have objectively reasonable grounds to believe that P.P.B. is a danger to himself, such that it is not desirable in the interests of the safety of P.P.B. that P.P.B. should possess or have access to firearms and weapons.

[169]   In my view, the Crown has not discharged the onus on it in regards to the second stage of the inquiry, that is: the Crown has not proven on a balance of probabilities that P.P.B. possessing firearms and weapons today or into the future would be unsafe for P.P.B. Consequently, I am unable to find that it is desirable in the interests of safety to P.P.B. to prohibit P.P.B. from possessing firearms and weapons.

[170]   In the result, I find that Constable Ferris does not currently have objectively reasonable grounds to believe that it is not desirable in the interests of the safety of P.P.B. that P.P.B. should possess firearms and weapons.

[171]   I note that s. 112 of the Criminal Code permits a Provincial Court judge, on the application by the person against whom a s. 111(5) prohibition order was made, to revoke the prohibition order if satisfied that the circumstances for which the prohibition order was made have ceased to exist.

[172]   I mention s. 112 because had this s. 111(1) hearing concluded in the Summer of 2020, before P.P.B. had the opportunity to:

[173]   That said, given the evidence that has been presented to the Court over the three-days of hearing, had today been for decision on a s. 112 Application to a Judge by P.P.B., I would have found that P.P.B. had proven, on a balance of probabilities, that as of today he is not a danger to himself or any other persons. I would then have revoked the s. 111(5) order on the basis of my being satisfied that the circumstances for which it was made in the Summer of 2020 have ceased to exist.

[174]   As I set out earlier in my judgment, s. 113 allows a Provincial Court judge to consider if a person who is or will be subject to a s. 111(5) prohibition order needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family. I acknowledge that P.P.B. is not a sustenance hunter in the traditional settler way of viewing things. Nevertheless, I am of the opinion that Justice Willcock’s decision in Conley is not binding on me, as the facts in Conley are distinguishable from P.P.B.’s situation.

[175]   Viewed objectively from the viewpoint of a reasonable person who is fully informed as to the history of Canada’s Indigenous peoples generally, the Gitanyow Nation specifically, and the realities of P.P.B.’s life, I find that P.P.B. is a traditional Gitanyow sustenance hunter:

[176]   Accordingly, if I am wrong about Constable Ferris not currently having reasonable grounds to believe that it is not desirable in the interests of the safety of P.P.B. or any other person that P.P.B. should possess firearms and weapons, I would nevertheless grant P.P.B. a s. 113 exemption and order the Chief Firearms Officer for the Province of British Columbia to issue P.P.B. a PAL and to allow P.P.B. to possess non-restricted firearms and ammunition for hunting.

[177]   For the above reasons, I dismiss Constable Ferris’ Application to a Judge.

[178]   P.P.B. has expressed a desire for the Court to make an order pursuant to s. 117 of the Criminal Code that the firearms, PAL and any other items seized from P.P.B. by the RCMP on May 31, 2020, be returned to P.P.B. by the RCMP. Section 117 states:

[179]   I agree with P.P.B. that the RCMP should immediately return to P.P.B. the seized firearms, PAL and any other items the RCMP seized from P.P.B. or his residence on May 30 and 31, 2020. Accordingly, I am treating P.P.B.’s desire for the return of his firearms and PAL as an Application to a Judge for the return of the items. I therefore make the following orders: