2008 BCSC 384 R. v. Cox

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*R. v. Cox,*
	2008 BCSC 384

Date: 20080331

Docket: 52994

Registry: Chilliwack

Between:

Regina

And

Stephen Mark Cox

Before: The Honourable Mr. Justice Joyce

Reasons for Judgment

Counsel for Her Majesty the Queen	Lauren Berman
Counsel for Mr. Cox	Jeffrey R. Ray
Date and Place of Hearing:	August 27, 2007
	Chilliwack, B.C.

INTRODUCTION

[1] This is an appeal from a Provincial Court judgment made pursuant to s. 111(1) of the Criminal Code of Canada, R.S.C. 1986, c. C-46 prohibiting the appellant, Stephen Mark Cox, from possessing any firearm or similar device for a period of five years. The appellant submits that the learned hearing judge committed serious errors of law in relation to her treatment of the hearsay evidence upon which the Crown relied, erred in permitting the application to proceed in a manner that prejudiced the appellant’s right to a fair hearing, and arrived at a decision that was unreasonable and unsupported by the evidence. Further, the appellant submits that the learned judge erred in failing to consider the length of the prohibition.

[2] For the reasons that follow, I conclude that the learned hearing judge did not err in law and that there was evidence before her upon which she could make the order that she made.

FACTS

[3] On January 22, 2005 the appellant, who was a recruit of the Canadian Armed Forces stationed at the Quebec Garrison of the Armed Forces, made a number of statements of a disturbing nature to fellow members of his platoon. By way of summary, the statements allegedly made by the appellant were that he was the second coming of Christ, Son of Man, chosen by God to cleanse the world of the impure and that he would kill all Jewish and black people and those who would not conform to his religion.

[4] The statements made by the appellant prompted a number of his fellow platoon members to speak to their superior officers about the incident. Twelve members of the platoon provided written statements to their superior officers recounting what the appellant had said to them.

[5] Cpl. Kelly of the Canadian Armed Forces was assigned responsibility for investigating the incidents. Cpl. Kelly interviewed three of the individuals who had provided written statements concerning the incident. He found that their stories were consistent with one another and with the other statements that he had been given.

[6] Cpl. Kelly interviewed the appellant and formed the opinion that the appellant was not in control of himself and could be a danger to himself or others or both. As a result, Cpl. Kelly decided to arrest the appellant under the provisions of Quebec mental health legislation, which I assume was “An Act respecting the Protection of persons whose mental state presents a danger to themselves or to others” R.S.Q.. c. P-38.001, and take him to a hospital for examination. At the hospital, the appellant was examined and detained under that statute.

[7] During the course of the investigation, Cpl. Kelly learned that the appellant was in possession of firearms. An application was commenced in Quebec under s. 111 of the Criminal Code but was adjourned to allow the appellant to retain counsel. While the application was pending, the appellant was discharged from the Armed Forces and returned to his home in Abbotsford. The appellant was taken to the Abbotsford Hospital for examination under the British Columbia Mental Health Act, R.S.B.C. 1996, c.288, and was kept overnight and discharged the next day.

[8] As a result of the appellant’s discharge from the Armed Forces and his removal to Abbotsford, the s. 111 application in Quebec was withdrawn. A new application was brought in the Provincial Court in Abbotsford.

[9] The basis for the s. 111 application was the appellant’s conduct in the Quebec Garrison and, in particular, the statements that the appellant made to his fellow recruits. There was no evidence of any conduct prior to the appellant’s entry into the Armed Forces that would support an application under s. 111.

[10] The application first came on for hearing before the Honourable Judge Hicks on December 8, 2005. Counsel for the appellant raised two preliminary issues. First, he argued that the proceedings in Quebec constituted a dismissal of the application such that the proceedings in British Columbia should not be permitted to proceed. Second, he argued that the court in British Columbia should decline jurisdiction and that the application should be heard in Quebec, where the circumstances giving rise to the application arose.

[11] Judge Hicks held that the proceedings in Quebec did not conclude with a final determination of the application. He held further that the British Columbia Provincial Court should exercise jurisdiction and hear the application. On the latter issue, the learned judge said at paragraph 17 of his reasons:

Mr. Cox's liberty is not at stake in this proceeding. The proceeding is a preventative measure with a public safety component. Mr. Cox can bring witnesses to court, but he can also call their evidence by a video link. He has an opportunity as well, through cross-examination of the applicant's witnesses, to challenge the reliability of any hearsay evidence and thereafter to make submissions as to the weight the Court should place on that evidence as is contemplated by the Supreme Court of Canada in Zeolkowski.

[12] The application was eventually scheduled to be heard on September 15, 2006 but on that date two of the Crown’s witnesses who resided in Quebec, did not attend. Over objection by the appellant, the matter was adjourned and a new hearing date was scheduled for December 21, 2006.

[13] Prior to December 21, 2006, the Crown learned that the two witnesses who had not appeared on September 15, 2006 would not be available on the new hearing date. The Crown advised the appellant that they intended to proceed with the hearing without calling any of the recruits who had provided the statements regarding the remarks allegedly made by the appellant that formed the basis of the application. The appellant applied for an adjournment on the ground that the Crown was intending to proceed in a manner that undermined the spirit of the ruling by Judge Hicks on December 8, 2005.

[14] The application to adjourn the hearing was heard on December 19, 2006 and was dismissed.

[15] The matter finally came in for hearing before Maltby, P.C.J., on December 21, 2006. The Crown called two witnesses in support of the application: Sgt. Schultz of the Abbotsford Police Department, who was the applicant; and Cpl. Kelly, who had conducted the investigation in Quebec. None of the individuals who had provided statements concerning the appellant’s remarks on January 22, 2005 were available to testify. They were either in Afghanistan, in training to go to Afghanistan, or their contract with the Canadian Armed Forces was over and their whereabouts were unknown.

[16] Sgt. Schultz testified that the basis for the application was what had occurred in Quebec. Through Sgt. Schultz, the Crown introduced into evidence the 12 witness statements that had been provided by the appellant’s fellow recruits. Sgt. Schultz testified that to his knowledge nothing of an evidentiary value had occurred in Abbotsford pertaining to the application and that he had no information or evidence that the appellant had acted in a manner that was dangerous to the public peace. He further confirmed that the firearm in question had been stored with a registered gunsmith in Abbotsford and that there was no suggestion that it had been stored improperly.

[17] The witness statements included the following statements attributed by the recruits to the appellant:

“He claimed to be the Son of Man chosen by God to cleanse the world of all evil people and that he will kill all Jews that don't conform to his new religion. He said that Roman Catholics will also be killed.”

“He said that all we had to do was load the bullets and he will kill all of them himself.”

“I heard Private Cox talk of mass genocide of all humans who do not share his beliefs.”

“He was the Son of Man, in other words, Jesus Christ's second coming.”

“Private Cox told me that we (the remaining platoon members) would become his holy crusaders, charged with the task of hunting down and murdering all who do not share his beliefs.”

“Private Cox said many more disturbing racist and discriminating things that I have no time to relate now.”

“He then explained that he had conducted many missions as black op, although he would not go into detail, claiming it was classified. He did say that he had killed before and would kill again if he thought he needed to. He then skipped forward in his life and said that he was arrested on two counts of murder. He said he had been charged with killing two Hell's Angels.”

“It was revealed to him that he was the second Christ and it was his duty to join the Canadian Army and get into JTF-2 so that he would be in place for the apocalypse in 2012.”

“He explained in the future the Canadian Army would follow him in the acts of genocide and ethnic cleansing.”

“He became a living oracle, a vessel that contained a part of the Holy Spirit and that he was shown the universe in past, present and future.”

“All the blacks, aboriginals, Lebanese and all others who are different from him in either his beliefs or ethnicity would be killed by modern-day crusaders, us.”

“He told us that he killed two Charlie's Angels and that the charges were left.”

“All who oppose him or his ideals should be lined up and shot. He said he has killed before and that he has no problem looking into someone's eyes and killing them if ordered to, or if the person was untrue of heart.”

“This man talks of genocide. He is sick.”

“He said that gays, lesbians and unpure (sic) people will be killed by us.”

“There were many references by Private Cox about killing people because of their religious beliefs.”

“Private Cox said many times that he had killed and would kill again in order to rid the world of scum that sells drugs to your kids. “

[18] At para. 27, the hearing judge stated:

The majority of the recruits mentioned that they were frightened and uneasy and many of them said they were afraid for their lives as well as the lives of other platoon members, especially in anticipation of a firearm being issued to Private Cox. The overall sentiment amongst the group was that they would quit the Armed Forces unless Private Cox was removed from their platoon as they were so concerned about their safety.

[19] Cpl. Kelly confirmed in cross-examination that he did not know the circumstances surrounding the taking of the statements from the recruits. He played no part in the taking of the statements and simply received them from the superior officers when he began his investigation.

[20] Cpl. Kelly also testified that during the course of his investigation he learned that the appellant had been tried and acquitted of murder charges in New Westminster, British Columbia. Cpl. Kelly took these circumstances into account in determining that the appellant should be discharged from the Canadian Armed Forces.

[21] The appellant gave evidence at the hearing. His evidence was summarized by the learned hearing judge as follows (Cox (Re), 2007 BCPC 0188, [2007] B.C.J. No. 1327 (Q.L.)(B.C.P.C.)):

¶ 35 In his evidence, Mr. Cox denied that he made any of the comments about purging impure people or being the messenger of God. He also stated he wasn't a racist. He believes that all 12 of these people were out to get him because he was a leader of the group. Mr. Cox further states that the alarming comments he made to Cpl. Kelly and the other officer in Quebec regarding his knife were just benign conversation said to pass the time. As to the paranoia noted by Cpl. Kelly of being watched by CSIS, Mr. Cox said that he had been watched from 1996 until 2002 by CSIS, Chilliwack Special Crime Unit, Interpol and the Abbotsford Police Department. He believes this is in relation to the investigation of a double murder charge that he faced and of which he was ultimately acquitted.

¶ 36 Mr. Cox gave evidence that he has an interest in firearms, has an FAA and a possession and acquisition licence to buy both non-restricted and restricted firearms as long as he registers them. He has had these licences for some years. He gave a description of how he stores his ammunition and his firearms and all the documentation he has to support the legal owning of various types of weapons, including the AR15, which is a civilian copy of an M16. He states that he has this firearm for competition purposes.

¶ 37 Mr. Cox states that he has had no hospitalization since the February 2005 incident when he was at the MSA Hospital in Abbotsford and he is not on any medication and has not any diagnosis of any illnesses. He also stated that he is not under any doctor's care at this time.

ISSUES ON APPEAL

[22] The appellant states the issues on appeal as follows:

(a) Did the learned trial judge err in failing to critically analyze the circumstances (or lack thereof) surrounding the creation of the statements which formed the basis of the application?

(b) Was the hearing conducted in a manner that prejudiced the appellant’s right to natural justice and procedural fairness?

(d) Did the learned hearing judge err in failing to consider the length of the prohibition pursuant to s. 111(5) of the Criminal Code?

ANALYSIS

Did the learned hearing judge err in failing to critically analyze the circumstances surrounding the creation of the witness statements?

[23] Section 111(1) and (5) state:

111(1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge 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, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

…

(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.

[24] The appellant accepts that the hearing of an application under s. 111 is not subject to the same strict standards as a criminal trial and that the judge is entitled to rely upon hearsay evidence, in this case, the statements of the 12 recruits as to the comments made by the appellant, which was the whole foundation for the application.

[25] In R. v. Zeolkowski (1989), 50 C.C.C. (3d) 566 (S.C.C.), at p 570-571, Sopinka J. discussed the purpose of s. 98 of the Criminal Code, which was the predecessor of s. 111:

In my opinion, Lane Co. Ct. J. accurately stated the purpose of the legislation in R. v. Anderson (1981), 59 C.C.C. (2d) 439 at p.447 (Ont. Co. Ct.):

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 (Scarff, Evaluation of the Canadian Gun Control Legislation: Final Report, at p. 60). 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.

[26] At p. 572, Sopkina J. discussed the duty imposed on a Provincial Court judge hearing an application under (now) s. 111:

Section 98(4) enables a peace officer acting on reasonable grounds to apply to the provincial court judge for an order prohibiting a particular person from possessing a firearm. Clearly, the peace officer is not required to act solely on the basis of evidence that would be admissible at trial: see Eccles v. Bourque (1974), 19 C.C.C. (2d) 129 a p. 132-3, 50 D.L.R. (3d) 753, [1975] 2 S.C.R. 739 (S.C.C.); R. v. Collins (1987), 33 C.C.C. (3d) 1 at p. 15, 38 D.L.R. (4th) 508, [1987] 1 S.C.R. 265 (S.C.C.). At the hearing of the application pursuant to s. 98(6), the provincial court judge must be satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person or of others that the subject of the prohibition application should possess a firearm. The provincial court judge thus confirms the existence of the reasonable grounds which led the peace officer to launch the application. In my opinion, it was not intended that the provincial court judge strictly apply the rules of evidence. The provincial court judge must simply be satisfied that the peace officer had reasonable grounds to believe as he or she did: in other words, that there is an objective basis for the reasonable grounds on which the peace officer acted.

It is also relevant to note that the burden which the applicant bears at the hearing is not that of proof beyond a reasonable doubt, but simply proof on a balance of probabilities. In McWhirter, Hart J.A., for the court, took note of this reduced standard in reaching the conclusion that "... although these proceedings arise under the Criminal Code Parliament did not intend that they be conducted in the manner of a criminal trial" (p. 186). I agree with this conclusion.

[27] Sopinka J. held that hearsay evidence is admissible at a firearms prohibition hearing and stated at p. 573:

Frailties in the evidence are a matter of weight. In the case at bar, for example, the judge should properly consider what weight, if any, is to be given to the hearsay evidence. In doing so the judge should take into account the explanation, if any, for not making the best evidence available. The Crown bears the burden of proof at a s. 98(6) hearing and I agree with the observation of Killeen Co. Ct. J. in Unterreiner v. The Queen, supra, at p. 378 that in considering its weight, the judge must scrutinize the evidence to ensure that it is credible and trustworthy.

[28] While accepting that the hearsay statements were admissible, the appellant submits that the hearing judge failed to undertake a proper analysis in order to determine if they were “credible and trustworthy”. When dealing with the issue of the statements the hearing judge said at para. 6:

¶ 6 All 12 statements were filed as exhibits, leaving it to the Court to determine the weight that should be placed on this evidence. These are unsworn statements but I find their contents to be compelling, credible and trustworthy. All 12 recruits report a similar theme in their account of what Private Cox said, but the words used by each recruit was variable, depending on the recollection and command of the English language. The reports are not so similar as to give any hint that they conferred with one another in the preparation of the reports.

[29] After reviewing the evidence and submissions of the applicant and Mr. Cox, the hearing judge referred to Zeolkowski and then set out her conclusion at paras. 44-47:

¶ 44 I find the statements from Mr. Cox's fellow recruits to be relevant as it sets out the reasons why the 12 of them were so alarmed and contributed to the reasons why this application was sought. I also find the statements to be credible and trustworthy, as stated earlier.

¶ 45 Mr. Cox has denied that he ever said those words; however, I find the whole of his evidence was given with a lack of candour. He either exaggerated or had illusions about his own involvement with the SAS and Military in the United Kingdom. Further, he minimized his remarks to Cpl. Kelly, an experienced soldier who took them very seriously. Mr. Cox seemed to think that all 12 of the recruits were against him, although when asked about them individually, he did not believe some of the individuals had anything against him.

¶ 46 He continues to be obsessed with weapons, including his knife. His paranoia as to being watched by CSIS, Interpol, et cetera was still evident in his evidence before me. There is nothing before me that would indicate that the alarming circumstances that existed in 2005 do not continue to exist.

¶ 47 I find that in view of all the evidence, on a balance of probabilities, that Sgt. Schulz of the Abbotsford Police Department had reasonable grounds in February 2005 and continues to have reasonable grounds to believe that it is not desirable, in the interests of safety of Stephen Mark Cox and/or the safety of other persons, that Mr. Cox possess any of the items set out in s. 111 of the Criminal Code. I am therefore prohibiting Stephen Mark Cox from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of five years.

[30] The appellant submits that the reasons disclose no analysis or scrutiny of the circumstances surrounding the making of the statements and that the hearing judge erred in relying simply on the contents of the statements to conclude that they were credible and trustworthy. The appellant submits that the hearing judge should have engaged in an examination of the circumstances surrounding the taking of the statements, for example, whether the recruits were together when the statements were written, whether they had the opportunity to and discussed the events before the statements were given, whether they had the opportunity to read other persons’ statements before writing their own, what they were told about what the statements would be used for, whether they were told they had to provide statements. Of course, without evidence from recruits themselves, or others who were present when the statements were written, there was no way the hearing judge could learn of these circumstances.

[31] The appellant submits that in the absence of evidence by which to test the credibility and trustworthiness of the statements and in the face of contradictory sworn testimony by the appellant, the hearing judge ought not to have relied on the unsworn, untested statements.

[32] The mere fact that the makers of the hearsay statements, in this case the recruits, did not testify cannot necessarily make the hearsay evidence not credible or trustworthy or such hearsay statements would never be admissible. In this case, a reasonable explanation was provided as to why the recruits did not testify at the hearing.

[33] The respondent submits that while the hearing judge was not able to consider the circumstances surrounding the making of the witness statements in assessing the weight to be given to them, it is clear that she turned her mind to the danger of collusion and was entitled to rely on the form and content of the statements to satisfy herself that they were independent recollections of a large number of recruits. The hearing judge found that the statements carried a common, disturbing theme but were quite different in the extent of the witnesses’ recollections and in their precise words to present their recall of the comments made by the applicant. In my opinion, it was open to the hearing judge to consider the form and content of the statements in assessing the weight to be afforded to the hearsay evidence.

[34] I agree with the respondent that the hearing judge could use the evidence of Cpl. Kelly to assess the credibility and trustworthiness of the statements. After interviewing three of the recruits who provided statements, Cpl. Kelly was of the view there was no need to interview all of the recruits who gave statements. He had the opportunity to assess the recruits and the reliability of the written statements in relation to what the recruits heard.

[35] The evidence of Cpl. Kelly with respect to his interaction with the appellant also tends to bolster the credibility of the hearsay evidence with regard to the appellant’s demeanour and apparent mental state at the time. Cpl. Kelly testified that when he met with the appellant the night after he made the comments to his fellow recruits, Mr. Cox was generally calm but became agitated easily and was on the brink of tears a couple times. Mr. Cox spoke to Cpl. Kelly about being watched by CSIS and drew a theory on the blackboard. Cpl. Kelly formed the opinion based on his observations that the appellant was not in control of himself and could be a danger to himself or others.

[36] In my view, the hearing judge did not err in failing to critically analyze the circumstances surrounding the creation of the witness statements. The hearing judge admitted the hearsay evidence in accordance with the authorities. She also applied the test set out by the Criminal Code and in accordance with the authorities, and carefully considered the evidence as a whole in relation to the statements, including Cpl. Kelly’s interview with the three witnesses, Cpl. Kelly’s evidence, and Mr. Cox’s evidence in relation to the statements. I am therefore satisfied that it was open to the hearing judge to receive the statements and to give to them the substantial weight that she obviously did.

Was the hearing conducted in a manner that prejudiced the appellant’s right to natural justice and procedural fairness?

[37] The appellant submits that the decision of the hearing judge on December 19, 2006 to proceed with the hearing in the face of the Crown’s decision not to call any witnesses who heard the appellant utter the statements upon which the applicant relied upon, resulted in a manifestly unfair hearing. The appellant submits that when Judge Hicks decided to accept jurisdiction and not send the matter back to Quebec for hearing, he proceeded on the assumption that the appellant would be given the opportunity to cross-examine witnesses regarding the hearsay evidence. However, when the matter came on for hearing, the Crown did not call any witnesses who were able to give evidence surrounding the “core” of the application, i.e. the statements allegedly made by the appellant.

[38] The appellant submits there were no witnesses whom he could effectively cross-examine with regard to the substance of the application and all he could do was testify and deny that the statements were made.

[39] The respondent does not dispute that natural justice and procedural fairness, including the right to make full answer and defence, apply to s. 111 proceedings but the respondent submits that the right to make full answer and defence does not necessarily include the right to test the evidence of the other side by cross-examination. Rather, the respondent submits that natural justice requires only that a fair opportunity to respond to the other side is given.

[40] The respondent refers to Cambie Hotel (Nanaimo) Ltd. (c.o.b. Cambie Hotel) v. British Columbia (General Manager. Liquor Control and Licensing Branch), 2006 BCCA 119, 265 D.L.R. (4th) 657 at para.28, in which the British Columbia Court of Appeal referred to T.A. Miller Ltd. v. Minister of Housing & Local Government, [1968] 2 All E.R. 633 (C.A.) at page 995:

...A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied...Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law...No doubt in admitting [hearsay], the tribunal must observe the rules of natural justice, but this does not mean that that must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and contradicting it…. (para. 28)

[Emphasis added by Rowles J.A.].

[41] Given that hearsay is admissible in a s. 111 hearing, the appellant has no absolute right to cross-examine the witnesses who heard him make the statements that were the foundation of the application. The appellant submits that there were unique circumstances that required that the appellant be allowed to cross-examine the declarants of the statements. I am unable to accede to that submission. In my view, the circumstances in this case were like those in Zeolkowski. In that case, the respondent's wife had informed an officer that the respondent had threatened her, and that she believed that the respondent would use the weapons against her. The Crown wanted to call the officer to testify as to what the respondent's wife had told him, rather than calling the respondent's wife to testify (page 568). Given the Court's ruling that hearsay was admissible, at the retrial, Mr. Zeolkowski would not have been able to test the hearsay evidence through cross-examination of the declarant.

[42] In this case, Mr. Cox was given a fair opportunity of commenting on the statements and contradicting them, which he did. In my view, the hearing was not conducted in a manner that offended the principles of natural justice and procedural fairness.

Is the decision unreasonable?

[43] An appeal under s. 111(8) of the Criminal Code is governed by ss. 813 and 822 of the Criminal Code, which incorporate s. 686. As a result, an appeal court may consider whether the decision of the hearing judge is reasonable. The appellant submits it was unreasonable in three respects.

[44] First, he submits the hearing judge erred in rejecting the appellant’s sworn evidence in denial on the basis of the unsworn, hearsay statements tendered by the respondent. The appellant says there was no basis to prefer the untested statements over the appellant’s sworn testimony that was subject to cross-examination.

[45] In this case, the hearing judge did not simply prefer the respondent's evidence to the appellant's evidence, or use the respondent's evidence to reject the appellant's evidence. Rather, the hearing judge rejected the evidence of the appellant, as she was entitled to do, for reasons that she gave at para. 45 of her judgment.

Mr. Cox has denied that he ever said those words; however, I find the whole of his evidence was given with a lack of candour. He either exaggerated or had illusions about his own involvement with the SAS and Military in the United Kingdom. Further, he minimized his remarks to Corporal Kelly, an experienced soldier who took them very seriously. Mr. Cox seemed to think all 12 of the recruits were against him, although when asked about them individually, he did not believe some of the individuals had anything against him.

[46] Second, the appellant submits that the statements were insufficient to support the order even if they were considered credible and trustworthy. Counsel for the appellant noted that:

(a) the appellant had no prior criminal record;

(b) there was no evidence the appellant had ever acted in a violent manner;

(c) there was no evidence the appellant had ever acted in a manner dangerous to the public peace either through the possession or storage of firearms; and

(d) the circumstances forming the basis of the application centred around a verbal conflict between the appellant and fellow soldiers while at the Quebec Garrison.

[47] The appellant submits that there was an absence of the kind of evidence that commonly supports the making of an order under s. 111.

[48] The appellant relies particularly on the case of R. v. Jordan [1995] BCJ No. 1586 (S.C.), where the court dismissed a Crown appeal from a dismissal of an application for an order prohibiting the respondent from possessing firearms. In Jordan, the presence of a psychiatric opinion that the respondent was unfit to own and use firearms was not sufficient. The appellant says that in the present case, the evidence was even weaker and the psychiatric evidence was simply conclusive in nature, namely, that the appellant had been committed for a period of time under the Quebec Mental Health Act.

[49] The task of the hearing judge under s. 111 is to determine whether the police officer had reasonable grounds to believe that “it is not desirable in the interests of the safety of the person against whom the order is sought or any other person" that the person possess firearms. There is no fixed set of criteria that must be established before the order can be made (R. v. Christianson, 2006 BCCA 189, 208 C.C.C. (3d) 154).

[50] Having rejected the appellant’s evidence, the hearing judge was left with the 12 written statements of the platoon members that she determined to be credible and trustworthy, and Cpl. Kelly's evidence of his personal dealings with the appellant. There was a body of evidence before the hearing judge from which it was open to her to conclude that the test had been met.

[51] In this case, the hearing judge did not rely on an expert opinion to determine that the appellant was unfit to possess a firearm. Rather, she based her decision on her finding that the appellant made the statements to the recruits and on the direct evidence of Cpl. Kelly. Additionally, she considered evidence that the appellant was committed under the Quebec mental health legislation and that the examining physician considered him to be dangerous:

After examining Mr. Cox, she [the doctor] asked Cpl. Kelly to escort him to the ward as she believed he was too dangerous for her to escort alone. This was the first time in approximately seven times that the corporal had been to the psychiatric ward that the doctor had not felt safe enough to escort the patient themselves. (Para. 29). ,

It was on these bases that the hearing judge held it was not desirable in the interests of the safety of the person and others for the appellant to possess firearms.

[52] Finally, the appellant submits that the hearing judge erred in finding the circumstances of January 2005 still existed in December 2006, thereby warranting the making of the order.

[53] At paragraph 46 of her reasons the learned hearing judge said:

There is nothing before me that would indicate that the alarming circumstances that existed in 2005 do not continue to exist.

[54] The appellant submits this statement reflects two errors. First, the hearing judge has reversed the onus of proof. Second, the evidence is to the contrary, that the circumstances had in fact changed.

[55] I accept that if this sentence is read in isolation it appears to place the onus of proof on the appellant that the circumstances justifying an order prohibiting the possession of firearms in January 2005 were no longer present, which would be an error. However, the judge’s reasons must be considered as a whole. In particular, the sentence in question must be read in context with what the hearing judge said preceding it. She found at para. 45 that the appellant “either exaggerated or had illusions about his own involvement with the SAS and Military in the United Kingdom”. Further, at the same paragraph, the hearing judge noted that the appellant “minimized his remarks to Cpl. Kelly, an experienced soldier who took them very seriously”. Additionally, she observed that the appellant seemed to think that all 12 of the recruits were against him but when asked about them individually, he did not believe some of the individuals had anything against him.

[56] The hearing judge also found that the appellant

…continues to be obsessed with weapons, including his knife. His paranoia as to being watched by CSIS, Interpol, et cetera was still evident in his evidence before me.

[57] It was in this context that the learned judge observed, in essence, that there was nothing to counter the evidence that led her to believe that the “alarming circumstances”, i.e. the appellant’s disturbing beliefs and his expressed desires to cleanse the world of the impure persisted.

[58] Obviously the circumstances under which the alarming remarks were made had changed in that the appellant was no longer a member of the Armed Forces. However, most of the statements that the appellant made and that the trial judge relied upon to make the order were unrelated to the fact that the appellant was in the Armed Forces. I agree with the respondent that the fact that the appellant was no longer a member of the Canadian military is not of great significance.

Did the hearing judge err in failing to consider the length of the prohibition?

[59] The appellant argues that the hearing judge erred in imposing the maximum period of prohibition without giving any reasons for doing so.

[60] Despite the fact that the hearing judge did not express her reasons for imposing the maximum period, I am satisfied that a five year prohibition is reasonable considering the nature of the circumstances giving rise to the prohibition and the hearing judge’s conclusion that they had not changed in the two intervening years.

[61] The appeal is therefore dismissed.

B.M. Joyce, J.