ONTARIO

COURT OF JUSTICE

5

HER MAJESTY

THE QUEEN

v.

DANIEL BALOFSKY10

**********

15

REA

SON

S

FOR

J U D GEM

ENT

BEFORE20

THE HONOURABLE on September at TORONTO,

JUSTICE R. KHAWLY 21, 2012, Ontario.

25

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**********

PPEARANCES:30

MacDonald D. Balofsky

Counsel

for the Canadian

Firearms

Office

Self-Represented

-"'-

(i)

Table of Contents ONTARIO TAB L E COURT OF JUSTICE

o

F

CON

TEN

T S

5

EASONS

FOR JUDGEMENT

Page 1

10

15

20

25

ranscript ranscript tified

Ordered:

September

21, 2012 28, 2012 28, 2012

Completed:

November

Ordering

Party:

November

1. R. v. Balofsky FRIDAY, SEPTEMBER 21, 2012

THE COURT: MacDonald,5

All right. let's proceed

Mr. Balofsky,

Mr.

with our matter,

please. MR. MACDONALD: THE COURT: Balofsky, Good morning, Your Honour. Mr.

Good morning. please.

Come forward,

DANIEL BALOFSKY:10

Yes, Your Honour. (ph),

THE COURT: please.

Have a seat next to Mr. Modie

Perhaps he can move his files.

REA

SON

S

FOR

J

U D GEM

ENT

15

HAWLY,

R.

(Orally) :

This is a matter and Her Majesty Ontario.20

involving

Mr. Daniel Balofsky

the Queen in the right of is a reference hearing Act, Federal

This matter

under section Statute.

74(1) of the Firearms

This was triggered of Ontario's

by the Chief denial of Mr. to

Firearm Office Balofsky's transport25

request

for authorization firearms

restricted

under a five-year to

scheme called the Long-Term Transport,

Authorization

which I will refer to from this point Similarly I will refer to the from now on as

on as the LTATT. Chief Firearms the CFO.30

Office of Ontario

The participants burden

are in agreement

that the to show that

of proof is on Mr. Balofsky

2. R. v. Balofsky this administrative decision was unreasonable. who represents the

I agree with Mr. MacDonald, CFO, that the standard

of review to be applied

by this court is one that should take a5

deferential

approach

to the assessment

of the

reasonableness

of the CFO's decision.

The support the language10

for that proposition and interpretation

is found under given by the v.

Ontario

Court of Appeal

in the case of Canada

Henderson, The bottom whether Rather,15

which was cited by Mr. MacDonald. line is this: It is irrelevant with the decision. whether, to

the Court disagrees

the Court must determine

quote Mr. Justice Goudge, by the applicant reasonably

"It has been satisfied is not

that the decision

defenceable."

Background20

Voluminous

material

has been provided

to this and

Court and one day was spent hearing argument. evidence,25

evidence

The Court also allowed which such reference

some hearsay At one

allows.

point during this hearing there was a making parties Although

the Court felt that and asked the

of a compromise

to flush it out.

It came to not. to dilute it had took the the in a

the CFO was prepared condition requested,

significant30

precedent

previously position proposed

Mr. Balofsky

that, although authorization

appreciated, remained

too narrow

3. R. v. Balofsky scope.

It is clear that this case is being used by Mr. Balofsky5

to test the authority requirements

of the CFO to licences

read-in

for such transport believes

beyond what Mr. Balofsky allows. I do not propose

the statute

to spend a significant the history of this

amount of time detailing matter,10

nor the case law, as none of it is on point.

directly

Under the Act, the CFO of each province administers transfers,15

the regulations use, transport

governing

licensing, and the

of firearms

like.

There was evidence

called at this hearing

and we heard from the CFO at the Court's request. numerous All agree that Mr. Balofsky firearms, including a number possesses of of

restricted20

firearms,

which are the subject

this application. Balofsky collector relation

All further agree that Mr. gun handler history and in

is an experienced

who has no infraction to firearms.

25

Mr. Balofsky November required

was previously

issued an LTATT in of 5 years. at It It

of 2010 for a period him to maintain

his membership

Silverdale allowed30

Gun Club, an Ontario-based

club.

him to transport only to approved

said restricted gun clubs and ranges

firearms

in Ontario. expired

Yet, within weeks the membership

and was not renewed.

4. R. v. Balofsky

While Mr. Balofsky British Columbia,

then joined a gun club in any reasonable person would

have reached5

the conclusion

that this was a

violation

of the LTATT.

It seems to this Court let his membership fully

that Mr. Balofsky

purposely

lapse to see what the CFO would do while intending suspension10

to launch a challenge, of his authorization

were the to follow.

However,

things did not turn out that way.

While,

in fact, the authorization internally revoked,

was the evidence

subsequently suggests15

that the CFO did not at any time issue as required by section 72(1) in

a formal revocation

of the Act, nor in the manner regulation SOR /98-206.

as stipulated

However,

this is not with, as

the authorization Mr. Balofsky20

that we are dealing

was apparently something

told that he could

not challenge revoked.

that was not formally if section 72(1) of

This seems correct

the Act is given its intended

significance.

This left Mr. Balofsky25

with two options.

The He in the

first was that he could take his chances. could continue manner to transport authorized his firearms

previously

on the basis that

no suspension30

was in fact in play given that the of the Act. a new to a That

CFO did not follow the requirements The second was that he could request LTATT,

and if denied to failing to belong to then challenge it.

gun club in Ontario,

5. R. v. Balofsky is precisely what has transpired.

The Authority

of the CFO to Transport Firearms

Restricted

5

The Act is quite specific of transportation firearms

on the limited

scope

of prohibited in section

or restricted 19(1). places, It must but then

as detailed

be between10

two or more specific broaden

seems to somewhat To quote:

the reason to do so. reason.u

"Any good and sufficient contemplated

One of the places approved shooting

is provincially

ranges and clubs as detailed Moreover, section

in section15

29(1) of the Act.

58(1) allows the CFO to "attach condition particular that it considers circumstances

any reasonable in the of

desirable

and in the interests or any other person.u

the safety of the holder This appears20

at first blush to be wide open but I believe that both much

ended powers, participants

agree that such conditions

both be reasonable motivator.

and with safety as the that is the logical

Regardless,

interpretation.25

The Refusal

As opposed30

to some other instances,

it cannot

be

said that the CFO's refusal supporting here. reasons.

letter is short in

There is no such deficiency Moreover,

In fact, it runs 11 pages.

this Court has had the benefit

of the viva voce

6. R. v. Balofsky evidence of both the CFO, Superintendent C.

Wyatt of the OPP, and one of his designated firearm officers, penned5

Sergeant letter.

Niedermaier,

who

the refusal

The Crux Issue

Mr. MacDonald Niedermaier10

avers that the refusal by Sergeant justified, and

was reasonable,

supported

by the legislation

and related

regulations. vehemently

All of which Mr. Balofsky contests.

One of the lynchpins15

for the refusal

was the gun

fact that he was not a member club. This is problematic

of an Ontario

because

the sergeant

was of the belief

that most guns do not accept of another deduced approved

guests who are not members club.20

Hence, the sergeant is barred

if Mr. a

Balofsky

or unwelcome

from entering of an

club as a guest, then what is the point authorization. reached To this Court, conclusion

the sergeant and had met the reason."

a reasonable

requirement25

of "good and sufficient

At the hearing Mr. Wyatt and the sergeant

were

also of the belief that even guest invitations, when they are given, are limited usage.30

to sporadic

However,

it became

clear that at least to

one club in Ontario

would accept Mr. Balofsky

the range as a guest and on an unlimited To Superintendent Wyatt's

basis.

credit, when the Court

7. R. v. Balofsky asked if he would reconsider valid membership the new evidence, the requirement of

in an Ontario

club in light of

he stated that he would as spelled out that he

long as the authorization was an unlimited

guest at a named club.

In this Court's major obstacle

view, this was the removal as it gave Mr. Balofsky the

of a

latitude Canada,

to hold membership which, according

in any club in

to him, also allowed for his weapons at

for better

insurance

coverage

a much lower rate.

Yet, while this development by the unexpected

may have caught Mr. Balofsky flexibility

shown by the CFO, it did not sway on a more

him as he seemed to have designs radical decision.

Even though the Court purposely scope of the hearing, Balofsky

limited

the

it is clear that Mr.

is of the view that the CFO has usurped intentions by rendering onto

Parliament's himself

authority

that the statute

does not CFO. It

confer on him or any other provincial is in that vein that he demands

that the LTATT to and

grant him, as well, the authorization transport border firearms to gunsmiths,

verifiers

crossing

points.

Mr. Wyatt's

practice,

as he tells us, is to issue only short term ATTs for such situations. that is beyond attestation. This is the very practice

the CFO's reach by Mr. Balfosky's I need not go there.

8

R. v. Balofsky As I stated earlier, my task here is to determine decision. flexibility5

the reasonableness

of the CFO's

Mr. Wyatt has in open court shown mixed with an open mind. the with He was

prepared

to grant an LTATT without of an Ontario-based

requirement

membership in a

the caveat that unlimited specific Ontario-based

guest access

club be a condition

of is and

the authorization.10

In my view, that power had contemplated

not beyond what Parliament it meets the requirement sufficient safety. cause within

of both good and the context of public

15

In similar include

fashion,

the authorization to gunsmiths

should

the transport

or verifiers. in terms

Logically,

it is in the public

interest

of safety that firearms order.20

are in proper to deny such

working

It is nonsensical

authorization CFO has done.

on the basis of infrequency

as the

Border

crossings,

however,

are a different

situation.25

Regardless requiring

of U.S. rules and advance approval which is to to

regulations

the rationale Mr. Balofsky,

used by the CFO for the denial it is in our nation's interest It

know when guns are leaving the country. falls most readily on the public's30

safety

aspect.

In light of my comments

above and pursuant

to

9. R. v. Balofsky section 76 of the Act, I am making a long-term an order to

the CFO to authorize to transport it.5

authorization

to Mr. Balofsky,

as I have outlined to sit down with to draft

I am asking Mr. MacDonald

CFO personnel

and with Mr. Balofsky It would

said authorization. named gunsmith MR. MACDONALD: for my guidance10

list as well one

or verifier. Thank you, Your Honour. in drafting, Just

is the long-term

ATT to issue for transport gunsmith,

to one named but not to all

one named verifier,

clubs in Ontario? THE COURT: No, what I'm saying is ... Yep . if I

MR. MACDONALD:15

THE COURT: understood

...as far as I'm concerned, correctly, Mr. Wyatt,

what he was

really concerned Balofsky

about is to make sure that Mr. gun club

intends to go to a particular

isn't going to be turned away.20

Therefore, club if,

that's why he wanted mentioned. between number

I think one specific I mean,

But it's open-ended.

the two of you, you decide of gun clubs or a number so be it.

to list a

of gun smiths

and verifiers,25

MR. MACDONALD: Your Honour reached

I see, so the proposal

that

suggested

we reach and that we - that be

in Court, that compromises into a ... That's correct. ...long-term

incorporated THE COURT:30

MR. MACDONALD:

ATT, and to add gun

smith - one name gunsmith THE COURT:

and verifier .... and

At least one named gunsmith

10. R. v. Balofsky verifier. MR. MACDONALD: THE COURT: correctly,5

Sure. - if I understand is.

And I assume

what a verifier Pardon?

MR. MACDONALD: THE COURT: the verifier discussed it.

I assume

I understood

correctly

what

is because

we never really

MR. MACDONALD:10

No. is somebody who

THE COURT: verifies order.

To be a verifier

that the weapon

is in proper

working

MR. MACDONALD: THE COURT:15

I don't know.

But ....

Am I correct? See if Wyatt will know. when I

MR. MACDONALD: THE COURT:

I'm looking at Mr. Balofsky

ask the question. DANIEL BALOFSKY: confirms20

Your Honour,

a verifier If

the categorization

of the firearm. or antique or

it is restricted, non-restricted. THE COURT:

prohibited, So ...

Okay . ...it is someone who is deemed Firearm Centre to know the

DANIEL BALOFSKY: by the Canadian25

categorizations. THE COURT: instance, whether Okay. So the bottom a weapon, line is, for you don't know

you purchase

it's restricted

or not, you need to know that's

what to categorize30

it at and therefore Well, okay.

why you go to him. as well. MR. MACDONALD:

So that applies

Okay.

Do you wish us to come

11. R. v. Balofsky back before THE COURT: difficulty, before me.5

you or simply file a copy later? Well, look, unless there's some

then you don't need to reappear

MR. MACDONALD: THE COURT:

Right.

No, I ... file a copy . be

You can certainly

MR. MACDONALD: difficulty. THE COURT:10

...don't think there'll

Okay. All right. We'll do that. Thank you, Your

MR. MACDONALD: Honour. THE COURT:

.~ Thank you very much.

15

M A T T E R

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FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, Terri-Jo Thompson, certify that this document is a true and accurate transcript of the recording of R. v. Daniel Balofsky in the Ontario Court of Justice held at 60 Queen Street West, Toronto, Ontario on September 21,2012 taken from Recording No. TT4811-102-415/2012 which has been certified in Form 1.

!Uovam /00(Date)

dff!r d7

CERTIFICATE/PROOF OF ORDERING TRANSCRIPT FOR APPEAL CERTlFICAT DE DEMANDE DE TRANSCRIPTIONS DES PROCEDURES D'APPEL Tol

A

I DanielL

Balofsky 8 Brill Crescent Toronto, Ontario M2R 2X3 416-226-3676

Appeal File Number / Numero de la Cour d'appel

Title of Proceeding/Name

of Case / Intitule de /'instance/Nom

de la cause

TBA

[gJAppellate Court: Cour d'appel :

Court of Appeal for Ontario Cour d'appel de I'Ontario Divisional Court Cour divisionnaire Superior Court of Justice Cour supetieiue de justice

R. v. Daniel Balofsky Firearms Reference Hearing

D DDate(s) du proces

Date(s) of Trial/

Date of JudgmenUOrder/Sentence

/ Date du jugementlordonnance

/peine

September 21, 2012Place / Lieu Judge / Juge

Ontario Court of Justice - Old City Hall, Toronto

Justice Khawly

This is to certify that, pursuant to the rules of the court, ~______ copies of the trial proceedings have been

ordered for appeal purposes and copies of the necessary forms, listing exclusions, have been supplied to the reporter.

~?~~!:!l_~~~~~!~Q~~ _Date of Signature / Date de la signature

Party Ordering Transcript

/ Demande faite par

Telephone

Number / Numero de telephone

Daniel BalofskyReporter / Stenographe

416-226-3676

Terri-Jo Thompson - Scarborough,

Toronto

oateN

fN?rYl ~

f2'C'/ duf'd

-

Order Taken By / Demande

recue par

Estimated Number. of Pages / Nombre de pages prevu

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