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| John L. Hill |
On June 6, 2022, police responded to the Moncton Hospital, where staff reported that a patient named Mitchell John Wojcik was armed. Wojcik voluntarily surrendered a knife to Constable Gagné. Due to concerns from Dr. Gagnon about Wojcik’s suicidal state, he was detained under New Brunswick’s Mental Health Act with his consent. During the incident, Wojcik’s spouse informed police of two prior concerning events:
1. April 6, 2022: Wojcik, intoxicated, pointed a handgun at his spouse after being woken up. He later claimed that the gun could not fire because it was missing a firing pin.
2. May 21, 2022: He warned his spouse against returning home, citing suicidal and paranoid thoughts.
Following this information, Constable Gagné directed the RCMP to seize Wojcik’s firearms and move to have his firearm Possession and Acquisition Licence revoked.
A hearing regarding Criminal Code s. 117.05 took place on Oct. 24, 2022. The Crown sought an order to dispose of all weapons in Wojcik’s possession and to prohibit him from rearming for two years. The Crown contended that Wojcik was unfit to possess firearms due to his mental health issues and alcoholism. The only evidence presented was from Constable Gagné. Wojcik did not submit any evidence, and the court received no thorough medical assessment of his mental health or current condition.
On Nov. 7, 2022, the application judge ruled that Wojcik’s past actions — particularly the incidents in April and May
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The judge emphasized that the legal standard in a s. 117.05(4) application is the balance of probabilities, rather than the criminal standard of proof, and that hearsay evidence is admissible. Importantly, the judge underscored the necessity to evaluate the risk at the time of the hearing, not merely based on past incidents.
Since there was no evidence of ongoing treatment or improvement in Wojcik’s mental health or alcohol use since June, the court could not assume he was no longer a risk. Consequently, the judge ordered the forfeiture of Wojcik’s firearms and imposed a two-year prohibition on possessing any weapons, ammunition or related items.
Wojcik appealed to the Summary Conviction Appeal Court of the New Brunswick Court of King’s Bench. In October 2023, this court upheld the lower court’s decision (Wojcik v. R., 2023 NBKB 177). In doing so, the King’s Bench clarified the decision in R. v. Douglas, 2013 ONCJ 649.
In that decision, the Ontario Court of Justice dismissed the Crown’s application for firearm forfeiture. The case involved an appellant whose firearms had been seized six months after a Form 1 psychiatric admission, with the hearing taking place four years later. The Crown presented the doctor who signed Form 1, while the defence relied on Douglas’s long-time family physician, who testified that Douglas posed no risk to himself or others. Based on this timely and persuasive evidence, the judge found no basis to conclude that Douglas lacked the responsibility to possess firearms.
In contrast, Wojcik’s case was distinct. Although he contended that the Crown’s evidence was outdated, as in Douglas, the court noted key differences:
- Only five months had elapsed between the incidents and the hearing.
- Wojcik provided no medical evidence demonstrating that he was no longer a risk.
- He had displayed violent behaviour involving a firearm, along with persistent mental health and alcohol issues, which the judge found were likely not temporary.
The Appeal Court agreed. The court clarified that mental illness alone does not prohibit firearm ownership; however, Wojcik’s actions within context warranted concern.
On appeal, Wojcik contended that the judge reversed the burden of proof. The court disagreed, clarifying that the Crown needed only to establish undesirability on a balance of probabilities. Once that prima facie case was presented, the defence could, but was not legally required to, respond with counter-evidence — a “tactical burden,” not a legal one. The judge did not err in law by anticipating that the defence would rebut the Crown’s evidence.
A final argument presented was that a court should rely solely on the evidence available at the time of the hearing. The Appeal Court pointed out that the reliance in this case was on events that occurred immediately prior to the weapon seizure and did not take note of evidence from years prior. The Court emphasized that in accordance with R. v. Wiles, 2005 SCC 84, possession and use of a firearm is a privilege and not a right. A balance of probabilities test applies when an individual wishes to obtain or retain this privilege. The privilege seeker must demonstrate their fitness to possess firearms. Here, Wojcik presented no such evidence.
Wojcik’s appeal was dismissed when the Appeal Court could not find reversible error. When one considers the commonsense approach adopted by the New Brunswick courts in this situation, one cannot help but think how different the outcome would be if we were the 51st state.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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