Firearms License Hearing Involves Review of Behaviour and Responsibility Concerns

Reference to judge of refusal to issue or revocation, etc.

74 (1) Subject to subsection (2), where

(a) a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import,

(b) a chief firearms officer decides under section 67 that a firearm possessed by an individual who holds a licence is not being used for a purpose described in section 28, or

(c) a provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for the purposes of this Act,

the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides.

Limitation period

(2) An applicant or holder may only refer a matter to a provincial court judge under subsection (1) within thirty days after receiving notice of the decision of the chief firearms officer, Registrar or provincial minister under section 29, 67 or 72 or within such further time as is allowed by a provincial court judge, whether before or after the expiration of those thirty days.

Hearing of reference

75 (1) On receipt of a reference under section 74, the provincial court judge shall fix a date for the hearing of the reference and direct that notice of the hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or holder of the licence, registration certificate, authorization or approval, in such manner as the provincial court judge may specify.

Evidence

(2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.

Burden of proof

(3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.

Where hearing may proceed ex parte

(4) A provincial court judge may proceed ex parte to hear and determine a reference in the absence of the applicant or holder in the same circumstances as those in which a summary conviction court may, under Part XXVII of the Criminal Code, proceed with a trial in the absence of the defendant.

Decision by provincial court judge

76 On the hearing of a reference, the provincial court judge may, by order,

(a) confirm the decision of the chief firearms officer, Registrar or provincial minister;

(b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or

(c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.

[4]  In Canada, the privilege of owning and possessing a firearm is regulated by the Firearms Act.  Possession of firearms is also controlled by provisions of the Criminal Code. To lawfully possess a firearm, a civilian must be granted a licence pursuant to the Firearms Act.  Decisions as to whether a civilian should be granted, or allowed to maintain, a firearms licence are made either by the “Registrar” or by “a chief firearms officer” appointed under the Act.  Chief firearms officers, in turn, are assisted in the discharge of their statutory duties by a complement of area firearms officers (“AFOs”) working throughout the territorial jurisdiction.

[5]  When a chief firearms officer notifies a licencee of a decision to revoke their firearms licence, the licencee is entitled to apply to a “provincial court judge” for a review of that decision, pursuant to ss. 74 to 76 of the Firearms Act.  The nature of that hearing is prescribed by the contents of s. 75 of the Act:

Evidence

(2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.

Burden of proof

(3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.

[6]  According to s. 76 of the Act, at the conclusion of the reference hearing, the provincial court judge may, by order:

(a) confirm the decision of the chief firearms officer, Registrar or provincial minister;

(b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or

(c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.

[7]  The presentation of evidence at the reference hearing before me was not intended to have me decide whether the CFO correctly decided that Mr. Wilson’s firearms licence should be revoked under the Firearms Act.  Rather, the focus of the s. 75 hearing was whether the CFO’s revocation decision is “justified” in light of that evidence.  Courts have held that the scope of review contemplated by s. 75 of the Act is somewhat unique.  Though not intended as a fresh consideration of the appropriateness of the firearms licence, the s. 75 hearing is more than simply an appeal of the legal correctness of the CFO’s revocation decision.

[8]  The nature of a s. 75 judicial review has been described by the Ontario Court of Appeal in Henderson v. Canada, 2011 ONCA 696 as follows (at paras. 35 and 38):

… s. 75(3) of the Act directs the provincial court to decide, in light of the facts it has found, if the applicant has satisfied it that the Registrar's refusal was "not justified". That is, the applicant must do more than show that, given the facts found, the decision was wrong. Rather, the provincial court must be satisfied that the refusal was not justified. In my view, this reflects the legislative intent that the provincial court accord deference to the Registrar's decision….

… The provincial court's task is not to assess the process used by the Registrar about which it may know very little. Rather, it is to evaluate the Registrar's decision in the context of the facts it has found to decide if the applicant has satisfied it that the decision does not fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, at para. 47. It is in this sense that the provincial court should apply a standard of reasonableness….

[9]  The deference owed on judicial review of a CFO’s decision does not extend to the “facts” referred to in that decision.  A s. 75 reviewing court is obliged to make its own findings of fact based on the evidence presented to it at the review hearing.  Unlike at a criminal trial, the evidence presented at a s. 75 review hearing may include hearsay, so long as that hearsay is credible and trustworthy.  Even if admissible, however, the weight to be attributable to hearsay evidence may vary depending on its apparent degree of reliability: R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378.  For example, third, or fourth, hand hearsay recorded in a report may be inherently more suspect than testimony about information relayed directly from a witness to an event.  Equally, in the context of a s. 75 review application, contradictory direct evidence (which a court chooses to accept) may serve as a basis for discounting the putative value of competing hearsay information on the same point.

[10]  Courts have also held that, where the evidence presented at the s. 75 hearing is substantially the same as the evidence considered by the CFO, the deferential standard should limit judicial interference to cases where the CFO’s decision was manifestly wrong.  On the other hand, where the evidence presented at the s. 75 hearing has materially undermined the basis for the CFO’s decision, the need for deference to that decision is weakened.