NFA BRIEFING DOCUMENT 16, VERSION 4
Wednesday, April 18, 2007
It is possible that, some day, you will be refused a
licence or authorization to transport by the Chief Firearms Officer or one of
his staff. It is possible that you may
be refused a registration certificate, authorization to export or authorization
to import by the Registrar or one of his staff.
It is also possible that
the licence or authorization to transport that you already have will be revoked
by the Chief Firearms Officer or one of his staff, or that your registration
certificate, authorization to export or authorization to import will be revoked
by the Registrar or one of his staff.
It is possible that you
may be subjected to a court process in which the Crown prosecutor is trying to
persuade the judge to issue a court order revoking your licence and
registration certificates. If this is
the type of case you are fighting, ignore references to a "reference hearing"
in this paper. However, the arguments are
valid for that type of case also.
Refusal to issue or
revocation of any or all of the following licencing documents -- a licence,
authorization to transport, registration certificate, authorization to export,
authorization to import, or approval of a shooting club or shooting range --
may be referred to a provincial court judge.
That is the equivalent of appealing the decision of the person who
refused or revoked the licencing document.
The grounds for refusing
to issue or revoking a licencing document are:
It is desirable, in the
interests of the safety of that or any other person, that the person not
possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a
prohibited device, ammunition or prohibited ammunition [FA s. 5(1)].
The legitimate reasons for
coming to that conclusion include conviction or discharge
under CC s.
736, within the previous five years
, of any offence:
1. in the commission of
which violence against another person was used, threatened or attempted [FA s.
2. under the Firearms Act
or Part III of the Criminal Code ("Firearms and Other Offensive
Weapons") [FA s. 5(2)(a)(ii)];
3. an offence under CC s.
264 (criminal harassment) [FA s. 5(2)(a)(iii); or
4. any drug offence that
includes "trafficking" as part of the charge, but not a drug offence
that is merely one of "possession"; that is, "possession for the
purpose of trafficking" is a reason to refuse or revoke, but simple
"possession" is not.
Refusal or revocation can
also be based on treatment for a mental illness, whether in a hospital, mental
institute, psychiatric clinic or otherwise, as in inpatient or as an
outpatient, if and only if the treatment was for a condition that "was
associated with violence, or threatened or attempted violence" on the part
of the holder or applicant against any other person [FA s. 5(2(b)].
Refusal or revocation can
also be based on "a history of behaviour that includes violence or
threatened or attempted violence" on the part of the holder or applicant
against any person [FA s. 5(2)(c)].
There is an exception to
those rules, covering refusal only; they may be ignored by any person with the
power to refuse, and by a provincial court judge, when the holder or applicant
is over eighteen and
does not reside in Canada and
for a sixty-day temporary licence to possess a non-restricted firearm in Canada
[FA s. 5(3)].
The responsible person who
refuses or revokes must do it in writing [FA s. 72(1)]. A voice on the telephone cannot do either of
those things, so any firearms control bureaucrat who tries to do that should be
told that he is exceeding his authority under FA s. 72, and that you will wait
for his refusal or revocation to be delivered to you in writing, as the law
Once you get your letter,
you can "refer" the matter to a provincial court judge [FA s.
In the envelope that you
get, the responsible person must
tell you the reason
why he is
doing it, and send you a copy of FA s. 74 to 81, which is the appeal procedure
[FA s. 72(2)]. He does not have to send
you a copy of FA s. 72, and that is a pity.
FA s. 72 is very important, as you will see from the subsections of it
cited above and below. It forms a vital
part of this process.
The responsible person must
also specify a reasonable period of time during which you "may deliver to
a peace officer (oddly enough, that term includes the reeve of your village)
or firearms officer or a chief firearms
officer or otherwise lawfully dispose of
any firearm, prohibited weapon,
restricted weapon, prohibited device, or prohibited ammunition" that you
have in your possession at the time of the refusal or revocation [FA s. 72(4)
The responsible person
will usually give you 30 days to do that, and, during that period, CC s. 91 and
92 (possession without a licence or without a registration certificate), and CC s. 94 (being in a motor vehicle in
which you know that there is a firearm, prohibited weapon, restricted weapon,
prohibited device other than a replica firearm, or any prohibited ammunition
where no one in the vehicle has the necessary licence and registration
certificate to possess the item or items legally) and FA s. 112 (possession of
a firearm without a licence or without a registration certificate) do not
apply to you
If you refer the matter to a provincial court judge within the
30-day time limit [FA s. 74(2)] after getting your letter, the whole process
goes on "hold." The 30-day
time period (or whatever period was specified) for "lawfully disposing
of" your items stops being in force.
Your exemption to charges under CC s. 91, 92 and/or 112 automatically
Once the matter has been
referred to a judge, the period resets to zero and does not begin again
"until the reference is finally disposed of" [FA s. 72(4)]. That means that everything is on hold for
the period taken by the reference to the provincial court judge, the delay
before the hearing, and the appeal to a Superior Court [FA s. 78], perhaps all
the way to the Supreme Court of Canada.
The time involved in that "hold" can be very long.
It is very important to
understand the effects that FA s. 72 will have on your case, so you should draw
your lawyer's attention to them. Do not
assume that your lawyer will find them, because most lawyers go immediately to
the appeal procedure itself [FA s. 74 to 81], and concentrate all of their
efforts in those narrow limits. The
limits and conditions set by s. 72 are often missed.
Now, let's take a look at
FA s. 74 to 81.
FA s. 74(1)(c) expands
this "refer" procedure to include a shooting club or shooting range,
allowing such a corporation to refer a refusal to issue or a revocation of the
approval of a shooting club or shooting range by a Provincial Minister or one
of his staff to a provincial court judge in accordance with this procedure [FA
s. 74 to 81].
In FA s. 74(1)(b)(i) and
(ii) deal with a chief firearms officer who revokes a licence because "a
firearm possessed by an individual...is not being used for (i) the purpose for
which he acquired the firearm, or (ii) in the case of a firearm possessed by
the individual on [01 Dec 1998], the purpose specified by the individual in the
That is a very curious
provision. The defective computer
programs used by the Registrar and the Chief Firearms Officers do not allow
firearms to be registered for two or more uses, so the applicant is blocked
from making an accurate application. He
may be trying to apply for registration of a firearm for the purposes of
collection and target shooting, but he cannot -- because the defective program
will not accept two uses, so the clerk entering the data usually chooses one at
"use" entry is on the registration application, not the licence
application -- but FA s. 74(1)(b) is talking about revocation of a licence
by a Chief Firearms Officer, not revocation of a registration certificate
by the Registrar. It is very badly
You must refer the matter
to a provincial court judge "within thirty days after receiving
[the written] notice" [FA s. 74(2)].
On receiving your reference, "the provincial court judge
shall fix a date for the hearing and direct that" all interested parties
(you, the Chief Firearms Officer, Registrar and/or Provincial Minister) be
notified [FA s. 75(1)].
At the hearing itself,
"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" [FA s. 75(2)].
Under the old law, there
was no requirement for the judge to hear "all relevant
evidence." As a result, such cases
were seen as a form of judicial review, and not as a hearing de novo. Often, the judge would decide the case on
the basis of, "What did the person who refused or revoked know, and was his
decision reasonable based on what he knew?" There was often no opportunity for the "applicant or
holder" to enter new evidence.
Under the current law, the
requirement that "the provincial court judge shall
relevant evidence presented by, or on behalf of
, the chief firearms
officer, Registrar, or provincial minister and the applicant or holder
indicates that the new law is setting up a hearing de novo, in which the judge
must listen to any evidence that the "applicant or holder" wishes to
Given that new evidence,
it is apparent that the judge is not limited to hearing only the evidence that
the person who refused or revoked had at the time he refused or revoked. He is positively required to hear and take
into account new evidence that the person who refused or revoked did not have.
Under those circumstances,
the judge, as a result of the presence of such evidence as a necessary part of
the hearing, apparently cannot be limited to deciding whether or not the person
who refused or revoked was justified on the basis of the evidence that he had
available at the moment he refused or revoked.
That evidence is only part of the evidence presented at the hearing.
The judge is therefore
apparently perfectly free to make his own decision, based on the totality of
the evidence and the balance of probabilities.
He may order the person who refused to issue to issue the refused
document, or tell the person who revoked that the revoked document is no longer
revoked, but has come back into force.
It is apparently a court
procedure that is equivalent to a hearing de novo, and not one that is
equivalent to a judicial review.
The burden of proof that
the act of refusing or revoking "was not justified" is on the
"applicant or holder," not the Crown [FA s. 75(3)]. Therefore, the requirement to allow the
entry of new evidence by the "applicant or holder" is perfectly
reasonable and in the interest of fairness.
Because this is a hearing
and not a criminal case, the standard of proof is "the balance of
probabilities" and not "proof beyond a reasonable doubt".
Because this is a hearing
and not a criminal case, the standard of evidence is relaxed. Hearsay evidence can be entered and
considered, but hearsay carries a lower degree of force than first-hand
evidence, and that is a matter that should be mentioned when it is offered in
If the "applicant or
holder" does not show up on the day of the hearing, the judge may hear and
decide the case anyway [FA s. 75(4)].
The provincial court judge
may, by a court Order, (a) confirm the decision to refuse or revoke, (b) direct
that the document applied for be issued, or (c) cancel the revocation or
decision made by the person who revoked or refused a licensing document [FA s.
Because the language of FA
s. 76 is a little nebulous, in cases where a licencing document has been
refused the applicant or holder should always ask the judge to issue a court
Order that positively orders the person who refused to issue the licencing
document to issue one.
Similarly, in a case where
a licencing document has been revoked and the judge has cancelled the
revocation, the applicant or holder should always ask the judge to issue a
court Order that positively orders the person who revoked the licencing
document to return the again-valid licencing document to the holder.
If no such court Order is
made, it is not unknown for the person who refused to continue to refuse to
issue, or to refuse to return the again-valid licencing document. This is an important point in this type of
case, and should not be missed.
If the referral to the
provincial court judge produces a result that offends the applicant or holder,
he may appeal the decision to a superior court, up to and including the Supreme
Court of Canada [FA s. 77(1)].
If the referral to the
provincial court judge produces a result that offends the chief firearms
officer, Registrar or provincial minister, the Attorney General of Canada may
appeal the decision to a superior court, up to and including the Supreme Court of
Canada [FA s. 77(2)(a)].
If the referral to the
provincial court judge produces any other type of result that offends, the
Attorney General of the province may appeal the decision to a superior court,
up to and including the Supreme Court of Canada [FA s. 77(2)(b)].
An appeal upwards into a
superior court must be made within 30 days of the lower court's Order being
made [FA s. 78(1)].
The superior court may, at
any time, extend that period of 30 days [FA s. 78(2)].
A notice of appeal must
set out the grounds for the appeal and possibly further material required by
the superior court [FA s. 78(3)].
The notice of appeal must
be served on all the interested parties within 14 days of the filing of that
notice with the court [FA s. 78(4)].
The superior court may
make the same kinds of court Order that the provincial court judge may make [FA
An appeal to the court of
appeal against the decision of the superior court can only be made on a point
of law alone [FA s. 80].
Having said all that, there
are other ways to lose or be refused one of those licencing documents. We will now look at some of those.
Under FA s. 70, "a
chief firearms officer who issues
a licence, authorization to carry or
authorization to transport may revoke it for any good and sufficient
reason." That is unacceptably
broad, as you will see in LawClass 9, "Licences."
The same flaw is present
in FA s. 71, which authorizes the Registrar "to revoke a registration
certificate for any good and sufficient reason." The flaws are dealt with more fully in LawClass 9, but the main
fault is that vague language of that type can easily result in a revocation
because the holder of the licencing document is black, female, and/or Jewish.
In another area, CC s. 515
requires a justice in any case where "an accused is charged with (a) an
offence in which violence against a person was used, threatened or attempted,
or (b) an offence under [CC s.] 264 (criminal harassment), (c) an offence [of
trafficking in drugs or possession for the purpose of trafficking], or (d) an
offence that involves, or the subject matter of which is, a firearm, a
cross-bow, a prohibited weapon, a restricted weapon, a prohibited device,
ammunition, prohibited ammunition, or an explosive substance" to add to
his order for the release of the accused a condition prohibiting the accused
from possessing any and all of those things "until the accused is dealt
with according to law unless
the justice considers that such a condition
is not required... [CC s. 515(4.1)]."
Where the justice does
make such an order, he must specify "the manner and method by which
(a) the things [see list] shall be
surrendered, disposed of, detained, stored or dealt with; and (b) the
authorizations, licences and registration certificates held by the person shall
be surrendered [CC s 515(4.11)]."
Where a justice decides
not to add the "condition prohibiting the accused form possessing"
any and all of those things, he "shall
include in the record a
statement of the reasons for not
adding the condition" [CC s.
if added, may have an additional effect.
Another section says: "Every authorization, licence, and
registration certificate relating to any thing the possession of which is
prohibited by a prohibition order and
issued to a person against whom the prohibition order is made is, on the
commencement of the prohibition order, revoked, or amended, as the case may be,
to the extent of the prohibitions in the order" [CC s. 116].
It is unclear whether the
"condition" is a "prohibition order," but it probably is
not -- under the statutory rule that "the specific overrides the
general." The wording of CC s. 515
is clear and complete, and therefore is apparently a different
that described in CC s. 116.
There is apparently no
possibility of making a reference to a provincial court judge in regard to a
prohibition of this type, apparently because the prohibition is imposed by a
provincial court judge. It is possible
that one might appeal to a superior court judge, but FA s. 77 does not provide
a clear route for that. It refers only
to a decision made under FA s. 76(a).
An argument can be made that the "condition"
imposed by the use of CC 515(4.1) is arbitrary, routine, and imposed without
due consideration of the particular facts in the case, and therefore an appeal
route is necessary to prevent the statute from being voided for overbreadth.