[32-40win]

Some thoughts on the S74 hearings from Mike Loberg from the CCFR;

CCFR Answers
18h ·
Re: Section 74 Reference Hearings for “Nullified” Registration Certificates – Can we win them?
(Revision Date: 16 January 2021)
A section 74 Firearms Act reference hearing is how a Canadian challenges a decision they don’t agree with that was made by a Chief Firearms Officer (“CFO”) or the Registrar of Firearms (“Registrar”).
In the present case we’re talking about the July 20, 2020 letters the Registrar sent to gun owners affected by the Order in Council that created the ban (“OIC”), saying our registration certificates for the affected guns were “nullified”.
Just to get this out of the way, there is nothing in any act or regulation that “nullifies” a registration certificate. There are some provisions which automatically revoke certificates, but none of them apply to our facts. Importantly though, the fact that these provision exist tell us that Parliament thought that where they wanted automatic revocation, a specific statutory section was required to make it happen.
So can a reference hearing “win” on our facts?
It’s hard to envisage what a win could look like in a reference hearing in our present reality, at least yet. Let’s talk about this.
First, let’s remember that there are 2 decisions here:
1. The decision to make the Order in Council that banned our guns; and
2. The decision by the Registrar to revoke our registration certificates.
The first decision is being challenged by CCFR v Canada in Federal Court as a judicial review. The second decision is being challenged by some gun owners in these s. 74 reference hearings. It is critical to remember that these are different decisions, by different decision makers. An attack on one does not attack the other.
The Law
First, let’s pull the sections and the definitions from the Firearms Act:
71 (1) The Registrar
(a) may revoke a registration certificate for a prohibited firearm or a restricted firearm for any good and sufficient reason; and
(b) shall revoke a registration certificate for a firearm held by an individual where the Registrar is informed by a chief firearms officer under section 67 that the firearm is not being used for a purpose described in section 28. (2) A notice given under subsection (1) must include reasons for the decision disclosing the nature of the information relied on for the decision and must be accompanied by a copy of sections 74 to 81.
72 (1) Subject to subsection (1.1), if a chief firearms officer decides to refuse to issue or to revoke a licence or authorization to transport or the Registrar decides to refuse to issue or to revoke a registration certificate, authorization to export or authorization to import, the chief firearms officer or Registrar shall give notice of the decision in the prescribed form to the applicant for or holder of the licence, registration certificate or authorization.
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.
(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.
82 An individual to be known as the Registrar of Firearms shall be appointed or deployed in accordance with the Public Service Employment Act.
Discussion
Next, let’s consider if a revocation really happened. Most of what follows was written back on July 22, 2020:
1. Did a revocation happen?
Black’s Law Dictionary tells us that “revoke” means “To annul or make void by recalling or taking back. To cancel, rescind, repeal, or reverse, as to revoke a license or will”.
“Revocation” means “the withdrawal or recall of some power, authority, or thing granted, or a destroying or making void of some will, deed, or offer that had been valid until revoked”.
By comparison, “nullification” is defined as “The state or condition of being void; without legal effect or status. Also, the act which produces such effect”.
The July 20, 2020 letter from the Registrar of Firearms tells us, and we quote, “… the previous registration certificates are automatically nullified and are therefore no longer valid…”.
Clearly under any interpretation of these words, the Registrar of Firearms is telling us that our registration certificates, which used to be valid, are no longer valid. Equally clearly, we did not surrender them, and the Order in Council said exactly nothing about them so as to “automatically nullify” them, or do anything of the sort.
Be all that as it may, this is a document from the Registrar of Firearms (read the last words on the page where it says “Registrar of Firearms”) telling you that you no longer have registration certificates for your previously-restricted, now-prohibited firearms.
2. Was this a “notice”?
Back to Black’s Law Dictionary, “Notice in its legal sense is information concerning a fact, actually communicated to a person by an authorized person, or actually derived by him from a proper source, and is regarded in law as “actual” when the person sought to be affected by it knows thereby of the existence of the particular fact in question”. Clearly the document from the Registrar of Firearms meets that requirement, but let’s look at the Firearms Act.
The Firearms Act specifies that only the Registrar of Firearms can revoke your registration certificates; see section 71(1) which reads “The Registrar (a) may revoke a registration certificate for a prohibited firearm or a restricted firearm for any good and sufficient reason…”.
The document in question is sent by the Registrar of Firearms, so that criteria is met.
3. Was this in a “prescribed form”?
Section 72 of the Firearms Act provides that “… if … the Registrar decides to refuse to issue or to revoke a registration certificate … the … Registrar shall give notice of the decision in the prescribed form to the applicant for or holder of the licence, registration certificate or authorization”.
Section 2(1) of the Firearms Act provides that “prescribed means (a) in the case of a form or the information to be included on a form, prescribed by the federal Minister, and (b) in any other case, prescribed by the regulations”.
Because this is a matter of a “form”, there is no published regulation. In short, if the Minister of Public Safety and the staff under the Minister of Public Safety decide that the “RCMP GRC 6554E (2020 – 06)” (the form under discussion) is the “form” for doing this action, which obviously it is, then this is the “prescribed form”. No specific regulation is required.
The suggestion that there is only one “form” by which the Registrar of Firearms can communicate information to us regarding a revocation is simply a mistake. They can use any form they wish, provided the Minister approves it.
4. Did the Registrar of Firearms comply with the Firearms Act?
Section 72(2) of the Firearms Act requires that “(2) A notice given under subsection (1) must include reasons for the decision disclosing the nature of the information relied on for the decision and must be accompanied by a copy of sections 74 to 81”.
There are two parts to this.
First, the reasons for the decision must be disclosed in the notice. The Registrar of Firearms tells us that “the previous registration certificates are automatically nullified” as a result of the prohibition. Again, and as we have said any number of times, the OIC prohibiting these firearms says no such thing. The OIC does not deal with registration certificates at all. This is simply an interpretation by the Registrar of Firearms which is unsupported by the OIC. Be that as it may, they are obligated to provide a reason, and they have.
Second, the notice must be accompanied by a copy of sections 74 to 81 of the Firearms Act, telling people about their rights to refer a revocation to a Provincial Court judge for review. In every instance that we are aware of, the notice from the Registrar of Firearms failed to include that information.
5. What is the consequence of this failure?
This is a question for a judge, however there are likely only two options: (a) due to the noncompliance with section 72(2) of the Firearms Act, the notice is ineffective; or, (b) the notice is effective, but the Registrar of Firearms is liable for the consequences of their failure to comply with the Firearms Act.
The format of the notice appears to have been built the way it was specifically to cause gun owners to believe that the OIC automatically revoked the registration certificates (which it didn’t), for the sole purpose of causing gun owners not to take advantage of their section 74 rights. The failure to provide a copy of sections 74 to 81 of the Firearms Act is consistent with this pretense.
In the end, you used to have a registration certificate. Now you don’t, says the Registrar of Firearms. The Registrar of Firearms just told you that with their form RCMP GRC 6554E (2020 – 06), and we have said throughout that this is a revocation.
The above was from July 22, 2020. Since then we’ve got the Stark decision out of Alberta that more or less agrees with all of the foregoing (Attorney-General for Canada v Stark, 2020 ABPC 230).
Stark is under appeal, and there are of course other provinces also looking at this, and a trip of the matter to the SCC is easily foreseeable, so Stark might not be the law in the end.
6. Can the application win?
Now the important part: what are the possible outcomes for the section 74 applications presently underway? If the Court decides that they have jurisdiction at all to hear the case (and different provinces have gone different ways on that), there are 3 possible outcomes, but only 2 of which are likely.
1. The Court can decide that the Notice was defective for non-compliance with ss. 71 and 72 of the Firearms Act, and the government will have to do the process all over again with proper notices and proper service, triggering s. 74 rights later. Note that this outcome makes them spend millions of our tax dollars on new notices, but it won’t reverse the revocation. The actual fight will come back to you another day.
2. The Court can follow Stark and decide that the defective notice might have legal consequences, but that they will hear the s. 74 reference hearing “on the merits” and decide if the revocation is legal and proper. Here is the bad news. The fact that the OIC exists, and for so long as it does, means the decision by the Registrar under s. 71 is perfectly justified because the OIC is a “good and sufficient reason” for the revocations, and the revocations should therefore stand.
Remember that the s. 74 reference hearing typically only attacks decision #2 (the revocation) described in the beginning of this article, and not decision #1 (the OIC).
We should point out that if CCFR v Canada wins, the OIC goes away and the Registrar’s justification goes with it. For people that have reference hearings **before** the OIC is set aside, if a judge declares the revocation to have been valid, that’s going to be final. You don’t get to go again after CCFR v Canada wins. You might be able to apply for a new certificate, but the old ones will be gone for you. If a grandfathering regime comes in under s. 12(9), you won’t qualify (that’s for a different article).
If you can delay your “on the merits” reference hearing until **after** CCFR v Canada wins, your reference hearing should also win.
Those people with reference hearings underway now will likely not find this possible, and will have the revocations confirmed as final.
3. That gets to the long-shot that is a possible win at this time, but it’s unlikely. To win your certificates back, you’d need to attack and win on an OIC challenge (decision #1) in Provincial Court, just like the CCFR v Canada case, and use that win as a basis to sequentially then challenge decision #2. This is your only path, and it’s thin (likely impossible), but here’s some information on it:
A s. 74 must go to a Provincial Court Judge (“PCJ”), but a PCJ doesn’t have the constitutional power to strike down legislation as unconstitutional under s. 52(1) of the Constitution Act, 1982 – that requires a superior court judge.
That’s a problem but not a fatal one. A PCJ can find that a law does not conform to the Constitution, and use that finding to permit the PCJ to refuse to apply it in the case at bar. That doesn’t strike the law down, but it does work for the person before the Court on that specific application, and only them (but it would then be a precedent).
The problem is that this reference hearing is not really criminal law so as bring the Charter or the Constitution into it.
Of course there are legal consequences to the revocation, and failing to obey the law on that will have criminal consequences, but those are not the same things and that will likely not be a successful argument - the Court has made the following analogy: the loss of a drivers’ licence is a “civil consequence and distinct from any criminal conviction or criminal penalty.” In other words, we must “recognize the important distinction between Charter rights as they apply in a criminal context and their scope and application in civil and administrative proceedings.” [Alberta (Chief Firearms Officer) v Rolls, 2004 ABQB 582]
You would need to change that law to win, using new arguments to import the Charter into the administrative law part of this issue. I don't see that happening.
There’s not a lot of law on this, but in R v Wyville, 2020 ONCJ 555 at para 39 the Court said: “As a provincial court judge, I do not have the authority or power to review the decision of the Governor in Council to change the law with respect to the classification of firearms.” That’s likely right, and that is why the CCFR is in Federal Court running that challenge as a judicial review (the proper way to do that).
Notably, Wyville decided that there were not 2 decisions, and that the revocation was indeed automatic. The SCC will have to sort out this conflict.
For people who have not filed s. 74 applications, you might want to wait for a CCFR v Canada win, but that triggers a problem with the 30 day rule to apply from the date of service of the notice of the revocation. Of course, the service was defective, and the state will have no means of proving that you were in fact ever served, except where you put in evidence on that.
As always, this is not legal advice but just a discussion of a few thoughts. You need to get actual legal advice for all your specific circumstances.