The Appellant appealed the reference hearing judge’s decision to refuse to grant a firearms licence. In December of 1997, the Appellant was issued a Firearms Acquisition Certificate valid to December 2002. As a result of an allegation of historical sexual assault, the Chief Firearms Officer examined the Appellant’s criminal record, which included convictions for assaults 13 and 18 years earlier. His licence to possess firearms was revoked on the grounds that he had “demonstrated a history of behaviour that includes violence”. The Appellant applied for a reference before a judge of the Ontario Court of Justice. The decision was upheld and he appealed that decision to the Ontario Superior Court of Justice, who held that the Appellant had not satisfied the court that cancelling the revocation was not justified.

Administrative law – Firearms registration – Firearms – Licences – Revocation – Evidence – Prior criminal charges – Public safety – Statutory interpretation – Legislation – Retrospective operation

R. v. D.L.B., [2003] O.J. No. 2471, Ontario Superior Court of Justice, February 12, 2003, Durno J.

45-year-old D.B. had used firearms for a long time. In 1992, he registered a semi-automatic handgun, a prohibited weapon. D.B.’s registration was “grandfathered” which allowed him to legally possess that weapon. As a result of an allegation of historical sexual assault, the Office of the Chief Firearms Officer examined D.B.’s criminal record, which included convictions for assaultive behaviour 13 and 18 years earlier. D.B.’s licence to possess firearms was revoked because he had “demonstrated a history of behaviour that includes violence, or threatened or attempted violence against another person”. D.B. applied for a reference before a judge of the Ontario Court of Justice. The judge upheld the decision of the Chief Firearms Officer. D.B. appealed the decision arguing that; 1) the Chief Firearms Officer’s discretion to revoke the licence was limited to an examination of events within the preceding five years and 2) that the Firearms Officer owed D.B. a duty of fairness.

The Court of Queen’s Bench reviewed the Firearms Act and concluded that it is procedural criminal law and thus can be applied retrospectively. Thus, incidents that occurred prior to the enactment of the Firearms Act, could be relied upon. The court referred to the Court of Appeal judgment in R. v. Bickford, [1989] O.J. No. 835, in which Robins, J.A. wrote:

The presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters.

The court noted that the Supreme Court of Canada has held that the Firearms Act is in “pith and substance” directed towards enhancing public safety, by controlling access to firearms through prohibitions and penalties. The federal government’s purpose was to promote public safety and, by necessary implication, the legislation has a retrospective operation. Parliament’s intention was to ensure that only those who establish their qualifications to hold a licence are permitted to possess firearms of any sort.

The court went on to consider whether the Chief Firearms Officer was entitled to look at criminal convictions that were older than five years. The Court noted that section 5(2) of the Act directs the Chief Firearms Officer to consider whether the person within the “previous five years” had been convicted or discharged of enumerated offences. The court held that section 5(2) restricts the Chief Firearms Officer from considering convictions that are older than five years. Based on this conclusion the court had to determine whether there was a rational basis for the revocation of the Appellants firearms licence in the absence of any evidence of the misuse of a firearm. The court held that the reference to the Provincial Court was to determine if the revocation was “justified”. For this reason the court was not restricted to a consideration of the areas set out in section 5(2).

With regard to the nature of a reference hearing, a Provincial Court Judge is permitted to hear all relevant evidence presented by or on behalf of the Chief Firearms Officer. The burden of proof is on the applicant or holder to establish that the revocation was not justified on the balance of probabilities. In the hearing, the judge is not restricted to the rules of evidence, and may rely upon hearsay evidence. By directing the Provincial Court Judge to consider all relevant evidence, the parliament has mandated a de novo hearing. Since the legislation does not direct the Chief Firearms Officer to afford the licence holder an opportunity to be heard or rebut the allegations before revoking or refusing to issue a licence, the hearing cannot be restricted to a review of the information before the Officer. Rather, the review should be regarded as a hearing which the holder has the burden of establishing that the Officer’s decision was not justified, having regard to all the evidence, whether it was considered by the Officer or not. While the Reference Judge relied upon some evidence in error, the Provincial Court Judge accepted as “true and unchallenged” the evidence of the sexual assault victims. The court held that the Provincial Court Judge’s decision was not unreasonable and the appeal was dismissed.

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