An Indian (“Pogson”) within the meaning of the Indian Act successfully applied for a reference under s.74(1) of the Firearms Act (the “Act”) to overturn the decision of a delegate of the Chief Firearms Officer who had rejected her application for a licence to possess and acquire non restricted firearms.

Administrative law – Aboriginal issues – Firearms – licences – Infringement on Aboriginal rights – Decisions of administrative tribunals – Firearms Officer – Judicial review – Compliance with legislation – Procedural requirements and fairness – Evidence – Judicial notice

Pogson v. Alberta (Chief Firearms Officer), [2004] A.J. No. 248, Alberta Provincial Court, March 1, 2004, Demetrick Prov. Ct. J.

Pogson had experience handling firearms and had been a hunter for much of her life. She successfully passed both the written and practical components of the Canadian Firearms Safety Course test prior to applying for her licence. Seven hundred and seventy nine days after she filed her application, Pogson received a written notice of refusal citing her hospital emergency visits in the year 2000, suicide concerns, alcoholism, an assault conviction, and a lack of support from local police as grounds for the refusal.

The Court took judicial notice that “the widespread ownership of firearms by ordinary Canadians for subsistence and sport hunting is a long‑standing and economically important part of Canada’s history and culture.” (para. 5)

The Court then turned to the question of whether the bureaucratic refusal of the licence was justified. The fact that the individual who denied the licence application considered an “irrelevant fact” in doing so, rendered the challenged refusal unjustified. This irrelevant fact was the lack of support for the application by the local police. The Court stated, “The Firearms Act in no way makes support of an applicant’s local police or of any other police group a condition precedent to, or relevant factor in, the obtaining of a firearms license.” (para. 14)

The firearms officer did not notify Pogson of the information he had which was adverse to her application. Although s.72(3) of the Act stated that a firearms officer need not disclose certain information to an applicant, the Court held that “the provision ought to be invoked sparingly” to avoid depriving an applicant of a meaningful opportunity to correct false information. In this case, the fact that she was not given the information and was thereby deprived any opportunity to refute or confirm that information before a decision was made on her application was a breach of fundamental fairness.

The Court also held that the firearms officer had relied on patently unreliable information in deciding on the application, in that the doctor’s letter referred to episodes of depression in 2001, while the refusal decision was issued in 2003.

The assault charges were reviewed in light of the Act’s specification that consideration of conviction be mandatory, but the Court held that the assault was not significant enough to base a refusal on.

The Court ultimately ordered that the licence be issued to Pogson, noting that an applicant’s legal fitness to possess and acquire firearms is a work in progress and that a broad interpretation of s.76 of the Act, which requires a provincial court judge to either confirm the refusal of a licence or to direct issuance of the licence, is appropriate.

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