Administrative law – Decisions of administrative tribunals – Firearms Officer – Judicial review – Evidence – Judicial notice – Standard of review – Correctness
Canada (Chief Firearms Officer for the Province of Alberta) v. Pogson,  A.J. No. 281, Alberta Court of Queen’s Bench, March 14, 2005, Slatter J.
The Respondent had applied for a firearms licence. Two years after her application, the Firearms Officer rejected the application on the basis that it was not desirable in the interests of the Applicant’s or the public’s safety. The Applicant had had three hospital emergency visits in 2000, where she had been intoxicated and there had been suicide concerns. Alcohol had been a problem in the Applicant’s life and she had been convicted of an assault while intoxicated. Her physician had sent a letter to the Firearms Officer detailing frequent visits and treatment for alcohol intoxication, suicide concerns and history of psychological problems. Finally, the local police did not support the application.
The Respondent referred the denial of her application to the Provincial Court, seeking a reversal of the decision of the Firearms Officer. The Provincial Court heard evidence from the Firearms Officer, the Respondent and her common-law husband. Afterwards, the Provincial Court Judge reversed the Firearms Officer’s decision and directed that the Respondent be given a firearms licence.
On appeal, the Court of Queen’s Bench stated that the ability to obtain a firearms licence is wholly governed by statute. Section 91(1) of the Criminal Code makes it an offence to possess a firearm without a permit. Permits are provided for in the Firearms Act, which sets out the criteria to be used in considering eligibility. By a combination of sections 5(1) and 68 of the Firearms Act, the Firearms Officer must refuse a licence if it is “desirable”, “in the interest of safety”, that the licence not be issued. In making that decision, section 5(2) states that the officer shall consider certain information, namely the criminal and mental health history of the Applicant during the previous five years. Section 55 then states that the officer may conduct a wider investigation, including interviews with neighbours, family and community workers. If the Applicant is unhappy with the decision, she can refer the matter to a Provincial Court Judge for a hearing, but the Applicant carries the burden of proving that it is “desirable” that she receive a licence.
The Court considered the applicable standards of review. On appeal, the Provincial Court Judge had effectively held that no deference should be shown to the Firearms Officer and that the reference should be a true hearing de novo.
The Court made a number of observations about the reference process. First, the process is not a pure de novo hearing since the legislation suggests that the reference process is intended to be a review of the decision of the Firearms Officer, as opposed to a review of the overall issue of eligibility for a licence. Also, while the reference process is not a hearing de novo, neither is it a pure appeal. Since the Act provides for an “appeal” to the superior court, and thereafter to the Court of Appeal, the “reference” is obviously intended to be something different. Some effect must be given to the clear provision in the Act that the Provincial Court Judge is to hear “all evidence” including new evidence, and this must afford the judge some ability to make fresh assessments of the credibility of the evidence.
The Court also noted that the reference process is not directly analogous to judicial review. While judicial review is generally based on errors of law, or procedural errors, and not directly on the merits of the decision under review, the Act calls on the Provincial Court Judge to determine whether the decision of the Firearms Officer was “justified”. In the circumstances, the Provincial Court judge is required, to some extent at least, to enter upon the merits of the decision. Finally, the Court observed that the reference is the first opportunity for a true hearing. The Firearms Officer conducts merely an investigation, not an adjudication. There is no opportunity, prior to the reference, to cross-examine witnesses, or test the reliability of the evidence. This distinguishes the reference process from most true appeals and most judicial review processes, and exposes some analogies to a hearing de novo.
In the result, the Court observed that the reference process is somewhat sui generis. Conceptually, there was difficulty fitting the review process within either a judicial review or a hearing de novo. Since the reference process is sui generis, the proper standard of review would not be found by attempting to fit the reference process into another juridical model.
The Court held that the standard of review should vary depending on the exact circumstances of the reference and what transpires at the reference hearing. Where the evidence before the Provincial Court Judge is substantially the same as the evidence before the Firearms Officer, then the standard of review should be reasonableness simpliciter. On the other hand, where the Provincial Court Judge has before him or her significant and meaningful evidence that was not before the Firearms Officer, or the evidence on the reference shows that the factual assumptions of the Firearms Officer were clearly wrong, a different process is called for. In cases of “new evidence”, a two-stage process is called for:
(a) Since the reference is not a hearing de novo, the Provincial Court Judge should still examine the decision of the Firearms Officer, to see if it was reasonable based on the evidence that was before the Firearms Officer. If the decision was reasonable, some deference should still be given to it.
(b) The Provincial Court Judge should then examine the new evidence to see whether it is significant enough to undermine the factual assumptions or inferences drawn by the Firearms Officer. If so, the Provincial Court Judge would be entitled to interfere even if the decision, as originally made, was reasonable.
The Court moved on to consider the appropriate standard of review from the Provincial Court to the Court of Queen’s Bench. The Court distinguished an appeal on a firearms reference from most other administrative appeals since the first appellate court in this case had heard evidence, including new evidence.
The selection of the standard of review by the Provincial Court Judge is reviewed to a standard of correctness. However, if the correct standard of review has not been selected, the superior court must then review the decision of the Provincial Court with deference as well, as that court has had the advantage of hearing the witnesses. Any conclusions of law by the Provincial Court Judge should be reviewed to a standard of correctness, but any findings of fact should be interfered with only if they disclose palpable and overriding error.
Once the decision of the Provincial Court Judge has been tested in this way, the ultimate question is then whether it was reasonable for the Provincial Court Judge to interfere with the decision of the Firearms Officer, based on the law as correctly stated and the facts as found by the Provincial Court Judge. The Court noted that this standard of review is cumbersome, but it appears to be the only way that deference can be shown by the superior court to both the decision of the Firearms Officer and of the Provincial Court.
Turning to the specific decision on appeal, the Court considered the Provincial Court Judge’s taking judicial notice of certain factors which he felt defined the “legal milieu”. The Court held that the factors relied on by the Provincial Court Judge were more philosophical statements, or legal conclusions, and were not suitable topics for judicial notice. The Court held that the licensing of firearms is covered by statute and the normal principles of statutory interpretation apply. There is no constitutional or common law right to possess firearms, and there is no justification for interpreting the Firearms Act based on any presumption that it infringes on such rights, as the Provincial Court Judge had. The ownership of firearms was also now a privilege and not a right. In the result, the Court declined to follow the legal presumptions which the Provincial Court Judge derived from his judicial notice.
The Court then considered the three errors identified by the Provincial Court Judge in the decision of the Firearms Officer, each of which he felt was sufficient to justify a reversal of the decision. The Court found that the Provincial Court Judge had not identified any proper basis to interfere with the decision of the Firearms Officer based on the alleged errors he found. Based on the information he had before him, the Firearms Officer was entitled to make the decision he had. That decision was entirely reasonable and should not have been interfered with on the bases identified by the Provincial Court Judge.
Finally, the Court considered the Provincial Court Judge’s finding that there had been a change in circumstances. The Provincial Court Judge had concluded that the Respondent had turned her life around, and whatever the situation was at the time of the decision of the Firearms Officer, there was now no need to deprive her of a licence. The Court found that even with this new information, the Firearms Officer may have denied the licence, preferring to rely on the Respondent’s long history of alcoholism and depression. Therefore, even with this new evidence, some deference should have been shown to the decision of the Firearms Officer. Nevertheless, the Court would only interfere if there was palpable and overriding error in the Provincial Court Judge’s findings of fact. As there were no such errors on the record, the Provincial Court Judge’s decision that there were changed circumstances must stand.
In the result, while the Provincial Court Judge was entitled to consider the evidence of new circumstances, it was difficult to decide whether his ultimate decision would have been the same had he not made all of the errors that he did. The Provincial Court Judge’s decision was set aside and the matter was referred back to a different Provincial Court judge to re-hold the reference in accordance with the principles set out in this decision.
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