Administrative law – Decisions of administrative tribunals – Firearms Officer – Firearms – licences – Judicial review – Procedural requirements and fairness – Natural justice – Bias – Compliance with legislation – Standard of review – Reasonableness simpliciter
McDonald (Re),  B.C.J. No. 1318, British Columbia Provincial Court, June 13, 2007, A.E. Rounthwaite
The Applicant applied for an order to cancel the revocation of his firearms licence by a firearms officer, arguing that the revocation was unreasonable because the officer’s investigation was procedurally flawed and violated the rules of natural justice. The Court dismissed the application, finding that there was no obligation under the Firearms Act for the officer to disclose the case against the Applicant and to provide him with an opportunity to be heard before the officer made his decision.
The Applicant sought an order under s. 76 of the Firearms Act, S.C. 1995, c. 39, cancelling the revocation of his firearms licence by a firearms officer acting pursuant to s. 70 of the Act. The Applicant conceded that the evidence relied upon by the firearms officer justified revocation, but argued that the revocation was not reasonable because the officer’s investigation was procedurally flawed and violated the rules of natural justice.
An Applicant or a licence holder who is dissatisfied with the firearms officer’s decision may refer it to a Provincial Court judge for a review. The standard of review on such an application is reasonableness.
The Applicant argued that the revocation was not reasonable because the officer’s investigation was procedurally flawed and violated the rules of natural justice in two ways; namely, that the firearms officer was biased in favour of revocation during the investigation, and that he failed to give the Applicant an opportunity to be heard before deciding to revoke his licence.
The Court first considered the extent to which the rules of natural justice apply to a firearms officer’s revocation inquiry under s. 70 of the Act. The revocation inquiry is investigational and involves removal of a privilege previously accorded. Administrative law jurisprudence requires greater procedural fairness when a privilege is being removed than when it is being granted. However, common law natural justice rights to procedural fairness can be displaced by legislation. Examining the revocation scheme established by the Act, the Court concluded that there were several indications that Parliament did not intend a licence holder to have full natural justice rights, including knowing the case against him and having an opportunity to be heard, during the firearms officer’s inquiry. Even if common law principles of natural justice do apply to a firearms officer’s revocation inquiry, it might be argued that the public safety and aspect of firearms regulation justifies some limits on procedural fairness.
The Court next considered the allegation of bias. In the course of his investigation, the firearms officer had sent a number of faxes to persons in which he mentioned the opinions of others to whom he had spoken. The Applicant argued that the officer ought not to have told individuals the opinions of others. The Court held that while it might be preferable not to do this, the evidence did not establish that hearing others’ opinions affected the information provided by those interviewed, and this practice does not constitute a breach of natural justice. The Court held that the language used by the officer in his various correspondence did not establish that he was biased against the Applicant.
The Court next considered whether the officer ought to have afforded the Applicant the opportunity to be heard. The officer had made his decision to revoke the Applicant’s firearms licence without having spoken to him. The Court held that the officer’s approach of completing his investigation before talking to the licence holder was not flawed. Reaching a preliminary decision, then informing persons affected of the reasons for the intended decision and giving them an opportunity to be heard is a form of procedural fairness imposed by Courts in other spheres, such as prison disciplinary decisions and the reports of public inquiries. The Court accepted that the officer had made adequate attempts to contact the Applicant afterwards, but was unable to do so because the Applicant had failed to inform the Chief Firearms Officer of his address change.
In the result, the application was dismissed and the revocation order confirmed.
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