On December 2, 2019, The Honourable Mr. Justice Marchand vacated Terence Scott Fehr’s lifetime firearm prohibition order. (The ruling was only published on CANLII.org last week, hence my not writing about it earlier.)

The revocation of his lifetime firearms prohibition order was the last hurdle in Terence Fehr’s dream of becoming an RCMP constable.

You may initially be surprised that I wholeheartedly support this ruling given my constant railing against our broken Firearms Prohibition Order System.

What makes this case different is the amazing power of redemption in a man who is committed to turning his life around.

Twenty years ago Terence Scott Fehr attempted to rob a gas station. He lost his nerve in the middle of the heist, handed back the wallet with the cash still inside it, and ran from the scene.

The RCMP got their man a short time later, and Fehr immediately confessed to his poor attempt to become a criminal. He was released on a promise to appear and, unlike so many today, he kept his promise.

When Fehr’s case went to trial he pleaded guilty.

The sentencing judge ordered house arrest, community service and a lifetime firearms prohibition order as required by Section 109 of the Criminal Code.

Fast forward two decades and Terence Scott Fehr is “a community-minded and law-abiding citizen,” as Justice Marchand describes him.

He received a pardon in 2008, but through an odd quirk of law, the fact that Terence Fehr was pardoned means he cannot appeal the firearms prohibition order. The only recourse was to ask the court to vacate the firearms prohibition order, since constitutional challenges on Section 12 grounds routinely fail.

I’ll quote heavily from the decision in R. v Fehr, 2019 BCSC 2241, as it’s a fantastic description of Terence Fehr’s path from the fateful day of his botched robbery until today.

[3]           Since that low point in his life, Mr. Fehr has led an exceptionally pro-social life. He is married and has three children. Though he became a journeyman electrician, he followed his heart to make a tangible difference in people’s lives as a pastor and as an active community volunteer.

[4]           By letter dated August 29, 2008, Mr. Fehr received a pardon from the National Parole Board. In its letter, the National Parole Board wrote in part as follows:

A pardon is evidence of the fact that a conviction(s) should no longer reflect adversely on that person’s character, and removes any disqualification to which the individual is subjected. This signifies the intent of Parliament that a person, to whom a pardon has been awarded, under the [Criminal Records Act], should no longer be made to suffer any legal disabilities or penalties imposed as a result of a conviction. However, a pardon does not erase the fact that an individual was convicted of an offence(s) and has a criminal record, or affect any prohibition order imposed under the Criminal Code of Canada.

[6]           Mr. Fehr now aspires to become a police officer. On the basis of everything I have read about Mr. Fehr, I have no doubt that he is the kind of person who would fulfil that role admirably. The trouble is that in March 2019, the RCMP informed Mr. Fehr that his application to join the force could not proceed because his pardon did not cancel his lifetime firearms prohibition.

[7]           Because his lifetime firearms prohibition was mandatory, and perhaps because he has already been pardoned, Mr. Fehr cannot appeal the imposition of the lifetime firearms prohibition imposed by the sentencing judge.

[8]           Because s. 113 of the Criminal Code only allows a prohibition order to be lifted for sustenance purposes or where the prohibition would constitute a virtual prohibition against employment in the only vocation open to the person seeking to have the prohibition order lifted, Mr. Fehr is unable to apply under that section to have his lifetime firearms prohibition vacated.

[9]           Because the Supreme Court of Canada has previously ruled in R. v. Wiles, 2005 SCC 84, that mandatory firearms prohibitions do not infringe s. 12 of the Charter, Mr. Fehr has poor prospects of mounting a successful constitutional challenge to s. 109 of the Criminal Code.

[10]        As a result, Mr. Fehr has taken the only realistic step available to him. He has applied to have the court exercise its inherent jurisdiction to vacate his lifetime firearms prohibition.

[11]        The Crown is supportive of Mr. Fehr’s application. Specifically, the Crown agrees that the court has the inherent jurisdiction to vacate Mr. Fehr’s lifetime firearms prohibition and that the court should exercise its inherent jurisdiction in favour of Mr. Fehr in the circumstances of his case.

[17] In the circumstances of this case, I am satisfied that I have the jurisdiction to supplement the legislation to prevent an injustice and avoid an absurdity. In particular, I am satisfied that the absence of any provision to lift a lifetime firearms prohibition in Mr. Fehr’s circumstances is an unintentional gap in the legislation that leads to at least two absurdities.

[18] First of all, lifetimes firearms prohibitions are intended to enhance public safety. In the circumstances of Mr. Fehr’s case, however, refusing to lift the firearms ban will not meet this objective. In fact, it is a lifting of the ban that has the potential to enhance public safety by allowing Mr. Fehr to pursue his application to become a police officer.

[19] Secondly, pardons are intended to remove disqualifications that adversely affect people like Mr. Fehr, who have turned their lives around and received pardons. Only a lifting of the ban will completely fulfil the intention of the legislation with respect to Mr. Fehr.

[21] Having reached the conclusion that I have the inherent jurisdiction to vacate mandatory lifetime firearms prohibitions made under s. 109 of the Criminal Code, I have no hesitation in exercising my inherent jurisdiction in favour of Mr. Fehr. He is a person who made one terrible mistake many years ago, but has since led an exemplary life. There is no doubt in my mind that vacating Mr. Fehr’s lifetime firearms prohibition will not jeopardize public safety. In fact, in my view, there is a very good chance it will enhance public safety. Furthermore, vacating Mr. Fehr’s lifetime firearms prohibition will fulfil one of the main goals of the CRA by removing a barrier that is preventing Mr. Fehr from pursuing his dream of becoming a police officer and from fully realizing his potential to contribute to his community.

[22] For all of these reasons, I vacate the mandatory s. 109 firearms prohibition imposed on Mr. Fehr on May 18, 1999.