On November 30th, 2020, Judge Allan A. Fradsham dismissed the Attorney General’s attempt to have nine Section 74 reference hearings tossed out of court.
On November 30th, 2020, Judge Allan A. Fradsham became Canadian firearm owners’ best friend, for not only did he dismiss the Attorney General’s motions, he did so in a way that appears bulletproof to appeal.
The Short Version
- In July 2020 the RCMP Registrar of Firearms issued letters of Firearm Registration Certificate “nullification” to owners of all previously Restricted firearms that were reclassified as Prohibited firearms by Public Safety Minister Bill Blair’s May 1sst, 2020 Order in Council, SOR/2020-96.
- Many gun owners filed applications for a Section 74 Reference Hearing to challenge the revocation of their registration certificates.
- The Attorney General argued the letter was not a Firearm Registration Certificate Revocation Notice, but even if the Court ruled it was, the judge must uphold the revocation (the AG’s words, not mine) because the process was frivolous and without merit.
- Judge Allan Fradsham provided a detailed analysis of
- the relevant sections of the Criminal Code,
- the relevant sections of the Firearms Act,
- SOR/2020-96,
- SOR/2020-97, and
- the Regulatory Impact Analysis Statement published with SOR/2020-96
- Through that detailed analysis, Judge Fradsham found:
- “it is reasonable for those reading the Regulatory Impact Analysis Statement, and who might benefit from such a firearms grandfathering regime, to conclude that it is very likely, though not certain, that the continuous holding of a registration certificate will form part of the regime’s requirements.
- For that reason alone (i.e., the likelihood that continuous holding of a registration certificate will be necessary to enjoy the benefits of a grandfathering regime), the Applicant’s section 74(1) review application is not frivolous or an abuse of process.
- That application seeks a remedy (cancellation of the revocation of the registration certificate) which might turn out to be essential for Mr. Stark to enjoy the benefits of the possible grandfathering regime mentioned in the Regulatory Impact Analysis Statement.
- That possibility is enough to support a finding, which I make, that the conditions set out in Rule 3.68(2) are not met.
- The application of the Attorney-General to strike the section 74(1) review application filed by Mr. Stark is dismissed.
- Does this mean gun owners will win the Reference Hearing? No, it doesn’t.
- But it does mean gun owners will get their day in court – something the federal government fought tooth and nail to avoid.
- Any day you can beat back Leviathan even one small step… that’s a good day.
The Detailed and Far More Fun Version
These cases all revolve around the July 2020 letter from the RCMP informing mere citizens that the Firearm Registration Certificates for their formerly-Restricted firearms were “nullified” because those firearms were reclassified as Prohibited Firearms by Public Safety Minister Bill Blair’s May 1st Order in Council.
The nine individual decisions (see complete list at the bottom of this page) are copies of a single, well-written decision with names, registration certificate and firearm identifiers changed.
It took months, but eventually the RCMP admitted these were not Firearm Registration Certificate Revocation Notices.
In that same notice the RCMP told gun owners to “wait for further instructions…”
Unsatisfied with this admittedly bizarre state of affairs, individual gun owners across Canada chose to file for a Section 74 Reference Hearing before a provincial court as allowed for in the Firearms Act.
Reference to judge of refusal to issue or revocation, etc.
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74 (1) Subject to subsection (2), where
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(a) a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import,
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(b) a chief firearms officer decides under section 67 that a firearm possessed by an individual who holds a licence is not being used for a purpose described in section 28, or
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(c) a provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for the purposes of this Act,
the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides.
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Marginal note:Limitation period
(2) An applicant or holder may only refer a matter to a provincial court judge under subsection (1) within thirty days after receiving notice of the decision of the chief firearms officer, Registrar or provincial minister under section 29, 67 or 72 or within such further time as is allowed by a provincial court judge, whether before or after the expiration of those thirty days.
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To the best of my knowledge, two other S.74 reference applications were dismissed, one in Ontario and one in Newfoundland. (Thanks Thomas)
I am personally aware of several S.74 reference hearings that remain outstanding in British Columbia. Presumably the same is true in almost every other province.
Nine applicants in Alberta survived a Federal Government motion to dismiss their applications on the grounds the RCMP letter was not a Firearm Registration Certificate Revocation Notices.
The Attorney-General took the position that the letter from the Registrar of Firearms did not constitute a notice of revocation, and therefore the Provincial Court of Alberta did not have jurisdiction to hear the review application.
“Nullified” is a term you cannot find in the Firearms Act. It has no legal definition with respect to firearms.
Overview of the Nine Decisions
From Attorney-General for Canada v Stark, 2020 ABPC 230, but the same wording is found in all nine of Judge Allan Fradsham’s rulings:
Issues
[5] The overarching issue in this application is whether the Provincial Court of Alberta has jurisdiction to hear the application filed by Mr. Stark in which he purports to invoke section 74 of the Firearms Act.
[6] The primary issue is whether the letter sent to Mr. Stark by the Registrar of Firearms constituted a notice of revocation of certain registration certificates under section 71(1)(a) of the Firearms Act.
In each of the decisions, Judge Fradsham lists the facts of each Firearm Registration Certificate the Registrar of Firearms “nullified” including what information is written on each Certificate, including the statement:
The Firearms Registration Certificate is issued to the owner for a specific firearm. The registration certificate is valid until the firearm is transferred or disposed of or the certificate is revoked…. The firearm registration certificate is issued by the Registrar under the authority of the Firearms Act.
Judge Fradsham then reviews the relevant portion of SOR/2020-96, commonly known as the May 1st gun ban by Order in Council, which describes the nine families or platforms of firearms banned by the OIC.
Finally Judge Fradsham details the amnesty order introduced alongside the gun ban OIC.
[14] Concurrently on May 1, 2020, the Governor-in-Council, pursuant to section 117.14(1) of the Criminal Code, made a regulation (SOR/2020-97), effective that day, which created an amnesty period for those who found themselves in possession of a firearm which, as a result of SOR/2020-96, was reclassified as a “prohibited firearm”.
[15] SOR/2020-97 (“the Amnesty Order”) is in effect from May 1, 2020 to April 30, 2022.
[16] The Amnesty Order (as it applies to firearms) applies to a person who:
(i) on the day on which this Order comes into force, owns or possesses a specified firearm and holds a licence that was issued under the Firearms Act,
(ii) at any time during the amnesty period, is in possession of the specified firearm,
(iii) during the amnesty period, continues to hold the licence while in possession of the specified firearm, and
(iv) if the specified firearm was, on the day before the day on which this Order comes into force, a restricted firearm, held on the day before the day on which this Order comes into force, a registration certificate for the specified firearm that was issued under the Firearms Act.
Note the phrase “a registration certificate for the specified firearm“.
On the letters issued by the RCMP to everyone who owned formerly-Restricted but newly-Prohibited firearm, under the heading Registration Certificate Number are the words “(no longer valid)”.
Each of the nine applicants filed for a Reference to a Provincial Court Judge at different times, but the government response was always the same.
The Attorney General for Canada filed an “application to strike” the reference hearing because the Registrar of Firearms did not revoke the individual’s registration certificates, therefore
i. the prerequisites for invoking section 74 of the Firearms Act do not exist, therefore
ii. no Judge of the Provincial Court of Alberta has jurisdiction to hear the applicant’s “Reference”.
I’ve long maintained that words have meaning, and governments use specific words to invoke a certain response, be it in the courts, or the court of public opinion. This is no different.
By using the term “nullified” instead of “revoked” or “denied”, the government hoped to skirt all this pesky business of protecting a mere citizen’s rights.
Words have meaning.
Law and Analysis
Judge Fradsham dissects various sections of the Firearms Act next, as highlighted below, before moving on to the positions of the Attorney General and the Applicant:
Section 71(1) of the Firearms Act states that “The Registrar (a) may revoke a registration certificate for a …restricted firearm for any good and sufficient reason”.
Section 71(2) states that “a notice given under subsection (1) must include reasons for the decision disclosing the nature of the information relied on for the decision and must be accompanied by a copy of sections 74 to 81.”
Section 74(1) of the Firearms Act states that “where…the Registrar…revokes a…registration certificate…the…holder of the…registration certificate…may refer the matter to a provincial court judge in the territorial division in which the…holder resides.”
The Attorney General for Canada whats to have his cake and eat it too.
There can be no Reference Hearing, the AG argued, because the Registrar did not revoke these registration certificates. Because there was no Firearm Registration Certificate Revocation the authority granted by sections 74 and 75 to a Judge of a Provincial Court to hear the Reference does not come into play.
Even if the court rules otherwise, the AG argued, the court must confirm the revocation and the Reference should be denied pursuant to Rule 3.68 of the Alberta Rules of Court.
Section 74 Applicants Argument
The Section 74 Applicants all argue the RCMP letter does indeed constitute a revocation by the Registrar therefore sections 74 and 75 apply.
The word “nullified”, as used in the letter, is not a term found in the Firearms Act, nor is it found in either of SOR2020-96 or SOR2020-97.
The Governor-in-Council did not state it was “nullifying” registration certificates and if the registration certificates were “nullified” (and “nullify” must be interpreted as equivalent to “revoke”), then the Registrar exercised his or her statutory power to revoke and the Court has jurisdiction.
The Court’s Analysis
With all of this essential background out of the way, Judge Allan Fradsham’s dedication to the principles of fundamental justice really shine through.
[29] It is a criminal offence for a person to possess either a restricted or prohibited firearm while that person knows that he or she is not the holder of both a licence under which the person may possess the firearm, and a registration certificate for the firearm: section 92(1) of the Criminal Code.
[30] The Attorney-General submitted that SOR2020-96 had two results: (1) the three firearms referred to in the July 20, 2020 letter to Mr. Stark from the Registrar were, as of May 1, 2020, reclassified as prohibited firearms; and (2) the three registration certificates previously issued to Mr. Stark in relation to those firearms were made invalid.
[31] The Attorney-General further submitted that as a result of sections 12.1 and 13 of the Firearms Act, “an individual cannot possess a registration certificate for a prohibited firearm unless that individual is authorized to possess prohibited firearms” (Attorney-General’s Brief).
[32] Sections 12.1 and 13 read as follows:
12.1 A registration certificate may only be issued for a prohibited firearm or a restricted firearm.
13 A person is not eligible to hold a registration certificate for a firearm unless the person holds a licence authorizing the person to possess that kind of firearm.
[33] It is evident that all section 12.1 says is that a registration certificate may only be issued in relation to a restricted or prohibited firearm.
[34] Section 13 simply says that a person is not “eligible” to “hold” a registration certificate for a particular firearm unless the person “holds” a licence to possess that particular “kind of firearm”. Section 13 of the Firearms Act speaks only to the “eligibility” of a person to lawfully hold a registration certificate. The section does not affect the registration certificate itself; it only affects the ability to lawfully hold the registration certificate.
[35] The Attorney-General submitted that, as a result of Mr. Stark’s firearms being reclassified from “restricted” to “prohibited”, and since Mr. Stark was not eligible to hold a registration certificate for prohibited firearms (he did not have a licence to possess prohibited firearms), the registration certificates held by Mr. Stark “became invalid”.
Barrett v. Canada (Registrar of Firearms) 2010 BCSC 345 ruled this line of thinking is nonsense. A registration certificate does not cease to exist just because the firearm is reclassified.
If Carla Barrett’s registration certificates did not cease to exist when her firearms were reclassified, the registration certificates for the Restricted firearms owned by licensed individuals could not expire simply because the government reclassified them as Prohibited.
[46] From all that, we can take that the registration certificates held by Mr. Stark did not cease to exist on May 1, 2020 (upon the making of the SOR2020-96) when his firearms were reclassified as “prohibited”, even though Mr. Stark was, as of that date, no longer permitted to possess a registration certificate for those prohibited firearms because he did not possess a licence to possess prohibited firearms.
The Attorney General argued that the registration certificate no longer applied to the firearm once it was reclassified as “prohibited”; the act of reclassification made the registration certificate “invalid”.
[48] The difficulty with that submission, which is to the effect that the registration certificate ceased to exist in law because of the reclassification of the firearm, is that the Firearms Act itself contemplates the continuation of a valid registration certificate issued for a firearm (which at the time was classified as “restricted”) after that firearm is reclassified as “prohibited”.
The Firearms Act allows for three “states of being” for registration certificates:
- Issuance [section 60]
- Revocation [section 71(1); 71(2)]
- Expiry [section 66]
The Criminal Code only speaks of “surrendering” [section 114(b)] or “revoking” registration certificates [section 116(2)].
Neither the Criminal Code nor the Firearms Act speak deal with registration certificates in terms of “invalidity” or “nullifying”.
While the Governor-in-Council, through SOR2020-96, reclassified these firearms as Prohibited, the Governor-in-Council did not cause their registration certificates to cease to exist in law. Firearm Registration Certificates can only cease to exist in law through revocation, expiry, or surrender.
[55] In order to determine whether the July 20, 2020 letter from the Registrar of Firearms constituted an act revoking Mr. Stark’s three firearm certificates, it is necessary to first review the applicable statutory provisions.
Those provisions are found in Section 71(1)(a), Section 72(1), Section 72(2) and Section 72(5) of the Firearms Act, the latter of which specifies the format for a Firearm Registration Certificate Revocation Notice.
The RCMP’s letter is clearly not in the format required for a Firearm Registration Certificate Revocation Notice.
At para 61, Judge Fredsham asked, “Is it reasonable to conclude that the letter dated July 20, 2020, communicated to Mr. Stark that the Registrar had ‘decide[d] to revoke’ the registration certificates specifically described in the letter?”
He then walks through a series of facts, including the letter was sent by the Registrar of Firearms, which meant:
[65] Consequently, if the Registrar of Firearms was of the opinion expressed in his or her July 20, 2020 letter that the listed registration certificates were “nullified” and were “no longer valid”, which was the message sent by the Registrar to Mr. Stark, then that nullification and invalidity must have come about as a result of an act of the Registrar of Firearms.
[69] The only power available to the Registrar the exercise of which would render the registration certificates “nullified” and “no longer valid” is the power of revocation. Indeed, the terms “revoke” and “nullify” and “invalidate” share the same denotation and the same connotation.
[70] Consequently, one must conclude that the act of the Registrar which “nullified” and made “no longer valid” the registration certificates listed in the July 20, 2020 letter was the revocation of those registration certificates by the Registrar. I find that the Registrar of Firearms did revoke the registration certificates listed in the July 20, 2020 letter directed to Mr. Stark.
[72] As previously noted, I am mindful that the July 20, 2020 letter was not “in the prescribed form” for a section 72(1) notice, and that it was not accompanied by a copy of sections 74 to 81. However, in all other respects it complied with the notice provisions of the Firearms Act, and the deficiencies noted do not change the character (a notice of revocation) of the document. The deficiencies may have other consequences, but that is not for me to decide in this application by the Attorney-General.
[73] I find that I have jurisdiction to hear the section 74(1) referral of the decision of the Registrar of Firearms to revoke the registration certificates listed in the July 20, 2020 letter sent to Mr. Stark.
Judge Fradsham then explains to the Attorney General since the government said “An option to participate in a grandfathering regime would also be made available for affected owners” the existing registration certificates are the only path to meet the “continuously the holder of a registration certificate” requirement spelled out in Section 12 of the Firearms Act.
[85] While none of this commits the Government of Canada to implement a grandfathering regime, or if it does choose to implement a grandfathering regime, to include in that regime provisions similar to the provisions which formed part of previous grandfathering regimes, it is reasonable for those reading the Regulatory Impact Analysis Statement, and who might benefit from such a firearms grandfathering regime, to conclude that it is very likely, though not certain, that the continuous holding of a registration certificate will form part of the regime’s requirements.
[86] For that reason alone (i.e., the likelihood that continuous holding of a registration certificate will be necessary to enjoy the benefits of a grandfathering regime), Mr. Stark’s section 74(1) review application is not frivolous or an abuse of process.
That application seeks a remedy (cancellation of the revocation of the registration certificate) which might turn out to be essential for Mr. Stark to enjoy the benefits of the possible grandfathering regime mentioned in the Regulatory Impact Analysis Statement. That possibility is enough to support a finding, which I make, that the conditions set out in Rule 3.68(2) are not met.
[87] I decline to strike Mr. Stark’s section 74(1) review application under the provisions of Rule 3.68 of the Alberta Rules of Court.
[88] The application of the Attorney-General to strike the section 74(1) review application filed by Mr. Stark is dismissed.
Alberta Provincial Court Judge A. A. Fradsham’s Nine Decisions
- Attorney-General for Canada v Sandhu, 2020 ABPC 238
- Attorney-General for Canada v Dolhun, 2020 ABPC 237
- Attorney-General for Canada v Smykot, 2020 ABPC 236
- Attorney-General for Canada v Der, 2020 ABPC 235
- Attorney-General for Canada v Seda, 2020 ABPC 234
- Attorney-General for Canada v Cridland, 2020 ABPC 233
- Attorney-General for Canada v Imler, 2020 ABPC 232
- Attorney-General for Canada v Nelson, 2020 ABPC 231
- Attorney-General for Canada v Stark, 2020 ABPC 230
Thanks Chris. Yeoman’s efforts and we all thank you mightily! Well done!
Thank you, Don!
Given the overall “progressive” predilections of Canada’s judiciary, I’d say that Judge Allan A. Fradsham has just become persona non grata amongst his peers. Now every single Canadian who has had their registration certificates “nullified” needs to make a Section 74 review application. Overwhelm the entire legal shyte show that passes for a justice system in Canada.
Good article, the only thing I would like to comment on is where you say ‘most of the s74 applications were dismissed’. That is not accurate, fortunately. I am one of the Alberta applicants (not one of the Calgary 9), and to my knowledge only an application in NFld and ON were (wrongly) dismissed. The rest of the 130 or so applications have hearings pending still.
And Judge Fradsham’s ruling opens the way for all other affected gun owners who received that bogus ‘nullification’ letter to now file for a S74 review, which I strongly recommend they do. Regards, TC
Awesome, thanks Thomas. I’ve updated the article accordingly and given you credit for the info. Much appreciated.