Drapaka v. Chief Firearms Officer (Alta.), (2001) 322 A.R. 149 (PC)

JudgeDemetrick, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateApril 11, 2001
Citations(2001), 322 A.R. 149 (PC);2001 ABPC 73

Drapaka v. Chief Firearms Officer (2001), 322 A.R. 149 (PC)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JL.068

Shawn Drapaka (applicant) v. The Chief Firearms Officer of Alberta (respondent)

(06430896H10101; 2001 ABPC 73)

Indexed As: Drapaka v. Chief Firearms Officer (Alta.)

Alberta Provincial Court

Demetrick, P.C.J.

April 11, 2001.

Summary:

A firearms officer refused to issue the applicant a licence to possess and acquire non-restricted and restricted firearms. The applicant referred the matter to a Provincial Court judge, pursuant to s. 74(1) of the Firearms Act.

The Alberta Provincial Court dismissed the reference.

Criminal Law - Topic 1441.9

Offences against person and reputation - Firearms - General - Firearms legislation - Interpretation - The Alberta Provincial Court stated that "the licencing and reference provisions of the Firearms Act should be interpreted, where possible, in a manner that acknowledges and respects the legitimate use of firearms and that does not unnecessarily discourage ordinary Canadians from possessing them. Such interpretative approach is consistent with the public safety purpose of the legislation and s. 7 of the Charter. It also - at least in small measure - lends substance to the federal government's earlier noted representation made at the time through the Honourable Allan Rock that the legitimate use of firearms must be acknowledged, respected and not unduly interfered with." - See paragraph 16.

Criminal Law - Topic 1444.1

Offences against person and reputation - Firearms - General - Firearms licence - Eligibility - Section 5(1) of the Firearms Act provided that "a person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, ..." - The Alberta Provincial Court held that s. 5(1) meant that "an applicant is eligible to hold a firearms licence except if it is desirable, in the interests of the safety of the applicant or any other person, that the applicant not possess firearms" - In proper circumstances a firearms officer had a duty to issue the licence despite any personal preference or bureaucratic policy -In determining an application, an officer should initially determine whether the application and other material gathered established on a balance of probabilities the relevant "specific eligibility conditions" stated in various sections of the Act (e.g., s. 7(1) or s. 8(5)) - If these criteria were met, the officer should regard the applicant as entitled to receive the licence and issue it unless the material gathered, in its totality, established on a balance of probabilities a factual scenario legally tantamount to the "general ineligibility criterion" in s. 5(1) - See paragraphs 32 to 41.

Criminal Law - Topic 1444.1

Offences against person and reputation - Firearms - General - Firearms licence - Eligibility - The applicant applied for a firearms licence - A firearms officer interviewed the applicant and his wife - He reviewed police files and was aware of the applicant's history of violence and threats of violence - The officer refused the licence, holding that it was not in the interests of safety of the applicant or any other person - The Alberta Provincial Court held that the firearms officer acted unfairly - The officer did not contact the applicant's reference or attempt to contact the applicant's neighbours, co-workers or parents as authorized by the Firearms Act -He was aware of the applicant's past mental health problems, but did not obtain full information on his mental health at the time of the application - The lopsided nature of the officer's investigation left him with scant meaningful information about the applicant's circumstances at the time of the application - This resulted in the officer's adjudication being biased - However, after conducting a de novo hearing and considering the applicant's circumstances at the time of the reference, the court upheld the refusal - See paragraphs 50 to 78.

Criminal Law - Topic 1444.2

Offences against person and reputation - Firearms - General - Firearms officers' decisions - Review of - Section 74 of the Firearms Act provided that where a chief firearms officer or registrar refused to issue or revoked, inter alia, a firearms licence, the applicant or holder could refer the matter to the Provincial Court - The Alberta Provincial Court held that a reference authorized by s. 74 was a de novo hearing rather than an appeal - A de novo hearing would appear to better serve the objects of public safety and respect for the legitimate use of firearms - See paragraphs 17 to 21 - If the reviewing judge rules that the original refusal was not justified, he or she should assume the role of the chief firearms officer and, using the facts proven by the hearing's evidence, determine the applicant's eligibility at the time of the reference - Even if the reviewing judge rules that the original refusal was justified at the time, he or she should determine if the applicant is eligible at the time of the reference, based on the evidence at the reference - See paragraph 47.

Criminal Law - Topic 1444.2

Offences against person and reputation - Firearms - General - Firearms officers' decisions - Review of - Section 74 of the Firearms Act provided that where a chief firearms officer or registrar refused to issue or revoked, inter alia, a firearms licence, the applicant or holder could refer the matter to the Provincial Court - The Alberta Provincial Court discussed how a s. 74 reference hearing should function and the role of the judge presiding over the hearing - In particular, the court discussed, inter alia, the judge's duty of fairness, the order of the presentation of evidence, the standard of proof and the issues to be determined by the judge - See paragraphs 42 to 49.

Criminal Law - Topic 1444.4

Offences against person and reputation - Firearms - General - Firearms officers - Powers and duties - The Alberta Provincial Court discussed the nature of the chief firearms officer's role with respect to an application for a firearms licence - The Court stated the officer's role had an investigative component and an adjudicative component - The role had to be executed with fairness to the applicant - The officer had to be objective and even-handed and during the investigative stage had to give attention to both information supportive and unsupportive of the application - Where, during an investigation, information adverse to the applicant was found, the applicant should be informed of the details and circumstances thereof and be given a reasonable opportunity to respond -During the adjudicative stage, the officer had to avoid having bias influence how the evidence was assessed - Further, the officer's decision had to be based on relevant facts - See paragraphs 22 to 31.

Cases Noticed:

Reference Re Firearms Act (Can.) (1998), 219 A.R. 201; 179 W.A.C. 201; 128 C.C.C.(3d) 225 (C.A.), refd to. [para. 3].

R. v. Rogan (D.K.) (1994), 152 A.R. 213 (Prov. Ct.), refd to. [para. 10].

R. v. Bray (C.J.) (1999), 239 A.R. 60; 59 C.R.R.(2d) 252 (Prov. Ct.), refd to. [para. 12].

Wright, Re (2000), 264 A.R. 296 (Prov. Ct.), refd to. [para. 21].

Lyons v. Chief Firearms Officer (N.S.) (2002), 188 N.S.R.(2d) 52; 587 A.P.R. 52 (Prov. Ct.), refd to. [para. 21].

Clark v. Chief Firearms Officer (Sask.) (1999), 188 Sask.R. 234 (Prov. Ct.), refd to. [para. 21].

R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149; 58 Man.R.(2d) 63; 50 C.C.C.(3d) 566, refd to. [para. 39].

R. v. Ball, [2000] O.J. No. 4203, refd to. [para. 46].

Costello v. Chief Provincial Firearms Officer (Nfld.) (1994), 126 Nfld. & P.E.I.R. 186; 393 A.P.R. 186 (Nfld. Prov. Ct.), refd to. [para. 65].

R. v. McBride, [1995] N.W.T.J. No. 6 (Terr. Ct.), refd to. [para. 66].

R. v. Tsapoitis, [1999] O.J. No. 1913 (Prov. Div.), refd to. [para. 67].

Pelcher, Re, [1999] B.C.J. No. 1616 (Prov. Ct.), refd to. [para. 68].

Nadalin, Re, [2000] B.C.J. No. 2580 (Prov. Ct.), refd to. [para. 71].

Statutes Noticed:

Firearms Act, S.C. 1995, c. 39, sect. 5 [para. 34]; sect. 74 [para. 17].

Authors and Works Noticed:

Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1966), generally [para. 37].

Canada, Hansard, House of Commons Debates, vol. 133, No. 154, 1st Sess., 35th Parliament (February 16, 1995), pp. 9706 to 9711 [para. 3].

Counsel:

M. Fontaine, for the applicant;

W. Smart, for the respondent.

This reference was heard by Demetrick, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on April 11, 2001.

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10 practice notes
  • Pogson v. Chief Firearms Officer (Alta.),
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 3, 2005
    ...Court reviewing the decision of a firearms officer - See paragraphs 43 to 45. Cases Noticed: Drapaka v. Chief Firearms Officer (Alta.) (2001), 322 A.R. 149; 2001 ABPC 73 , refd to. [para. Pushpanathan v. Canada (Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982 , addendum [199......
  • Chief Firearms Officer (Alta.) v. Rolls, 2004 ABQB 582
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • June 1, 2004
    ...Firearms Officer (B.C.) v. Fahlman, [2001] B.C.T.C. 1675 (S.C.), refd to. [para. 20]. Drapaka v. Chief Firearms Officer (Alta.) (2001), 322 A.R. 149 (Prov. Ct.), refd to. [para. 20]. R. v. Pagnotta (M.M.), [2001] B.C.T.C. 444 (S.C.), consd. [para. 20]. Pushpanathan v. Canada (Minister o......
  • Buhrs (M.A.) v. R., 2007 ABPC 169
    • Canada
    • Provincial Court of Alberta (Canada)
    • June 29, 2007
    ...582 , refd to. [para. 6]. Wright, Re (2000), 264 A.R. 296 (Prov. Ct.), refd to. [para. 7]. Drapaka v. Chief Firearms Officer (Alta.) (2001), 322 A.R. 149 (Prov. Ct.), refd to. [para. R. v. Dumont (D.) (2002), 254 N.B.R.(2d) 238 ; 664 A.P.R. 238 (T.D.), refd to. [para. 7]. R. v. Pagnott......
  • Woodcock v. Canada (Registrar of Firearms), 2008 ABPC 19
    • Canada
    • Provincial Court of Alberta (Canada)
    • January 29, 2008
    ...in Section 75 of the Firearms Act section: R.v. Wright (2000), A.R. 296 (Alta. Prov. Ct.) Drapaka v. Alberta (Chief Firearms Officer) (2003), 322 A.R. 149 (Alta. Prov. Ct.) R. v. Dumont (2002), 254 N.B.R. (2d) 238 (N.B.Q.B.) R. v. Pagnotta (2001), BCSC 444 (B.C.S.C.) R. v. Rolls (2003), 329......
  • Request a trial to view additional results
10 cases
  • Pogson v. Chief Firearms Officer (Alta.),
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 3, 2005
    ...Court reviewing the decision of a firearms officer - See paragraphs 43 to 45. Cases Noticed: Drapaka v. Chief Firearms Officer (Alta.) (2001), 322 A.R. 149; 2001 ABPC 73 , refd to. [para. Pushpanathan v. Canada (Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982 , addendum [199......
  • Chief Firearms Officer (Alta.) v. Rolls, 2004 ABQB 582
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • June 1, 2004
    ...Firearms Officer (B.C.) v. Fahlman, [2001] B.C.T.C. 1675 (S.C.), refd to. [para. 20]. Drapaka v. Chief Firearms Officer (Alta.) (2001), 322 A.R. 149 (Prov. Ct.), refd to. [para. 20]. R. v. Pagnotta (M.M.), [2001] B.C.T.C. 444 (S.C.), consd. [para. 20]. Pushpanathan v. Canada (Minister o......
  • Buhrs (M.A.) v. R., 2007 ABPC 169
    • Canada
    • Provincial Court of Alberta (Canada)
    • June 29, 2007
    ...582 , refd to. [para. 6]. Wright, Re (2000), 264 A.R. 296 (Prov. Ct.), refd to. [para. 7]. Drapaka v. Chief Firearms Officer (Alta.) (2001), 322 A.R. 149 (Prov. Ct.), refd to. [para. R. v. Dumont (D.) (2002), 254 N.B.R.(2d) 238 ; 664 A.P.R. 238 (T.D.), refd to. [para. 7]. R. v. Pagnott......
  • Woodcock v. Canada (Registrar of Firearms), 2008 ABPC 19
    • Canada
    • Provincial Court of Alberta (Canada)
    • January 29, 2008
    ...in Section 75 of the Firearms Act section: R.v. Wright (2000), A.R. 296 (Alta. Prov. Ct.) Drapaka v. Alberta (Chief Firearms Officer) (2003), 322 A.R. 149 (Alta. Prov. Ct.) R. v. Dumont (2002), 254 N.B.R. (2d) 238 (N.B.Q.B.) R. v. Pagnotta (2001), BCSC 444 (B.C.S.C.) R. v. Rolls (2003), 329......
  • Request a trial to view additional results

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