Pogson v. Chief Firearms Officer (Alta.),

• Judge: Slatter, J.
• Neutral Citation: 2005 ABQB 179
• Date: 03 March 2005
• Court: Court of Queen's Bench of Alberta (Canada)

Pogson v. Chief Firearms Officer (2005), 369 A.R. 121 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. MR.089

Chief Firearms Officer for the Province of Alberta (appellant) v. Brenda Pogson (respondent)

(030374326S1; 2005 ABQB 179)

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

Alberta Court of Queen's Bench

Judicial District of St. Paul

Slatter, J.

March 14, 2005.

Summary:

Pogson applied for a firearm's licence. Over two years later, the Chief Firearms Officer's delegate dismissed her application, finding her ineligible on the ground that her possession of a firearm would be contrary to her own safety and public safety. The delegate cited past alcohol and psychological problems. The matter was referred to the Provincial Court under s. 74(1) of the Firearms Act.

The Alberta Provincial Court, in a judgment reported (2004), 358 A.R. 210, held that the licence refusal was not justified. The court ordered that the Chief Firearms Officer issue the licence. The Officer appealed.

The Alberta Court of Queen's Bench allowed the appeal and remitted the matter to another Provincial Court judge to re-hold the reference applying the correct standard of review.

Criminal Law - Topic 1441.9

Offences against person and reputation - Firearms - General - Firearms legislation - Interpretation - The Alberta Court of Queen's Bench rejected a Provincial Court judge's statement that ownership of a gun was a right, not merely a privilege - The court stated that "on the contrary, possession of firearms is generally prohibited. The burden is on the [person seeking a gun licence] to demonstrate that he or she should be accorded the privilege of owning a firearm. ... the licencing 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." - See paragraphs 46 to 52.

Criminal Law - Topic 1444.1

Offences against person and reputation - Firearms - General - Firearms licence - Eligibility (incl. evidence) - Pogson was denied a firearms licence by the Chief Firearms Officer's delegate - The delegate relied on (1) the two local R.C.M.P. officers' non-support of the application; (2) a medical letter concerning Pogson's mental health; and (3) her assault conviction - The Alberta Provincial Court, on a reference under s. 74(1) of the Firearms Act, directed that a licence be issued - The lack of police support was irrelevant - Pogson was denied a fair hearing where negative information was relied on without giving her notice and an opportunity to respond (e.g. to correct erroneous information) - The medical information relied on was unreliable and stale-dated - Finally, the assault was trivial and there was no history of violence with a gun - There was no evidence of anything in Pogson's present circumstances justifying the refusal to issue a licence - The Alberta Court of Queen's Bench remitted the matter to a different reviewing judge for a re-hearing applying the proper standard of review and considering the "new evidence" indicating a change in circumstances since the original decision - The judge erred as follows: the officers' opinions were relevant; there was no right to a fair "hearing", as no hearing was required; some adjudicative fairness was required, but was not denied; "patently unreliable information" was not relied on; relevant information was improperly discounted; the proper standard of review was not applied; the officers' credibility assessments were interfered with; the judge erred in starting from the premise of a "right" to a firearm rather than a "privilege"; and no deference was shown to the officers' decision - See paragraphs 53 to 78.

Criminal Law - Topic 1444.2

Offences against person and reputation - Firearms - General - Firearms officers' decisions - Review of - Section 74(1) of the Firearms Act provided that the decision of a firearms officer may be "referred" to the Provincial Court - The reviewing judge was to consider all "relevant evidence", including changed circumstances between the date of the officer's decision and the date of the review hearing - The Alberta Court of Queen's Bench held that the reviewing judge was to conduct a form of new hearing, but it was neither a de novo hearing nor a true appeal - The court stated that where the evidence before the officer and reviewing judge was substantially the same, the standard of review was reasonableness simpliciter (i.e. officer must be shown to be "clearly wrong") - Where there was significant and meaningful new evidence before the reviewing judge, the following two stage process was 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. Of course the mere fact that the record discloses grounds for interfering with the decision of the firearms officer does not necessarily mean that the provincial court judge should simply substitute his or her opinion for that of the firearms officer. In many cases it will be appropriate to refer the matter back to the firearms officer for reconsideration. This would particularly be the case when changed circumstances are alleged, and particularly where the firearms officer has not had a fair opportunity at the reference hearing to marshal evidence that might rebut the suggestion of changed circumstances." - See paragraphs 41 to 42.

Criminal Law - Topic 1444.2

Offences against person and reputation - Firearms - General - Firearms officers' decisions - Review of - The Alberta Court of Queen's Bench discussed the standard of review of an appeal to the Queen's Bench from a decision of the Provincial 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. 13].

Pushpanathan v. Canada (Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 24].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 24].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257, refd to. [para. 24].

Chief Firearms Officer (B.C.) v. Fahlman, [2001] B.C.T.C. 1675; 2001 BCSC 1675, affd. (2004), 199 B.C.A.C. 146; 326 W.A.C. 146; 187 C.C.C.(3d) 495; 2004 BCCA 343, refd to. [para. 24].

R. v. Wright - see Wright, Re.

Wright, Re (2000), 264 A.R. 296 (Prov. Ct.), refd to. [para. 28].

R. v. Dumont (D.) (2002), 254 N.B.R.(2d) 238; 664 A.P.R. 238; 2002 NBQB 338, refd to. [para. 29].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 29].

Chief Firearms Officer (Alta.) v. Rolls - see R. v. Rolls (T.W.).

Chief Firearms Officer (Alta.) v. Rolls (2004), 369 A.R. 203; 2004 ABQB 582, affing. (2002), 329 A.R. 263; 2002 ABPC 178, refd to. [para. 29].

R. v. Rolls - see Chief Firearms Officer (Alta.) v. Rolls.

Chief Firearms Office (Alta.) v. Holland (2004), 350 A.R. 194; 2004 ABQB 44, refd to. [para. 31].

Bohn v. Chief Firearms Officer (B.C.), 2002 BCPC 378, refd to. [para. 40].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 43].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 44].

Thomson v. Transportation and Safety Board (Alta.) - see Gonzalez v. Driver Control Board (Alta.) et al.

Gonzalez v. Driver Control Board (Alta.) et al., [2003] 11 W.W.R. 631; 327 A.R. 308; 296 W.A.C. 308; 2003 ABCA 112, refd to. [para. 48].

Reference Re Firearms Act (Can.), [1999] 2 W.W.R. 579; 219 A.R. 201; 179 W.A.C. 201; 164 D.L.R.(4th) 513; 65 Alta. L.R.(3d) 1; 1998 ABCA 305, refd to. [para. 48].

R. v. Shepherd, 2004 YKSC 31, refd to. [para. 48].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 49].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 51].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 54].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 57].

Statutes Noticed:

Firearms Act, S.C. 1995, c. 39, sect. 5, sect. 55, sect. 68, sect. 74(1), sect. 75, sect. 76 [para. 20].

Counsel:

P.G. Barber, for the appellant;

R.J.A. Gregory, for the respondent.

This appeal was heard on March 3, 2005, before Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of St. Paul, who delivered the following judgment on March 14, 2005.