COURT FILE NO.: CR-21-206-AP DATE: 2023/07/07
Superior Court of Justice (North Bay)
RE: LORENCE HUD, Applicant AND: HIS MAJESTY THE KING, Respondent
BEFORE: Justice J.S. Richard
COUNSEL: David Kurk, for Respondent Lorence Hud, self-represented
HEARD: June 7, 2023
JUDGMENT
I. Appeal Summary
1On December 19, 2021, the Applicant, Lorence Hud, filed a Notice of Appeal with the Superior Court of Justice indicating that he is exercising his right to appeal the decision of Justice Perron, of the Ontario Court of Justice, dated November 22, 2021.
2His Notice of Appeal, moreover, states that he is appealing Justice Perron’s decision on the following grounds:
His Honour Justice Perron made errors of law, or mixed fact and law by:
i) Refusing to allow the Charter Application to proceed; and/or ii) not providing sufficient reasons for doing so; and/or iii) not allowing an adjournment after disclosure was provided at the hearing and the designate firearms officer admitted that he was unable to be meaningfully cross examined on his predecessor’s report; and/or; iv) not providing sufficient reasons for refusing the adjournment request.
3Mr. Hud’s Notice of Appeal further indicates that he relies on:
i) The transcript of the firearms hearing of November 22, 2021; and ii) the Firearms Act, S.C. 1995, c.39.
4Finally, in Mr. Hud’s Notice of Appeal, he asks that this court to:
i) direct the Chief Firearms Officer or Registrar to issue a licence, registration certificate or authorization; or ii) cancel the revocation of the licence or the decision of the chief firearms officer under section 67; or iii) such further relief as the Applicant may request and the Court will provide.
5In short, the Chief Firearms Officer revoked Mr. Hud’s firearms licence. Mr. Hud then referred the Chief Firearms Officer’s decision to the Ontario Court of Justice. The reference hearing was heard by Justice Perron. Following the hearing, Justice Perron confirmed the Chief Firearms Officer’s decision, and Mr. Hud’s firearms licence remains revoked. Mr. Hud is now appealing Justice Perron’s reference hearing decision.
II. Background
6The background leading up to this appeal of Justice Perron’s November 22, 2021 reference decision is as follows:
On July 17, 2017, the Ontario Provincial Police attended Mr. Hud’s home.
According to Mr. Hud, he felt that the Ontario Provincial Police had been misinformed, and this led to a 29-hour standoff, during which Mr. Hud barricaded himself in his home.
On July 18, 2017, Mr. Hud was removed from his home by force by the Ontario Provincial Police, and he was charged with: a. Possession of a weapon for dangerous purpose; b. And two counts of careless storage of firearms, weapon, prohibited device or ammunition.
On July 15, 2019, Mr. Hud entered into a common-law peace bond for 12 months, which led to the withdrawal of his criminal charges, on the condition that that he be prohibited from having, in his possession, any firearm except his 12-gauge shotgun.
On August 21, 2019, Mr. Hud received a Notice of Revocation to Possess and Acquire Firearms from the area firearms officer, Stephen Bradley (the “Notice of Revocation”). Reasons in the Notice of Revocation included the following:
On the 15th of July 2017, all charges were withdrawn when you entered into a common-law peace bond with firearms conditions. However, there was an exception that allowed you to retain possession of your 12 gauge shotgun. (…) I came to learn that the facts for the common law peace bond were limited entirely to an outburst in court and that you did not admit to any facts. Therefore, I am left to consider the information cited above that is taken from the police reports and I recognise some of the challenges of the Crown's case. Regardless of how this played out in criminal court, your behaviour is of the utmost concern. The Information I have received is compelling. You forced a stand-off with Police that ended approximately 29 hours after it started and only when a peaceful solution could not be reached. Police entered the residence and you had to be subdued by a conducted energy weapon, as you were armed with a .45 caliber handgun that was loaded and ready to use. You later commented to Police that that you could have shot the officers that entered the residence one by one until they shot you. You were armed and prepared to defend yourself against the Police. In addition, you were harbouring an illegal immigrant (…) who was wanted by the immigration authorities.
After being advised of the Notice of Revocation by Mr. Hud’s lawyer, an assistant Crown attorney contacted the area firearms officer. She then mistakenly reported back to Mr. Hud’s lawyer:
I have spoken to DC Bradley via email. He has reinstated Mr. Hud's licence with the custom condition to permit the possession of a 12-gauge shotgun to conform to the common law peace bond. We had not discussed this but I don't see it as objectionable as it dovetails with his Honour's order. I am unaware if there is a processing delay in the electronic system, etc. so best to wait for official notification from the CFO before Mr. Hud does indeed possess said shotgun.
She further advised Mr. Hud’s lawyer that she expected Mr. Hud would receive a new revocation that would be consistent with the terms of the common law peace bond, thereby allowing Mr. Hud to possess his 12-gauge shotgun.
On September 25, 2019, Mr. Hud’s lawyer received an email from the Assistant Crown Attorney advising that the area firearms officer believed Mr. Hud’s firearms licence had expired, and would not be renewed.
On September 26, 2019, Mr. Hud received a package from the Ontario Provincial Police that contained his firearms licence. It had an expiry date of April 1, 2022.
On October 2, 2019, the area firearms officer advised Mr. Hud’s lawyer that Mr. Hud’s firearms licence was revoked, irrespective of the peace bond.
On June 4, 2020, the Crown Attorney and Mr. Hud’s lawyer agreed that if Mr. Hud made an application for a reference hearing pursuant to the Firearms Act within 90 days, the Crown would not oppose the extension of time required for this application.
On July 16, 2020, Mr. Hud applied for a Reference of Firearms Revocation to the Ontario Court of Justice seeking:
an Order pursuant to s. 76 (c) of the Firearms Act cancelling the revocation of the Applicant's Licence following the hearing of a reference pursuant to s.75.
7To sum up, the chief firearms officer revoked Mr. Hud’s firearms licence on August 21, 2019. Following communications with Mr. Hud’s lawyer, a lawyer in the Crown’s office contacted the Chief Firearms Office to ensure they were aware of the withdrawal of Mr. Hud’s charges. Reasons in the Notice of Revocation, however, had already indicated that they were aware. The lawyer from the Crown’s office made some comments to Mr. Hud’s lawyer about what she expected might happen even though she had no involvement or authority in the firearms licensing process. This led to confusion on the part of Mr. Hud and his counsel. Once the confusion cleared, and that it became clear that Mr. Hud’s licence would remain revoked, Mr. Hud opted to have the Chief Firearms Officer’s decision referred to a hearing before the Ontario Court of Justice.
8The Ontario Court of Justice hearing took place on November 22, 2021 before Justice Perron. On that same day, Justice Perron delivered his decision orally, in which he found that the revocation issued by the Chief Firearms Office had been justified, and Mr. Hud’s firearms licence, therefore, was not reinstated.
9Mr. Hud appealed Justice Perron’s decision to the Superior Court of Justice on December 19, 2021. The hearing of this appeal, which is currently before this court, took place on June 7, 2023.
III. The Law
Firearms Licensing Framework
10Written and oral submissions made by Mr. Hud and his former counsel suggest a deep misunderstanding of both the firearms licensing regime in Canada, and the powers of appeal constituting this court’s jurisdiction to review it.
11While it appears that correspondence between the Crown’s office and Mr. Hud’s counsel played a role in the confusion and misunderstanding that ensued following the revocation of Mr. Hud’s firearms licence in August 2019, it does not change the fact that this court’s power to review Justice Perron’s decision is statutory. More specifically, the appellate role this court is assuming derives from the Firearms Act, S.C.1995 c.39 (the “Firearms Act”). It is therefore constituted by Mr. Hud’s Notice of Appeal.
12In order to assist Mr. Hud in better understanding the legal structure by which we are all bound, it may be helpful to provide an overview at this stage.
13In Canada, it is illegal for a person to use, possess or own firearms, unless she or he holds a firearms licence. A firearms licence is obtained by applying to the Chief Firearms Officer. Each province has its own Chief Firearms Officer, who then delegates her or his responsibilities related to applications, revocations and other duties under the Firearms Act, to area firearms officers. As part of the Chief Firearms Office (“CFO”), area firearms officers each act on behalf of the Chief Firearms Officer, and are bound and obligated by all of the provisions of the Firearms Act.
14Applications and revocations are therefore dealt with administratively. What this means is that the CFO is created by, and operates purely under, the Firearms Act. In other words, it is its own administrative body.
15Being its own separate and independent administrative body, the CFO is separate and apart from the Crown’s office. Crown Attorneys are legal officers of the Attorney General (provincial or federal), and they are responsible for prosecuting individuals facing charges before the court under the Criminal Code, or various other statutes such as the Highway Traffic Act or the Controlled Drugs and Substances Act. In other words, while lawyers (or attorneys, as they are called) deal with prosecutions under the Criminal Code, or a number of other statutes dealing with infractions, before a court, area firearms officers only administer firearms licensing and do not work in conjunction with the Crown’s office. The two remain separate, independent and apart from one another in their functions. They intersect only on a reference, or on appeal, when Crown attorneys take on the role of being the CFO’s lawyers in court. Until then, the two governmental bodies do not collaborate, or even have the ability to influence one another, as they are each responsible for their own legal spheres.
16Because the two independent governmental bodies often end up dealing with the same individual on related events, it can be difficult to understand their respective roles. It may, therefore, be useful to draw an analogy between the administrative body that issues driver’s licences and the CFO, who issues firearms licences. In Ontario, for example, the issuance of driver’s licences is administered and regulated by the Ministry of Transportation (the “MTO”). Crown attorneys, as lawyers, are not involved in the licensing process at all. Crown attorneys, however, are involved in prosecuting violations under the Highway Traffic Act.
17Thus, a person can be charged with a criminal offence under the Criminal Code, and later found not guilty, or even have charges against them withdrawn, and they may still not be allowed to possess a firearms licence in Canada. In other words, although there may not be any court order preventing a person from possessing a firearm, they may still not be able to do so if their firearms licence application is not granted, or if their existing one is revoked.
a. Obtaining or Maintaining a Firearms Licence
18Under the Firearms Act, the CFO’s Chief Firearms Officer, via one of its area officers, determines if a person applying for a licence meets the criteria set out in s.5(2) of the Firearms Act:
Criteria
5(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer (…) shall have regard to whether the person:
(a) has been convicted or discharged under section 730 of the Criminal Code of (i) an offence in the commission of which violence against another person was used, threatened or attempted, (ii) an offence under this Act or Part III of the Criminal Code, (iii) an offence under section 264 of the Criminal Code (criminal harassment), (iv) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or (v) an offence relating to the contravention of subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis Act;
(b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person;
(c) has a history of behaviour that includes violence or threatened or attempted violence or threatening conduct on the part of the person against any person;
(d) is or was previously prohibited by an order — made in the interests of the safety and security of any person — from communicating with an identified person or from being at a specified place or within a specified distance of that place, and presently poses a threat or risk to the safety and security of any person;
(e) in respect of an offence in the commission of which violence was used, threatened or attempted against the person’s intimate partner or former intimate partner, was previously prohibited by a prohibition order from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition; or
(f) for any other reason, poses a risk of harm to any person.
19The ability to grant a firearms licence, or to revoke an existing one, is made even more limited and narrow by section 5(1) of the Act, which states that an individual will not be eligible if her or his possession is not “in the interest of safety” of any person:
5 (1) 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, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition. (emphasis added)
20Sections 68 of the Act, then imposes a positive obligation to refuse an application, or to revoke an existing licence, “for any good and sufficient reason”:
68 A chief firearms officer shall refuse to issue a licence if the applicant is not eligible to hold one and may refuse to issue an authorization to carry or authorization to transport for any good and sufficient reason. (emphasis added)
21Mr. Hud’s firearms licence was revoked by the CFO on August 21, 2019, on the basis that his “behaviour was of the utmost concern,” as was explained in great detail in the written Notice of Revocation to Possess and Acquire Firearms.
b. Referring the CFO’s Decision to the Provincial Court
22Mr. Hud exercised his right to have the CFO’s decision referred to the provincial court, the Ontario Court of Justice, under section 74(1) of the Act. This it is called a “reference,” and it involves a hearing of evidence during which a person, such as Mr. Hud, must present their case.
23Sections 74 to 76 of the Act, moreover, state that the provincial court judge shall hear all relevant evidence presented by the person who applied for the reference, as well as from the CFO, and that the burden of proof is on the person applying for the reference. This means it was up to Mr. Hud to satisfy Justice Perron that the revocation of his firearms licence “was not justified.”
24Mr. Hud’s reference was heard on November 22, 2021 by Justice Perron who, under section 76, had the authority to either:
(a) confirm the decision of the chief firearms officer; or (…) (c) cancel the revocation.
25During the hearing, the facts contained in the CFO’s Notice of Revocation to Possess and Acquire Firearms were not contested by Mr. Hud. In his reasons, Justice Perron concluded:
The evidence presented at this hearing was basically of two witnesses. First, the now designate who replaced as I understand Constable Bradley and basically filed as exhibit two the reasons for the decision. We also heard from a Chris Amon who testified that he was present in July of 2017, he never saw Mr. Hud or seen any gun, however, he did hear the police say that there was someone that was armed with a gun and that he ran for cover. This person was later identified as Mr. Hud. I fail to see how this evidence in fact helps the applicant's position. If anything, it bolsters the respondent’s position by seeing how a civilian responded by the use of a firearm by Mr. Hud. As already mentioned the burden is clearly on the applicant, Mr. Hud. He has, in fact, presented nothing new and in fact nothing that was not known to Constable Bradley when he made his decision. What happened or did not happen in the criminal matter involving Mr. Hud is irrelevant. The Chief Firearm Officer of Ontario is separate and distinct from any Crown Attorney's office. The Ministry of the Attorney General does not have any oversight or may not direct duties imposed by the Chief Firearm Officer. (Emphasis added)
26On November 22, 2022, Justice Perron confirmed the decision of the Chief Firearms Officer, and Mr. Hud’s licence remained revoked.
c. Appeal of the Review by Provincial Court
27If a provincial court judge does not lift a revocation and reinstate a firearms licence at a reference hearing, then an applicant can appeal the provincial court judge’s order to the Superior Court of Justice under section 77 of the Firearms Act. The process for doing so is governed by section 78 of the Act, which explains that it is triggered by way of a notice of appeal that “must set out the grounds of appeal, together with such further material the superior court may require”.
28Mr. Hud filed a notice of appeal under section 77 of the Firearms Act. Pursuant to section 79(1), this court may now:
(a) dismiss the appeal; or (b) allow the appeal and, in the case of an appeal against an order made under paragraph 76(a), (ii) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.
29Mr. Hud’s Notice of Appeal indicates that he is appealing an order made under 76(a) by Justice Perron. According to section 79(2) of the Firearms Act, this court, as the appellate court, must dismiss Mr. Hud’s appeal unless he is able to satisfy this court that Justice Perron’s decision to confirm the revocation was not justified:
Burden on applicant
79(2) A superior court shall dispose of an appeal against an order made under paragraph 76(a) by dismissing it, unless the appellant establishes to the satisfaction of the court that a disposition referred to in paragraph (1)(b) is justified. (emphasis added)
30As mentioned above, in his Notice of Appeal, Mr. Hud sets out the following grounds of appeal:
His Honour Justice Perron made errors of law, or mixed fact and law by:
a. Refusing to allow the Charter Application to proceed; and/or b. not providing sufficient reasons for doing so; and/or c. not allowing an adjournment after disclosure was provided at the hearing and the designate firearms officer admitted that he was unable to be meaningfully cross examined on his predecessors report; and/or; d. not providing sufficient reasons for refusing the adjournment request.
IV. Analysis
a. Standard of Review – Firearms Officer
31In his submissions, Mr. Hud argues that the CFO, via area firearms officer Stephen Bradley, erred by not giving deference to the Crown Attorney’s decision to withdraw Mr. Hud’s criminal charges, and he relies on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Canada v Vavilov”), to support this argument.
32Canada v. Vavilov, however, is not at all applicable to the area firearms officer’s decision. The CFO is an independent body that administers the scheme established by the Firearms Act and, therefore, owes absolutely no deference to decisions made to by the Crown’s office relating to charges Mr. Hud was facing under the Criminal Code.
33Canada v. Vavilov applies to the review of a decision-maker’s decision. The area firearms officer was not reviewing the Crown’s decision relating to the criminal charges. Rather, the area firearms officer was the decision-maker of first instance as he was tasked with deciding, in light of absolutely all of circumstances known to the CFO, whether or not Mr. Hud’s firearms licence should be revoked based on the legislated criteria. The area firearms officer, therefore, did not have any standard of review to apply, and he owed no deference to the Crown’s office.
b. Standard of Review – Provincial Court Judge
34Tasked with holding a reference hearing relating to the revocation of Mr. Hud’s licence, Justice Perron had to hold a hearing, review all of the evidence before him, and decide whether to confirm the CFO’s decision to revoke Mr. Hud’s licence, or to cancel the revocation.
35Canadian jurisprudence is clear in explaining that under the Firearms Act scheme, a reference is not an appeal, and the provincial court is not an appellate court. This same jurisprudence, moreover, clarifies that the reference cannot be deemed a hearing de novo either, or a re-hearing of the application, as the decision to revoke Mr. Hud’s licence was made without a hearing. A reference is simply a hearing where the provincial court judge must consider all of the evidence before him in order to confirm or cancel the revocation.
36In R. v. Vivares, 2016 ONCA 1, the Ontario Court of Appeal explained the role of the provincial court judge under this scheme:
24 The starting point for the analysis on this issue is recognition that the Registrar has specialized expertise in administering a complex firearms registration regime. A Registrar's decision is entitled to deference and is reviewed on a reasonableness standard: see Henderson v. Canada (Attorney General), 2011 ONCA 696, 108 O.R. (3d) 290, at paras. 37-38.
25 On review, the provincial court engages in its own fact finding, but under the umbrella of deference. As explained by Goudge J.A. in Henderson, at paras. 34 and 36:
The Act obliges the provincial court to hear all relevant evidence presented by both the applicant and the Registrar. It is clear that the provincial court is to engage in its own fact finding process. That is why it is described as a reference and not an appeal from the Registrar's decision. Nor is it a hearing de novo, since the Registrar has not held a hearing. Clearly the legislative intent is that the provincial court is to find its own facts and need give no deference to any facts recited in the reasons of the Registrar.
Thus, I think the language of s. 75(3) of the Act directs the provincial court to apply a deferential standard of review to the Registrar's decision itself. The provincial court is to test that decision against the facts it has found. It is not to determine if it agrees with the decision, but whether it has been satisfied by the applicant that the decision is not reasonably defensible. This mandates deference. (emphasis added)
37While I agree with Mr. Hud’s counsel that the Supreme Court of Canada clarified and overhauled the law of judicial review in Canada v. Vavilov, judicial review principles did not apply to Justice Perron’s task, as he was not reviewing the firearms officer’s decision from the lens of an appellate court, or as a reviewing court on an application for judicial review. Rather, as was the case in Canada (Attorney General) v. Methot, 2022 BCCA 283, as the referral judge, Justice Perron was required to engage “in a fresh, independent, fact-finding exercise” (at para.28).
38Thus, R. v. Vivares, 2016 ONCA 1, and Henderson v. Canada (Attorney General), 2011 ONCA 696, 108 O.R. (3d) 290, still had to be followed by Justice Perron, and he had to replace facts found by the CFO with his own, and then apply a deferential lens to the CFO’s revocation in light of these fresh facts. In other words, Justice Perron had to ask if the decision made by the area firearms officer was reasonably defensible based on the evidence before him at the reference hearing.
39Pursuant to section 75(3) of the Firearms Act, Mr. Hud had the burden of putting evidence before the court to satisfy Justice Perron that the revocation of his firearms licence by the area firearms officer was not justified. Mr. Hud could present any evidence on which he wished to rely, and was not at all limited to any facts found by the CFO. In fact, Justice Perron had to replace the facts on which the area firearms officer had relied upon to make his decision with the ones found in his own fresh inquiry.
40Based on his own facts found, Justice Perron ruled that the CFO’s revocation was reasonable:
In reviewing all of the evidence that was presented to me I am not satisfied that the applicant has met the burden of proof to satisfy me that the revocation was not justified.
c. Standard of Review – Superior Court
41Mr. Hud does not dispute the facts found by Justice Perron, or the basis on which Justice Perron made the decision to uphold the revocation. Instead, Mr. Hud’s only grounds of appeal are that Justice Perron erred by:
- Refusing to allow the Charter Application to proceed, and not providing sufficient reasons for doing so; and/or
- Not allowing an adjournment, and not providing sufficient reasons for doing so.
42While the Canada v. Vavilov may not have applied to the CFO officer’s decision, or to Justice Perron’s, it certainly applies to this court as the appellate court. Accordingly, as stated by the Supreme Court of Canada, this court must apply a presumption that the standard of review should be one of reasonableness, unless departure from that reasonableness presumption is triggered by one of its very narrow exceptions:
17 The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. As a result, it is no longer necessary for courts to engage in a “contextual inquiry” (CHRC, at paras. 45-47; see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriate standard. (emphasis added)
43I disagree with Mr. Hud that the reasonableness presumption must be rebutted on the basis that it falls into the second category on the basis that the grounds are “general questions of law of central importance to the legal system”. While the reasonableness presumption must in fact be rebutted in this case, it is rebutted because of the first category, not the second. The legislature provided a statutory appeal mechanism thereby signalling that an appellate standard of review must be applied: See Bell Canada v. Canada (Attorney General), 2019 SCC 66.
44With that said, where the review is conducted as a function of a statutory appeal, as is the situation in this case, an analysis must be conducted in order to determine the applicable standard of review (Canada v. Vavilov):
37 It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.
45Accordingly, in scrutinizing the grounds of appeal put before the court by Mr. Hud, appellate standards of review must be applied in accordance with the nature of the questions raised.
i) and ii): Refusal to Hear Charter Issues
46Although raising a Canadian Charter of Rights and Freedoms (the “Charter”) is undoubtedly a question of law requiring the standard of correctness to be applied as it relates to statutory interpretation and a determination of Justice Perron’s scope of authority, Mr. Hud’s counsel never actually put the alleged Charter breach, or issue of jurisdiction, before the court at the reference hearing, despite Justice Perron’s invitation to do so.
47Accordingly, on the first ground of appeal, Justice Perron could not have committed an error of law in “[refusing] the Charter application to proceed”, as he never disallowed Mr. Hud from doing so. In fact, he invited counsel to make submissions, as evidenced by the reference hearing transcript:
COUNSEL FOR MR. HUD: Thank you. Your Honour, I received some clarification from the firearms officer and my friend in relation to the status of Mr. Hud's firearms licence and a number of other questions. Your Honour, in my respectful submission that's of assistance and I still believe that - that Mr. Hud's rights in relation to having the same delict dealt with more than once have been infringed, but I think if I understand Your Honour's ruling correctly you're not going to be proceeding with a Charter Application in this form today.
THE COURT: How do I have jurisdiction to even do anything like that?
COUNSEL FOR MR. HUD: Well, I would say pursuant to the Charter, Your Honour, but I didn't - the - in my respectful submission, you know, these matters have been adjudicated previously and multiple times and Mr. Hud has a right to have some finality in the proceedings. I don't think anybody disputes that this is the same subject matter that's - that first arose in relation to the criminal charges ....
THE COURT: What are we doing today, Mr. May? Are we proceeding with the application or not?
COUNSEL FOR MR. HUD: Your Honour, I would request to address Charter issues as well, but that's Your Honour - that's the Court's decision.
THE COURT: When did I say you couldn't address Charter issues? I told you I'm here to deal with section - the Crown has filed case law saying that - that Charter has nothing to do with this, but I didn't say you couldn't do it. I'm sitting here to do a reference hearing, so let's do a reference hearing if you want one. If you don't want one, abandon your reference hearing and let's move on with life. (emphasis added)
48The transcript of November 22, 2021 then shows that Mr. Hud’s counsel proceeded with calling evidence, and never in fact argued or presented evidence of a Charter breach. Necessarily, then, grounds i) and ii) of Mr. Hud’s appeal must fail as they there was no such refusal and, therefore, no reasons to be given.
49With the provincial court judge only having the ability to deal with the CFO’s decision to revoke Mr. Hud’s licence, it is unclear to this court what Charter argument Mr. Hud had considered advancing, exactly. It may be helpful to note here, nonetheless, that the Supreme Court of Canada has held that “possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.” R. v. Wiles, 2005 SCC 84, at para. 9.
iii) and iv) Not Allowing an Adjournment and Not Providing Sufficient Reasons
50Mr. Hud submits that, at the reference hearing, an adjournment request was made “after disclosure was provided at the hearing and the designate firearms officer admitted that he was unable to be meaningfully cross examine on his predecessor’s report.”
51The adjournment was requested by Mr. Hud’s counsel on the basis that the Notice of Revocation, sent by area firearms officer Stephen Bradley on behalf of the CFO was not available to testify at the reference hearing. Instead, his colleague, who was equal in rank and role as designate area firearms officer for the CFO, appeared.
52The reference hearing transcript shows the following exchange:
COUNSEL FOR MR. HUD: Your Honour, the respectful request would be to - the defence is going to be requesting an adjournment so that we can subpoena further witnesses.
THE COURT: The application was filed on July13th, 2020. You've had all kinds of time to subpoena anyone you wanted. Application dismissed. On the application for adjournment is dismissed. Not the whole application. (…)
53The issue of an adjournment was not raised again by Mr. Hud’s counsel.
54As stated in Canada v. Vavilov, just because a decision is reviewed by way of a statutory appeal does not necessarily mean that the appellate standard of review will apply:
52 (…) the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism.
55Mr. Hud’s statutory right to appeal Justice Perron’s order is limited to the decision to confirm the CFO’s revocation. Thus, on the issue of adjournment, the presumption of reasonableness applies.
56The decision whether or not to allow an adjournment by Justice Perron deserves the utmost deference. As explained by the Federal Court of Appeal at paragraph 19 of Wagg v. Canada (F.C.A.), 2003 FCA 303:
It is trite law that the decision as to whether to grant an adjournment is a discretionary decision, which must be made fairly (see Pierre v. Minister of Manpower and Immigration, [1978] 2 F.C. 849 (C.A.), at page 851, cited with approval in Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, at page 569). There is no presumption that everyone is entitled to an adjournment. The Court will not interfere in the refusal to grant an adjournment unless there are exceptional circumstances (see Siloch v. Canada (Minister of Employment and Immigration) (1993), 10 Admin. L.R. (2d) 285 (F.C.A.)). (…) (emphasis added)
57In order for Justice Perron’s refusal to adjourn to be deemed reasonable, it must not have breached the principles of procedural fairness. In other words, in order to be reasonable, Justice Perron’s decision cannot have prevented Mr. Hud from having a fair hearing.
58A Notice of Revocation is issued not by an employee personally, but by the CFO, pursuant to s.70 of the Firearms Act. The Notice of Revocation, therefore, did not come from Mr. Bradley, or his colleague. Rather, it was issued by the CFO. Not only did the Notice of Revocation sent to Mr. Hud have details explaining the “Nature of information relied upon,” it also contained four single-lined spaced pages of “Reasons for Revocation of a Licence.” Mr. Bradley’s colleague, who was available to testify, confirmed that he had access to the entire file.
59The CFO was under an obligation to revoke Mr. Hud’s licence if it had information that led them to believe that, for any reason, Mr. Hud having possession of a firearm raised concerns of public safety. It was not unreasonable for Justice Perron to conclude that having Mr. Bradley’s colleague, who had access to all of the file’s content, including the four pages of reasons already provided to Mr. Hud and the court, testify instead of Mr. Bradley, would not violate Mr. Hud’s right to a fair trial. This is especially true given the fact that the burden was on Mr. Hud who, as pointed out by Justice Perron, had had over 16 months to prepare for the hearing.
60I am of the view that it was not unreasonable for Justice Perron to refuse the adjournment request and, therefore, ground iii) of Mr. Hud’s appeal must be dismissed.
61Further, I disagree with Mr. Hud’s submission that Justice Perron committed an error of law in not providing sufficient reasons for the adjournment request. It is well-established that even administrative decisions do not always require reasons (At paragraph 77 of Canada v. Vavilov, at paragraph 77), and to impose a burden on trial judges to give elaborate reasons explaining why an adjournment request is granted or denied in the middle of a hearing would be inefficient and unreasonable to expect.
62What is even more important here is that Justice Perron did in fact give reasons when he explained that he was refusing the adjournment since the Applicant, bearing the burden of proof, had over 16 months to subpoena his witnesses, and that it was his case to prove. I find that in light of these comments, Justice Perron’s reasons were certainly adequate.
Other Reliefs Sought by the Appellant
63Reliefs and remedies available to Mr. Hud were restricted by the Firearms Act, both at the reference hearing before the Ontario Court of Justice, as well as on appeal before the Superior Court of Justice. Namely, relief requested in the application for a reference, as well as the Notice of Appeal, were limited to that relief: to have the revocation of Mr. Hud’s licence lifted so that his licence could be reinstated.
64For Mr. Hud’s benefit, it may be worth mentioning briefly, that reliefs requested during oral submission fell outside of the scope of this appeal. More particularly, and although non-exhaustive, some of the reliefs sought by Mr. Hud included an order allowing him to return to his home, that the police destroy any and all records pertaining to him, that the police be found to have violated the Charter, that police officers and crown attorneys be found to have committed perjury, and that he be awarded punitive damages. These are simply not available reliefs under this process.
65Since various reliefs and arguments not set out in the Notice of Appeal or factum were also raised by Mr. Hud himself during oral submissions, it may also be worth noting that I am of the view that overall, and beyond the limited grounds of appeal formally raised, I find that Justice Perron’s decision to confirm the Chief Firearms Office’s decision satisfies the appellate standard of review, in that Justice Perron committed no palpable or overriding error. My reasons for this finding are as follows.
66The standard of review to be applied in reviewing Justice Perron’s decision is without a doubt the appellate review of palpable and overriding error, since the decision itself was a question of mixed fact and law. Justice Perron’s task was to test the decision of the CFO against the facts that he found. Mr. Hud did not succeed in showing Justice Perron that the revocation was not reasonably defensible. Mr. Hud had over 16 months to prepare his case. A hearing was held, viva voce evidence was led, cross-examinations took place, and submissions were made. As it turns out, the evidence before the referral judge turned out to be substantially the same as the evidence before the CFO, and Justice Perron found the CFO’s decision to be justified.
67In Canada, having a firearms licence is a privilege, not a right. For this reason, the strong legislative intent was to give the CFO very wide discretion in deciding whether or not a person is eligible to continue holding a firearms licence. Moreover, by imposing the burden of proof on the applicant, by imposing criteria such as “for any good and sufficient reason” (s. 68), and by explicitly imposing an obligation to dismiss an appeal unless a court is satisfied otherwise (79(2)), the legislature clearly intended for the utmost deference must be accorded to the CFO, and the reference judge.
68Accordingly, all grounds of appeal are dismissed, and the revocation of Mr. Hud’s firearms licence stands.
Justice J. S. Richard