Court File and Parties

Court File No.: CR-24-200-AP
Date: 2025-02-05
Court: Ontario Superior Court of Justice

Between:
His Majesty the King – and – Joshua S. Westwell

Appearances:

• Christina F. Comacchio, for the Crown
• Joshua S. Westwell, Self-Represented

Heard: January 2, 2025

Reasons for Decision by: P. J. Boucher, R.S.J.

Introduction

[1] The Appellant appeals the decision of Peterson J., the reference judge, in which she ordered the Chief Firearms Officer (“CFO”) to issue a non-restricted firearms licence to the Appellant. He asks this court to set aside the reference judge’s decision and to order the Chief Firearms Officer to issue to him a non-restricted and restricted firearms licence. The Respondent opposes the relief sought.

Background

[2] In January 2021, the Appellant was charged with various firearms offences. At the time, he had a valid possession and acquisition licence (“PAL”) for non-restricted and restricted firearms. His PAL as well as his firearms and ammunition were seized by the police as part of their investigation.

[3] In June 2021, the Chief Firearms Office of Ontario received an application to renew the Appellant’s PAL. On June 21, 2023, the CFO, by their designate, Cameron Kidder, refused to issue a PAL to the Appellant to possess any firearms, either non-restricted or restricted.

[4] The Appellant thereafter brought an application pursuant to s. 74 of the Firearms Act, S.C. 1995, c. 39 for a reference before a judge of the Ontario Court of Justice. The reference hearing was held before the reference judge on February 29, 2024, and March 1, 2024.

[5] Immediately prior to the start of the reference hearing, the Crown advised the Court they were withdrawing the original and replacement information containing the charges from January 2021. The Crown cited the passage of time as the reason behind the withdrawal of the charges.

[6] The Crown then applied for an order pursuant to s. 490(9) of the Criminal Code, RSC 1985, c C-46 dealing with the firearms and ammunition seized by the police when the Appellant was charged in January 2021. The Court granted the application and conducted a forfeiture/disposition hearing. At the conclusion of the hearing, the Court ordered forfeiture to the Crown of a prohibited weapon and ammunition as well as two restricted firearms. The Court further ordered that the balance of the non-restricted and restricted firearms and ammunition be returned to someone lawfully entitled to possess them, and provided a ninety-day period within which they could be retrieved. The Appellant advised the Court during this appeal that the police are holding the seized items pending the outcome of this appeal.

[7] The reference judge then conducted the reference hearing. An oral decision was given on March 18, 2024. The reference judge ordered that the CFO issue the Appellant a non-restricted licence and left it to the CFO to consider whether the Appellant should be issued a restricted licence. It is that decision which is the subject matter of this appeal.

The Law

Licences

[8] The CFO shall refuse to issue a licence if the applicant is not entitled to hold one: Firearms Act, s. 68(1). Section 5 of the Firearms Act sets out the following test regarding eligibility to hold a licence:

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 crossbow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or a cartridge magazine.

2. In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge 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 poses or could pose 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.

Reference Hearing Before the Provincial Court

[9] Where the CFO refuses to issue or revokes a licence, the applicant may refer the matter to a provincial court for a reference hearing: Firearms Act, s. 74(1). At the reference hearing, the applicant has the burden of satisfying the reference judge that the decision of the CFO was not justified: Firearms Act, s. 75(3); Canada (Attorney General) v. M.C., 2023 ONCA 448 at para. 8.

[10] The CFO’s decision is entitled to deference and is reviewed on a reasonableness standard: Henderson v. Canada (Attorney General), 2011 ONCA 696, paras 37-38; R. v. Vivares, 2016 ONCA 1, para 24; and Hud v. HMTK, 2023 ONSC 4079, para 36.

[11] On the hearing of the reference, pursuant to s. 76 of the Firearms Act, the reference judge may:

a) confirm the decision of the chief firearms officer, Registrar or provincial minister;

b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or

c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.

Appeal to the Superior Court

[12] An applicant for or holder of a licence may appeal to the superior court a decision of a reference judge made pursuant to s. 76(a) of the Firearms Act: Firearms Act, s. 77(1). The Attorney General of Canada or of the province may appeal to the superior court a reference judge’s decision made pursuant to ss. 76(b) or (c) of the Firearms Act: Firearms Act, s. 77(2).

[13] Appellate standards of review apply to statutory appeals: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 37. This principle applies to s. 77 appeals pursuant to the Firearms Act: Hud, at para. 45; Canada (Attorney General) v. Smykot, 2023 ABCA 131, paras 14-15. Accordingly, questions of law are determined on the standard of correctness: Vavilov, at para. 37, citing Housen v. Nikolaisen, 2002 SCC 33, para 8. Questions of fact and questions of mixed fact and law, from which the legal principle is not easily extracted, are determined on the standard of palpable and overriding error: Vavilov, at para. 37, citing Housen, at paras. 10, 19 and 26-37.

[14] On the hearing of the appeal, pursuant to s. 79(1) of the Firearms Act, the superior court may:

a) dismiss the appeal; or

b) allow the appeal and, in the case of an appeal against an order made under paragraph 76(a):

i) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range, or

ii) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.

[15] The superior court shall dismiss an appeal from an order confirming the decision of the CFO, unless the Appellant satisfies the court that an order under s. 79(1)(b) is justified: Firearms Act, s. 79(2).

Positions of the Parties

[16] The Appellant raises several grounds of appeal. He submits the reference judge’s decision is inconsistent with and outside the powers granted by the legislation. In short, the reference judge could not order the CFO to issue him a non-restricted licence and leave to the CFO the decision regarding the restricted licence. The Appellant also argues the reference judge did not allow him to obtain disclosure or present evidence helpful to him on the reference. He asks that the CFO be ordered to issue to him a licence for restricted firearms, and that one of his restricted firearms, a Colt 45, be returned to him.

[17] The Crown argues the reference judge acted within her jurisdiction when she ordered the CFO to issue to the Appellant a non-restricted, but not a restricted licence. In other words, the reference judge was able to confirm the refusal of the restricted licence and overturn the decision regarding the non-restricted licence.

Analysis

[18] I begin my analysis by noting an individual may only be issued one firearms licence: Firearms Act, s. 56(2). Contrary to the position taken by the Crown in this appeal, the Firearms Act and its regulations do not allow an individual to hold one licence to possess non-restricted firearms and another licence to possess prohibited or restricted firearms. Rather, the Firearms Act permits an individual to hold a licence authorizing the individual to possess prohibited or restricted firearms if, in addition to completion of the s. 7(1) safety course, a restricted firearms safety course is also completed: Firearms Act, s. 7(2).

[19] In my view, the distinction is significant for several reasons. Subsection 68(1) of the Firearms Act requires the CFO to refuse to issue a licence if the applicant is not eligible to hold one. Section 5 of the Firearms Act speaks about eligibility in the context of public safety. Section 6 provides that a person is ineligible to hold a licence if an order prohibits them from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition. Section 7 addresses eligibility in terms of safety courses, including for restricted firearms. Section 8 deals with the eligibility of minors to hold a licence.

[20] In the Notice of Refusal, the CFO based their decision on s. 5 of the Firearms Act, not the criteria in ss. 6 and 7 of the Firearms Act, stating:

…Based on my investigation, and pursuant to the eligibility criteria set out in Section 5 of the Firearms Act, it is my opinion that it is not in the interest of your safety or the safety of others that you continue to hold a firearms licence. For the foregoing reasons, I am revoking your firearms licence.

Based on all of the above, it is my opinion that it is not desirable in the interest of individual or public safety that you be the holder of a valid firearms licence. Accordingly, your Possession and Acquisition Licence (PAL) is hereby refused. [Emphasis in original.]

[21] Despite the reference to revocation of the Appellant’s licence, this was clearly a situation where the Appellant’s licence had expired, and the CFO was instead considering an application to renew a licence.

[22] In basing their refusal on s. 5 of the Firearms Act, the CFO concluded it was not in the interest of public safety for the Appellant to possess any of the following: a firearm, a crossbow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or a cartridge magazine.

[23] In her decision the reference judge reached the following conclusions:

I find that having the benefit of the evidence that I do have and the evidence that the officer had, the chief firearms officer, that stripping his licence altogether or not issuing a licence at all is not reasonable under the circumstances having looked at the totality of the evidence. Including the clarifications that I have the benefit of, that the chief firearms officer did not have.

However, the prohibited items are definitely as [sic] something that caused me concern and kind of pause on what I am directing.

[24] She then made the following order:

So at the end of the day, the direction of this court pursuant to section 76(b) is that the chief firearms office is to issue Mr. Westwell a licence for unrestricted firearms. And I am leaving the issue of a restricted licence up to the chief firearms officer that that next level of licencing can certainly be applied for.

[25] The difficulty with this order is that s. 76(b) of the Firearms Act only permits the reference judge to direct the CFO to issue a licence. While that paragraph mentions authorizations, it is referring to authorizations to transport, export or import prohibited or restricted weapons: Firearms Act, ss. 68(1), 74(1)(a). There is no authority to distinguish between a licence that has or does not have an authorization to possess prohibited or restricted firearms. In making that distinction, the reference judge fell into error.

[26] Appeals from orders made in reference hearings can be made in one of two ways: by the applicant for the licence, where the reference judge confirms the decision of the CFO; or by the Attorney General, where the reference judge directs the CFO to issue a licence or to cancel a revocation of a licence: Firearms Act, s. 77(1)-(2).

[27] Here, the reference judge did not confirm the decision of the CFO. The Appellant was successful and was ordered to receive a licence, for non-restricted firearms only. On a plain reading of the section, there exists no statutory route of appeal for the Appellant in these unique circumstances. I note the Attorney General has not appealed the reference judge’s direction to issue a licence limited to non-restricted firearms.

[28] The appeal must accordingly fail, this court having no statutory authority to grant or even consider the Appellant’s request. The Appellant accordingly also has no right to possess the restricted Colt-45 handgun so that request is dismissed as moot.

[29] Absent an appeal by the Attorney General, the issue of what can be done about the reference judge’s order may only be determined by way of application for certiorari. Although the Appellant referred to an excess of jurisdiction in his notice of appeal, I cannot interpret his appeal materials and submissions to mean he was applying for an extraordinary remedy to quash the reference judge’s decision and remit the matter for another hearing. Nor has the Crown sought such relief.

Conclusion

[30] For these reasons, the appeal is dismissed.

Released: February 05, 2025

The Honourable Regional Senior Justice P. J. Boucher