Special Authority to Possess
Ontario Court of Appeal
By Ed Burlew, LLB
On January 6, 2009 a hearing was scheduled to be heard before the Court of Appeal of Ontario.
The purpose of the hearing was to obtain leave to appeal and then to argue the appeal. This was the last judicial step available to counter the CFC refusal to issue SAPs.
To understand the background, the applicant had previously obtained a number of Special Authorizations to Possess (S.A.P.) for his prohibited rifles to shoot at the range, including the day before passage of Bill C-10A. Immediately after C-10A was enacted, he again applied and received no reply from the Chief Firearms Officer for Ontario who was then Superintendent Peter Burns. No official refusal was ever sent. The C.F.O. had taken the position that he had no jurisdiction to give a S.A.P. and therefore no jurisdiction to give a refusal to what he would not give.
At the hearing in Ontario Court of Justice, the crown asserted the court had no jurisdiction because the C.F.O. had given no written refusal. The judge ruled the non-communication was a refusal and conducted the hearing. After hearing evidence and arguments, the first judge decided that the S.A.P. would not be issued due to the wording of section 19(2) of C-10A.
Unsatisfied and undaunted and with full CSSA support, the gun owner appealed to Superior Court of Justice and had counsel. The crown again raised the issue of lack of jurisdiction due to a lack of a refusal. Justice Vogelsang ruled that the noncommunication was tantamount to a refusal. Justice Vogelsang also ruled that section 19(2) eliminated the S.A.P’s.
Considering the concern of thousands of gun owners like himself, the gun owner again sought leave to appeal and appealed to the Court of Appeal for Ontario. This is the last and highest court to be appealed to pursuant to the section 74 hearing framework.
That brings us to the day of January 6, 2009. A panel of three justices was to hear the final appeal and had allocated one hour for the appeal. This showed the court was treating this as an important appeal because a typical summary appeal was restricted to 15 minutes. The panel was Justice Borins, Justice Muldaver and Justice Blair. I appeared for the appellant and Ms. P. Goode appeared for the C.F.O. The time was allocated to 40 minutes for myself and 20 minutes for Ms. Goode.
The argument was put forward on behalf of the appellant that the S.A.P. was separate from the A.T.T., being created pursuant to section 17 of the Firearms Act and the regulation under section 117 of the Firearms Act. Therefore, section 19(2) limiting transportation of prohibited guns other than 12(6.1), spoke only to section 19(1). A full explanation of the type of gun was given to the court. The evidence of witnesses before Parliamentary committees and the preamble of C-10A were referred to. The court recognized there was no safety issue and the absurdity of having a functional firearm that could not be discharged at an approved range. I had to explain that the firearm could not be stored at the range due to the legislation requiring the gun to be stored at home. I also had to explain why a gun would be taken to a verifier, who a verifier was and the function of the verifier in the registration and transfer process. I put forward that possession at a place necessarily required transportation but it was not pursuant to an A.T.T. under section 19(1); instead it was incidental to the S.A.P. of section 17 and the regulations. This was to eliminate the effect of section 19(2). Time for my argument went past the allocated 40 minutes to a full hour.
Ms. Goode then argued against leave to appeal and emphasized that section 19(2) eliminated all transport of prohibited firearms to approved ranges except 12(6.1) class handguns. I was allowed a brief reply.
The court then adjourned and stated that they were unsure of a decision would be given or if a reserved decision would come later. The court was out about 30 minutes, then came back and announced they had reached a decision. The whole panel agreed that leave to appeal would not be granted and then dismissed the appeal, affirming the decision of Justice Vogelsang.
There is no further appeal. The decision of Justice Vogelsang stands to eliminate the S.A.P. The only solution to this lies in a change to the Firearms Act.