Canada (Attorney General) v Smykot, 2021 ABQB 457

Court of Queen’s Bench of Alberta Citation: Canada (Attorney General) v Smykot, 2021 ABQB 457 Date: 20210611 Docket: 2101 00037, 2101 00038, 2101 00039, 2101 00067, 2101 00068, 2101 00069, 2101 00070, 2101 00071, 2101 00072 Registry: Calgary Between: Attorney General of Canada Applicant - and - Agatha Smykot Respondent 2101 00038 And Between: Attorney General of Canada Applicant - and - Ian Seda

Respondent 2101 00039 And Between: Attorney General of Canada Applicant - and - Ryan Stark Respondent 2101 00067 And Between: Attorney General of Canada Applicant - and - Benjamin Cridland Respondent 2101 00068

And Between: Attorney General of Canada Applicant - and - Michael Der Respondent 2101 00069 And Between: Attorney General of Canada Applicant - and - Leslie Michael Dolhun Respondent 2101 00070 And Between: Attorney General of Canada

Applicant - and - Jeremy Douglas Imler Respondent 2101 00071 And Between: Attorney General of Canada Applicant - and - Avtardeep Singh Sandhu Respondent 2101 00072 And Between: Attorney General of Canada Applicant - and - Michael Bruce Nelson

Respondent _______________________________________________________ Reasons for Decision on Applications to Strike Certiorari Applications of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] The respondents are all firearms owners who sought relief in the Provincial Court of Alberta from consequences of their firearms being reclassified by federal regulations.

The Attorney General for Canada argued that the Provincial Court did not have jurisdiction to hear the statutory reference under which the respondents applied. [ 2 ] The learned Provincial Court judge, Fradsham P.C.J., heard a preliminary application by Canada to strike the respondents’ applications for review on jurisdictional grounds. With written reasons, he concluded that he had jurisdiction: 2020 ABPC 230 . [ 3 ] Canada applied in Queen’s Bench to quash that decision.

The respondents applied to strike Canada’s application as being premature; they say Canada’s certiorari application should not be heard before the Provincial Court proceedings are concluded. [ 4 ] Thus, the following decision solely relates to the question of whether Canada’s application in Queen’s Bench may proceed now or must await conclusion of Provincial Court proceedings. II. Legislative Framework [ 5 ] The Provincial Court of Alberta has jurisdiction to hear references of decisions made by the Registrar of Firearms pursuant to sections 74 to 76 of the Firearms Act , S.C. 1995, c. 39 . Section 74(1) (

a) allows a referral where “a chief firearms officer or the Registrar refuses to issue or revokes a license.”

Section 75 sets out the procedure for the court to conduct the hearing. [ 6 ] Under

section 76, the provincial court judge may by order confirm the decision, direct issuance of a license, or cancel the revocation. (Only the first and third are relevant for present purposes.) [ 7 ] An appeal is permitted under

section 77 from an order under

section 76, following a hearing under

section 75. [ 8 ] Some sections of

Part XXVII (“Summary Convictions”) of the Criminal Code , R.S.C. 1985, c. C-46 , are incorporated by

section 81 of the Firearms Act . [ 9 ] Under section 72(1), the Registrar may “revoke” a registration certificate which may be contested by the firearms owner under section 74(1) by reference before a provincial court judge. III. Amendment to Regulations [ 10 ] Sections 84(1) and 117.15(1) of the Criminal Code concern the

definitions of firearms, including restricted firearms and prohibited firearms, and enable the Governor in Council to make regulations concerning the same.

Section 91 of the Criminal Code makes it an offence for someone to possess a prohibited firearm without license and registration. [ 11 ] On May 1, 2020, an order-in-council created a regulation that reclassified over 1500 non-restricted or restricted firearms to prohibited firearms. At the same time, an amnesty regulation required owners of those kinds of firearms to deactivate, surrender, or submit for destruction any of the reclassified firearms by April 30, 2022. Firearms owners were, during the amnesty period, permitted to possess but not use these firearms.

[ 12 ] Following the new regulation, the Registrar of Firearms sent letters to firearms owners informing them of the new regulations and advising that certain of the firearms, as listed, “are now classified as prohibited and the previous registration certificates are automatically nullified and are therefore no longer valid but should be retained as a historical registration record.” IV.

Procedural History [ 13 ] The firearms owners took the position that the Registrar’s letters were revocations within the meaning section 72(1) of the Firearms Act and contested that revocation by reference to the Provincial Court of Alberta under section 74(1). Canada applied to strike these applications for reference hearings on the ground that the letters did not constitute revocation decisions and therefore the Provincial Court had no jurisdiction to consider the proposed references. [ 14 ] Fradsham P.C.J. decided the applications to strike with written reasons ( 2020 ABPC 230 ).

He held that the Registrar’s letters were revocations within the meaning of the Firearms Act , and he had jurisdiction to hear the section 74(1) referral of the decision. He gave eight other decisions to the same effect. [ 15 ] Canada applied to Queen’s Bench pursuant to rule 3.15 of the Alberta Rules of Court for orders in the nature of certiorari quashing Fradsham P.C.J.’s decisions on the ground that he erred in determining that the Provincial Court has jurisdiction under the Firearms Act to hear firearms references of the Registrar’s letters.

Canada’s position is that the letters were not decisions or exercises of judgment that effected nullification or revocation; rather, the Registrar merely reported on the legal effect of the order-in-council. Thus, there was no basis for a reference to the Provincial Court. V.

Certiorari Applications [ 16 ] Certiorari is a common law-based remedy used to bring decisions of statutory delegates and tribunals (including provincial courts) before a superior court, where the decisions can be quashed if the delegate or tribunal acted without jurisdiction: Jones and De Villars, Principles of Administrative Law , 7th ed. (Toronto: Thomson Reuters, 2020), at 625-29; Penney, Rondinelli and Stribopoulos, Criminal Procedure in Canada , 2nd ed. (Toronto: LexisNexis Canada Inc., 2018), para 9.112. The remedy is available broadly in civil, administrative and criminal proceedings. For example,

Part XXVI of the Criminal Code deals with extraordinary remedies, including certiorari , in the criminal context. [ 17 ] A superior court will usually decline to hear certiorari applications before the tribunal’s or provincial court’s process has been completed. There is a discretion to intervene at an earlier stage, but it should be exercised with restraint.

As explained in Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10 , earlier intervention risks depriving the reviewing court of a full record and “encourages an inefficient multiplicity of proceedings in tribunals and courts”: para 36. [ 18 ] It has been recognized as consistent with Halifax that in special cases a court may exercise its discretion to hear an application before the proceedings under review are concluded.

This was done in Algonquin College v Ontario Public Service Employees Union , 2017 ONSC 2500 (D.C.), where an arbitrator had made a preliminary decision on whether an employee of a certain category had a grievance right under a collective agreement.

The court held that the arbitrator’s ruling had broad implications not only for the immediate parties but also for other colleges and locals of the union throughout the province: para 17. [ 19 ] To similar effect was British Columbia (Ministry of Public Safety and Solicitor General) v Mzite , 2014 BCCA 2020 , where the tribunal accepted a late complaint from an inmate claiming to have been discriminated against. It was held proper for the court to hear the petition on the tribunal’s decision regarding timeliness.

The decision was substantive; its resolution before hearing the complaint on its merits could result in significant savings of time and expense; and there would be no further evidence on the issue of timeliness (paras 41-43). [ 20 ] Prerogative remedies such as certiorari are more limited in criminal proceedings, where recourse to the superior courts is usually by statutory appeal.

As a general rule, interlocutory appeals are not allowed because “fragmenting criminal proceedings by permitting interlocutory appeals risks having issues decided without the benefit of a full evidentiary record – a significant source of delay and an inefficient use of judicial resources”: R v Awashish , 2018 SCC 45 , para 10 . [ 21 ] Awashish was an impaired driving prosecution, where the disputed issue had to do with demands for additional disclosure in provincial court.

It was held that “ certiorari in criminal proceedings is available to parties only for a jurisdictional error by a provincial court judge” (para 20) with broader rights for third parties. For criminal cases, “jurisdictional errors occur where the court fails to observe a mandatory provision of a statute or where a court acts in breach of the principles of natural justice” (para 23).

For this principle, the court drew on R v Skogman, [1994] 2 S.C.R. 93 , which dealt with committing an accused for trial in the absence of evidence on an essential ingredient of the case; see also Awashish , para 11 . [ 22 ] A close reading of Awashish indicates that the reasons for the rule are the risk of gravely slowing the criminal justice system (paras 2 and 10), inefficient use of judicial resources (para 10) and the risk of deciding without a full evidentiary record (paras 10 and 17).

Putting these together, the concern is that a certiorari application before the proceeding is completed “risks fragmenting criminal trials, thereby introducing inefficiency, delay, and the determination of issues on an incomplete record” (para 17). [ 23 ] Even in criminal proceedings, however, certiorari is sometimes available before the provincial court’s proceedings are concluded. An example is Bessette v British Columbia (Attorney General) , 2019 SCC 31 , where the accused was charged with a provincial driving offence.

His request to be tried in French was denied, the issue being whether the Criminal Code provisions for French language rights applied to provincial offences. The accused applied to the British Columbia Supreme Court for certiorari . [ 24 ] Ultimately, at the Supreme Court of Canada the principles from Awashish were reiterated. However, certiorari was justified on an interlocutory basis for two reasons:

a. The Criminal Code ,

section 530 , was a mandatory statutory provision requiring that the judge “shall grant” a French trial on application; and b. In this case, concerns about judicial economy, delay and fragmentation of proceedings militated in favour of determining the question before trial. The court placed heavy reliance on the second factor. Thus, in my view, the case did not turn solely on whether the provincial court failed to observe a mandatory statutory provision. VI. Findings A.

Nature of a Firearms Reference [ 25 ] The parties disputed the question of whether the reference under section 74(1) of the Firearms Act to the Provincial Court of Alberta should be characterized as a criminal or civil proceeding, considered significant because of the suggestion that certiorari is more limited in criminal proceedings. [ 26 ] In many cases, the difference in availability of certiorari as between these types of proceedings is probably negligible.

The reasons for limited interlocutory relief in the civil case Halifax , namely the need for a full record and avoiding inefficiency and multiplicity of proceedings, are substantially the same as in the criminal cases Awashish and Bessette , namely avoiding fragmentation of cases, significant delay and inefficient use of judicial resources.

As said in British Columbia v Mzite , the reasons for exercising restraint “should serve as a guide in identifying the exceptions to it”: para 31. [ 27 ] As summarized above, Awashish limits certiorari to jurisdictional error, which it defines as failing to observe a mandatory statutory provision or breaching principles of natural justice: para 23. Canada attempts to come within this “mandatory statutory provision” definition by arguing that under

section 75 of the Firearms Act , a provincial court judge only has jurisdiction on receipt of a reference under

section 74 ; and that reference is only available when the Registrar refuses to issue or revokes a license. It may seem a strained use of language to call this a mandatory provision, but in my view there is merit in the submission. [ 28 ] Fundamental to principles of administrative law, including availability of certiorari , is whether the statutory tribunal “had the jurisdiction to do the act or make the decision that it did”: Jones and De Villars, at 149-50.

Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , changed how jurisdiction is viewed on a standard of review, but not the basic proposition that a statutory tribunal’s decisions are subject to challenge on the basis of lack of jurisdiction. Therefore, if the Provincial Court acted without a statutory mandate in accepting a reference under

section 74 of the Firearms Act , that is as much a jurisdictional error as failing to observe a mandatory statutory provision such as committing for trial only where there is sufficient evidence for the offence charged. [ 29 ] To the extent that characterization of the proceedings is important, this case is not easy to pigeonhole. It has a criminal aspect, because firearms falls within the criminal law head of power and the Firearms Act is valid federal legislation: Re Firearms Act (Can.) , 2000 SCC 31 . As to procedure, a reference under

section 74 is a sui generis process. Is not a pure de novo hearing, but not a pure appeal either: Pogson v Alberta (Chief Firearms Officer) , 2005 ABQB 179 , paras 39-40 . An appeal to Queen’s Bench under

section 77 of the Firearms Act is governed (with some exceptions) by

Part XXVII of the Criminal Code (dealing with

summary convictions). [ 30 ] On the other hand, reference proceedings in a provincial court under the Firearms Act are very different from criminal law in its usual sense of the prosecution and punishment of individuals for crimes. The matters at issue on this application concern definition and authorization to own and use firearms – not the prosecution of firearms offences. [ 31 ] Thus, in my view, the instant proceedings are more akin to administrative, civil proceedings than criminal proceedings. [ 32 ] Procedurally, all certiorari applications are governed by the Alberta Rules of Court .

Those rules of course govern all civil actions: rule 1.1(2); Appendix, “Definitions,” definition of “claim.” They also govern certiorari applications in criminal cases: Court of Queen’s Bench of Alberta Criminal Procedure Rules , SI/2017-76,

section 11 ; and Alberta Rules of Court , rule 3.15. B. Application of Factors [ 33 ] However, as stated above, this case does not turn on characterization of the nature of the proceedings. I consider it to be the type of special case where an application for certiorari should be heard, even though proceedings in Provincial Court are not complete. [ 34 ] The dominant considerations are the large number of applications in Provincial Court for references under

section 74 of the Firearms Act . Based on submissions, I understand that there are more than one hundred and seventy such applications in Canada, more than sixty of them in Alberta. Counsel for Canada estimates that each hearing would require approximately two to three days. Counsel for the firearms owners indicates that the proceedings could be streamlined by case management and test cases, but as the applications are filed in various locations there is no certainty on what form management might take.

The picture is complicated by the fact that whether the Provincial Court has jurisdiction to review the Registrar’s letters is the subject of conflicting decisions.

The decision by Fradsham P.C.J. is clearly a minority view according to the reported cases. (A strong contrary view is expressed in the decision of LeGrandeur P.C.J. in Kurina v Canada (Attorney General) , 2021 ABPC 74 .) [ 35 ] In light of the number of cases and the disputed jurisdictional issue, if Canada’s certiorari application is heard and decided in its favour, there will be significant efficiencies in avoiding pointless reference hearings initiated by many firearms owners. The cost of some delay in exchange for these benefits is minimal.

The situation is much like in Bessette , where it was observed that “when a pre-trial petition alleges a jurisdictional error by the trial court that would render the proceedings a nullity, it is difficult to imagine how it could be preferable for the superior court to refuse to rule on that alleged error and compel a full trial on the merits” (para 46). In this case there

are many more litigants involved than in Bessette . [ 36 ] As a counterveiling factor, the firearms owners urge that hearing the certiorari application before a final reference decision deprives this court of a full record. A related argument made by the firearms owners is that Fradsham P.C.J.’s jurisdictional ruling is interlocutory and he might reach a different conclusion on jurisdiction as part of his final reference decision. [ 37 ] That is not a tenable reading of the decision.

Fradsham P.C.J. carefully considered the issue of whether his court had jurisdiction to hear an application for review of the Registrar’s letter (paras 1, 2, 5 and 73). His jurisdictional ruling clearly is intended to be final, such that he was prepared to hear a review of the “revocation” on its merits. There was no suggestion that he believed the evidentiary record to be inadequate or that he would reconsider his decision at conclusion of the hearing. Nor was adequacy of evidence for a jurisdictional ruling raised before him.

Thus, there is no basis for expecting the record on the jurisdictional question to be different after the reference hearing from what it is now. [ 38 ] The firearms owners point to Filippi v Canada (Attorney General) , 2021 ABPC 82 , as a basis for a concern that the record is too early for Canada’s certiorari application. In Filippi , it was held that the evidentiary record was insufficient to reach a conclusion on jurisdiction and a pre-hearing

summary trial was directed to determine jurisdiction. The case, however, does not assist the firearms owners before me, because: a. It was the firearms owners who wanted to call evidence on the jurisdictional issue at the preliminary stage (para 3); b. The materials of some of the owners were deficient, with some not including the Registrar’s letters or having illegible copies (paras 28-29); and c.

MacDonald P.C.J. noted that Fradsham P.C.J. “had information before him regarding . . . ownership and registration . . . that I do not have” and he concluded that Fradsham P.C.J. had other information before him not referred to in his decision (para 43). [ 39 ] I find no basis to be concerned about an incomplete evidentiary basis for ruling on a certiorari application on the record before me. [ 40 ] Finally, Canada argues that certiorari may be its only avenue to challenge a clear decision that the Provincial Court has jurisdiction on a matter that involves many parties across the province and the country.

It may win at the hearing on the merits, in which case it has no right to appeal the jurisdictional ruling because

section 77 of the Firearms Act allows it only to challenge the content of the

section 76 order – and there is no appeal from success. [ 41 ] That is a minor factor. If left unappealed, Fradsham P.C.J.’s decision on jurisdiction is not binding in Alberta or elsewhere and, as Canada is at pains to emphasize, there are many decisions from provincial courts and superior courts in Alberta and Canada that reach a contrary conclusion. [ 42 ] For the reasons given, I conclude that Canada’s application for certiorari should be heard before the reference hearings in these matters proceed in Provincial Court.

Therefore, the firearms owners’ applications to strike Canada’s certiorari application are denied. Heard on the 1 st day of June, 2021. Dated at the City of Calgary, Alberta this 11 th day of June, 2021. G.H. Poelman J.C.Q.B.A. Appearances: David Shiroky for the Plaintiff Brendan Miller and Greg Dunn for the Defendant, Ryan Stark

Benjamin Cridland Self Represented Litigant Michael Der Self Represented Litigant Jeremy Douglas Imler Self Represented Litigant Avtardeep Singh Sandhu Self Represented Litigant Michael Bruce Nelson Self Represented Litigant