King aka Malekpour v. Regina Date:, 2013 BCPC 103

Citation: King aka Malekpour v. Regina Date: 20130408 2013 BCPC 0103 File No: 217464-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF A REFERENCE HEARING UNDER S. 74 OF THE FIREARMS ACT BETWEEN: OLIVER KING also known as HAMID MALEKPOUR APPLICANT AND: REGINA RESPONDENT EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Appearing on his own behalf: Oliver King, aka Hamid Malekpour Counsel for the Respondent: P. SIngh Place of Hearing: Vancouver , B.C.

Date of Judgment: April 8, 2013 [ 1 ] THE COURT: I will start by noting that Mr. Hamid Malekpour, also known as Oliver King, is the applicant. On December 5, 2012 he filed a reference to a provincial court judge under the Firearms Act . The application was to review what he referred to as decisions made pursuant to the Firearms Act . The three decisions he noted on the reference form are as follows: (

a) refusal of an application for a firearms licence under s. 68 of the Firearms Act ; (

b) refusal of a carrier firearms licence (Chief Firearms Officer) under s. 68 of the Firearms Act ; and (

c) revocation of a firearms licence under s. 70 of the Firearms Act . [ 2 ] The applicant told this court he made a new application for a firearms licence on or about December 23, 2012. This is the first decision he referenced. He claimed that the application has not yet been processed. He acknowledged, in answer to questions from the court, that no formal decision has yet been communicated to him on that application.

However, although he did not put it quite so bluntly, his view is that he is being given the run-around and that for some reason the appropriate officials are not processing his application within a reasonable time. [ 3 ] The refusal of a carrier firearms licence, which is the second decision he referred to, relates to an application Mr. Malekpour made in 2007. He asserted that sometime that year he applied for a licence to carry a concealed firearm. He claimed he never received an answer in respect to that application. Mr. Malekpour has no copies of that application or documentation relating to that application.

He said he paid fees for that application from his Bank of Montreal account. He was confident he would be able to obtain a record from the Bank of Montreal regarding the payment. However, today, the date that was set for the review, he has no records to file with the court. He did not attach any relevant records in relation to that issue to the review application he filed in this court.

The only records attached to the review application relate to the revocation which I will come to in a moment. [ 4 ] The review application, with respect to the revocation, relates to Firearms Licence 12180631 which was issued on October 26, 2006. This was issued to Mr. Malekpour under the name of Hamid Malekpour. The licence was for restricted and non-restricted firearms. Mr. Malekpour had four restricted firearms and two non-restricted firearms which he held pursuant to that licence.

The firearms consisted of three handguns, two Glocks and a SIG Sauer, and three rifles, two Steyr Mannlicher rifles and an LWRC rifle. [ 5 ] The licence that was issued for those firearms in October 26, 2006 would have expired on April 6, 2012. A licence

summary attached as Exhibit B to the affidavit of Firearms Officer Douglas Kress indicates that the possession and acquisition licence Number 12180631 was issued October 26, 2006, and would expire on April 6, 2012. [ 6 ] In June 2011 Firearms Officer Frank McEvoy, who has since retired, was acting as the designate of the Chief Firearms Officer of British Columbia when he issued a notice of revocation of that firearms licence. The date of that revocation was June 8, 2011. According to the notice addressed to the applicant, Mr. Malekpour was at that time imprisoned in Washington State.

I am summarizing from the materials that were considered by Officer McEvoy. In the notice of revocation Mr. McEvoy wrote that he had attempted to determine where Mr. Malekpour was imprisoned for the purpose of sending him the notice. The U.S. Attorney's office apparently advised Mr. McEvoy that due to transfers and other logistical reasons, they were unable to provide that information. Accordingly, Mr. McEvoy sent the notice by registered mail to the last known address identified on the firearms licence, which was 322 - 2680 West 4th Avenue, Vancouver, British Columbia.

He candidly noted that in his notice of revocation. [ 7 ] Today Mr. Malekpour gave evidence that he did not receive the notice of revocation. He maintained he only learned about it in 2012. He stated that, in fact, he had filed an application to renew Licence 12180631. One of the documents he filed, which was filed as Exhibit 1, is a letter dated July 11, 2011, with respect to Application Number 10-0052752657-05. That letter is addressed to Malekpour, Hamid, at 203 - 1045 Howe, Coquitlam, B.C., V3T 1T5. The significance of this correspondence from Mr.

Malekpour's view is that the government or the RCMP had his correct address. He suggested in argument and in his evidence that Mr. McEvoy purposely ignored sending the information to his correct address but instead sent it to an address he knew was not Mr. Malekpour's address. [ 8 ] I will now go back to the reasons given in the notice of revocation for issuing the revocation. The notice of revocation sets out the applicable provisions of the Firearms Act under which Mr. McEvoy made his decisions. I will not review those provisions at this point.

The reason given for the revocation was set out as follows [as read in]: Your licence is revoked pursuant to s. 70 of the Firearms Act for the following good and sufficient reasons. 70(1)(a)(

i) No longer eligible - You are no longer eligible to hold a firearms licence as it is not in the interests . . . There is a word missing which should be "of". -- your safety or public safety. [ 9 ] In addition to setting out the basis for the revocation, Mr. McEvoy also gave his reasons. For the purpose of this decision, I will only summarize his reasons and not set them out in full.

Those reasons are: 1. that the applicant had changed his name from Hamid Malekpour to Oliver King, but had never notified the Canadian firearms program of this change of name as required by the conditions of his licence; 2. that on January 26, 2012, the applicant had been convicted under the name of Oliver King in the United States District Court, Western District of Washington, at Seattle, of five counts relating to firearm related offences.

Those counts were: Count 1, unlawfully dealing in firearms; Count 2, alien in possession of firearms and ammunition; Count 3, false statements to a government agency; Count 4, false statements to a government agency; Count 5, false statements to a government agency. These five charges arose out of an investigation conducted by U.S. authorities. On May 19, 2010, the applicant was arrested as he was heading back to British Columbia. He was arrested at a Ferndale storage facility, and 21 high-end firearms were seized.

Further details of the arrest and what led to the arrest are provided in the revocation letter and are based on information provided by the U.S. authorities. I will not repeat all that background information in these reasons.

[ 10 ] Mr. Malekpour, who has candidly admitted he uses the name Oliver King and has legally changed his name, which he says is a literal translation of Hamid Malekpour, had a trial before a jury who found him guilty of all five counts. He was sentenced to 60 months' imprisonment on Counts 1, 3, 4, and 5 and 70 months on Count 2 to be served concurrently. The total sentence would have been 70 months. As it turned out, Mr. Malekpour appealed that decision.

At a later date, namely July 9, 2012, following an appeal, the convictions on Counts 1, 3, 4, and 5 were upheld, and the conviction on Count 2 was overturned. [ 11 ] I am sorry, you are shaking your head. [ 12 ] HAMID MALEKPOUR: That's not correct. [ 13 ] THE COURT: Pardon? [ 14 ] HAMID MALEKPOUR: That's not correct. [ 15 ] THE COURT: What do you mean, it is not correct? That is the information that I was given. You have not provided any information. [ 16 ] HAMID MALEKPOUR: Well, that's not correct. [ 17 ] THE COURT: Well, then what are we going to do about the fact that it is incorrect?

I have no information other than what has been put to me -- [ 18 ] HAMID MALEKPOUR: The government has never proven any, and the other thing is that the case is on appeal, the case isn’t won on appeal. What happened is the Department of Justice in United States came and told the judge what he did was wrong and revoked my licence, then the prosecutor because they used my name publicly to do stuff with Iran, to ask the judge to delay it so we couldn't get a retrial.

Then judge sent me home and it's currently on appeal, and by U.S. laws when a case goes on appeal it's technically vacated. [ 19 ] THE COURT: Well, I do not have any of that information before me, sir. All I have is the information that is provided in the affidavit and the information that was before Mr. McEvoy. You had the opportunity to give me information and you didn't -- [ 20 ] HAMID MALEKPOUR: I told you it's uncorrect . [ 21 ] THE COURT: You can tell me it is incorrect, but I will note, although it is obviously noted on the record, that Mr.

Malekpour, who has given no evidence in regard to these charges, now tells me, as I am giving my decision and following argument from both sides, that the information relied on by Mr. McEvoy was incorrect. He states that there is a case, he obviously acknowledges that there were charges in the United States. He says that matter is under appeal and under United States law, of which I have no evidence, once a matter is under appeal it is as if it never happened. That is what you have just finished telling me, right? [ 22 ] HAMID MALEKPOUR: It's technically vacated, yes. [ 23 ] THE COURT: Mr.

Malekpour gave evidence in these proceedings and as well made argument. As I indicated, except for his comment in the middle of my reasons saying that was incorrect, he has given no evidence about what happened in Washington, has filed no documents, and has not filed any affidavit information by anyone. [ 24 ] The Crown has filed the affidavit of the firearms officer Mr. Kress and also had Mr. Kress give viva voce evidence. I have read the affidavit and I have considered the evidence. If I need to review it I will do so in the course of my further reasons. [ 25 ] I will deal with three issues.

The first issue I deal with is the applicant's request that I issue an order that the new firearms licence he applied for on December 23, 2012 should be processed and granted to him. The second issue is that a decision should be made with respect to his application filed in 2007 with respect to a carrier firearms licence. [ 26 ] The Firearms Act (S.C., c. 39) sets out the jurisdiction of a provincial court judge to hear certain matters in s. 74, 75, and 76 of the Firearms Act .

Section 74 provides that subject to s. 2, which contains the time period within which a reference must be filed: the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter -- I will specify in a moment what that matter might be. -- to a provincial court judge in the territorial division in which the applicant or holder resides. [ 27 ] The subject matter or the type of issues that can be referred to a provincial court judge under s. 74 are the following: 1. where a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import, 2. where a chief firearms officer decides under

section 67 that a firearm possessed by an individual who holds a licence is not being used for a purpose described in

section 28, That does not apply in the circumstances of this case. And: 3. a provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for the purposes of this Act, which also does not apply in this case. So the applicable

section gives this court jurisdiction is s. 74(1)(a):

where a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration or certificate . . . [ 28 ] In this case that is the relevant statutory provision.

There is a limitation period set out in s. 74(2) which provides that: An applicant or holder may only refer a matter to a provincial court judge under subsection (1) within thirty days after receiving notice of the decision of the chief firearms officer, Registrar or provincial minister . . . or within such further time as is allowed by a provincial court judge, whether before or after the expiration of those thirty days. [ 29 ] Obviously the matter has already been heard.

I have heard evidence, and in the circumstances of this case I am prepared to exercise my jurisdiction and hear this matter, even though it was filed beyond the 30 days. [ 30 ] The Crown has candidly indicated this was not its strongest argument. In all of the circumstances it is in the interest of justice that this matter be decided on the merits to the extent that it can be decided on the merits, rather than on a limitation period argument, so I am going to exercise my discretion and allow this to proceed. [ 31 ] As I indicated, I will deal with Mr.

Malekpour's request that the court issue some sort of order directing officials such as the Chief Firearms Officer, if that is the correct official, or other officials to deal with his application in a reasonable manner. [ 32 ] The prosecutor is correct that Mr. Malekpour is essentially asking me to make an order directing that certain action be taken. Such an order is generally referred as an order of mandamus which is a Latin term. I agree with the prosecution's argument that a provincial court judge in these circumstances does not have the power to issue an order of mandamus .

Whether another court does, be it the Supreme Court of British Columbia or the federal court, I will not venture to guess. However, as a court that is given its jurisdiction by statute, this court has no independent jurisdiction to hear a mandamus application. Having made that general observation, I wish to comment further on the two matters. With respect to ordering firearms officials to issue a licence, it is my view that a processing time from December 23rd to now does not indicate undue delay or dragging of feet in any way, shape or form. Mr.

Kress testified that he could not say what the average processing time was because each case is decided on its merits. There is no average. It is all dealt with individually. [ 33 ] In this case, I have reached two conclusions: one, I do not have the jurisdiction to make the order sought by Mr. Malekpour, and two, more importantly, Mr. Malekpour is acting prematurely. In the materials filed by the Crown, it appears that certain reviews have taken place with respect to the newest application. Certain background checks and other matters have been addressed in January 2013. I appreciate Mr.

Malekpour would like to get an answer as quickly as possible one way or another, but the delay to this point, although it must be frustrating for him, is not excessive. I have no jurisdiction because, as yet, there has been no refusal to issue the licence that Mr. Malekpour applied for in late December 2012. [ 34 ] I turn now to the application for a carrier firearms licence which relates to an application apparently made by Mr. Malekpour in 2007.

In respect to that application, since I have exercised my discretion and granted him the ability to pursue this matter even though it is beyond the limitation period, I will deal with this on its merits as well. [ 35 ] Raising something that happened in 2007 now in 2013 is cheeky, to say the least. If you were really concerned about that application, Mr. Malekpour, you would have dealt with it at the time. However, I will deal with that application on two bases: first, you have filed absolutely no materials to support your case for a review.

It is your obligation and you carry the burden of proof to prove your case. You have supplied the court with nothing. You come to court, take up court time by saying, "Oh, I can get the Bank of Montreal to show that money was paid," and so forth, but you have not done so. You have filed no materials, you have filed no application, no records, nothing. In this regard I find that you have not established there was even an application made in 2007, let alone that someone refused to grant it or is dragging their feet.

Second, in any event, if you are correct and if that application was made and it has not been processed, this is a matter over which I have no jurisdiction. It could possibly be a matter for a mandamus application. I cannot issue an order because there is no refusal and no revocation with respect to your 2007 carrier firearms licence application. [ 36 ] Having dealt with those two matters, I will now turn to the issue of the revocation. The issue of the revocation of Licence 12180631 definitely falls under s. 74(1)(

a) of the Firearms Act in that the firearms officer Mr. McEvoy revoked a licence held by Mr. Malekpour. The issue I have to address is what should I do, if anything, with respect to the review of the revocation of that licence. [ 37 ] The Crown takes the position that I ought not to do anything because Mr. Malekpour's application is moot. The Crown argues that under s. 76 of the Firearms Act on hearing a reference a provincial court judge may only do one of three things: (

a) he or she can confirm the decision of the firearms officer, registrar, or provincial minister; or (

b) he or she can direct the Chief Firearms Officer or registrar to issue a licence, registration certificate or authorization, which is not the issue here; (

c) and last but not least, the judge can cancel the revocation of the licence, registration certificate, et cetera. [ 38 ] The Crown's argument that this matter is moot turns on the fact that the licence Mr. Malekpour obtained was for a defined period of time, namely, from October 26, 2006, to April 6, 2012. We are now a year beyond that in April 2013. The Crown argues there is nothing for me to cancel. Even if there was a basis for cancelling the revocation, which it does not concede but expressly denies, there would be no practical reason for the court to make a decision.

The Crown says in essence that there is no existing firearms licence to reinstate. Moreover and more importantly, the applicant himself has submitted a new firearms licence application which is in the process of being considered. [ 39 ] The prosecutor says I should dismiss this application because it is moot. Part of the prosecutor's argument was that I should not even hear the application despite its mootness. However, in order for me to arrive at a decision as to whether the matter was moot, I had to hear the application. [ 40 ] The prosecutor argues that Mr.

Malekpour has nothing to gain by challenging a decision that no longer has any effect and there is no issue of public importance. In the alternative, the prosecutor argues that if I rule against the Crown on the issue of mootness, then

the decision of the firearms officer was reasonable. I will deal with the mootness issue first. [ 41 ] The Crown relies on the decision of Borowski v. Attorney General for Canada , 1989 SCR 342. In that case Mr. Borowski began an action seeking a declaration that s. 251(4) , (5) , and (6) of the Criminal Code , which permitted therapeutic abortions, was inconsistent with the Charter and of no force and effect. The action was dismissed at trial and his appeal was also dismissed, but the Supreme Court of Canada granted Mr. Borowski leave to appeal.

The issue was whether a child who was not yet born had rights to life and equal protection and benefit of the law under s. 7 and 15 of the Charter . However, before hearing Mr. Borowski's appeal the Supreme Court of Canada held that all of s. 251 was of no force and effect. The court dismissed Mr.

Borowski's appeal and concluded that where a case is moot, in that there is no longer a live controversy because the tangible and concrete dispute between the parties has disappeared by the time the court is called upon to reach a decision, the general policy or practice of the court is to decline to decide such case. [ 42 ] The court, in reviewing the question, referred to three broad rationales for the policy on mootness. The first rationale for the policy on mootness, is that a court's competence to resolve legal disputes is rooted in the adversary system.

The second is that there should be a concern for judicial economy, and the third is the need for the court to demonstrate a measure of awareness of its proper law- making function. [ 43 ] In this case I am satisfied the doctorate of mootness applies because, as argued by the prosecution, there is no existing firearms licence for me to reinstate. The existing firearms licence would have ended without the revocation on April 6, 2012, over a year ago. In my view, there is no issue of public importance engaged by this application. Therefore, I find the doctrine of mootness applies.

However, in the event I am incorrect on that point, I will turn to the prosecution's alternate argument and deal with whether the decision of Mr. McEvoy ought to be overturned. [ 44 ] I will turn to the Act. In s. 75 the Firearms Act says: At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder. I have done that, or at least have given the parties the opportunity to do so.

It also says that: At the hearing of the reference, the burden of proof is on the applicant -- that is Mr. Malekpour -- -- to satisfy the provincial court judge that the refusal to issue or revocation of the licence . . . was not justified. [ 45 ] In a case called British Columbia (Chief Firearms Officer) v. Fahlman , 2004 BCCA 343 , our Court of Appeal said a reference to the provincial court is not a hearing de novo , meaning a new hearing of the matter, of the issue determined by the firearms officer in the first instance. Mr. Justice Low said s. 75 of the statute does not provide for such a hearing.

He noted that if Parliament intended the reference to be an entirely new hearing of the issue it would have said so. He also noted that the imposition of the onus on the applicant is inconsistent with a de novo hearing.

He noted that: The onus on the person dissatisfied with the decision of the firearms officer to establish that the decision was not justified clearly indicates that the judge must review the decision, not conduct a fresh hearing. [ 46 ] In the Fahlman case, the court relied on a case called Pagnotta for the proposition that the question the provincial court judge must ask is whether, given all of the relevant evidence, the original decision of the firearms officer was one that was reasonable, even if the judge does not agree with it. [ 47 ] Further reference was made to a case called Southam where the court provided guidance to a court applying the standard of reasonableness which is relevant to the approach to be taken under the Firearms Act : An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.

Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. [ 48 ] Another case referred to is Henderson v.

Canada (Attorney General) , 2011 ONCA 696 . In that case, which was under the firearms legislation, the court discussed how a judge should deal with these kinds of reviews. It said as follows: . . . the deferential standard of review to be applied by the provincial court to the Registrar's refusal is best described as one of reasonableness. That notion is well known in judicial review of administrative decisions, and that is, of course, what is going on here . . . The provincial court's task is not to assess the process used by the Registrar about which it may know very little. Rather it is to evaluate

the Registrar's decision in the context of the facts it has found to decide if the applicant has satisfied it that the decision does not fall "within a range of possible, acceptable outcomes which are defenceable in respect of the facts and law" . . . It is in this sense that the provincial court should apply a standard of reasonableness. [ 49 ] In this case it is clear that at the time Mr. McEvoy made his decision to revoke Mr. Malekpour's firearms licence, he had information about a trial that had occurred in Seattle, Washington, where the jury found Mr. Malekpour guilty of five counts.

Based on the information that was available, including the fact that Mr. Malekpour had not notified the Canadian Firearms Program of his change of name as required by condition of his licence, Mr. McEvoy concluded it was not in the interests of Mr. Malekpour's safety or the public safety to allow him to retain his licence. Subsequent events may or may not support the information that was available at the time. For example, information became available to the Crown, which was referred to in the affidavit of Mr. Kress, that one of those counts was not upheld on appeal.

Further information became available in this court when Mr. Malekpour said the U.S. decision is on appeal and therefore is of no force and effect. It is now 2013. The decision that was made by Mr. McEvoy, was made on June 8, 2011. [ 50 ] I am satisfied that, on the basis of the information available to Mr. McEvoy at the time he made his decision, his decision was reasonable. It is not for this court, after the fact and with little in the way of evidence about the American judicial system, other than opinion evidence given by Mr. Malekpour, to now determine that Mr.

McEvoy's exercise of his duties was unreasonable or wrong. It is my duty to evaluate Mr. McEvoy's decision in the context of the information he had available at the time. In my view, the decision he made certainly fell within a possible range of outcomes, given Mr. Malekpour's criminal conviction at the time in the United States. [ 51 ] I appreciate, Mr. Malekpour, that those convictions may be under appeal and that you may well be successful in overturning all of them. However, my function here is not to deal with that but to deal with what was legitimately and appropriately before Mr. McEvoy.

Therefore, even if I had not dismissed your application for a review on the basis of mootness, I would have nevertheless have upheld Mr. McEvoy's decision as being reasonable. [ 52 ] That is the end of the matter. (REASONS FOR JUDGMENT CONCLUDED)