Rocheleau v Alberta (Chief Firearms Officer), 2023 ABCJ 124

In the Alberta Court of Justice Citation: Rocheleau v Alberta (Chief Firearms Officer), 2023 ABCJ 124 Date: June 5, 2023 Docket: 230102956H1 Registry: St. Albert In the Matter of the Firearms Act , S.C. 1995, c. 39 and Amendments Thereto Between: Ryan Rocheleau Applicant (Respondent) - and - His Majesty the King, in right of The Province of Alberta, as represented by the Minister of Justice and Attorney General (Chief Firearms Officer of Alberta) Respondent (Applicant) Ruling on Application to Strike Pleadings by the Honourable Justice T.W. Achtymichuk I.

Summary [ 1 ] The Chief Firearms Officer of Alberta [CFO] denied Mr. Rocheleau’s application for an authorization to carry [ATC] a loaded handgun. Mr. Rocheleau filed a reference to this Court for a review of the CFO’s decision under s 74 of the Firearms Act , SC 1995, c 39 [ Firearms Act ]. The Respondent [Alberta] filed an application to strike out Mr.

Rocheleau’s application on the grounds that this Court does not have jurisdiction. [ 2 ] The Alberta Court of King’s Bench decided in Alberta (Chief Firearms Officer) v Holland , 2004 ABQB 44 [ Holland ], that this Court has jurisdiction to hear a reference under s 74 of the Firearms Act for ATCs. Mr. Rocheleau argues that Holland is binding authority on the question. [ 3 ] Alberta argues that Holland should be distinguished and not followed. That is because the Holland decision was based on that Court finding an implied Parliamentary intention to give this Court the necessary jurisdiction.

In this case, however, Alberta relies on evidence of Parliamentary intention that the Court in Holland did not have. Alberta says this evidence shows an intention by

Parliament that this Court was never meant to be given jurisdiction to review CFO decisions about ATCs. Alberta says this lack of jurisdiction has been recognized in court decisions elsewhere in Canada. [ 4 ] I conclude that this Court does not have jurisdiction under the Firearms Act to review decisions by Chief Firearms Officers about authorizations to carry, for the following reasons. II. Statutory Framework [ 5 ] The Firearms Act creates a comprehensive licensing scheme that authorizes the CFO and their firearms officers to grant, refuse or revoke various forms of firearms licenses and authorizations. Some of these decisions may be referred to this Court for review.

Section 74 of the Firearms Act lists which CFO decisions can be referred to this Court: 74(1) Subject to subsection (2), where (

a) a chief firearms officer or the Registrar refuses to issue or revokes a license, registration certificate, authorization to transport, authorization to export or authorization to import, (

b) a chief firearms officer decides under

section 67 that a firearm possessed by an individual who holds a license is not being used for (

i) the purpose for which the individual acquired the firearm, or (ii) in the case of a firearm possessed by an individual on the commencement day, the purpose specified by the individual in the license application, or (

c) a provincial minister refuses to approve or revokes the approval of a shooting club or shotting range for the purposes of this Act , the applicant for or holder of the license, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides. [ 6 ] Sections 75 and 76 of the Firearms Act set out the procedures for hearing and deciding references to this Court under s 74.

Sections 77 to 81 of the Firearms Act set out the procedures for appealing a reference decision of this Court, to the Alberta Court of King’s Bench. [ 7 ] Generally, the matters listed in s 74(1) that can be referred to this Court, are the licenses, certificates, authorizations and decisions arising from ss 28-29, and 67-73 of the Firearms Act . [ 8 ] ATCs, on the other hand, are dealt with in s 20 of the Firearms Act .

Section 20 states: 20 An individual who holds a license authorizing the individual to possess restricted firearms or handguns referred to in subsection 12(6) (pre-February 14, 1995 handguns) may be authorized to possess a particular restricted firearm or handgun at a place other than the place at which it is authorized to be possessed if the individual needs the particular restricted firearm or handgun (

a) to protect the life of that individual or of other individuals; or (

b) for use in connection with his or her lawful profession or occupation. [ 9 ] The Authorizations to Carry Restricted Firearms and Certain Handguns Regulations SOR/98-207 [ Regulation ] sets out the circumstances that must be shown to establish that a person needs an ATC for protection of life or for a lawful profession or occupation under s 20(

a) and (

b) of the Firearms Act . The Regulation also sets out the requirements CFOs must meet for giving notice of their decisions about ATCs. [ 10 ] Three CFO decisions about firearm “authorizations” that can be referred to this Court are listed in s 74(1): authorizations to transport, export and import. Authorizations to carry are not on the list. There is no mention elsewhere in the Firearms Act , nor in the Regulation , about whether a CFO decision about an ATC can be referred to this Court. III. The Holland Decision [ 11 ] In Holland , the CFO denied the application for an ATC. Mr.

Holland referred the decision to this Court for review under s 74 of the Firearms Act . This Court found it had jurisdiction to hear the reference. The Court directed that an ATC be issued, subject to such reasonable conditions as might be imposed by the CFO. Alberta appealed that decision to the Court of King’s Bench. [ 12 ] On that appeal, Alberta argued that s 74(1) of the Firearms Act does not mention authorizations to carry, and so the Federal Court was the proper forum to review CFO decisions about ATCs.

However, the appeal Court in Holland held that the (now) Alberta Court of Justice has jurisdiction to hear referrals from decisions about ATCs. The reasons were as follows ( Holland at paras 8-10 ): [8] I agree with the conclusion of the Provincial Court Judge that he had jurisdiction to hear this matter. The failure to include “authorization to carry” in s. 74 can only be a drafting oversight. Parliament could not have intended to deprive an individual refused an authorization to carry of a right to appeal that decision.

If such were the case, it would be diametrically opposed to the scheme of references and appeals granted to other individuals refused licensing privileges, registration privileges or other types of authorizations set out in ss. 74 to 81 of the Firearms Act . A reference and appellate procedure is offered to others. If Parliament had intentionally left out authorizations to carry from this scheme, it would be presumed that a specific appeal procedure for this exception would be contained within the Act .

The new Firearms Act generally adopts in essence a procedure for appeal that was similar to the provisions of the Criminal Code that previously governed such applications. [9] To force an individual refused an authorization to carry to engage in a more difficult and cumbersome appeal procedure could

not have been the intention of Parliament. The procedure outlined in the Act calls for an initial reference to the Provincial Court before atrue appellate procedure is engaged. The Provincial Court Judge was correct in finding that he had the jurisdiction to hear Mr. Holland’sinitial reference. Support for this proposition is found in the decision of Reference Re Firearms Act (Canada) (2000), 2000 SCC 31 , 144 C.C.C. (3rd) 385 (S.C.C.) at para. 37 where approval in principle is given to the referral of refusals to a provincial courtjudge.

Paragraph 37 states: Despite its initial appeal, this argument fails to advance Alberta’s case. The fact that the Act is complex does not necessarily detractfrom its criminal nature. Other legislation, such as the Food and Drugs Act, R.S.C. 1985, c. F-27, and the Canadian Environmental Protection Act, R.S.C. 1985, c.16 (4th Supp.), are legitimate exercises of the criminal law power, yet highly complex. Nor does the Actgive the chief firearms officer or Registrar undue discretion.

The offences are not defined by an administrative body, avoiding thedifficulty identified in the dissenting judgment in Hydro-Quebec, supra. They are clearly stated in the Act and the Criminal Code: noone shall possess a firearm without a proper license and registration. While the Act provides for discretion to refuse to issue anauthorization to carry or transport under s 68 or a registration certificate under s. 69, that discretion is restricted by the Act. A licenseshall be refused if the applicant is not eligible to hold one (s. 68).

Eligibility to hold a license is delineated in the rest of the Act: aperson is ineligible to hold a license if the person has been convicted of certain offences (s. 5(2)) or is subject to a prohibition order (s. 6);s. 7 requires the applicant to complete a safety course. Discretion regarding registration is also bounded by the Act. A refusal by thechief firearms officer or the Registrar must be for “good and sufficient reason” (ss. 68 and 69); the refusal must be in writing withreasons given (s. 72).

These provisions demonstrate that the Act does not give the chief firearms officer or the Registrar unduediscretion. Furthermore, the chief firearms officer and the Registrar are explicitly subject to the supervision of the courts. Refusal orrevocation of a license or a registration certificate may be referred to a provincial court judge (s. 74).

The courts will interpret the words“good and sufficient reason” in ss. 68 and 69 in line with the public safety purpose of the Act, ensuring that the exercise of discretion bythe chief firearms officer and the Registrar is always wed to that purpose. [10] Failing to provide a specific different mode of appeal in the Firearms Act for a refusal of an authorization to carry, commonsense and convenience dictate that such a referral should go to a provincial court judge as the first step in the review procedure. [13] The balance of the Holland decision dealt with the procedure for references under s 74 of the Firearms Act. [14] Mr.

Rocheleau’s position is that Holland is binding authority that this Court has jurisdiction to hear a reference from the CFOdecision denying him an ATC. IV. Analysis [15] Alberta’s position is that this Court does not have jurisdiction. It argues that Holland should be distinguished and notfollowed. It relies on evidence of Parliamentary intention that was not before the Court in Holland. It points to court decisionselsewhere in Canada that reflect this Court’s lack of jurisdiction. A.

Principles of stare decisis [16] Holland was an appeal from this Court, and decided the issue of jurisdiction that is now before this Court. To that extent,Holland is binding authority: R v Lapointe, 2021 QCCA 360 at paras 32-34. [17] As binding authority, this Court must follow Holland with very few exceptions, for good reason. As stated in R v Comeau,2018 SCC 15 [Comeau] at para 26: Common law courts are bound by authoritative precedent. This principle – stare decisis – is fundamental for guaranteeing certainty inthe law.

Subject to extraordinary exceptions, a lower court must apply the decision of higher courts to the facts before it. This is calledvertical stare decisis. Without this foundation, the law would ever be in flux – subject to shifting judicial whims or the introduction ofnew esoteric evidence by litigants dissatisfied by the status quo. [18] Stare decisis applies when the relevant facts are not reasonably distinguishable from those in the precedent being relied on. But the circumstances in which lower courts can depart from binding precedents based on factual distinctions from new evidence, arenarrow.

As stated in Comeau at paras 30-31: [30] The new evidence exception to vertical stare decisis is narrow: Bedford, at para. 44; Carter v Canada (Attorney General), 2015SCC 5, [2015] 1 S.C.R. 331 (S.C.C.), at para. 44. We noted in Bedford, at para. 44, that A lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach . . .

Thisbalances the need for finality and stability with the recognition that when an appropriate case arises for revisiting a precedent, a lowercourt must be able to perform its full role. [31] Not only is the exception narrow – the evidence must “fundamentally shift[t] the parameters of the debate” – it is not a generalinvitation to reconsider binding authority on the basis of any type of evidence.

As alluded to in Bedford and Carter, evidence of asignificant evolution in the foundational legislative and social facts – “facts about society at large” – is one type of evidence that canfundamentally shift the parameters of the relevant legal debate: Bedford, at paras. 48-49; Carter, at para. 47. That is, the exception hasbeen found to be engaged where the underlaying social context that framed the original legal debate is profoundly altered. [19] The Court in Comeau concluded at para 34: [34] To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or

interpretation. For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]”how jurists understand the legal question at issue. It is not enough to find that an alternative perspective on the existing evidence mightchange how jurists would answer the same legal question.

[20] In

summary, this Court is bound to follow Holland and find that it has jurisdiction to hear a reference relating to the CFO’srefusal to issue an ATC to Mr. Rocheleau, unless the new evidence of Parliamentary intention in this case fundamentally shifts theparameters of the debate about the statutory

interpretation of s 74 of the Firearms Act. B. Principles of statutory

interpretation [21] The new evidence of Parliamentary intention that Alberta relies on in this case that was not before the Court in Holland, istranscript evidence from hearings of the House of Commons Standing Committee on Justice and Legal Affairs, together with excerptsfrom a Legislation Briefing Book for Bill C-68. [22] This evidence is not “new” in one sense, because it existed before Holland was decided. But it would be new evidence on theissue of interpreting s 74 of the Firearms Act in Alberta, if this evidence was not before the Court in Holland.

I do not see a reason inprinciple or policy to differentiate between the two, so long as the new evidence meets the test of fundamentally shifting the parametersof the debate enough for this Court to not follow Holland in order for this Court to fulfill its role. [23] The modern approach to statutory

interpretation involves reading the words of a provision in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: R vBreault, 2023 SCC 9 at para 25; Rizzo & Rizzo Shoes Ltd. (Re), (SCC) [Rizzo]. [24] The legislative history can significantly help with discerning Parliament’s intent about the particular wording of a statute. That history can include evidence of legislative debates, such as Hansard evidence. However, the court must be careful about the weightto give to such evidence.

As stated by the Supreme Court of Canada in Rizzo at para 35: [35] Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the

interpretation oflegislation. Writing for the Court in R v Morgentaler, (SCC), [1993] 3 S.C.R. 463, at p. 484, Sopinka stated: . . . until recently the courts have balked at admitting evidence of legislative debates and speeches . . . The main criticism of suchevidence has been that it cannot represent the “intent” of the legislature, an incorporeal body, but that is equally true of other forms oflegislative history.

Provided that the court remain mindful of the limited reliability and weight of Hansard evidence, it should beadmitted as relevant to both the background and the purpose of the legislation. [25] More recently, the Supreme Court of Canada affirmed the importance of the legislative history to help with determiningParliament’s intent in Re: Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38 [Sound] at para 33: [33] Although statutes may be interpretated purposively, the

interpretation must nevertheless be consistent with the words chosen byParliament. Moreover, the legislative history can be a great assistance in discerning Parliament’s intent with respect to the particularwording of a statute. [26] With this in mind, I now turn to the new evidence. C. Evidence of Parliamentary intention [27] The transcript evidence from hearings of the House of Commons Standing Committee on Justice and Legal Affairs [Hearings]covers three days, May 30 to June 1, 1995.

The transcripts are excerpts from a clause by clause study of Bill C-68. [28] Those present included Parliamentary Secretary to the Minister of Justice and Attorney General of Canada; House ofCommons Legislative Counsel; Senior Counsel of the Criminal Law Policy

Section of the Department of Justice; Director of LawEnforcement for Revenue Canada Customs; Assistant Deputy Minister of the Criminal and Social Policy for Department of Justice;Senior General Counsel of the Criminal Law Policy

Section for Department of Justice; Legislative Counsel; and at least 16 Members ofParliament. [29] During the Hearings, the issue was raised that what is now s 74 of the Firearms Act did not include authorizations to carry inthe list of CFO decisions that could be referred to this Court for review. A motion was made to amend the legislation to include ATCs ins 74. That motion was debated. There was discussion that authorizations to carry handguns were viewed as very rare, very serious andvery distinct from other firearms licenses and authorizations.

There was discussion that leaving ATCs out of s 74 meant that peoplewould only have access to judicial review and mandamus in superior courts, which were recognized as much narrower and more difficultremedies than the reference process to provincial courts under s 74. There was discussion about the merits of having provincial courtsreviewing CFO decisions about ATCs. The government’s position was stated to be against including ATCs in the list of things referableto provincial courts.

After debate, the motion to amend s 74 to include ATCs in the list of matters that could be referred to this Court forreview, was defeated in the Standing Committee. [30] There is also in evidence excerpts from a document called “Bill C-68

An Act Respecting Firearms and Other Weapons –Legislation Briefing Book” prepared by the Criminal Law Policy

Section and Social Policy

Section of the Department of Justice[Briefing Book]. It states that it is a clause by clause analysis of Bill C-68. Under each

section referred to, it summarizes the subject andeffect of the

section of the Bill, and reasons for the change. [31] Summarizing what is now s 74(1), the Briefing Book lists the types of licenses, registrations and authorizations which may bereferred to this Court for review. ATCs are not included in that list. [32] The

summary in the Briefing Book for what is now s 72 of the Firearms Act relating to CFOs giving notice of their decisionswhich may then be referred to provincial courts for review, contains the following: “In light of the seriousness and exceptional characterof authorizations to carry, their refusal or revocation cannot be appealed. However, the rules of natural justice would apply.” D. Holland should not be applied in this case as binding authority on jurisdiction

[33] At its core, I interpret the reasoning in Holland to be that not including authorizations to carry as one of the matters referableto this Court under s 74 must have been a drafting oversight by Parliament, because 1) that appeal procedure is available for otherlicenses, registrations and authorizations, 2) the Firearms Act does not specify another appeal procedure for ATCs, and 3) Parliamentcould not have intended that people denied ATCs would only have a more difficult and cumbersome judicial review process available tothem. [34] At its core, the new evidence of legislative history and Parliamentary intention in this case arguably shows that there was nodrafting oversight by Parliament, the legislators deliberately chose to treat ATCs differently from other licenses, registrations andauthorizations regarding an appeal procedure, and that the legislators deliberately chose to have ATCs subject only to a more difficultand cumbersome judicial review process. [35] I am satisfied that this “new” evidence was not before the Court in Holland.

The Holland decision does not mention thisevidence at all. I assume that if this evidence was before the Court, it would have addressed it in its reasons. [36] I find that this new evidence fundamentally shifts the parameters of the debate about Parliament’s intention, and the statutoryinterpretation of s 74 of the Firearms Act in Alberta. First, this new evidence should be given meaningful weight about Parliament’sintention. These are not broad statements made on the floor of the House of Commons which can be influenced by many factors otherthan accurately expressing legislative intent.

Instead, this is a qualified working standing committee doing a clause by clause analysis ofthe legislation before its passage. A motion to amend the legislation to include the jurisdiction found by Holland was raised, debated,and defeated in the standing committee. The legislators deliberated and decided that this Court would not be given that jurisdiction. Thetranscripts show that this was the government’s position in the Hearings.

That is what is reflected in s 74 of the Firearms Act that wasultimately passed by Parliament, in so far as ATCs were not included in the list of matters referable to this Court under s 74. [37] I find that the transcript evidence of the Standing Committee Hearings to be persuasive evidence of Parliamentary intention. The evidence of the Briefing Book excerpts is somewhat less persuasive. That is because its origins and purpose are not clear.

But it isadditional evidence that is consistent with the evidence from the committee Hearings. [38] Second, the core of the new evidence shows a Parliamentary intention that directly and clearly contradicts the core of thereasoning in Holland for finding jurisdiction for this Court in s 74 of the Firearms Act. I do not see this new evidence as addingsomething that simply allows for another perspective on existing evidence within the meaning of Comeau.

That is because the Court inHolland found an implied Parliamentary intention to include “authorizations to carry” based on those words being absent in s 74,reasoning that the statute provides for review and appeal procedures for other types of licenses and authorizations. There was nomention of other evidence before the Court in Holland about whether the absence of ATCs in s 74 was intentional, or instead as the Courtfound, an unintentional drafting oversight. The question of whether the absence of ATCs from s 74 was intentional, or instead anunintentional oversight, was central to the decision in Holland.

The new evidence in this case is central to that question, showing aParliamentary intention to exclude ATCs from s 74. The new evidence is not determinative.

But given its nature, it is difficult to seehow the Holland Court, if it had this legislative history evidence, would have concluded that Parliament intended to include ATCs in s74, and their absence from the list was a drafting oversight. [39] For these reasons, I conclude that the new evidence meets the test of fundamentally shifting the parameters of the debateabout whether this Court has jurisdiction to hear a reference from CFO decisions about ATCs under s 74 of the Firearms Act.

In orderfor this Court to fulfill its role, Holland will not be applied as binding authority that this Court has that jurisdiction. [40] Given that the issue of jurisdiction in this case is not determined by the Holland decision, this Court must now decide whetheror not it has that jurisdiction. E. This Court does not have jurisdiction under the Firearms Act to hear referrals from CFO decisions about ATCs [41] I conclude that this Court does not have jurisdiction to hear referrals from CFO decisions about ATCs under s 74 of theFirearms Act, for two reasons.

First, I conclude that the Firearms Act does not give this Court jurisdiction either expressly, or bynecessary implication. Second, this conclusion is consistent with other court decisions in Canada. 1. The Firearms Act does not give this Court jurisdiction either expressly, or by necessary implication. [42] The Alberta Court of Justice is a statutory court, not one of inherent jurisdiction.

Jurisdiction in this Court must be found instatute expressly or by necessary implication: R v RJH, 2000 ABCA 111 [RJH] at para 12, citing Doyle v The Queen (1975) (SCC), 35 CRNS 1 at 6 (SCC). [43] The Firearms Act does not expressly give this Court the necessary jurisdiction. [44] Also, the test is not met for giving this Court jurisdiction by necessary implication.

The Parliamentary intention to do thatmust be such a strong probability, that a contrary intention cannot be supposed: RJH at para 27, citing (Re) Smoky River Coal Ltd. and United Steel Workers of America, Local 7621 et al, (1984) (AB KB), 8 DLR (4th) 603 (ABKB). [45] Here, s 74 of the Firearms Act lists CFO decisions for other licenses, registrations and authorizations which can be referred tothis Court for review. ATCs are not included in that list. The only support for the conclusion that Parliament’s intention was to includeATCs on the list, is that it did so for other types of authorizations but not ATCs.

This does not create a strong probability thatParliament’s intention was to include them, for the following reasons. [46] There is a presumption that because ATCs are missing from the list in s 74, this Court does not have jurisdiction over them. As stated in RJH at para 15 when deciding that this Court did not have the power to order the government to pay for specific treatmentprograms under the (then) Young Offenders Act: [15] . . . A presumption therefore arises that Provincial Court judges do not have this power. This results from the rule of implied

exclusion, which lawyers refer to by its Latin name, expressio unius est exclusio alterius , meaning “to express one thing is to exclude another”. Simply put, when a statute sets out a detailed list of items, but is silent with respect to a particular item, it is presumed that the silence was deliberate and reflects the legislator’s intention to exclude the item that was not mentioned. See also: R v BWP; R v BVN , 2006 SCC 27 at para 23 . [ 47 ] I find that this presumption applies in this case.

The Firearms Act creates a comprehensive licensing scheme that authorizes CFOs to grant, refuse or revoke various forms of firearms licenses and authorizations. Sections 74 to 81 of that Act give the courts careful and detailed procedural directions for references and appeals from CFO decisions for several types of those licenses, registrations and authorizations. The Firearms Act supports the notion that its provisions are complete: RJH at para 16 .

That strengthens the presumption that not including ATCs on the list in s 74 was intentional. [ 48 ] Also, in this case there is legislative history evidence showing that ATCs were deliberately omitted from the list of matters that could be referred to this Court for review under s 74. This evidence shows a legislative intention to not give this Court jurisdiction, but instead to leave ATCs to be dealt with under the narrower judicial review process in other courts.

For reasons I have stated, overall I find this evidence to be persuasive about legislative intention. [ 49 ] I do not see anything else in the wording of s 74 read in its entire context and in harmony with the scheme of the Act , the object of the Act , and the intention of Parliament, to support the conclusion that the intention of Parliament was to include ATCs in the list of matters referable to this Court for review under s 74. [ 50 ] In my view, the passage from Reference Re Firearms Act (Can.) , 2000 SCC 31 ( Firearms Reference ) at para 37 cited in Holland (see paragraph 12 above) does not change this conclusion.

In Firearms Reference , the Court decided that the Firearms Act was a valid exercise of Parliament’s criminal law power under the Constitution. In the passage cited in Holland , the Supreme Court of Canada was addressing the Alberta Government’s argument that the Firearms Act was regulatory rather than criminal, because it was so complex and gave so much discretion to CFOs. [ 51 ] The Court rejected that argument for several reasons, including that CFOs were not given undue discretion.

The Supreme Court reviewed the framework of the Firearms Act in general terms, finding that there were some restrictions on CFO discretion. Among those restrictions, the Court stated that “Refusal or revocation of a license or registration certificate may be referred to a provincial court judge: s. 74”. However, the Court did not specifically say that a refusal to issue an ATC could be referred to this Court. The issue of interpreting the Firearms Act to answer that question was not before the Supreme Court.

Given the evidence of Parliamentary intention in this case, I find that the general statements in the Firearms Reference case do not change my conclusion that the wording of s 74 read in its entire context and in harmony with the scheme of the Act , the object of the Act , and the intention of Parliament, supports the conclusion that the intention of Parliament was to omit ATCs from the list of matters referable to this Court under s 74. [ 52 ] For these reasons, I conclude that the Firearms Act does not give this Court jurisdiction either expressly, or by necessary implication. 2.

This Court not having jurisdiction to review CFO decisions about ATCs is consistent with other court decisions in Canada. [ 53 ] Alberta cites Lovig v Regina , 2013 (Unreported BCPC) [ Lovig ]. This is the only other decision in Canada of which I am aware, that has specifically decided the issue of whether a provincial court has jurisdiction under s 74 of the Firearms Act to review a CFO decision to refuse an ATC.

The Court in Lovig had before it the legislative history evidence from the Hearings that is also before this Court. [ 54 ] The Court in Lovig concluded that s 74 of the Firearms Act did not give provincial courts jurisdiction to hear references from CFO decisions about ATCs.

The Court said it was bound by the Supreme Court of Canada decision in Sound to give importance to the legislative history evidence of Parliament’s intent behind omitting ATCs from s 74, which was the basis for distinguishing and not following Holland ( Lovig at paras 64-66, 70 ): [64] Therefore, I agree with the rationale of the Supreme Court of Canada in Re; Sound , a decision that is binding on me, where, at paragraph 32 and 33 of the decision, Madam Justice Lebel, again speaking for the nine-member bench, discusses the importance of the legislative history and how much assistance it can be in discerning Parliament’s intent with respect to a particular wording in a statute. [65] The legislative scheme of the initial legislation that ultimately became the Firearms Act is evidenced by the transcripts of the Standing Committee, and, where specified, the absence of the authorization to carry was excluded from the precursor to s. 74 of the current Firearms Act , and specific discussion and submissions were made on its exclusion from the reference procedures to Provincial Court.

As I have mentioned, a member of the committee or a person involved in the committee hearings moved to amend an amendment to specifically include authorizations to carry in the legislation, but that motion was defeated. [66] It is clear Parliament, in the proceedings of the Committee, specifically discussed the exclusion of authorizations to carry and ultimately decided not to include them in ultimately s. 74 of the Firearms Act . . . . [70] I distinguish the Holland case on the basis that it appears that the legislative scheme of the Firearms Act was not before the court in reaching its decision. [ 55 ] The Court in Lovig went on to state (at para 69) that a person denied an ATC could apply for judicial review in Federal Court: [69] Under s. 2 and s. 18 of the Federal Courts Act , there is a “review” procedure set up for individuals who have had their application

for an authorization to carry refused by a Chief Firearms Officer.

It is not specifically identified as such, but the definition of “tribunal”in s. 2 and the operation of s. 18, there is the ability for an individual who has not been allowed to be provided an authorization to carryto bring on an application by prerogative writ, and while that process may be somewhat more limited that the reference process that maybe allowed to other individuals that fall within s. 74 of the Firearms Act, there is still the ability for a judicial review of the refusal togrant the application to carry. [56] After Lovig, the Federal Court held that it had jurisdiction to hear an application for judicial review by an applicant who wasdenied two ATCs by CFOs under the Firearms Act: Sexsmith v Canada (AG), 2019 FC 1509 [Sexsmith], appeal allowed 2021 FCA111.

The issue before the Court was not whether provincial courts have jurisdiction over ATC refusals under s 74, and so the Court didnot decide that issue. [57] But the Court concluded that on the facts of that case, it had jurisdiction to hear the application for judicial review. The CFOfor the Northwest Territories was an RCMP, and in that capacity was found to fall within the definition of a board, commission or othertribunal that gave the Federal Court jurisdiction. The other CFO for the second ATC was for B.C. and the Yukon.

For that, the Court inSexsmith referred to the Lovig decision which had decided that provincial courts did not have jurisdiction to hear references from ATCrefusals under s 74 of the Firearms Act. The Court in Sexsmith concluded that it had jurisdiction over both ATCs. The Court dismissedthe applications. [58] The Federal Court of Appeal allowed the appeal, set aside the judgment below, quashed the decisions of the CFOs, andremitted the ATC applications back for redetermination by different CFOs.

However, the appellate decision only overruled the lowercourts decision on the substance of the lower Court’s judicial review, not its jurisdiction. The issue of jurisdiction was not specificallymentioned in the appeal decision. [59] Alberta also cites Waye v Nova Scotia (Chief Firearms Officer), 2016 NSSC 36 [Waye], aff’d 2018 NSCA 89, leave to SCCrefused . There, the applicant applied for judicial review of the CFO’s refusal to grant him an ATC. The NovaScotia Supreme Court dismissed the application for judicial review, finding that the CFO’s decision was reasonable.

The Court ofAppeal held that the lower Court correctly applied the reasonableness standard on judicial review and dismissed the appeal.

Both Courtsdid not specifically mention jurisdiction, but proceeded on the basis that they had jurisdiction over judicial review applications arisingfrom CFOs refusing the issue ATCs under the Firearms Act. [60] These court decisions elsewhere in Canada are consistent with the jurisdiction of the courts over CFO refusals to issue ATCsunder the Firearms Act being with federal courts on judicial review applications, rather than with provincial courts on references under s74 of the Firearms Act. That, in turn, is consistent with the legislative history evidence showing that this was Parliament’s intention.

That is also consistent with the wording of s 74 itself, and the absence of ATCs from the list of things over which provincial courts havejurisdiction. [61] For these reasons, I conclude that s 74 of the Firearms Act does not give this Court jurisdiction either expressly, or bynecessary implication. This conclusion is consistent with other court decisions in Canada, which place jurisdiction for this in federalcourts on judicial review applications. Therefore, I conclude that this Court does not have jurisdiction to hear referrals from CFOdecisions about ATCs under s 74 of the Firearms Act. F. Remedy [62] Mr.

Rocheleau argues that if this Court does not have jurisdiction, then the CFO’s Notice of Refusal letter [Notice] wronglytold him that he could refer the matter for a reference to this Court under s 74 of the Firearms Act. [63] However, the CFO’s Notice correctly stated the circumstances. It first states that the Firearms Act does not set out a methodof review for refusals of authorizations to carry. It then says the Holland decision held that this Court has jurisdiction to hear a referencefrom the CFO decision. It then tells Mr.

Rocheleau that if he decides to refer the decision to this Court, there are timelines for that, andthe relevant provisions of the Firearms Act are attached to the letter. Finally, it then tells Mr. Rocheleau that if he does refer the CFOdecision to this Court, Alberta expects to argue that this Court does not have jurisdiction. The Notice refers to the Hearings evidence andLovig decision that Alberta will rely on.

There is nothing here that is wrong or misleading. [64] In any event, even if there were issues with the Notice, that does not give this Court jurisdiction that is not provided to it underthe Firearms Act. [65] I agree with Alberta’s position that the appropriate remedy is to strike out the Reference to a Provincial Court Judge that hasbeen filed by Mr. Rocheleau. The Provincial Court Act, RSA 2000, c P-31 [Act] does not specifically refer to striking out pleadings.

Buts 8(2) of the Act allows this Court to apply or modify the Alberta Rules of Court when the Act or its regulations “do not provide for aspecific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before theCourt”. [66] Rules 3.68(1) and (2)(

a) provide that a claim may be struck out if circumstances warrant on the basis that the court has nojurisdiction. The Court may strike a pleading where it is “plain and obvious” that the Court lacks jurisdiction: Kniss v Stenberg, 2014ABCA 73 at para 21. Based on the findings I have made in this case, it is plain and obvious that this Court does not have jurisdictionover Mr. Rocheleau’s application. [67] For all of these reasons, Alberta’s application to strike out the Reference to a Provincial Court Judge that has been filed by Mr.Rocheleau, is granted. Heard on March 9, 2023.

Dated at the City of St. Albert this 5th day of June, 2023. T.W. Achtymichuk Justice, Alberta Court of Justice Appearances: A. Bartier for Alberta (Chief Firearms Officer) R. Rocheleau for himself