STEPHEN EDMUND WALLACE, Applicant, - v. -, 2021 NBPC 5

CANADA 2021NBPC05 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: STEPHEN EDMUND WALLACE, Applicant, - AND - HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK AS REPRESENTED BY THE MINISTER OF PUBLIC SAFETY [Chief Firearms Officer] Respondent. BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF DECISION: July 16 th , 2021 APPEARANCES: W. Rodney Macdonald, for the Applicant Justin Wies, for the Respondent [ 1 ] M.R. CLOUTIER PROV. CT. J. (orally): The applicant, Stephen Edmund Wallace, (“Mr.

Wallace”) age 59, was the holder of a firearms license issued pursuant to the Firearms Act , S.C. 1995, c. 39 (“the Firearms Act ”). [ 2 ] Mr. Wallace’s firearms license expired on February 9, 2023. [ 3 ] The Chief Firearms Officer (the “CFO”) for the Province of New Brunswick, CFO Aucoin, issued a Revocation Notice on February 24, 2021, referring in part to the eligibility requirements found at s. 5 of the Firearms Act . Standard of Review [ 4 ] Pursuant to s. 74 of the Firearms Act , where the CFO revokes a license, the matter may be referred to a provincial court judge for a review of the decision.

Section 75 of the Firearms Act provides that at the reference, the onus is on the applicant to establish that the revocation was not justified. On hearing the evidence, the Court may confirm the decision of the CFO, direct the CFO to issue the authorization, or cancel an authorization. [ 5 ] Cases interpreting these sections of the Firearms Act have held that the task of the reference judge is not to conduct a hearing de novo , but to determine whether the decision of the CFO was justified on the record before him or her.

The provincial court judge must weigh the CFO’s decision by applying the reasonableness simpliciter test and should only interfere if the decision was "clearly wrong". [ 6 ] Barring any compelling evidence, the CFO’s decision will be deemed justified. Intervention by the provincial court judge is only allowed in those cases where it is demonstrated that the CFO acted unreasonably. The judge must decide whether the original decision is a reasonable one that can be justified even if the reviewing judge does not agree with it.

If it is reasonable and can be justified, it must stand. [ 7 ] Section 75(2) permits the judge to not only look at the written decision of the CFO, but also consider viva voce evidence at the hearing to justify the decision. The hearing is therefore a hybrid which the jurisprudence refers to as an amplified hearing: R v Mason , 2008 NBPC 19 and R v Dumont [2002] N.B.J. No. 354 .

[8] In cases of "new evidence" a two-stage process is called for: (

a) since the reference is not a hearing de novo, the provincial court judge should still examine the decision of the firearms officer, tosee if it was reasonable based on the evidence that was before the firearms officer. If the decision was reasonable, some deference shouldstill be given to it; (

b) The provincial court judge should then “examine” the “new evidence” to see whether it is “significant enough to undermine thefactual assumptions or inferences drawn by the firearms officer”. If so, the provincial court judge would be entitled to interfere even ifthe decision, as originally made, was reasonable. See Enns v Alberta (Chief Firearms Officer), [2018] AJ No 1606, 2018 ABPC 200 and Pogson v Alberta (Chief Firearms Officer), 2005QB 179, Slatter J. Analysis [9] In Canada, there is no constitutional right to possess a firearm.

Possession and the use of firearms is not a right under the Charterof Rights and Freedoms, but a highly regulated privilege: R v Wiles 2005 SCC 84 , [2005] 3 S.C.R. 895 at par. 9. [10] In the Notice of Revocation of February 24, 2021, CFO Aucoin quotes s. 5 of the Firearms Act which provides: Public safety 5

(1) A person is not eligible to hold a license if it is desirable, in the interests of the safety of that or any other person, that the person notpossess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition. Criteria

(2) In determining whether a person is eligible to hold a license under subsection (1), a chief firearms officer or, on a reference undersection 74, a provincial court judge shall have regard to whether the person, within the previous five years, (

a) has been convicted or discharged under

section 730 of the Criminal Code of (

i) an offence in the commission of which violence against another person was used, threatened or attempted, (ii) an offence under this Act or

Part III of the Criminal Code, (iii) an offence under

section 264 of the Criminal Code (criminal harassment), or (iv) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act; (

b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not theperson was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on thepart of the person against any person; or (

c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person. [11] CFO Aucoin provides specific reasons under s. 70 of the Firearms Act in support of his decision to revoke the applicant’sfirearm’s license. He relies on information provided by the RCMP including that Mr. Wallace is a member of the Bacchus MotorcycleClub (the “Bacchus”), an outlaw motorcycle club. In particular, Mr. Wallace is Chairman of the Atlantic Confederation of Clubs withknown connections to the Hells Angels Motorcycle Club (“Hells Angels”).

Therefore, it is not in the interest of public safety for Mr.Wallace to maintain a firearms license. Arming members of an outlaw motorcycle club runs contrary to public interest. [12] At the hearing, Counsel for Mr. Wallace argued that none of the factors outlined in subsection 5(2) of the Firearms Actspecifically apply to him. He does not have a criminal record, he does not suffer from a mental health illness and he has no history ofbehavior that includes violence against another person. I agree. [13] But that does not make the decision of the CFO clearly wrong.

In my view, s. 5(1) of the Firearms Act is an overreachingprovision which enables a CFO to refuse or revoke a firearms license in the interest of the safety of that or any person and s. 5(2) is notan exhaustive list. I find support for this proposition in R v Bachensky, 2014 ONCJ 785 by N. Gregson J. [14] To be clear, there could be several factors a CFO officer could consider in determining whether an individual should bedisentitled to a firearms license. For example, the fact that Mr.

Wallace has no criminal record or does not suffer from any mental health issue, does not automatically entitle him to a firearmslicense. [15] At the risk of repeating myself, I would say that subsection 5(2) of the Firearms Act is not an exhaustive list. Accordingly, thefact that belonging to the Bacchus, an outlaw motorcycle club with known connections to the Hells Angels, is not enumerated insubsection 5(2), would not preclude a CFO from considering this under the issue of public safety. [16] Counsel for Mr.

Wallace contends that CFO Aucoin’s decision to revoke the firearms license was unreasonable because it wouldbe wrong minded to equate membership with the Bacchus to membership with the Hells Angels. Further, simple evidence of membershipwith the Bacchus, in and of itself, does not support a finding of public safety concerns. With respect, I disagree.

[ 17 ] Courts across Canada have upheld decisions by CFOs to deny or revoke firearms licenses without any references to specific violent acts, but merely on a reputation of an outlaw motorcycle group generally associated with violence, including those who show support or affiliation with the Hells Angels. See Enns , supra and Alarie c Controleur des armes a feu du Quebec , 2019 QCCQ 7664 at paras. 25 , 26, 27 and 28 and 30. [ 18 ] When considered in its entirety, the evidence can easily lead to a reasonable conclusion that it is not desirable in the interests of safety that Mr. Wallace hold a firearms license.

More specifically, I cannot conclude that the decision of CFO Aucoin to revoke Mr. Wallace’s firearms license was unreasonable. Indeed, a reference to cases from across Canada supports the decision of the CFO that association with the Hells Angels (a criminal organization), as well as the nature of Mr. Wallace's association, is a reasonable basis upon which to deny or revoke a firearms license. [ 19 ] It is trite law that the purpose and scheme of the Firearms Act is to promote and protect public safety.

The statutory regime grants firearms officials with a vast amount of discretion to refuse to grant or revoke a license when in the "interests of safety". This broad discretion is necessary given the wide range of possible circumstances that may arise in each case. An

interpretation of the Firearms Act , which limits that discretion by narrowing the scope of the public interest, flies in the face of the Firearms Act 's purpose and could result in harmful consequences. See R v Borchuk , 2016 ONCJ 258 . [ 20 ] Mr. Wallace testified before me that, should his firearms be stolen, he would report the theft to police. He also stated that any criminal activity such as domestic violence or crimes against a child would not be tolerated and would result in an individual being excluded from the Bacchus.

I am satisfied that this “new evidence” does not fall under “significant and meaningful evidence” that was not before the CFO. [ 21 ] I find that this assertion by Mr. Wallace in his testimony, especially the part where he states he would report his firearm to police if stolen, belies the stated purpose of the Bacchus’ unwritten rules or expected patterns of behavior for its members - as recognized by courts across Canada - including no cooperation with law enforcement. It is noted that Mr.

Wallace is not only a member, but the Chairman of the Atlantic Confederation of Clubs, a group led jointly by a member of the 1% Bacchus and the 1% Hells Angels. In view of all the evidence, including the information provided to CFO Aucoin by the RCMP indicating that Mr. Wallace is a full patch member of the Outlaw Motorcycle Gang the Bacchus Motorcycle Club which supports the Hells Angels, a criminal organization as recognized by Canadian courts, I reject Mr. Wallace’s assertion to the contrary in his evidence before me.

Conclusion [ 22 ] For the above reasons, I have determined that CFO Aucoin was justified in reaching his decision to revoke Mr. Wallace’s firearms license. His decision had merit and it was reasonable considering all the information he had at his disposal. No evidence was raised at the hearing before this court which refuted CFO Aucoin’s decision or lead me to the conclusion he had been unreasonable. As such, I am not interfering with his decision. I am not persuaded that CFO Aucoin’s decision to revoke Mr. Wallace firearms license was “clearly wrong”. Dated at Saint John, this 16 th day of July 2021 Marco R.

Cloutier Associate Chief Judge of the Provincial Court of New Brunswick/Juge en chef associé de la Cour provinciale du Nouveau-Brunswick