Attorney General of Canada v. Methot, 2021 BCSC 102

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Attorney General of Canada v. Methot, 2021 BCSC 102 Date: 20210122 Docket: 69927 Registry: Chilliwack Between: Attorney General of Canada (Representing the Chief Firearms Officers of British Columbia) Respondent And Gaston Methot Appellant Before: The Honourable Madam Justice Marzari On appeal from: A decision of the Provincial Court of British Columbia, dated December 20, 2019 ( Methot v. Canada (Attorney General) , Abbotsford Docket No. 88265-1) Reasons for Judgment Counsel for the Appellant: J. Whysall J.

Poulsen, Articled Student Counsel for the Respondent: D. Nunez R. Gibson Place and Date of Appeal: Chilliwack, B.C. September 15, 2020 Place and Date of Judgment: Chilliwack, B.C. January 22, 2021 Table of Contents INTRODUCTION .. 3 BRIEF CONCLUSION .. 5 BACKGROUND AND DECISION APPEALED FROM .. 7 THE STATUTORY FRAMEWORK UNDER THE FIREARMS ACT .. 11 STANDARD OF REVIEW POST- VAVILOV .. 15 A. The language of “reference” and not of “appeal” or “review” 16 B. The investigatory nature of the firearms officer’s initial decision . 19 C. The first adjudicative hearing in the statutory process . 20 D.

The role of the Provincial Court 21 E. The burden to establish that the decision “was not justified” 24 F. The remedies open to the reference judge . 26 Conclusion on the Standard of Review .. 27

CONCLUSION ON STANDARD OF REVIEW GROUND OF APPEAL .. 29 WEIGHT OF THE DA SILVA REPORT .. 29 REMEDY .. 31 CONCLUSION .. 32 INTRODUCTION [ 1 ] Gaston Methot appeals the decision of the provincial court reference judge (the “reference judge”) upholding the refusal by the designate of the Chief Firearms Officer (the “Firearms Officer”) to renew his firearms licence pursuant to the Firearms Act , S.C. 1995, c. 39 . [ 2 ] Mr. Methot argues that the reference judge erred in his decision as follows:

a) in applying an overly deferential reasonableness standard to the decision of the Firearms Officer;

b) in admitting and relying upon the opinion evidence of Corporal Sergio Da Silva (Cpl. Da Silva) with respect to the characteristics, history, organization, structure, purpose and activities of the Hells Angels Motorcycle Club (which I will refer to as the “Hells Angels”); and

c) in finding that, pursuant to s. 5(1) of the Firearms Act , membership or affiliation with the Hells Angels was sufficient, in an of itself, for denying renewal of a firearms licence. [ 3 ] Mr. Methot seeks an order, pursuant to s. 79(1) (b)(

i) of the Firearms Act , that this Court direct the Firearms Officer to renew Mr. Methot’s firearms licence. In the alternative, Mr. Methot seeks an order that this matter be remitted back to the Provincial Court. Although the latter relief is not specifically listed in the Firearms Act , Mr. Methot and the Attorney General of Canada (“Attorney General”) concede that this remedy is available in an appeal to this court pursuant to s. 77 of the Firearms Act and this Court’s inherent jurisdiction: see Durmuller v.

Canada (Attorney General) , 2020 BCSC 660 . [ 4 ] The Attorney General, who seeks to uphold the decision of the Firearms Officer in these proceedings, says that the reference judge made no errors in applying the reasonableness standard to the Firearms Officer’s decision. The Attorney General says that the standard of reasonableness has been recognized as the appropriate standard of review for this type of decision for many years, and has not been changed as a result of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 . [ 5 ] The Attorney General also says that Cpl. Da Silva’s opinion evidence was correctly admitted and correctly relied upon by the reference judge. The Attorney General notes that the strict rules of evidence do not apply to a firearms reference, including with respect to the admission of expert opinion evidence. [ 6 ] Finally, the Attorney General notes that the possession of firearms in Canada is not a right but rather a highly regulated privilege: R. v. Wiles , 2005 SCC 84 at para. 9 .

In this context, the Attorney General says that it would not be in the interest of public safety to renew Mr. Methot’s firearms licence given Mr. Methot’s membership in the Hells Angels. The Attorney General argues that the appeal should therefore be dismissed. [ 7 ] This matter comes before this Court pursuant to s. 77 of the Firearms Act as a true appeal: that is, with the same standard of review normally applicable to appeals from a lower court. As such, this court should only allow the appeal if Mr.

Methot can show that the reference judge erred in law or made a palpable and overriding error in fact affecting the outcome of the proceeding. [ 8 ] In my view, there are two primary issues that I must resolve on this appeal:

a) whether the reference judge erred in applying a reasonableness standard of review to the decision of the Firearms Officer, in light of the Supreme Court of Canada’s decision in Vavilov ; and

b) whether the reference judge erred in admitting the evidence of Cpl. Da Silva, or in giving the same weight to that evidence as was given by the Firearms Officer. [ 9 ] The third ground of appeal, which goes to the soundness of the decision itself, will turn on my answer to the two above questions, as will the appropriate remedy, if any. BRIEF CONCLUSION [ 10 ] For the reasons that I set out below, I have concluded that the Supreme Court of Canada’s decision in Vavilov requires me to reconsider the reasonableness standard of review for references under the Firearms Act applied by the reference judge.

Vavilov directs that the statutory language be examined to understand the legislative intent. [ 11 ] The language of ss. 74–76 of the Firearms Act is unique in terms of the process it establishes. It allows an applicant to “refer the

matter” to the Provincial Court to hear a “reference”, and for the reference judge to hear evidence led on behalf of the firearms officer and the applicant, to consider whether the applicant has proven that the firearms officer’s decision “was not justified”, and to either confirm the firearms officer’s decision to refuse the license, or direct the issuance the license. The more unique factors set out in this scheme that are relevant to interpreting the legislature’s intent include:

a) The language of “reference”, and not of “appeal” or “review”;

b) The investigatory rather than adjudicative nature of the firearm officer’s initial decision;

c) The reference as the first adjudicative and procedurally fair hearing in the statutory decision-making process;

d) The role of the Provincial Court in the decision-making scheme;

e) The burden on the applicant to establish that the firearms officer’s decision “was not justified”; and

f) The limited remedies open to the reference judge. [ 12 ] In light of these factors, I have concluded, for the reasons set out in more detail below, that the reference judge’s role in the statutory scheme is not usefully described as either an appeal or a judicial review. Rather, the Provincial Court is recruited directly into the administrative decision-making scheme itself. Furthermore, I have concluded that a reasonableness standard, as that term has been conscripted from the judicial review lexicon into this statutory reference, is not appropriate.

Rather, the statutory scheme requires the reference judge to hear and weigh the evidence for the first time in a procedurally fair manner.

Therefore, the scheme precludes deference to the findings of the firearms officer on questions of fact that would ordinarily receive deference in both appeals and judicial review contexts. [ 13 ] Some deference is indicated, however, by the requirement that the applicant bear the burden of establishing that the refusal decision of the firearms officer “was not justified.” While this language might simply indicate on whom the burden of proof lies, the preponderance of precedent suggests that the term “was not justified” describes more than a burden of proof.

Rather, that language suggests a level of deference to the discretionary and policy-driven nature of the firearms officer’s ultimate decision, where it can be justified on the facts found at the reference. [ 14 ] In light of the above, I find that the statutory framework of the Firearms Act requires the reference judge to conduct a hearing closer to a hearing de novo than to an appeal or a review, and to weigh all of the evidence presented. That evidence need not comply with the strict rules of evidence, as established in R. v.

Pagnotta, 2001 BCSC 444 , but must still be freshly weighed in accordance with the rules of procedural fairness, relevance, and the reliability of the evidence. [ 15 ] Having heard and weighed the evidence sufficient to establish the facts relevant to the refusal of the license, the reference judge must then consider whether the applicant has established that the initial refusal decision “was not justified” on those facts. [ 16 ] In this case, at least some of the evidence given by Cpl.

Da Silva relied upon by the Firearms Officer would not ordinarily meet the requirements for admissibility of expert opinion evidence in court. This is not necessarily a reversible error on this reference, because otherwise inadmissible hearsay may still be admitted as relevant evidence in a proceeding under s. 75 of the Firearms Act : see Pagnotta . However, it was incumbent upon the reference judge to consider the weight that the evidence of Cpl.

Da Silva was entitled to after a fresh analysis of the relevance and reliability of that evidence. [ 17 ] It is not appropriate for this Court to re-weigh this evidence on appeal. It may be that upon a proper weighing of the evidence of Cpl. Da Silva, or other evidence, a reference judge may still find that Mr. Methot has not met the burden of proving that the Firearms Officer’s decision “was not justified.” This matter should therefore be referred back to the Provincial Court for a re-determination of the reference. BACKGROUND AND DECISION APPEALED FROM [ 18 ] Mr.

Methot possessed a firearms licence between June 2012 and April 2018 without incident. In March 2018, prior to its expiry in April 2018, Mr. Methot applied for a renewal of his firearms licence. [ 19 ] The Firearms Officer is employed with the Canadian Firearms Program of the Royal Canadian Mounted Police, and designated under s. 99 of the Firearms Act to perform all duties of a Chief Firearms Officer for the Province of British Columbia and the Yukon Territory. [ 20 ] On July 31, 2018, the Firearms Officer issued a “Notice of Refusal to Issue a Firearms Licence” to Mr. Methot.

That notice indicated that, pursuant to s. 68 of the Firearms Act , Mr. Methot’s application for renewal of his firearms licence had been refused because it was not desirable in the interest of public safety that he have the licence. [ 21 ] In his reasons, the Firearms Officer found that Mr. Methot is a full patch member of the Hells Angels West Point Chapter. He also found that members of the Hells Angels are bound by rules that allow for violence and other criminal acts to be committed. Specifically, the Firearms Officer adopted CpI.

Da Silva’s opinion that: These rules forbid members from cooperating with police. Should your firearm ever be stolen, lost, or used in an offence, you are prevented from reporting it to police, thereby endangering the safety of the public. [ 22 ] In conclusion, the Firearms Officer stated: As you are a full patch member of the HAMC West Point Chapter, I find you represent the Hells Angels and are bound by rules that

allow for violence and criminal acts, and that the police are your adversary. You made a decision to be involved with an organization that has a reputation for violence and criminal acts. As such, I find that it would not be desirable in the interest of public safety that you be issued a firearm licence at this time. Accordingly, I refuse to issue you a licence. [ 23 ] On August 9, 2018, Mr.

Methot, through counsel, filed an application to a provincial court judge for a review of the refusal of his application for a firearms licence through the reference provisions of s. 74 of the Firearms Act . [ 24 ] On December 20, 2019, the reference judge dismissed the reference application: Methot v. Canada (Attorney General) (December 20, 2019), Abbotsford 88265-1 (B.C.P.C.) [ Reference Hearing Reasons ]. [ 25 ] The reference hearing in Provincial Court took place over four days in 2019 and involved evidence from two witnesses: the Firearms Officer and CpI.

Da Silva. [ 26 ] I understand that it is common for the firearms officer who refused the licence to testify in these proceedings, a custom recognized most recently in Durmuller at para. 18 , where Justice Thompson noted that this was “understandable in light of the investigative aspect of the firearms officer’s role.” [ 27 ] Corporal Da Silva is a retired 28-year RCMP officer who is currently a peace officer with the Organized Gang Unit in the Combined Special Forces Enforcement Unit.

The reference judge found that the “overall objective of his current occupation as the outlaw motorcycle gang coordinator is to disrupt and ultimately dismantle criminal organizations operating as outlaw motorcycle gangs.” [ 28 ] The reference judge qualified CpI. Da Silva to give expert opinion evidence “in relation to the Hell’s Angels Motorcycle Club generally, the nature and characteristics of the club; its history, organization, structure and hierarchy, and its main purposes and activities” ( Methot v.

Canada (Attorney General) Ruling on Voir Dire Re: Qualifications (6 February 2019), Abbotsford 88265-1 (B.C.P.C.) at para. 26). Corporal Da Silva had not been qualified as an expert by a court before, although he did give evidence as a fact witness in this Court in British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd. , 2020 BCSC 880 [ Angel Acres ]. [ 29 ] At the reference hearing, Cpl. Da Silva opined that the main purpose of the Hells Angels is the facilitation of criminal activity. Much of his opinion was admittedly based on indirect hearsay evidence.

He agreed that his opinion was not based on speaking to members of the Hells Angels themselves because “it is not something they would discuss with a police officer”. [ 30 ] In his ruling excluding a further supplemental opinion report prepared by Cpl. Da Silva that was not before the Firearms Officer, the reference judge determined that it was not relevant because the Firearms Officer had not relied upon it: Methot v. Canada (Attorney General) Ruling Re: Statement of Opinion (6 February 2019), Abbotsford 88265-1 (B.C.P.C.).

In doing so, he made these comments regarding the nature of the reference itself: [3] It is an interesting issue, in that the question as to what type of a hearing this is. In the decision of Justice Low in Chief Firearms Officer for B.C. [v.] Fahlman […] at paragraph 3, the court says the appellant argues Justice Melvin erred in three ways. The first one is that: (

a) in concluding that a reference to a Provincial Court judge under the statute is a hearing de novo in which the judge may substitute his or her opinion for that of the firearms officer; Justice Low says that he agrees with the appellant on those first two points of law, so this is not a hearing de novo. [4] One of the other case[s] that we have looked at is the Alberta decision of the Chief Firearms Officer for Alberta [v.] Hodson, where it talks about the potential of two different standards of review, depending on what the evidence is. [5] It seems to be that if the matter is not a hearing de novo and it is a review of the information that was before the firearms officer at the time that the decision was made, that relevance is guided by that. [Emphasis added.] [ 31 ] The Firearms Officer testified that he based his revocation of Mr.

Methot’s licence on CpI. Da Silva’s report, and that he would not have refused the application but for his reliance on CpI. Da Silva’s opinion. Specifically, the Firearms Officer noted from CpI. Da Silva’s report that (1) membership in the Hells Angels is voluntary; (2) members are bound by written and unwritten rules; (3) members are forbidden from cooperating with police in any way; and (4) if a member’s firearm is lost or stolen, the member would be prevented from reporting the incident to police.

The Firearms Officer explained it was these four factors that caused his concern regarding the interest of public safety. [ 32 ] In dismissing Mr. Methot’s reference application, the reference judge found that Mr. Methot had not overcome his onus to show that the Firearms Officer’s decision was “not reasonable” ( Reference Hearing Reasons at para. 65). [ 33 ] The reference judge found “it was reasonable for the Firearms Officer to find, on the evidence before him, that [Mr.

Methot] is a member of the Hell’s Angels Motorcycle Club, which is an organization that allows for violence and criminality, that restricts its member’s cooperation with police, and regards the police as adversaries” ( Reference Hearing Reasons at para. 90) and that, as a result, public safety was at risk by Mr. Methot having a firearms licence. [ 34 ] In dismissing Mr. Methot’s reference application, the reference judge repeatedly referred to the reasonableness standard or review.

He noted the reference was “not a new hearing” and that he “must not substitute [his] opinion for that of the officer’s” ( Reference Hearing Reasons at para. 12) and that the “question is not whether I would decide differently but was the decision in a range of reasonable outcomes” ( Reference Hearing Reasons at para. 65).

THE STATUTORY FRAMEWORK UNDER THE FIREARMS ACT [ 35 ] The Firearms Act governs individual firearms possession in Canada, and firearms officers are responsible for issuing firearms licences under s. 56(1). [ 36 ] Section 5(1) of the Firearms Act provides that a person is not eligible to hold a firearms licence if it is not in the interest of public safety. Section 5(2) provides criteria that a firearms officer may consider when determining the issue of public safety. The factors in s. 5(2) are non-exhaustive; a firearms officer may consider anything about the background or conduct of the applicant that is relevant to public safety: Public safety 5

(1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess 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 licence under subsection (1), a chief firearms officer or, on a reference under

section 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), (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, or (

v) an offence relating to the contravention of subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis Act; (

b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part 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. [ 37 ] If a firearms officer refuses to issue a licence to an individual, the individual may refer the matter to a provincial court judge for a reference under ss. 74 –76: 74

(1) Subject to subsection (2), where (

a) 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, … the applicant for or holder of the licence, 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. Hearing of reference 75

(1) On receipt of a reference under

section 74 , the provincial court judge shall fix a date for the hearing of the reference and direct that notice of the hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or holder of the licence, registration certificate, authorization or approval, in such manner as the provincial court judge may specify. Evidence

(2) 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. Burden of proof

(3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence , registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified. Where hearing may proceed ex parte

(4) A provincial court judge may proceed ex parte to hear and determine a reference in the absence of the applicant or holder in the

same circumstances as those in which a

summary conviction court may, under

Part XXVII of the Criminal Code, proceed with a trial inthe absence of the defendant. Decision by provincial court judge 76 On the hearing of a reference, the provincial court judge may, by order, (

a) confirm the decision of the chief firearms officer, Registrar or provincial minister; (

b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial ministerto approve a shooting club or shooting range; or (

c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officerunder

section 67. [Emphasis added.] [38] In British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343 at para. 22, the British Columbia Court of Appealheld that a firearms reference is neither an appeal, nor a hearing de novo. The reasons stated for the reference not being a hearing de novowere as follows: An appeal or hearing de novo by definition is one in which the reviewing judge considers only what is presented in his or her courtwithout regard to the decision of the lower court, tribunal or administrative decision – maker.

If Parliament intended that the referencewas to be an entirely new hearing of the issue it would have said so in explicit terms. […] The onus on the person dissatisfied with thedecision 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. [39] In Fahlman at para. 23, the BC Court of Appeal determined that the reference should be treated as a “review” of the decision ofthe firearms officer on the information before him or her “as amplified by relevant evidence on the review” and that the standard ofreview the reference judge should apply is reasonableness.

The Court of Appeal went on to quote the differences between reasonablenessand patent unreasonableness review in the context of judicial review proceedings, relying on references to Canada (Director ofInvestigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748. [40] In Canada (Chief Firearms Officer for the Province of Alberta) v. Pogson, 2005 ABQB 179, Justice Slatter undertook a helpfulreview of the case law to that date dealing with the problem of the nature and standard of review of the reference judge under theFirearms Act.

Justice Slatter concluded at para. 39: [39] It seems therefore that the reference process is somewhat sui generis. I agree with the comments by the Provincial Court Judge inRolls that: [60] From a review of the authorities, it appears to me that the difficulty experienced in defining the nature of the s. 75 hearing flowsfrom two causes. First, there is an attempt to fit the review process within either of two known procedures (judicial review or a hearingde novo), rather than to consider the structure of s. 75 and the nature of the evidence which can be presented at a s. 75 hearing.

The difficult issue is how one assimilates the need for some deference to the original decision of the firearms officer, with the fact thatthe reference hearing involves live and possibly new evidence before the provincial court. I agree with the comments in Fahlman,Holland and Rolls that some deference must be accorded to the decision of the firearms officer.

But since the reference process is suigeneris, the proper standard of review will not be found by attempting to fit the reference process into another juridical model. [41] Justice Slatter concluded that the case law supported a varying standard of review from a deferential reasonableness simpliciterstandard where the evidence before the reference judge was similar to what was before the firearms officer, and a more interventionistapproach where the evidence differed. [42] Pogson has since been followed in numerous cases, including most recently by this court in Durmuller. [43] However, all of these cases, except Durmuller, pre-date the Supreme Court of Canada’s decision in Vavilov.

In Durmuller, it wasnot necessary to resolve the standard of review issue because that appeal was resolved on procedural fairness grounds, rather thansubstantive grounds. There are other post-Vavilov cases where an applicant sought to have a firearms license cancellation reviewedthrough s. 74, but none where the judge proceeded to the point of analysis where it was necessary to consider the standard of reviewissue: see, e.g. R v.

Wyville, 2020 ONCJ 555; In The Matter of an Application for a Reference Hearing, Made Pursuant to Section 74(1)of the Firearms Act, (N.L.P.C.). [44] In my view, Vavilov requires a re-examination of the standard of review applicable to firearms officers’ decisions in the BritishColumbia Provincial Court. STANDARD OF REVIEW POST-VAVILOV [45] The reference decision in this matter was released the day after the Supreme Court of Canada released its reasons in Vavilov.

It istherefore not surprising that the arguments before the judge, and the reasons, do not reflect the watershed change in administrative lawthat Vavilov established. [46] In Vavilov, the Supreme Court of Canada emphasized the importance of statutory language and legislative intent in determiningthe standard of review. Legislative intent is the “polar star” of judicial review: Vavilov at para. 33. While the Court endorsed a starting

presumption of reasonableness for court involvement or review of administrative decision-making, it also stated that this presumption isousted when the legislature has indicated a different standard of review is to apply: [17] The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature hasindicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribesthe applicable standard of review.

It will also be the case where the legislature has provided a statutory appeal mechanism from anadministrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews thedecision. [Emphasis added.] [47] In many cases, this alternative intent or language will be a statutory appeal mechanism. In that case, rather than reasonableness,the standard of review is the appellate standard of review. However, that is not the only standard of review contemplated in Vavilov.

Asstated at para. 36: … Just as a legislature may, within constitutional limits, insulate administrative decisions from judicial interference, it may also chooseto establish a regime “which does not exclude the courts but rather makes them part of the enforcement machinery”: Seneca College ofApplied Arts and Technology v.

Bhadauria, (SCC), [1981] 2 S.C.R. 181, at p. 195 … [48] Furthermore, Vavilov contemplated and anticipated that existing standard of review frameworks would require freshconsideration of the appropriate standard, even where precedent has established a reasonableness standard under some statutory regimes,“in order to bring coherence and conceptual balance to the standard of review analysis” (at para. 38). [49] A close review of the language of ss. 74–76 of the Firearms Act indicates that it has a number of unique features that are relevantto determining the appropriate standard of review to be applied by the provincial court judge in a reference under those provisions.

A. The language of “reference” and not of “appeal” or “review” [50] Initially, Mr. Methot argued that the reference created by s. 74 should be treated as an appeal, rather than a judicial review, basedon Vavilov. He argued that the statutory scheme requires the less deferential appellate standard of review, rather than the reasonablenessstandard applied by the reference judge. [51] I agree with the Attorney General’s position that the Firearms Act does not use the word “appeal” in relation to a s. 74 reference,and does not indicate an intention by the legislature to establish a true appeal.

Nor does s. 75 or 76 establish a procedure consistent withan appeal, such as a review of a record, limitations on new evidence, restrictions on the re-weighing of evidence, or the ability to refer amatter back to the original decision-maker to reconsider the merits. In contrast, the Firearms Act does use the term “appeal” in s. 77 todescribe the process for appealing a Provincial Court reference decision to this Court.

The fact that the term “appeal” was used when anappellate process and standard of review was intended also indicates that the legislature’s use of the term “reference” in s. 5(2), and“refer the matter” in s. 74, mean something different than an appeal. [52] However, I do not agree with the Attorney General that in the absence of a statutorily established appellate process, the moredeferential reasonableness standard associated with judicial review applies. [53] The reasonableness standard is understood by the parties to be more deferential than the appellate standard because it providesfor deference not only on factual determinations, but also legal ones.

The appellate standard requires correctness on legal questions.However, unlike the reference procedure at issue in this case, neither standard contemplates the re-weighing of the evidence that wasbefore the original decision-maker, or the introduction of new evidence, except in exceptional circumstances. [54] The difficulty in determining the standard of review based on the language of ss. 74–76 was set out in Pogson as follows: [35] ….. Some effect must be given to the clear provision that the provincial court judge is to hear "all evidence" including newevidence.

This must afford the provincial court judge some ability to make fresh assessments of the credibility of the evidence.Furthermore, there is no point in having the provincial court judge hear new evidence, if that does not permit him or her to interfere withthe decision of the firearms officer in some circumstances. [36] Thirdly, the reference process is not directly analogous to judicial review. Judicial review is the province of s. 96 courts. Again,judicial review is largely based on the record before the tribunal being reviewed, without new evidence or consideration of changedcircumstances.

In addition, judicial review is generally based on errors of law, or procedural errors, and not directly on the merits of thedecision under review. The Act, on the other hand, calls on the provincial court judge to see if the decision of the Firearms Officer was"justified".

This, combined with the duty to hear all the evidence, and consider all the factors in s. 5, clearly requires the provincial courtjudge, to some extent at least, to enter upon the merits of the decision. [55] I agree with Slatter J. that s. 75 of the Firearms Act does not establish a judicial review in the constitutional or administrative lawsense.

It is not borne out of the inherent jurisdiction of the superior courts to review government action, and it “enters upon the merits ofthe decision.” Nor is it an appeal. [56] Reviewing the statutory language of ss. 74–76 of the Firearms Act, I find that it expresses a legislative intent that a differentstandard apply: neither the reasonableness standard of a judicial review, nor the appellate standard of a statutory appeal.

As stated inPogson at para. 39, the legislative scheme demands a process that does not fit neatly into either the appellate or reasonableness standard,but a process that is “somewhat sui generis”. However, I do not consider that Vavilov leaves open the possibility of a “varying” standardof review as suggested in Pogson that depends on the evidence led at the reference. [57] I find that the appropriate standard of review of the reference judge falls into the third category discussed in Vavlilov, which is a

legislated standard that is neither an appeal nor a judicial review. The reference court is required to take a more active role in thedecision-making process. [58] In the article, Frank Falzon, “Appeals to Administrative Tribunals” (2005) 18 Can J. Admin. L. & Prac. 1, the author reviews thenature of appeals within administrative regimes.

He argues that there is a middle ground between “true appeals” and appeals “de novo”where “the appellant retains the onus of demonstrating error and the appeal board receives the record, but the appeal is not limited as togrounds, the appeal board reviews the decision below for correctness and fresh evidence may be adduced without constraint.” He notesthat this characterization is “subject to variation according to the specific intent of the governing legislation”: Appeals to AdministrativeTribunals at p. 34–35. [59] The scheme set up by ss. 74–76 of the Firearms Act is best understood as such an administrative process, with many aspects of ahearing de novo, including the introduction of new evidence without limitation to the record or the strict rules of evidence, and therequirement to freshly weigh that evidence and enter onto the merits of the decision. [60] However, it is not a hearing de novo for at least two reasons:

a) The reference is, in fact, the first proper hearing in the process; and

b) The reference judge starts with a consideration of the firearms officer’s reasons, and the applicant bears the onus of proving an errorin the firearms officer’s decision. [61] These factors are inter-related with the other factors discussed below. B. The investigatory nature of the firearms officer’s initial decision [62] While the firearms officer makes the initial decision to refuse (or revoke) a licence under the Firearms Act, this decision is notadjudicative in nature.

There is no provision, for example, for the firearms officer to give notice to the applicant that they are consideringa refusal, or that they may consider evidence outside of the evidence contained in the license application. There does not appear to be anyprocess for the applicant to respond to external information the firearms officer relies on, or to be heard by the firearms officer in relationto the refusal decision.

If the firearms officer’s decision was adjudicative in nature, this would be a breach of natural justice: Harelkin v.University of Regina, (SCC), [1979] 2 S.C.R. 561. [63] Appellate review and judicial review both presume that the decision being reviewed is one that has complied with, or at least isintended to comply with, the principles of natural justice.

Any decision to which the principles of natural justice apply will generally beremitted back for reconsideration where there has been a breach of those principles. [64] The fact that a firearms officer’s decision need not comply with the principles of natural justice indicates that their decisions areinvestigatory and not adjudicative. Any review of an appellate or judicial review nature of such a decision would be a foregoneconclusion, as the breach of natural justice would result in the decision being overturned.

It also considerably diminishes the extent towhich deference can be afforded to firearms officers’ findings, having been reached without the benefit of these fundamental safeguards. [65] In addition, adjudicative decision-makers generally cannot be called to testify on review or appeal as to how or why they reachedtheir decision: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37 at para. 1; Beedie (Keefer Street)Holdings Ltd. v Vancouver (City), 2020 BCSC 1441 at para. 112.

However, I am advised that the firearms officer almost always testifiesat the reference hearing in BC Provincial Court. In this case, the Firearms Officer even testified as to what he would have decided had hebeen presented with the new evidence produced at the hearing. Such evidence is absurd, particularly where the provincial court referencejudge is legislated to make a determination on the license itself through the reference procedure. [66] These factors also confirm that the primary role of firearms officers in the statutory scheme is investigative.

Firearms officerspresent the evidence they have gathered in support of refusal of the license (or the revocation of a license, certificate or authorization inother cases), but it is not until that evidence is considered in the procedurally fair forum of the Provincial Court, and the evidence isweighed by a provincial court judge, that the adjudicative process takes place. C.

The first adjudicative hearing in the statutory process [67] The reference procedure described in ss. 74–76 of the Firearms Act is the first point in the administrative process where theadministrative principles of natural justice and procedural fairness come into play. To be the subject of judicial review, a decision-making process must first provide an applicant with a chance to hear the evidence against them, and to challenge that evidence and/oradduce their own evidence. Then, an impartial decision-maker must weigh that evidence.

This adjudicative process does not occur underthe Firearms Act until a reference is made to the Provincial Court. [68] Up until the provincial court reference, the firearms officer has no obligation to share the evidence gathered by them with theapplicant, accept evidence from the applicant, or give the applicant a hearing. If the licence is refused, the firearms officer provideswritten reasons for refusal to the applicant which explain the nature of the information they relied on to reach the decision. As explainedin Henderson v.

Canada (Attorney General), 2011 ONCA 696 at para. 33: The application to the Registrar is simply a form containing basic information about the firearm. The Registrar is not required to hold ahearing, nor offer the applicant any other way to provide information or make submissions, before deciding to issue the registrationcertificate or refuse the application. If the application is refused, the Registrar is required to provide the applicant with both the decisionand reasons that include the nature of the information relied on.

The applicant can then refer the matter to the provincial court. [69] The adjudicative process under s. 75 provides for the hearing of all relevant evidence, with the applicant having the opportunity

to lead evidence and cross-examine witnesses. There are limitations on the reference proceeding in the absence of the applicant, similar to those of a criminal accused pursuant to

Part XXVII of the Criminal Code , R.S.C. 1985, c. C-46 . [ 70 ] This process contemplates the hearing of evidence not before the firearms officer, with no limitations as to that evidence other than its relevance.

Strict rules of evidence do not apply, so as to allow hearsay and the broadest scope of relevant and reliable evidence to be considered . [ 71 ] In Henderson at para. 34 , the Ontario Court of Appeal described the reference mandated by the Firearms Act as obliging the provincial court “to engage in its own fact finding process.” While not an “appeal” it cannot be categorized as de novo , either, “since the Registrar has not held a hearing.” It concludes: “[c]learly the legislative intent is that the provincial court is to find its own facts and need give no deference to any facts recited in the reasons of the Registrar.” [ 72 ] Our courts have tried to grapple with this legislative scheme by suggesting that the reference is on the evidence before the original decision-maker “as amplified by” the hearing ( Fahlman at para. 23 ).

However, there are no guarantees that the evidence before the firearms officer will be the same as that before the reference judge, such that it could be “amplified” or even diminished. Originating, as it does, from a process that does not engage the principles of natural justice, the evidence relied upon by the firearms officer should not attract this level of entrenchment.

I agree with the Ontario Court of Appeal in Henderson that the nature of the statutory reference requires that the provincial court engage in its own fact-finding process, and give no deference to the facts relied upon by the firearms officer. D. The role of the Provincial Court [ 73 ] The fact that the Firearms Act locates the principles of natural justice at the Provincial Court reference stage of the licensing refusal process indicates that the Provincial Court is an essential aspect of the decision-making process (at least where licenses are refused or revoked).

The Firearms Act creates a two-step adjudicative process that only advances to the second step where the firearms officer concludes, often on an imperfect record, that the licence should be refused.

Where there is a refusal (or revocation), the applicant is entitled to have the decision-making process proceed to the second step, where the evidence can be tested before a judge in the Provincial Court and rules of procedural fairness apply. [ 74 ] The choice by the legislature to have a judge of the Provincial Court hear the reference under s. 74 of the Firearms Act indicates that such references are intended to be subject to the highest level of procedural fairness, and a judicial approach to the evidence. [ 75 ] The fact that the reference is not to a superior court, but to a statutory court, indicates that what is contemplated is not judicial review pursuant to s. 96 of the Constitution, but rather a review governed by statute as part of a larger statutory scheme that includes the Provincial Court. [ 76 ] The reference judge is required to make a decision on the merits of the license application by confirming the refusal, or directing the issuance of the license or its revocation.

In my view, this makes the scheme under the Firearms Act more comparable to a statutory scheme that includes an internal review process before judicial or appellate review arises. The fact that strict rules of evidence do not apply to the reference hearing, as was determined in Pagnotta , further tends to support this characterization of the reference as an extension of the administrative decision-making scheme. [ 77 ] I am reminded, for example, of the statutory scheme considered by our Court of Appeal in B.C. Chicken Marketing Board v. B. C. Marketing Board , 2002 BCCA 473 [ Chicken Marketing Board ] .

The Chicken Marketing Board had made two policy-based decisions denying requests from growers for an exemption to the regulations governing quota and production, which the Provincial Marketing Board had overturned.

The Court of Appeal considered the standard of review to be applied in an “appeal” of a decision of the Chicken Marketing Board to the Provincial Marketing Board under s. 8 of the Natural Products Marketing (B.C.) Act , R.S.B.C. 1996, c. 330 . [ 78 ] In finding that the Provincial Marketing Board owed no deference to the Chicken Marketing Board, Chief Justice Finch, as he then was, considered the lack of a procedurally fair process at the commodity board stage to be more significant than the use of the word “appeal” in the statute, and found that the hearing at the Provincial Marketing Board required an appeal de novo : [11] There is no adjudicative scheme in the Act or the Rules for the Chicken Board, or other such commodity boards.

The Chicken Board is not authorized to function as an adjudicative body and it does not do so. In most cases it does not hear evidence or submissions from the parties, and it does not issue reasons for its decisions. [12] The Marketing Board, on the other hand, in the exercise of its s. 8 jurisdiction, almost always conducts hearings with witnesses, sworn testimony, oral submissions, and provides the opportunity for parties to be represented by counsel. It issues reasons for its decisions in virtually every case it decides.

In these two cases the Chicken Board did not hold hearings and did not give reasons for its decisions. [13] The statutory regime created by this legislation clearly indicates that an appeal to the Marketing Board is to be in the nature of a full hearing into the merits of the case. There is nothing in the legislation to suggest that the Marketing Board must give any or any significant deference to the decision of a commodity board, such as the Chicken Board.

Where the Chicken Board has heard no evidence, information or argument and has offered no reasons for its decision, the Marketing Board has little alternative under its statutory adjudication regime other than to determine the facts and issues based on the evidence and argument presented to it. It has the power to conduct a full hearing into the merits. [ 79 ] The Court of Appeal’s reasoning in Chicken Marketing Board was relied upon by the Supreme Court of Canada in Paul v.

British Columbia (Forest Appeals Commission) , 2003 SCC 55 . [ 80 ] Other examples of a two-part administrative scheme in the federal arena include appeals from immigration or visa officers to the Immigration Appeal Division (“IAD”) of the Immigration and Refuge Board that hears appeals of decisions made by immigration or visa

officers. Under that scheme, neither the judicial review standard of reasonableness, nor the appellate standard of statutory appeals applies. Instead, the IAD makes its own determination on the admissibility of the applicant: Castellon Viera v. Canada (Citizenship and Immigration) , 2012 FC 1086 at para. 11 . [ 81 ] Administrative schemes often include reviews and appeals that fall somewhere between a true appeal and a hearing de novo .

In his article, Frank Falzon suggests that this third category of “hybrid” or “half-way” appeals arise where the onus of proving an error in the original decision rests on the appellant, but where the grounds of the appeal are not limited to the record from the decision below, fresh evidence can be tendered, and the principles of deference may not apply: see “Appeals to Administrative Tribunals”. The legislature may be creative in crafting a review scheme, and is not bound by a strict dichotomy of true appeals and hearings de novo.

Viewed from this perspective, the most novel aspect of the reference under the Firearms Act is that it recruits the Provincial Court, rather than another statutory adjudication mechanism, into its administrative scheme. [ 82 ] Attempts to categorize this standard of review as either appellate or reasonableness, are not helpful, as it is neither. The Provincial Court is recruited, through the statutory scheme of the Firearms Act , into the statutory decision-making process more directly than either standard would support.

The review required has elements of a de novo hearing with respect to the hearing and weighing of evidence, appellate aspects related to the burden of proof, and deferential aspects related to the appeal of a discretionary and policy-laden decision. E.

The burden to establish that the decision “was not justified” [ 83 ] The burden on the applicant as set out in s. 75(3) is to “satisfy the provincial court judge that the refusal to issue … the licence… was not justified.” This reflects an appellate burden of proof where the unsuccessful party bears the burden of establishing a different decision should have been made, with reference to the reasons for the decision below. [ 84 ] However, it is not an appeal based on error.

The applicant must do more than show an error, the applicant must show that the refusal “was not justified.” [ 85 ] It is this language, together with the discretionary and policy aspects of the initial determination made by the firearms officer pursuant to s. 5, that has led our appellate court in British Columbia, and other courts across the country, to find that the statutory scheme requires the reference judge to accord some deference to the ultimate decision of the firearms officer: Fahlman at para. 22 ; Henderson.

The Ontario Court of Appeal in Henderson reasoned as follows at paras. 35–37. [35] However, having done that, s. 75(3) of the Act directs the provincial court to decide, in light of the facts it has found, if the applicant has satisfied it that the Registrar's refusal was "not justified". That is, the applicant must do more than show that, given the facts found, the decision was wrong. Rather, the provincial court must be satisfied that the refusal was not justified. In my view, this reflects the legislative intent that the provincial court accord deference to the Registrar's decision .

I say this for several reasons. [36] The first is the particular language of the Act. The pertinent definition of "justification" in Black's Law Dictionary, 8th ed. (St. Paul, MN: Thomson/West, 2004) is "a lawful or sufficient reason for one's acts or omissions". That is, a decision is not justified if there is no sufficient reason for it. As well, the Supreme Court of Canada has linked the deferential standard of [page298] reasonableness to the concept of justification. In Dunsmuir v. New Brunswick , [2008] 1 S.C.R. 190, [2008] S.C.J.

No. 9, 2008 SCC 9 , at para. 47 , the court describes the qualities that make a decision reasonable and makes clear that justification is a key aspect of reasonableness. Thus, I think the language of s. 75(3) of the Act directs the provincial court to apply a deferential standard of review to the Registrar's decision itself. The provincial court is to test that decision against the facts it has found. It is not to determine if it agrees with the decision, but whether it has been satisfied by the applicant that the decision is not reasonably defensible.

This mandates deference. [37] A deferential approach is also supported by the undoubted specialized expertise of the Registrar in administering the complex firearms registration regime. That regime encompasses both the legislation and the relevant subordinate legislation, including SOR/98- 462 . In addition, the nature of the questions of law that arise for the Registrar is compatible with a standard of deference.

As in this case, where the question is the meaning of "variant" in the relevant Order-in-Council, these questions are within a very specialized area of the legal system and have limited general application. [Emphasis added.] [ 86 ] To establish that a decision was not justified requires more than establishing a simple error. Otherwise, the procedure used by the firearms officer alone would be enough to meet the onus of establishing an error, as might a change in the facts established on the evidence at the reference.

Our Court of Appeal in Fahlman , and the Ontario Court of Appeal in Henderson have found that the language of justification indicates a level of deference beyond correctness with respect to the refusal (if not the factual foundation or the reasoning). [ 87 ] This is different from how superior courts are now required to consider judicial review pursuant to Vavilov, where the focus has shifted to the reasoning of the tribunal itself, rather than simply whether the outcome can be justified.

This difference in approach is not problematic, because the reference under ss. 74 –76 is not a judicial review, and requires the provincial court reference judge to consider not whether the firearms officer made an error, but whether the refusal, on the whole of the evidence led at the reference, “was not justified.” [ 88 ] I am satisfied that this more limited application of deference continues to be supported by the language of the Firearms Act , as well as by the discretionary and policy-based foundation of the firearms officer’s decision pursuant to s. 5 of the Firearms Act . F.

The remedies open to the reference judge [ 89 ] The quintessential remedy available on judicial review is the remittal of the decision back to the initial decision-maker where

there has been a failure of procedural fairness or the evidence must be re-weighed: Vavilov at para. 141 . Remittal is frequently the remedy in appellate review in similar circumstances. [ 90 ] However, s. 76 of the Firearms Act does not grant the reference judge the option to remit the decision back to the firearms officer.

Instead, s. 76 requires the reference judge to make the decision on the license itself, by confirming the refusal decision of the officer, directing the officer to issue the license, or cancelling the revocation of the license. [ 91 ] Like the other factors discussed above, the remedies available to the reference judge strongly indicate that the reference under ss. 74 –76 is neither a review nor an appeal.

The reference judge cannot and should not be limited to reviewing the reasonableness of the firearms officer’s rationale in ultimately directing the issuance or refusal of the license. [ 92 ] The Attorney General relies on Pogson at para. 34 , where Slatter J. concluded that “the matter” referred to the Provincial Court pursuant to s. 74 was the decision of the firearms officer and not the overall issue of the eligibility for a licence.

This view is consistent with the Supreme Court’s direction in Vavilov that in judicial review proceedings, the court must review the reasonableness of the tribunal’s reasoning, and refrain from deciding the underlying issue: Vavilov at para. 83 . [ 93 ] However, I do not consider that this reasoning is applicable to the language of ss. 75 and 76 of the Firearms Act . Section 75(3) makes clear it is the refusal that must be justified, not the reasons.

More importantly, the limited remedies available under s. 76 necessitate that the reference judge be able to consider not only the reasons and rationale of the firearms officer, but other potential reasons for refusal of the license that might arise during the course of the hearing, in order to actually determine the underlying issue and make one of the orders available under the Act . [ 94 ] The statutory remedies available to the reference judge therefore support my conclusion that the role of the reference judge is to hear all the evidence in a procedurally fair forum, and test it against the refusal decision, to determine if the applicant has overcome their burden to establish that the license should not be refused.

Conclusion on the Standard of Review [ 95 ] In conclusion, I find that although the reference judge relied on precedent indicating that reasonableness was the proper standard of review at the time of the hearing, Vavilov requires that this Court reconsider this this standard. [ 96 ] Vavilov notes three potential types of standards:

a) reasonableness;

b) appellate; and

c) another standard as indicated by the statutory language. [ 97 ] The language of ss. 74–76 of the Firearms Act indicates another standard, of whether the decision “was not justified” based on a fresh weighing of evidence in a procedurally fair hearing by a judge of the Provincial Court.

Through this language and process, the legislature has recruited the Provincial Court to provide the judicial equivalent to an appeal tribunal, complete with relaxed rules of evidence, and the full gambit of procedural fairness not available to the applicant in the firearms officer’s initial decision. [ 98 ] Pursuant to the language of ss. 75 –76, and the scheme of the Act , the reference judge is required to conduct a hearing, at first instance, where the evidence presented at that hearing is weighed and tested to determine whether the applicant has established that the firearms officer’s decision “was not justified.” [ 99 ] The burden on the applicant pursuant to s. 75(3), to establish that the decision of the firearms officer “was not justified” is not a burden to show that the decision “was not reasonable” in the judicial review sense.

Rather, the burden is on the applicant to establish that the freshly-weighed evidence does not support the refusal—not just on the rationale given by the firearms officer—but on any ground that may be raised at the reference. [ 100 ] The reference judge is then required to make the decision on the issuance of the license, either by confirming the refusal, or directing the issuance of the license. There is no option to remit the decision back to the firearms officer to consider the new evidence or a different rationale.

Therefore, the reference judge’s decision must be based not only on the evidence at the reference hearing, but also on reasoning that relates to that evidence, and is not constrained to considering the reasonableness or transparency of the firearms officer’s decision. [ 101 ] While this standard of review analysis is different for British Columbia courts post- Vavilov , it is not significantly different in effect from my understanding of the standard applied pursuant to the Ontario Court of Appeal’s decision in Henderson .

In that case, the Court considered the lack of procedural fairness at the initial decision-making stage, and the requirement that the reference judge weigh evidence and make findings of fact without deference to the firearms officer.

However, the Court in Henderson concluded that in deciding whether the facts, as found for the first time at the reference, supported the refusal decision of the firearms officer, deference should still be afforded to the officer to the extent that the reference evidence would allow. [ 102 ] I find the references to the language of judicial review, and to case law that pre-dates Vavillov employed by the Court in Henderson unnecessarily confusing (see paras. 36, 38).

However, the practical effect of the Ontario Court of Appeal’s decision in Henderson and this decision, is to require the Provincial Court on a reference to “engage in its own fact finding process,” place the burden of proof firmly on the applicant, and consider whether the facts and evidence before the court at the reference establish that the refusal was not justified.

CONCLUSION ON STANDARD OF REVIEW GROUND OFAPPEAL [103] In this case, the reference judge’s reliance on the reasonableness standard permeates the decision to uphold the Firearms Officer’sdecision, both with respect to the factual matrix and the evidence found to be relevant, and with respect to the result. The decision musttherefore be set aside.

WEIGHT OF THE DA SILVA REPORT [104] Perhaps the most problematic aspect of the reference judge’s reliance on the reasonableness standard to consider the evidence atthe reference was that he did not give fresh consideration to the weight to be given to the expert evidence of Cpl. Da Silva. [105] I agree with Mr. Methot that Cpl. Da Silva’s report suffers from many of the same frailties that led this court to exclude or redactsimilar opinion evidence in Angel Acres and R. v. Giles, 2016 BCSC 294. This includes Cpl.

Da Silva’s extensive reliance on double orunattributed hearsay, use of the term “outlaw motorcycle gang,” and aspects of his opinion that may be characterized as pure speculation. [106] However, long-standing precedent establishes that the requirement that the provincial court reference judge hear “all relevantevidence” at the reference indicates a relaxation in the strict rules of evidence: see R. v. Zeolkowski, (SCC), [1989] 1S.C.R. 1378 at 1385–1387; Pagnotta at paras. 10–12; and R. v. Borchuk, 2016 ONCJ 258 at para. 9.

This includes the admission ofhearsay that would not otherwise be admitted in a court proceeding. While both Pagnotta and Zeolkowski deal specifically with hearsayevidence, in other contexts the court has recognized that relaxed evidence rules may apply to the admission of opinion evidence as well:see Canadian Recording Industry Assn. v.

Society of Composers, Authors & Music Publishers of Canada, 2010 FCA 322 at paras. 20, 28. [107] I am satisfied that Pagnotta and related cases are still good law, and that the strict rules of evidence do not apply to the receipt ofevidence, first by the firearms officer, and then in the referral to the Provincial Court. In Zeolkowski at 1387, the Supreme Court ofCanada concluded: Clearly the firearms officer must consider information that may not be admissible under the ordinary rules of evidence.

It would beincongruous if, having obtained that information, only those parts of it that could meet the test of the rules of evidence could be putbefore the provincial court judge… [108] However, this line of authority also indicates that any admissibility considerations must still go to weight. In Pagnotta at para. 11,the Court held that the evidence should be scrutinized, and that the reference judge “should consider the weight to give to the evidence,including hearsay evidence to ensure it is ‘credible and trustworthy’”.

Therefore, while the reference judge may be able to admit andhear a wider scope of relevant evidence than would ordinarily be accepted in a trial, the reference judge must also consider theweaknesses of any such evidence when assigning that evidence any weight, and exclude evidence that does not meet the minimumstandards of relevance and reliability. [109] In the case before me, the reference judge did not have the benefit of the Angel Acres decision, or the voir dire decision in thatcase, British Columbia (Director of Civil Forfeiture) v.

Angel Acres Recreation and Festival Property Ltd., 2019 BCSC 275, which mayhave assisted them to evaluate the weight to give much of this evidence. I should note that while Mr. Methot has relied on thosedecisions to question the weight that ought to have been given to Cpl. Da Silva’s opinion evidence, there are other aspects of the AngelAcres decision that may be found to support aspects of Cpl. Da Silva’s opinions. [110] In this case, I find that the reference judge did not independently consider the weaknesses of Cpl. Da Silva’s opinion evidence andthe weight that it should be given.

While some of this opinion evidence was factual and largely uncontested (for example, that Mr.Methot is a member of the Hells Angels), other aspects were highly contentious at the hearing and were based on hearsay andspeculation that would ordinarily not be admissible, and which raise reliability issues.

Furthermore, the relevance of that opinion shouldnot have been measured against its relevance to the Firearms Officer’s reasoning, but to the question of the license refusal more broadly. [111] I find that this was an error of law (albeit one that derives largely from the reference judge’s reliance on the previous case law)and I would also allow the appeal on that basis. REMEDY [112] Mr.

Methot seeks an order that he is entitled to the renewal of his licence, or in the alternative, an order requiring the ProvincialCourt to reconsider his reference applying the proper standard of review to the Firearm Officer’s decision, and the appropriate weight tothe Da Silva opinion evidence. [113] In my view, the alternative remedy is the appropriate one. The reference judge’s reliance on Fahlman, and other precedents that Ifind have been overtaken by Vavilov, affected all aspects of the reference hearing, from the Firearm Officer’s testimony, to theadmissibility decisions regarding Cpl. Da Silva’s evidence.

I therefore do not have a proper record from which to determine this appeal. [114] Both the Attorney General and Mr. Methot agree that I may make this order as a matter of this court’s inherent jurisdiction on astatutory appeal: see Durmuller at para. 33. CONCLUSION

[ 115 ] The appeal is allowed and the matter is remitted back to the Provincial Court to reconsider this reference in light of these reasons. “Marzari J.”