Alberta Court to Hear Section 74 Challenge!

Earlier today, the Alberta Provincial Court delivered a decision with the scintillating title of “Reasons for Ruling on Application by Attorney-General for Canada to Strike for Lack of Jurisdiction of the Honourable Judge A. A. Fradsham.” Here’s why you should care.

In mid-summer, the RCMP informed by mail all owners of AR-15s in Canada that their AR-15s had been reclassified as prohibited firearms and any registration certificates for those same AR-15s had been thus invalidated. Upon receiving these letters many AR-15 owners took one of their only forms of individual recourse: Filing Section 74 challenges.

  • 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,
    • (b)a chief firearms officer decides under section 67 that a firearm possessed by an individual who holds a licence is not being used for a purpose described in section 28, or
    • (c)a provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for the purposes of this Act,
      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.

This section of the Firearms Act allows gun owners to challenge a CFO’s decision to revoke or refuse to issue any number of credentials including registration certificates, in provincial court. Thus far, no Section 74 challenge has been heard by a Provincial court, and both New Brunswick and Newfoundland have already returned Section 74 challenges as ineligible (potentially unlawfully). Both provincial courts considered the registration certificates not revoked or refused to be issued, but rather “nullified,” or made “no longer valid.” And since Section 74 explicitly states “where a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate,” neither nullification nor invalidity are within the scope of a Section 74 challenge.

However, the Alberta Provincial Court’s Honourable Judge Fradsham disagrees, and outlines quite clearly the weakness of the Crown’s argument in his 15-page explanation of why he decided Alberta’s provincial courts should hear a Section 74 challenge, the aforementioned; Reasons for Ruling on Application by Attorney-General for Canada to Strike for Lack of Jurisdiction of the Honourable Judge A. A. Fradsham. In the first 79 paragraphs, he points out that the terms “nullify” and “no longer valid” are not contained within the Firearms Act’s clearly defined lexicon of terminology; correctly stating that within the vocabulary of the Firearms Act licenses, certifications and authorizations can only be issued, revoked, or expired.

He completely rejects the Attorney General’s supposition that certificates can simply cease to exist (or somehow become invalid) if a change in licensing or classification occurs, pointing to a BC Supreme Court decision that determined a woman’s handgun registration certificates remained valid documents for years after he lapsed FAC made her ineligible to possess them. And he points out that while the letter may not ascribe to the specific format required of a formal revocation notice, the message contained all the necessary components to be considered a formal notice of revocation and thus the recipient thereof should be legally allowed to avail themselves of a Section 74 challenge.

However, the Attorney General also claimed the court should reject the challenge based on Alberta’s Rules of the Court that prevents the court from presiding over cases basically considered baseless, frivolous, irrelevant, improper or an abuse of process, and it was to that particular claim that Judge Fradsham’s response constitutes a very novel perspective on the current predicament.

Looking to the Regulatory Impact Analysis Statement published in the Canada Gazette alongside SOR-2020-96 (the legal document constituting the gun ban) Judge Fradsham noted the Government indicated that “an option to participate in a grandfathering regime would also be made available for affected owners.” Fradsham switches to the Firearms Act at this point, pointing to the provisions and regulations governing grandfathering (Section 12) and pointing out that “a constant requirement set out in the various subsections is that for a person to receive the benefit of the grandfathering provisions, ‘the particular individual was continuously the holder of a registration certificate’ for the firearm.” What follows is a handful of additional paragraphs explaining the legal link between continuous possession of a certificate being a prerequisite for grandfathering, and thus the revocation of a certification potentially prevents someone from accessing a future grandfathering regime.

He closes his decision thusly, with a succinct explanation of his perspective;

“For that reason alone (i.e., the likelihood that continuous holding of a registration certificate will be necessary to enjoy the benefits of a grandfathering regime), Mr. Stark’s section 74(1) review application is not frivolous or an abuse of process. That application seems a remedy (cancellation of the revocation of the registration certificate) which might turn out to be essential for Mr. Stark to enjoy the benefits of the possible grandfathering regime mentioned in the Regularity Impact Analysis Statement.¬†That possibility is enough to support a finding, which I make, that the conditions set out in Rule 3.68(2) are not met.”

With numerous court cases moving forward and the upcoming injunction hearing, the potential issues surrounding grandfathering laid out by Judge Fradsham seems legally unassailable and certainly sparks some hope that an interim solution might be found before the wheels of larger courts (or potentially Elections Canada) can grind forward on a longer-term way to reclaim our property.

Note: While this decision is a public document, we’ve opted to respect the individual’s privacy, and will not be posting the full PDF of the decision on our website and have chosen to obscure their name.