The S.74 legal battle sees a victory for gun owners

Zac Kurylyk in Guns on January 24, 2022

In the months since the Order in Council firearms prohibitions issued on May 1, 2020, there have been many legal battles launched, attacking the government's prohibition and subsequent actions from various angles. One of those legal battles, a Section 74 challenge, just saw a victory for gun owners in Alberta's provincial court system, although there's another legal battle ahead as a result.

What's a Section 74 challenge?

Section 74 of Canada's Firearms Act spells out some of the legalities of firearms registration certificates, among other things. Any restricted firearms (say, an AR-15) would have a registration certificate (non-restricted firearms are no longer registered in Canada, remember).

These registration certificates govern the owner's legal possession of a firearm, but if a provincial firearms officer or the registrar decides to revoke a registration (or licence, or authorization to transport, etc.), then Section 74.1 spells out the legal recourse for the gun owner. According to the Firearms 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." The Firearms Act says they have 30 days to do so, upon receiving notice of the registrar/firearms officer's decision.

In short, if the government changes the terms or refuses to issue a gun owners' licence or firearms registration, the Firearms Act says the gun owners can seek recourse through a Section 74 challenge. If the government changes the terms of a firearm's ownership, this is how gun owners can take them to task.

Following the Order in Council on May 1, 2020, which prohibited many target, sporting and tactical firearms, some gun owners received a subsequent notice in the mail that informed them of the changes to their restricted firearms' classification. With these letters in July, 2020, the federal government said previous registration certificates were "nullified," something which was not provided for under the Firearms Act. Many firearms owners decided to challenge the government's actions in provincial court through Section 74 hearings, with mixed success. Provincial court systems and federal lawyers indulged in a game of legal kick-the-can, and time was wasted with no real movement on the issue.

Then, at the Alberta Court of Queen's Bench, we had this decision on January 21: Canada (Attorney General) v Smykot, 2022 ABQB 61. The really quick explanation of what happened is this: The judge decided the "nullification letters" sent in July, 2020, were actually "revocation letters," something that's spelled out in the Firearms Act, with specific procedures surrounding these letters. The judge also decided the provincial courts have the jurisdiction to hold a hearing into these revocations, as the Firearms Act says. This is what the firearms registrar was trying to avoid, but the judge says the law requires this, so attempts to dodge these hearings are flawed―they must be held, as the Section 74 process calls for them. Changing the names of parts of the legal process, such as calling a letter of revocation a "nullification letter" does not allow the registrar to avoid following that Section 74 process.

Why this matters

Now, firearms owners will see a judge examining the federal government's actions in provincial court, something the Canadian Firearms Program very much did not want. To be clear, this is no guarantee of any sort of significant legal win. It is, however, a step towards making the federal government accountable for its actions, and seeing if it followed due legal process.

Of course, Ian Runkle, aka Runkle of the Bailey, has excellent commentary on this case. If you've got the time, you can see his summary below:

Although this Section 74 challenge only applies in Alberta for now, other provinces will certainly look to Alberta's apellate-level case for their own guidance. With that in mind, this victory is probably good news for Canadian shooters everywhere in this country.