TheGunBlog.ca — Greg Dunn of Dunn & Associates comments below after winning the first court case for gun owners against the May 1 regulatory attacks by Canada’s governing Liberal Party and the Royal Canadian Mounted Police.
Dunn, based in Calgary, was the lawyer for Ryan Stark in his request to access a Section 74 hearing to assert his rights in the Liberal-RCMP crackdown in relation to the RCMP’s July 20 “nullification” notices.
Dunn spoke with TheGunBlog.ca today by telephone.
Greg Dunn Q&A
Congratulations for your court victory! What was the Ryan Stark case about?
There’s a number of fights going on with gun owners and the federal government at the moment regarding the rights of firearm owners.
The Stark decision is like a tentacle in that fight.
The issue that Stark dealt with is the “nullification” notices that were sent to holders of “Restricted” firearm-registration certificates indicating that those certificates were invalidated by operation in law, and that the corresponding firearms were to be designated as “Prohibited.”
What was your argument?
Mr. Stark was of the view that there is no process of “nullification” in the legislative scheme.
There is nothing in the Firearms Act or Criminal Code to allow for this particular procedure.
It is under that he filed a Section 74 application to clarify and challenge the legal effect of the “nullification” notice.
What did the judge decide?
Ultimately, the judge decided that what the Registrar did was effectively attempt to revoke the certificates. He found that, although the Registrar didn’t use the word “revoke” itself, the substance was equivalent to a revocation.
That’s as far as the decision went.
The decision was predicated on the Attorney General of Canada making a preliminary application to strike the Section 74 reference hearings due to the fact that the court argued the court didn’t have jurisdiction to hear them.
It’s really a ruling based on jurisdiction.
What does the ruling mean for the almost 70,000 other gun owners who got the RCMP July 20 “nullification” notice?
The end result is that these “nullification” notices have been classified by the Court as revocation notices.
That has two effects.
First, because they are classified as revocation notices, they must follow the appropriate procedures in the Firearms Act as regards to notice. They must provide notice in the prescribed form by registered mail, they must include the relevant sections of the Firearms Act in the notice, and they must include a reason for the revocation.
Ultimately, most of the revocation notices that were sent out will not have complied with the provisions in the Firearms Act. There’s a strong argument that those “nullification” notices are not binding and are invalid.
The second major consequence of the decision is that everyone who receives one of these “nullification” notices ultimately would have the benefit of a firearms reference hearing under Section 74 of the Firearms Act.
That means everyone has the right to appeal, everyone has the right to due process. That was ultimately what the government wanted to avoid, having thousands of these references in court.
What’s the bigger picture in terms of the legal system and the rule of law?
Here’s the bottom line: Whether you believe in or whether you sympathize with the rights of firearm owners, this case is not so much about firearms, it’s about due process and it’s about following the law.
It’s about all individuals and citizens being treated equitably, fairly and justly.
When the government sets out a particular procedure and legislates a particular activity, they are bound by the rules that they have devised.
The case is a very strong authority for the proposition that you can’t simply end-run those rules and those processes for political expediency.
Ultimately, if the citizens of Canada decide that sporting rifles are so inherently dangerous that the general populace ought not to have access to them, then so be it. However, that decision needs to be made in the proper form, and the rules, as well as the structure and the legislative scheme in respect to those rules need to be followed.
You can’t simply make up rules as you go along out of cost savings or political expediency.
How significant was it that this relates to a gun owner?
Gun owners are a lot more vulnerable in terms of their political position, and the mainstream media tends not to be sympathetic to property rights and gun rights in general, so they act like gun owners are easy to bully.
In this case, the judge essentially said: No. You’re not going to get around judicial oversight. You’re not going to end-run due process. If you want to cancel these certificates, you can do so, but you’re going to follow the proper rules to do it.
What is troubling to me is that the CFO or RCMP brazenly thought that they could create their own processes out of thin air and cancel certificates by not using the proper procedure that’s outlined in the legislation.
The court disagreed, fortunately.
What do you think of the New Brunswick decision to refuse Section 74 hearings?
New Brunswick as I understand it simply refused to hear the applications. They said: We’re not accepting these applications because we don’t have jurisdiction.
What’s problematic there is the court made the decision on jurisdiction without hearing applications if they had jurisdiction. That’s a bit of putting the cart before the horse – to decide to not allow complainants to file an appeal or a reference hearing without hearing the parties on the matter. That was a fundamental issue that needed to be decided.
Can other gun owners across Canada apply for Section 74 hearings based on the Stark win, even though we are past the 30-day deadline?
Whether the provincial courts will now reconsider given the fact that there’s some extra-jurisdictional authority that these references should be heard, I don’t know.
It’s impossible for me to predict if a court in another jurisdiction will allow people to refile. This is a decision by a court in Alberta. So it has no binding authority in B.C. or Ontario. But it may have persuasive value.
Judge Fradsham is a highly respected authority. Judges in other jurisdictions might look at his reasoning and may agree with the reasoning that he took.
However, the first to challenge the court imposed restrictions on the Section 74 references always have the toughest road, they are the legal pioneers, the ones who break the trail.
They always bear the costs, including the financial costs. They plough the road for everyone else.
However, there’s that old saying: If you don’t try, it’ll never happen.