USING
REFERENCE HEARINGS
TO PROTECT THE FIREARMS COMMUNITY by David A Tomlinson, National President National Firearms Association – May 9, 2005 http://www.nfa.ca/newsflashes/newsflash/presidents-column-63.html
The NFA recommends that owner of such a firearm make an immediate application to the CAFC for registration of their handgun in writing, and keeping a copy and then wait for the CAFC/CFO refusal. The CAFC/CFO may only refuse by the procedure laid out in FA s. 72 to 81, and that procedure includes an open door allowing the applicant to take any refusal to a reference hearing before a provincial court judge. The applicant should apply for a reference hearing as soon as he gets his refusal. It is important to use the reference hearing rights. The applicant needs to tell the Crown prosecutor handling the case, in writing, at least 2 weeks before trial, that this will be a constitutional case, citing the Canadian Charter of Rights and Freedoms, section 15. The applicant should claim that the refusal to issue constitutes discrimination against certain owners of firearms that do not apply to other owners of firearms of the same class Area 2 of 3: The CAFC takes the position that the changes to FA s. 19(1) and (2) prevent the issuance of SAPs to take such a firearm to the range, as well as preventing issuance of ATTs (which have rarely been used for that purpose). The researcher at the Library of Parliament who interprets laws for the MPs in Parliament says that the changes do affect ATTs, which have rarely been so used, but do not affect the issuance of SAPs. The NFA agrees with the researcher. Therefore, people in this position should apply, in writing and keeping a copy, for an SAP, valid for three years, to take their firearm to a shooting range and then wait for the CAFC/CFO (Chief Firearms Officer) refusal. The CAFC/CFO may only refuse any licencing document by the procedure laid out in FA s. 72 to 81, and that procedure includes an open door allowing the applicant to take any refusal to a reference hearing before a provincial court judge. The applicant should apply for a reference hearing as soon as he gets his refusal. A reference hearing will cost the system $3000 minimum, and more likely $5000 or more. The firearms control bureaucracy is not rich; it is hurting for money. The government does not want to give the system more money; that irritates the taxpayers. Therefore, it is important for you to use your reference hearing rights whenever you can. The applicant needs to tell the Crown prosecutor handling the case, in writing, at least 2 weeks before trial, that this will be a constitutional case, citing the Canadian Charter of Rights and Freedoms, section 15. The applicant should claim that the refusal to issue constitutes discrimination against owners of firearms in certain classes that do not apply to owners of firearms in other classes. The Crown may claim that there is no provision granting the right to a reference hearing over an SAP. The rebuttal to that is that the SAP appeared late in the legislative process, well after the Bill had been passed, and the fact that it dos not show up in the relevant sections is an oversight. The SAP is essentially identical to the ATT, which does bring in the right to a reference hearing. Area 3 of 3: The CAFC is contending that the shoulder stock of the Walther G22 is a "prohibited device" and the rifle itself is a non-restricted firearm, but that is not a valid ground to refuse a licencing document. The stock of a Walther G22 fails to meet the conditions required by Order in Council SOR/DORS/98-462 Part 4, "Prohibited Devices," as found in Canada Gazette Part II, Vol. 132, No. 20, at page 2713. That provision says that the stock, to qualify, must be one that "reduces the overall length of the firearm," which the G22 stock does not do--and therefore, the OIC does not cover the Walther G22 stock, in the NFA's opinion, so it is not a "prohibited device." This is similar to the provision in the Criminal Code section (CC s.) 84(1) "prohibited firearm" definition which makes a firearm a "prohibited firearm" if and only if the barrel becomes less than 457mm/18" as a result of being shortened by some type of cutting, or by substitution--but not if the firearm comes from the factory with a barrel less than 457mm/18" long. Therefore, any refusal of any licencing document regarding a Walther G22 rifle should result in an application to a provincial court judge for a reference hearing.No one in Ottawa ever expected that the firearms control laws could be used to benefit the firearms owners.
|