Under the Criminal Code a police officer can apply to have you prohibited from owning or possessing firearms, ammunition or explosives for up to 5 years.
This can be applied for independently of any criminal charge or civil incident of spousal abuse. This is usually initiated where the police have received a complaint of imminent danger from a person who fears your potential act against them.
To begin such a hearing a notice is given to you and a date is set. The hearing is a reference and the standard rules of evidence are relaxed. The onus to prove that it is in the interest of public safety that you be prohibited from owning or possessing firearms, explosives and ammunition is upon the crown.
These orders once made or declined can be appealed by you or the crown. In the event a prohibition order is made against you, you will have 30 days to dispose of all firearms, explosives and ammunition. During that 30 days you may file an appeal. Upon filing an appeal the prohibition order is in suspension until the appeal court confirms or overturns the decision of the judge at the hearing.
On the appeal you are restricted to the evidence given at the first hearing. You cannot put in more evidence. You cannot take the stand. If you forgot to place a relevant fact into evidence at the first hearing, you cannot enter it as evidence at the appeal. That fact is excluded. You are expected to put all relevant facts into evidence at the first hearing.
Many persons who face a prohibition order believe they must immediately surrender their firearms, explosives, and ammunition to the police. This is not correct. You may sell or give away the firearms, explosives, and ammunition during the next 30 days after the order is made against you.
If you plan to appeal the order you should not transfer away any firearms, explosives, and ammunition because if you do not have a valid FAC at the time you reverse or quash the prohibition order, you will be prevented from reacquiring your old firearms. If you are going to appeal, hire a specialized lawyer who can get the appeal in within the strict time limits. Remember 30 days is 30 days, including holidays and weekends. This is a general rule of law you must remember. The only exception is that if a final day falls on a day the court is closed for a weekend or holiday, the deadline is extended to the next day the court is open.
It is possible to have conditions and limits placed on a prohibition order so that you can still enjoy hunting and target shooting. This is not easy to work out but it can be done. To do it, strong evidence must be presented at the hearing that such a Aprivilege@ will not be against public safety.
A bail order that requires you to not possess firearms, explosives, or ammunition usually gives a reasonable time to dispose of the items. The items do not have to be surrendered to the police unless the order specifically says so. When you place the items into storage of a person who is legally entitled to possess the firearms, explosives, and ammunition they are still your property. You can sell them but you cannot possess them. The person storing them cannot sell them.
If you consent to the bail order there is no ability to challenge it. If you do not consent and it is decided at a bail hearing called a show cause hearing, you can apply for a review of the decision.
The order will remain until the main criminal charge is dealt with. When this is written it will be about 6 to 8 months.
These orders are always a term of release if there is any firearms offense, including unsafe storage.
The fact that you may later be found innocent of the criminal charge is not important at the time of the interim release hearing. What is important is to ensure the safety of the public during the time you are released and until trial. To a person who feels wrongfully charged this will be a great frustration.
This great immediate consequence is the best reason to be very sure of compliance with safe storage, safe transport and safe use of firearms, explosives and ammunition. It is better to be overly safe than to be on the border line where a judge will determine if your behaviour is criminal because while you wait months for a judge to exonerate you, you will likely not be able to shoot.
Firearm Acquisition Certificate Refusal Remedies
If you have applied for a FAC and been refused you have thirty days to require a hearing before a judge of the Provincial Court to review the decision of the local firearms officer.
At the hearing, which is a reference, the standard rules of evidence are relaxed. The purpose of the hearing is to review the decision of the firearms officer based on the criteria set out in the Criminal Code of Canada. The onus to prove entitlement to a FAC is upon you the applicant. This means that because the firearms officer has decided you should not have a FAC, there is a negative presumption that you must overcome.
Some of the hurdles that can prevent you from obtaining a FAC is to have old criminal convictions to which you have been entitled to obtain a pardon for but you have not obtained a pardon. You may have plead guilty to a minor offense of unsafe storage as part of a Adeal@ on a prior matter. That will be a large hurdle to overcome.
After the hearing, the court cannot make an order prohibiting you from owning firearms unless a prior notice has been given for that particular purpose.
A surprising procedure is that once the judge has made a decision confirming the opinion of the firearms officer you have no further appeal. You are at the end of you rights. This is because if the judge disagrees with the firearms officer and decides that you shall have a FAC the crown can appeal that decision.
The FAC review hearing before a provincial court judge becomes a very significant event in the determination of your right to acquire firearms. In the future as the FAC is replaced by a Firearms Possession Certificate the repercussions of a failed FAC hearing become more serious.
TheFAC review hearing is no place for amateurs to experiment with your rights. The best representation by an expert lawyer is the best step to achieving success of issuance of your FAC. Maintain your right to bear arms.
EDWARD L. BURLEW, LL.B.
Barrister and Solicitor
16 John Street
Thornhill, Ontario L3T 1X8
MY COMMITMENT IS TO VIGOROUSLY ADVOCATE YOUR LEGAL RIGHT TO BEAR ARMS, TO PROTECT YOUR HERITAGE RIGHTS, TO HOLD TRUE TO THE TRADITIONS OF SPORTSMEN
This advisory was prepared October 1, 1998. Information in this advisory is general in nature and should not be acted upon without specific professional advice.