Public Safety Committee on June 7th, 2018

[Paula Clarke]

The first point I'd like to make is this. I understand that you have the concern that some of this language could be interpreted subjectively. I would just point out that within section 264, which is the criminal harassment provision, language such as “threatening conduct” is not interpreted by the courts subjectively. There are court decisions that have made it very clear that threatening conduct is an objective standard and that even if a person perceives conduct to be threatening, it has to be reasonable. If my colleague here waved her pen in my face and I felt threatened, it is unlikely that a court would agree with that assessment.

So the law is objective. I would assume that this standard would continue to be applied by the CFO, and—

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

You see, you're making an assumption, and an assumption is always based on the interpretation of—

[Paula Clarke]

Well—

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

It's individual. That's my point. It's individual. My own experiences, my own education, and my own background determine for me how I interpret the same sentence that somebody else does—

[Paula Clarke]

So—

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

—and then apply it maybe differently.

[Paula Clarke]

Right. I would go back to the point that the CFO is obliged under law to make a reasonable decision. If it came to his attention that there was conduct that somebody claimed to be threatening, and his determination of it was unreasonable, then that could be judicially reviewed.

At some point in the process, the interpretation of the conduct would have to be reasonable. There may be a subjective element to it, but at the end of the day when the conduct is assessed, that allegation would have to be a reasonable one.

[The Chair, Liberal, John McKay]

That's a suitable answer.

I'm going to Mr. Fragiskatos.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

No. I asked for the other officials to weigh in.

[The Chair, Liberal, John McKay]

Oh, sorry. Yes, you did.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Koops and Mr. O'Reilly.

[Rob O'Reilly]

Just to be clear, what question would you like me to answer?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

My concern is the interpretation of this. We all know the goal. The interpretation is subjective. You work more closely with the CFOs than anybody. I'm sure in your time, because we have all seen it, you have wondered how a CFO has provided a PAL to someone in some circumstances, and under judicial review I'm sure the court stops to think. Then maybe you wonder why someone didn't receive one when they were rejected. That's subjective.

However, for the sake of public safety and consistency, my concern is that this language is broad and will provide an opportunity to adversely affect law-abiding Canadian gun owners with a broad interpretation that is not as clear, potentially, as it is, or that it is too inclusive.

[The Chair, Liberal, John McKay]

Excuse me, Mr. Motz. Ms. Clarke already answered Mr. Motz's question. It's perfectly legitimate to ask other panellists the question, but it is essentially the same question as to whether there is a subjective element in the interpretation. If you have something that is different or additional to what Ms. Clarke has already said, I'm sure the committee will be interested.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Respectfully, Mr. Chair, my question for Ms. Clarke was on the legal aspect of it. My question for Mr. O'Reilly was on the CFO aspect of it.

[The Chair, Liberal, John McKay]

There is essentially no difference. Anyway, I'm not going to debate the point. Is there any difference here?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Yes there is.

[Rob O'Reilly]

Not really, no. Everything Ms. Clarke had indicated I would fully concur with.

I guess the only thing I would add is that the elements being proposed today would allow the CFOs to more broadly consider all things that may be an issue to public safety. While some may interpret that it is too broad, my job sitting here, and my job being responsible for the CFOs, is to provide them with the greatest amount of tools to make an informed decision.

[The Chair, Liberal, John McKay]

Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

In fact, Chair, I will hold off for the time being.

[The Chair, Liberal, John McKay]

Mr. Calkins.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Thank you, Chair.

I want to make one important distinction. When something is before the courts, a person or an accused has the ability to appeal; they have the ability to cross-exam the evidence that's before the court, and the person they are cross-examining that evidence in front of is an actual juror, a judge, appointed to make those kinds of decisions in law with the full support of all of that evidence.

A firearms licence application is made in front of a chief firearms officer. None of the information that's being presented or any decisions the CFO make have to be rendered publicly or to the applicant, and none of the decisions have an opportunity to be cross-examined in the judgment of the CFO by the applicant.

For the sake of clarification, Mr. O'Reilly, I think we want the same outcome. We all want this to be a matter of public safety. If we want to broaden the scope of the discretion that the CFO has in order to increase public safety, we have to, at the same time, protect individuals and give them a recourse if they are not treated fairly by the government, of which the CFO is an employee.

What redress, what opportunities, would an applicant have if they happen to get caught up...because this bill's going to pass. This legislation's going to pass. I can't stop it. I don't necessarily disagree with the intent of what this legislation is trying to do, but I have been a member of Parliament long enough to know that somebody is going to get maligned by this legislation because the law is never going to be perfect. They are going to be in my office asking me what they can do.

What can somebody who is caught up in this, who feels unjustly treated, do in order to seek redress for the fact that their firearms application for a possession and acquisition licence, or whatever, is denied on the discretion of a chief firearms officer?

[Rob O'Reilly]

Well, I can speak to some elements of your question.

In the case of a refusal or a revocation, the decision is communicated back to the client in the form a revocation or refusal notice. The refusal notice or the revocation notice expressly lists the part of the Firearms Act and/or the Criminal Code that the CFO believes the individual is in violation of.

It isn't simply revoked or refused. The individual is given a very full accounting of the grounds on which the CFO has made that decision. They do get the opportunity to see the information on which the CFO made the determination.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

That determination would simply list what section they've used but not necessarily the substantive information behind it.

[Rob O'Reilly]

I can't speak for every refusal that has been issued, but in terms of the many that I have reviewed and/or seen, the CFO tends to outline a bit of a narrative as to what behaviour or things they have seen that led them to make a determination to refuse or revoke an individual. It generally is rather prescriptive in terms of the outline.