Defending Against Firearms Hearings and Prohibition Orders

Imagine this scenario. You have been charged with a non-firearms offence, but a term of your Recognizance of Bail was to surrender all your firearms to the police until your matter is resolved. You retained experienced counsel, maintained your innocence, proceeded to trial over two years later, and were acquitted. After hearing the reading of “not guilty” by the jury you were ecstatic – finally vindication.

It is over, and everyone knows what you knew from the very beginning – you did not do anything wrong.

So, now you should get your firearms back immediately, right? The jury found you “not guilty” and the judge said you are free to go, everyone heard it. Can you swing by the police station on the way home with your trigger locks and locked cases to pick everything up? You were licensed and they are all legally registered – you paid for them yourself. You should get your Possession and Acquisition License (PAL) and your guns back immediately.

appealing a firearm prohibition order

What is a Firearms Prohibition Order?

It depends – the Crown can still oppose your possession of a firearm and refuse the return of your seized firearms at a Firearms Hearing if they are granted a Prohibition Order. Even if you are acquitted, there may be a parallel proceeding that acts independently called a Firearms Hearing. There are also other roads that lead to a Firearms Hearing, that do not necessarily require the laying of charges, which are explored later in this article.

A Prohibition Order is an order signed by a judge that orders you not to possess and/or forfeit (give up) certain items from your possession. The Crown may also seek the destruction of your firearms under an Order for the Disposition of Seized Property. These orders are drafted based on the specific circumstances of the Respondent. It can address any of the following items:

  • A firearm,
  • a crossbow,
  • a prohibited weapon,
  • a restricted weapon,
  • a prohibited device,
  • ammunition,
  • prohibited ammunition, or
  • an explosive substance.

These are outlined in sections 68, 70, 71, and 72 of the Firearms Act.  Failure to comply with such an order is a criminal offence under s. 145(5) of the Code.

What Triggers a Firearms Hearing?

Outside of sentencing hearings, Prohibition Orders are typically ordered at Firearms Hearings. Here are the most typical ways that a Firearms Hearing can be scheduled.

One way is, pursuant to s. 111(1) of the Criminal Code, a peace officer, firearms officer or chief firearms officer can apply for a prohibition order on the basis that they think you are unfit to possess firearms – regardless of the outcome of a trial. You do not even need to be charged with a crime to be subject to a Prohibition Order.

Another way that a Firearms Hearing can come about is if your firearms are seized under a warrantless s. 117.04 search. These searches are rare and require complex grounds which are not discussed here. In short, there are broadly three prongs to be met:

  1. A peace officer must be satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;
  1. The grounds for obtaining a warrant already exist; and
  1. It would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, license or registration certificate relating to any such thing, that is held by or in the possession of the person.

If these hurdles be presumptively met, a search is executed, and firearms are seized, a peace officer may, within 30 days, make an application to fix a date for a firearms hearing. However, the language in each prong is intertwined with provincial and federal interpretations in common law and not much more labyrinthine than the plain reading of these three sections above. S. 117.04, and these three aforementioned prongs, are discussed further by the Ontario Court of Appeal in R. v. Hurrell, [2002] O.J. No. 2819.

prohibition order firearms appeal 109 110

What Happens at a Firearms Hearing?

Before the Application is granted or dismissed, you have the right to a hearing before a provincial court judge. At this hearing, the Crown bears the onus, on a balance of probabilities, to prove that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

This is a unique bar, and hinges generally on the concept of public safety. The criteria is outlined in s. 5(2) of the Firearms Act and includes whether a person:

  • Has been convicted or discharged of certain offences under the Code;
  • has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or
  • has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person.

Further to R. v. Day, 2006 CanLII 26587 (ON SC) the Court is also tasked to ask whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners. This test since been relied upon, interpreted, and elaborated upon in subsequent cases such as R. v. King, 2018 ONCJ 190 (CanLII).

Unlike a criminal trial, hearsay evidence is admissible at a firearm prohibition hearing (pursuant to s. 117.05(3)) unless such a result is precluded by the words “all relevant evidence”.  The provincial court judge’s role in such hearings is to confirm the existence of the reasonable grounds which led the peace officer to launch the application, as proved on a balance of probabilities.  It is not intended that the provincial court judge strictly apply the rules of evidence. These principles are discussed further and applied generally to firearms prohibition hearings by the Supreme Court in R. v. Zeolkowski [1989] 1 SCR 1378.

Firearms License Problems

If you apply for a firearms license, attempt to renew your license and are refused (or if your licence is revoked), you have the right under s. 74 of the Firearms Act, within 30 days, to refer the matter before a Provincial Court judge and to schedule what is called a Reference to a judge to argue the decision.

This proceeds similarly to the Firearms Hearing (in the previous section) where the Crown seeks to take away your firearms or license, except here you bear the onus to show why the denial was unjustified. In other words, at the hearing of the Reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.

On the hearing of a reference, the Provincial Court judge may, by order:

  • Confirm the decision of the chief firearms officer, Registrar or provincial minister;
  • Direct the chief firearms officer or Registrar to issue a licence, firearms registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or
  • Cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.

This decision of the Provincial Court may be appealed, by you or the Attorney General, to the Superior Court of Justice.

On the hearing of an appeal, the Superior Court may:

(a) dismiss the appeal; or

(b) allow the appeal and, in the case of an appeal against an order made under paragraph 76(a),

(i) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization, or

(ii) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.

This decision of the Superior Court of Justice may be appealed, by you or the Attorney General, to Ontario Court of Appeal on any ground that involves a question of law alone.

Like appealing a Reference under the Firearms Act, ss. 117.05(7)-(9) of the Code provide guidance for Firearms Hearings triggered by s. 117 of the Code as discussed above.

Why Hiring a Lawyer Experienced in Firearms Hearings Helps:

This article is not meant to be an exhaustive legal guide to Firearms Hearings and Prohibition Orders in Canada, but rather a general overview into the acts governing them and a sliver of the common law that interprets and applies the acts.

The odds of success with any responding to any firearms charge, hearing, or reference are much higher with the insight and guidance of experienced counsel. If the Crown is seeking jail time, you need your weapons for your employment, hunting, or home security, or you just don’t want to lose your expensive collection or firearms – then it is strongly suggested that you retain competent legal counsel.

The lawyers in our firm offer experienced legal representation for serious gun law offences, firearms hearings, or firearms References.  You can reach us 24 hours a day by calling (416) 999-9389 or complete a consultation form here.

Key terminology and phrases to this article:

  • CSO-117.04-3(b)
  • Application to a Justice
  • Order for the Disposition of Seized Property
  • Section 117.04, 117.04, 117.05, 117.04(3)(b), 117.04(2),  117.04(1)(a)
  • “danger to the safety”
  • prohibition order
  • reference to judge
  • refusal to issue or revocation
  • revoke firearms license,
  • 74(1), 111(1), refusal, refusal to issue, PAL,
  • possession and acquisition,
  • registration certificate,
  • firearm registration certificates,
  • section 71 firearms act, s. 71,
  • regulations amending the regulations prescribing certain firearms and other weapons