How do I file for a judicial review against the government regarding recent gun bans?
***Information below is provided by Arkadi Bouchelev from Bouchelev Law. Please note that the information below is provided for educational purposes on an “errors and omissions expected” basis, and is not to be construed as legal advice in respect of anyone’s individual case.***
1: What is “judicial review”?
In the narrow context relevant to his guide, it means a procedure by which an administrative decision of the government may be challenged in court.
2: What is the administrative decision that needs to be challenged?
The recent firearms ban, passed by way of an Order in Council, is officially known as Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted:#SOR/2020-96.
I will refer to them simply as “Regulations”. Full text here:
http://canadagazette.gc.ca/rp-pr/p2/2020/2020-05-01-x3/html/sor-dors96-eng.html
3. When did the Regulations come into force?
May 1, 2020.
4. Who can bring an application for judicial review?
Anyone affected by the Regulations. In other words, anyone who lawfully owns one or more of the “1500 firearm types” that were made prohibited on May 1, 2020, as well as any dealer that sells these firearms. It does not matter, for the purpose of bringing a judicial review application, whether your firearm was restricted or non-restricted prior to May 1, 2020.
5. What is the legal basis for challenging the Regulations?
Section 117.15(2) of the Criminal Code of Canada states:
(2)In making regulations, the Governor in Council may not prescribe anything to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.
In essence, you will be challenging the Governor in Council’s opinion that the newly prohibited firearms are not “reasonable for use in Canada for hunting or sporting purposes” (more on this later).
It is important to keep in mind that you are challenging the decision of the Governor in Council on administrative rather than constitutional grounds. A constitutional challenge would fail because the Charter does not afford protections to private property rights or the right to bear arms.
I intend to update this section later to add more information.
6. How do I initiate a judicial review?
By filing an Application for Judicial Review with the court of competent jurisdiction.
7. And which court would that be?
Some applications for judicial review must be brought in provincial courts and some in the Federal Court of Canada. It is extremely important to select the correct venue. Failure to do so will result in your application being dismissed “for want of jurisdiction”.
It is also important not to confuse an application for judicial review with what’s known as a “Section 74 challenge”. Section 74 of the Firearms Act says that a Registrar’s refusal to issue a firearms license, registration certificate, ATT, authorization to export or import, etc. can be challenged by bringing a reference in a provincial court. You are not dealing with that type of challenge. You are not challenging a decision of the Registrar; you are challenging an Order in Council passed by the Governor in Council, so Section 74 of the Firearms Act does not apply.
Recent caselaw, including the 2015 Supreme Court of Canada case in Strickland v. Canada, suggests that an application for judicial review of an order in council on administrative grounds must be brought in the Federal Court.
8. What is the Federal Court’s jurisdiction on an application for judicial review?
Section 18(1)(a) of the Federal Courts Act states that, subject to certain exceptions (which are not relevant for our purposes), “the Federal Court has exclusive original jurisdiction…to issue [a] writ of#certiorari…or grant declaratory relief, against any federal board, commission or other tribunal.”
“Writ of certiorari” is another way of saying judicial review.
9. Is the Governor in Council a “federal board, commission or other tribunal”?
Now we start getting into the weeds of the legal argument you are going to make. The Federal Court can only review an administrative decision of a “federal board, commission or other tribunal”. It cannot judicially review a legislative decision, such as an act of parliament or some ancillary exercise of legislative power (unless it’s a constitutional challenge; but for reason explained above, we are not dealing with a constitutional challenge here).
To challenge the decision of the Governor in Council, you must first establish that it is acting as a “federal board, commission or other tribunal”, which is defined in the Federal Courts Act as “any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament”. Because the Governor in Council passed an Order in Council prohibiting certain firearms pursuant to jurisdiction conferred on him by an Act of Parliament (Criminal Code), it arguably fits the definition of a “federal board” in this particular instance.
10. What can the Federal Court do on an application for judicial review?
When the court agrees to do something that you ask in your application for judicial review, it is called “granting relief”.
Pursuant to section 18.1(3)(b) of the Federal Courts Act, on an application for judicial review, the federal court may “declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.”
11. Under what circumstances will the Federal Court agree to grant relief?
Any relief granted on an application for judicial review is in the discretion of the court. Pursuant to section 18.1(4) of the Federal Courts Act, the Fedeal Court may grant relief if the Governor in council:
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
12. What is the timeline for starting an application for judicial review?
According to section 18.1 of the#Federal Courts Act, anyone directly affected by a decision or an order of a federal board, commission or other tribunal may apply to the Federal Court for judicial review within 30 days after the time the decision or order was first communicated to the applicant. If more than 30 days have passed since the decision was communicated, a motion for an extension of time to commence a proceeding for judicial review will need to be brought.
The Order in Council was communicated via Canada Gazette on May 1, 2020, which means that you would ordinarily have until May 31, 2020 commence your application for judicial review. Currently, this timeline is suspended until May 29, 2020 due to COVD-19.
More information about the suspension period:
It appears that you have until June 28, 2020 to commence your judicial review application applications (30 days from May 29, 2020). However, you can still have your judicial review application issued online during the suspension period and I would recommend that you do so before May 30, 2020.
13. How much does it cost to file an application for judicial review?
$50.00.
14. Who are the parties to an application for judicial review?
As the person bringing an application for judicial review, you are the applicant. The parties that you are bringing the application against are the respondents. They are the Governor in Council and the Attorney General for Canada. Both should be named as respondents in your application.
15. What is the first step in initiating an application for judicial review to the Federal Court?
The first step is preparing Form 301: Notice of Application for Judicial Review and having it issued (stamped) by the court.
Federal Court Forms can be found here:
https://www.fct-cf.gc.ca/en/online-access/forms
You can initiate your application online:
https://efiling.fct-cf.gc.ca/efiling/flngstp1?25
16. What are the subsequent steps in an application for judicial review to the Federal Court?
Having the Notice of Application issued is only the beginning. The next step is to serve it on the respondents, which must be done within 10 days of the issuance of the Notice of Application. Subsequently, a number other steps will have to be taken, including preparing affidavits and conducting cross-examinations. Each step has a specific timeframe during which it has to be competed. For example, you must serve an affidavit and supporting documents within 30 days of the issuance of the Notice of Application.
The Federal Court provides a brief explanation of each step, as well as the relevant timelines, here.
The timeliness for the interim steps are currently suspended due to COVID-19. More information below:
17. Where do I file documents in connection with my judicial review application?
The documents can be field in any of the Federal Court’s registry offices. The list of the registry offices can be found here:
https://www.cas-satj.gc.ca/en/operations/locations.shtml
18. What other resources are available to me?
Federal Courts Act:
https://laws-lois.justice.gc.ca/eng/acts/f-7/
Federal Court Rules:
https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/
CanLII:
https://www.canlii.org/en/
Federal Court registry offices. You can call any of the registry offices with inquiries on procedural matters (i.e. when and how to file documents). However, they will NOT provide you with legal advice about your case.
19. Are there any templates that I can use to prepare a notice of application?
Yes and no. I am not aware of any templates that would fit this particular case. You can search online for notices of application filed in the Federal Court in respect of other (non-firearms related) challenges to Order in Council. I am linking two of them below:
https://www.tasekomines.com/assets/docs/pdf/Notice-of-Application-filed-26-March-2014-stamped.pdf
However, these will have to be substantially modified because they do not deal with the same subject matter.
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*Also note that Bouchelev Law is now in the process of filing a group judicial review in attempt to win our rights back for ALL Canadian gun owners. 10 individual gun owners like ourselves have stepped up at their own cost to be part of this group challenge, and can now use our help with the cost of these legal proceedings. A win for this group challenge would be a win for all of us, and we would then not have to individually file and attend our own judicial reviews in order to keep and use our guns.
You can contribute to the cost of these legal proceedings in amounts as small, or large as suits you situation and desire by clicking here for the GOFUNDME page, which was organized by the Ontario Landowners Association in order to help protect property rights for all Canadians.
