'Written and unwritten' rules of being a member include not cooperating with police
A B.C. appeal court panel has unanimously upheld the decision of a federal firearms office to deny a gun licence to a “full patch” member of the Hells Angels. It’s a ruling that clarifies the criteria for reviewing applications and whether a licence can be denied for simply being a member of the notorious motorcycle club.
“I can see no basis upon which to say, looking at the record . . . that the decision to deny Mr. Methot a firearms license, in the words of the Act, was not justified,” wrote B.C. Court of Appeal Justice Mary Saunders, on behalf of the three-judge panel in Canada (Attorney General) v. Methot.
She added that the firearms officer who decided to refuse Gaston Methot’s application based the decision on multiple photographs and articles found during an open-source internet check relating to Methot’s association with the Hells Angels. An RCMP report also outlined the club's history and Methot’s involvement with it.
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The appeal court justices noted the “written and unwritten” rules of being a Hells Angel member, including not cooperating with police. An expert witness cited by the court had testified Hells Angels members are not allowed to report to police if their guns have been stolen, lost, or used in an offence.
The case dates to March 2018, when Gaston Methot, a West Point Chapter Hells Angels member, applied to renew his firearms license, one he held since June 2012. Under the Criminal Code, it is illegal for someone to possess any of an extensive range of firearms without a license. Eligibility is set out in the Firearms Act.
The federal firearms officer reviewing Methot’s application for renewal received information about his club membership and undertook a more extensive review. He looked at an RCMP report outlining the club's history and Methot’s involvement.
In July 2018, the firearms officer declined to renew the licence, noting that should Methot’s firearms ever be stolen, lost or used in an offence, club rules would prevent him from reporting it to the police.
“As you are a full-patch member of the West Point Chapter, I find that you represent the Hells Angels and are bound by rules that allow for violence and criminal acts, and that the police are your adversary,” the firearms officer said.
“You made this decision to be involved with an organization that has a reputation for violence and criminal acts. As such, I find that it would not be desirable in the interests of safety that you be issued a firearms licence at this time.”
Methot first took his argument to provincial court, where the judge, Robert Gunnell, said: “The applicant is a member of the Hells Angels Motorcycle Club, which is an organization that allows for violence and criminality, that restricts its member’s cooperation with police, and regards police as adversaries. Such decisions have been supported across the country. Public safety is paramount, and the legislation gives a broad discretion.”
After the provincial court judge dismissed Methot’s appeal, the Hells Angels member went to the Supreme Court of British Columbia, challenging the standard of review of the referral judge and the conclusion that the decision of the firearms officer was reasonable. Justice Francesca Marzari granted an appeal and sent the matter back to the provincial court.
“The statutory scheme requires the reference judge to hear and weigh the evidence for the first time in a procedurally fair manner,” Justice Marzari wrote. “Therefore, the scheme precludes deference to the findings of the firearms officer on questions of fact that would ordinarily receive deference in both appeals and judicial review contexts.”
Justice Marzari added: “In light of the above, I find that the statutory framework of the Firearms Act requires the reference (provincial court) judge to conduct a hearing closer to a hearing de novo than to an appeal or a review, and to weigh all of the evidence presented.”
That evidence must be freshly weighed “in accordance with the rules of procedural fairness, relevance, and the reliability of the evidence,” she said. The reference judge must then consider whether the applicant has established that the initial refusal decision “was not justified” on those facts.
In making her decision, Justice Marzari considered the rulings in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343.
In Vavilov, the Supreme Court of Canada opted for a default standard of reasonableness, relieving reviewing courts of the contextual inquiry previously required, Saunders wrote. This default may not apply where the legislature prescribes explicitly the standard or where the rule of law requires a standard of correctness. As for Fahlman, it holds that the referral judge must apply the reasonableness standard of review.
Marzari found the referral judge’s role was neither an appeal nor a judicial review. Instead, it constituted various court reviews for which “the judicial review lexicon” was not appropriate. She held that the reference hearing contemplated by the Act was “closer to a hearing de novo than to an appeal or a review” and sent the matter back to the provincial court for a hearing.
However, when the Attorney General appealed Marzari’s decision, the appeal court panel ruled that Marzari “erred in failing to follow Fahlman, and, consequently, in holding that the referral judge was required to engage in a fresh, independent, fact‑finding exercise.”
Appeal court Justice Saunders wrote that the error stemmed from Marzari’s interpretation of Vavilov, a “comprehensive restatement of the law on standard of review of administrative decisions.”
She added: “Vavilov recognizes that its recalibration of standard of review raises questions about the correct approach to past precedents that determined the standard of review applicable to a particular statutory scheme." As for reasonableness evaluations, Saunders wrote that Vavilov urges courts to use precedents cautiously “to ensure that their application is aligned in principle with these reasons.”
She added wrote that Marzari was of the incorrect view that Fahlman was “overtaken” by Vavilov and so undertook a fresh examination of legislative intent.
“In my respectful view, this is where the judge fell into error. Given the comments in Vavilov . . . regarding the continued application of past precedent, she should not have disregarded Fahlman out of hand and undertaken a duplicative analysis without first considering whether Fahlman accords with Vavilov. Such a review of Fahlman shows that it does accord with Vavilov, and thus retains its precedential value.”
Justice Saunders also said that the approach used in Fahlman “aligns with the principles expressed in Vavilov and the precedent stands.”
Accordingly, “it was not open to the appeal judge to redefine the role of the referral judge as she did. The conclusion, in my view, did not accord with the direction of Vavilov, which both reinforced the deferential standard of reasonableness except in limited circumstances and discouraged the use of contextual analysis to determine the applicable standard of review.”