R. v. Wyville, 2020 ONCJ 555

CITATION: R. v. Wyville , 2020 ONCJ 555 DATE: November 27, 2020 Court File No. 2011-998-20-00537-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CRAIG WYVILLE R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE G.J. GRIFFIN on November 27, 2020, at NAPANEE, Ontario APPEARANCES: K. Keenan (Remotely) Counsel for the Attorney General of Canada Craig Wyville In Person GRIFFIN, J. (Orally): In the matter of a reference pursuant to

Section 74 of the Firearms Act S.C. 1995, c.39 between Craig Richard Wyville and Her Majesty the Queen in right of Canada, the Registrar of Firearms.

INTRODUCTION Mr. Wyville is in his 30th year with the Canadian Armed Forces. He holds the rank of Lieutenant Commander in the Royal CanadaNavy. He enjoys sport shooting, and he is a member of a Rod and Gun Club, which he attends with his son and other children to not onlylearn about handling firearms and firearms safety but to practise with his firearms. Mr. Wyville maintains his firearm qualifications for his long-standing employment in the Canadian Armed Forces. On March 22nd, 2017, Mr.

Wyville had a firearm registration certificate that allowed him to possess a restricted firearm, namely a semi-automatic rifle. The firearm associated with the registration certificate is a Colt M4, an assault- style firearm. Sometime between July 22nd and July 24th, 2020, Mr. Wyville received from the Registrar of Firearms a correspondence dated July20th, 2020, and entitled Firearms Registration Certificate Impacted by the Amended Classification Regulations. In the correspondence, Mr.

Wyville was informed of the following: “These firearms listed below are now classified as prohibited andthe previous registration certificates are automatically nullified and are therefore no longer valid but should be retained as a historicalregistration record.” There is other information in the correspondence, such as what his options are with respect to the Colt semi-automatic rifle including that“the government has publicly announced that it intends to implement a buy-back program for the newly prohibited firearm.” Mr.

Wyville was understandably dismayed upon receiving the correspondence from the Registrar of Firearms advising him that hisregistration certificate for his firearm was automatically nullified and, therefore, no longer valid. In prompt response to such a disturbingcorrespondence, Mr. Wyville, on July 30th, 2020, applied for a reference to an Ontario Court of Justice judge under Section 74(1) of theFirearms Act. Mr.

Wyville was provided with a hearing date of August 17th, 2020, and due to the COVID pandemic, the matter was addressed by wayof audio, but no one for the Attorney General of Canada responded, so it was adjourned to September 8th, 2020; and on September 8th,2020, the matter was adjourned to October 23rd, 2020, for hearing. The hearing took place over two days, namely October 23rd, 2020, and November 10th, 2020, with Mr. Wyville attending in personwhile Ms. Keenan, counsel for the Attorney General of Canada, appeared by way of audio. Mr.

Wyville put a substantial amount of effort into advancing his position, and it is clear through both his testimony, thoughtful writtensubmissions, and his final submissions that this is a matter of great significance to him. Ms. Keenan, counsel for the Attorney General of Canada, filed a concise but compelling factum and was very fair and courteous in herapproach to questioning Mr. Wyville as well as responding to his submissions. Ms. Keenan provided two specific cases to Mr.

Wyville,and as well to the court, namely Justice Gorman’s recent decision in the matter of an application for a reference hearing made pursuant toSection 74(1) of the Firearms Act, RSC 1985, of the Newfoundland and Labrador Provincial Court; and JusticeValente’s 2017 decision from the Ontario Court of Justice, R. v. Gardiner, unreported decision, April 13th, 2017, Thunder Bay, 115294. POSITION OF THE PARTIES Mr.

Wyville as the applicant is of the view that the July 22nd, 2020, correspondence he received from the Registrar of Firearms –actually, it was July 20th - he received it on the 22nd or thereabouts – he received from the Registrar of Firearms was for all intents andpurposes a decision of the Registrar of Firearms to revoke his registration certificate for his Colt semi- automatic rifle. As such, Mr.Wyville submits he is entitled to a reference hearing before a provincial court judge pursuant to Section 74(2) of the Firearms Act aswell as an order pursuant to

Section 76(

c) of the Firearms Act cancelling the revocation of the registration certificate.

Counsel for the Attorney General of Canada is of the view that the July 20 th , 2020, correspondence from the Registrar of Firearms was not a decision to revoke the registration certificate but rather it was a letter informing Mr. Wyville of the May 1 st , 2020, regulatory amendments which reclassified his Colt semi-automatic rifle from restricted to prohibited, resulting in his registration certificate being automatically nullified.

Counsel pointed out that the letter from the registrar also provided other information, such as what is required of owners of newly prohibited firearms, the owners’ options, the intention of the government to implement a buy-back program, as well as an amnesty order, which expires on April 30 th , 2022. Counsel for the Attorney General of Canada submits that the Registrar of Firearms did not decide to revoke Mr.

Wyville’s registration certificate as contemplated by the Firearms Act as no decision was made by the Registrar of Firearms as it was an Order in Council of May 1 st , 2020, the regulations amending the regulation prescribing certain firearms as prohibited that automatically nullified Mr. Wyville’s registration certificate. Counsel for the Attorney General submits that as there was no decision to revoke Mr. Wyville’s registration certificate by the Registrar of Firearms,

Section 74 of the Firearms Act cannot be made use of by Mr. Wyville, so he is not entitled to a reference before a provincial court judge. Counsel for the Attorney General of Canada’s position more succinctly is that I, as a provincial court judge, do not have the jurisdiction to do what Mr. Wyville wants done. THE BACKGROUND The Ontario Court of Justice derives its jurisdiction from statute. Accordingly, a provincial court judge is only empowered to make orders which a governing statute authorizes.

Section 38 of the Ontario Courts of Justice Act RSO 1990 c.C.43 provides as follows: Jurisdiction of Ontario Court of Justice Criminal matters 38

(1) A provincial judge has the power and authority of two or more justices of the peace when sitting in the Ontario Court of Justice and shall exercise the powers and perform the duties that any Act of the Parliament of Canada confers on a provincial court judge when sitting in the Ontario Court of Justice. The Supreme Court of Canada in the case of Reference Re Firearms Act Canada [2001] Supreme Court Report 783 makes it clear that in 1995 when the Parliament of Canada amended the Criminal Code by enacting the Firearms Act that it was a valid exercise of Parliament’s jurisdiction over criminal law.

As the court noted at paragraph [33] of that decision, “Gun control has traditionally been considered valid criminal law because guns are dangerous and impose a risk to public safety.” And at paragraph [47], We are not persuaded that the registration provisions can be severed from the rest of the Act, nor that they fail to serve Parliament’s purpose in promoting public safety. The licensing provisions require everyone who possesses a gun to be licensed. The registration provisions require all guns to be registered.

The combination of the two parts of the scheme is intended to ensure that when a firearm is transferred from one person to another, the recipient is licensed. Absent a registration system, this would be impossible to ascertain. If a gun is found in the possession of an unlicensed person, the registration system permits the government to determine where the gun originated. With a registration scheme in place, licensed owners can be held responsible for the transfer of their weapons. The registration system is also part of the general scheme of the law in reducing misuse.

If someone is found guilty of a crime involving violence, or is prohibited from possessing a weapon, the registration scheme is expected to assist the police in determining whether the offender actually owns any guns and in confiscating them. The registration scheme is also intended to reduce smuggling and the illegal trade in guns. These interconnections demonstrate that the registration and licensing portions of the Firearms Act are both tightly linked to Parliament’s goal in promoting safety by reducing the misuse of any and all firearms. Both portions are integral and necessary to the operation of the scheme.

The Criminal Code of Canada and the Firearms Act provide the statutory framework associated with firearms in Canada, which in turn also sets out the jurisdiction of a provincial court judge. As Justice Slater noted at paragraph [51] of Chief Firearms Officer of Alberta in Pogson [2005] 195 Canadian Criminal Cases 3 rd Series 434.

It is not the function of a provincial court judge hearing a reference to fight some sort of rearguard action against gun control, on the theory that the courts are better able than Parliament to balance the competing policy objectives.

Section 84.1(

d) of the Criminal Code defines a prohibited firearm as “ any firearm that is prescribed to be a prohibited firearm.”

Section 117.15(1) of the Criminal Code provides that “ the Governor in Council may make regulations prescribing anything that by this [Act] is to be or may be prescribed.” On May 1 st , 2020, the Governor in Council by Order in Council SOR/2020-96 passed into law 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. This regulation reclassified Mr. Wyville’s Colt semi-automatic rifle from restricted to prohibited.

If one were to ask why the government took such a step, they could refer to the accompanying information associated with SOR/2020-96 in Canada Gazette

Part II, Volume 154 Extra, Number 3, where at page 54 under the heading Issues, the following is written: Canada has experienced mass shootings in rural and urban areas such as in Nova Scotia, city of Québec, Montréal, and Toronto. Whether at home or abroad, the deadliest mass shootings are commonly perpetrated with assault-style firearms. These events, and concerns about the inherent deadliness of assault-style firearms used in them, have led to increasing public demand for measures to address gun violence and mass shootings in Canada.

The 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 (Regulations) amend the Regulations that classify firearms (Classification Regulations) to prescribe certain firearms as prohibited firearms. The Regulations prohibit approximately 1500 models of assault-style firearms, including current and future variants. The Regulations also prescribe the upper receivers of M16, AR-10, AR-15 and M4 pattern firearms to be prohibited devices.

The Regulations address gun violence and the threat to public safety by assault-style firearms. The Government of Canada recognizes that their inherent deadliness makes them unsuitable for civilian use and a serious threat to public safety given the degree to which they can increase the severity of mass shootings. And at Page 58 under the heading Objective, the following is written: The prescribing of firearms as prohibited is intended to limit the access to firearms that are characterized by their design and their capability of inflicting significant harm to Canadians.

The Regulations address a growing public concern regarding the safety risk posed by assault-style firearms and their suitability for civilian use. The amendments to the Classification Regulations are intended to reduce the number and availability of assault-style firearms and other firearms that exceed safe civilian use in Canada, and to reduce the possibility of these firearms being diverted to the illegal market. Many of the known variants or modified versions of the approximately 1500 firearms are ... specifically prescribed to be prohibited firearms.

The Regulations apply to all variants of the principal model, current or future, whether they are expressly listed or not. The Governor in Council passed the regulation on May 1 st , 2020, changing the classification of Mr. Wyville’s Colt semi-automatic rifle from restricted to prohibited, this prompting the Registrar of Firearms to send the July 20, 2020, correspondence entitled Firearm Registration Certificate Impacted by the Amended Classification Regulations which included the following information. Certain restricted firearms which were registered to you have been affected by the recent regulator amendments.

These firearms listed below are now classified as prohibited, and the previous registration certificates are automatically nullified and are therefore no longer valid but should be retained for historical registration record.

The registration certificate that was nullified is of course that related to his Colt semi-automatic rifle. Mr. Wyville, in response to the correspondence received from the Registrar of Firearms, reviewed the Order in Council SOR/2020- 96, the Criminal Code , and the Firearms Act and he was unable to find any reference to or statutory provision that would provide for the nullification of a registration certificate.

Accordingly, he was of the view that the nullification spoken of by the Registrar of Firearms is in fact a revocation of his registration certificate, which led him to conclude, There are clear procedures and authorities within the Firearms Act that bound the actions of the Registrar. Such actions are reviewable by the courts, and where such actions fall outside the bounds of the law, people such as the applicant must be able to look to the courts for relief. THE FIREARMS ACT The relevant provisions of the Firearms Act are found at

Section 71 through

Section 76 .

Section 71(a), the Registrar “ may revoke a registration certificate for a prohibited firearm or a restricted firearm for any good and sufficient reason.” Section 72(1), Subject to subsection (1.1), if a chief firearms officer decides to refuse to issue or to revoke a licence or authorization to transport or the Registrar decides to refuse to issue or to revoke a registration certificate, authorization to export or authorization to import, the chief firearms officer or Registrar shall give notice of the decision in the prescribed form to the applicant for or holder of the licence, registration certificate or authorization.

Section 72(2): A notice given under subsection (1) must include reasons for the decision disclosing the nature of the information relied on for the decision and must be accompanied by a [copies] of sections 74 to 81.

Section 74(1)(a): Subject to subsection (2), where a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import ... the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides. Section 75(1): On receipt of a reference under

section 74, the provincial court judge shall fix a date for the hearing of the reference and direct that notice of ... hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or holder of the licence, registration certificate, authorization or approval, in such manner as the provincial court judge may specify.

Section 75(2): At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder. Section 75(3): 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.

Section 76: On the hearing of a reference, the provincial court judge may, by order,

a) confirm the decision of the chief firearms officer, Registrar or provincial minister; (

b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or (

c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under

section 67. I think at this point it is appropriate to repeat the words of Justice Slater set out earlier: It is not the function of a provincial court judge hearing a reference to fight some sort of rearguard action against gun control, on the theory that the courts are better able than Parliament to balance the competing policy objectives. THE ISSUE The essential question to be answered is, Did the Registrar of Firearms make a decision to revoke Mr. Wyville’s registration certificate for his Colt semi-automatic rifle?

If I do conclude that in fact the Registrar of Firearms did not make a decision to revoke but rather the Governor in Council, through legislative action, namely Order in Council, Statutory Orders of Regulations 2020-96 changed the law resulting in a reclassification of Mr. Wyville’s Colt semi-automatic rifle from restricted to prohibited, then I have no jurisdiction to proceed with a reference hearing under

Section 74 of the Firearms Act , the reason being that I would not be considering a decision made by the Registrar of Firearms, but rather a decision made by Parliament to address gun violence and the threat of public safety by assault- style firearms. As a provincial court judge, I do not have the authority or power to review the decision of the Governor in Council to change the law with respect to the classification of firearms. As Mr.

Wyville is well aware, there are several proceedings across Canada in the federal court challenging the constitutionality of the Order in Council SOR/2020-96, and he has made it clear that his issue is his lack of a registration certificate for his firearm. MY ANALYSIS Mr. Wyville is well aware of SOR/2020-97 , which is an order declaring an amnesty from May 1 st , 2020, to April 30, 2022, allowing him to possess his Colt semi-automatic rifle, and he is also aware of the government’s intention to implement a buy-back program.

Mr. Wyville understands that he is now in the untenable position of being in possession of a prohibited firearm he cannot use and enjoy while the government lets him know they intend to implement a buy-back program or, more importantly, develop a grandfather regime as was done for the CZ or SAN Swiss Arms. It is the state of limbo he believes can be alleviated having an order made directing that the Registrar of Firearms issue a registration certificate for his Colt semi- automatic rifle. I have a significant amount of sympathy for Mr.

Wyville who is a law-abiding citizen and has served his country for several decades, and he only wishes to continue to enjoy the recreational activity of shooting his semi-automatic rifle at his gun club. He has spent time and money on this particular firearm, and now through absolutely no fault of his own feels he is being penalized for no valid reason. However, despite sympathy for Mr. Wyville, as a provincial court judge I am restricted in these circumstances to act only as the Firearms Act would authorize. I am going to read Sections 71(1) , (2) and (6) of the Firearms Act again.

Section 72(1) : Subject to subsection (1.1), if a chief firearms officer decides to refuse to issue or to revoke a licence or authorization to transport or the Registrar decides to refuse to issue or to revoke a registration certificate, authorization to export or authorization to import, the chief firearms officer or Registrar shall give notice of the decision in the prescribed form to the applicant for or holder of the licence, registration certificate or authorization. (2): A notice given under subsection (1) must include reasons for the decision disclosing the nature of the information relied on for the decision and must be accompanied by a copy of sections 74 to 81.

And 72(6): If the applicant for or holder of the licence or registration certificate refers the refusal to issue it or revocation of it to [the] provincial court judge under

section 74, the reasonable period of time does not begin until after the reference is finally disposed of. It can readily be seen that it is the decision of the Registrar to revoke a registration certificate along with the reasons for the decision that is what is being referred to the provincial court judge. The Canadian Oxford Dictionary’s definition of decide is “Come to a resolution as a result of consideration. Have or reach one’s resolution about something.

Resolve or settle a question, dispute, et cetera.” While the definition of decision in the Canadian Oxford Dictionary is, “The act or process of deciding. A conclusion or resolution reached as to future action upon consideration.” It cannot be said in these circumstance that the Registrar of Firearms came to a resolution as a result of consideration to nullify Mr. Wyville’s registration certificate. The Registrar of Firearms was not deciding, as the decision was made by the Government of Canada when it passed into law SOR/2020-96.

The Registrar of Firearms was not engaged in the process of consideration of resolving a question or dispute over Mr. Wyville’s registration certificate. T he Registrar of Firearms had no choice in the matter as compliance with the law is mandatory. Mr. Wyville’s Colt automatic rifle is no longer a restricted weapon as SOR/2020-96 has declared it to be a prohibited weapon. So the firearms registration certificate, which had been classified as restricted, is, by operation of law, nullified. Quite frankly, the July 2020 correspondence Mr.

Wyville received from the Registrar of Firearms was an explanatory document and it was aptly titled: “Firearms Registration Certificate Impacted by the Amended Classification Regulations.” The document cannot be said to be a notice of revocation of the registration certificate with reasons for that decision as contemplated by Section 72(2) of the Firearms Act . More importantly, it cannot be said that the Registrar of Firearms made a decision in this matter that

I, as a provincial court judge, am entitled to review pursuant to

Section 74 of the Firearms Act. In this matter, a certain amount of time was spent on considering whether the Registrar of Firearms revoked Mr. Wyville’s registrationcertificate as opposed to the registration certificate being nullified by operational law. Certainly, the words revoke and nullify are very close to being a synonym. As well, I understand Mr. Wyville’s concern that nowhere inthe Order of Council is the matter of registration certificates addressed, and that from the standpoint of Section 12(9) of the FirearmsAct, he is concerned about potential grandfathering. Yet, it is clear that Section 12(9)(

c) of the Firearms Act speaks of being a holder ofa registration certificate on the day the firearm was prescribed, which of course Mr. Wyville was. I find myself in agreement with the two provincial court decisions, namely Judge Valente’s decision from April 13th, 2017, R. v.Gardiner, court file number Thunder Bay 115294, where he decided in that case the Registrar of Firearms did not make a decisionrelating to a prohibited device amounting to decision to revoke. Therefore, there was no decision to review allowable under Sections 74and 75 of the Firearms Act and no remedy under 76 of that Act.

I agree entirely with the words of Judge Gorman when he recently dealt with a firearm that he been reclassified from restricted toprohibited by SOR/2020-96. Judge Gorman, at paragraph [41] to of his October 23rd, 2020, decision in the matter of the application of a reference hearing made pursuant to Section 74(1) of theFirearms Act RSC , Newfoundland and Labrador Provincial Court, wrote as follows: As we have seen,

section 74 of the Firearms Act allows a provincial court judge to hear a reference only if a registration certificate hasbeen revoked by the Registrar or a chief firearms officer. In this case that did not occur. Mr. H’s registration certificate was cancelled,revoked or nullified by legislative action. This occurred as a result of an order-in-council, not a decision of the Registrar or a chieffirearms officer. Thus, there is nothing for this Court to review. [42] This point can be illustrated by considering the orders that

section 76 of the Firearms Act allows the Court to issue and the test to beapplied. [43]

Section 76 allows this Court to confirm the decision of the chief firearms officer or the Registrar; to direct the ... firearms officer orRegistrar to issue a registration certificate; or to cancel the revocation of the registration certificate. [44] The difficulty here is that since neither the Registrar nor a chief firearms officer made a decision, there is nothing to confirm,cancel or review. There is no decision [that] can be assessed to determine if it was justified.

As the Registrar of Firearms did not make a decision, I do not have the jurisdiction under the Firearms Act to consider a reference, andthe application is dismissed. Thank you. I am going to endorse on the application, so if Mr. Wyville chooses to have what I've concluded here today reviewed by a court, theendorsement will be – the endorsement, I put: For the reasons provided, a provincial court judge does not have jurisdiction to hearSection 74(1) reference as regulation certificate was nullified by legislative action SOR/2020-96. Thank you, Mr. Wyville. I wish youluck going forward with the matter. Thank you.

CRAIG WYVILLE: Thank you, judge. THE COURT: Thank you. Thanks, Ms. Keenan. MS. KEENAN: Thank you, Your Honour. THE COURT: We’ll give you a copy of that, what I've endorsed, okay, so you have it and you can make decisions on how you want togo forward. CRAIG WYVILLE: Okay. THE COURT: You can order a copy of that. That can be explained to you how to do that if you need that, okay?

CRAIG WYVILLE: Okay judge. THE COURT: Okay. ...WHEREUPON THIS MATTER WAS CONCLUDED