R. v. Schafer, 2021 BCPC 64

Citation: R. v. Schafer 2021 BCPC 64 Date: 20210129 File No: 22211-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MYLES JAMES SCHAFER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE SACCA Counsel for the Crown: G. Stark, by phone Appearing on his own behalf: M. Schafer Place of Hearing: Colwood , B.C. Date of Hearing: January 29, 2021 Date of Judgment: January 29, 2021 [ 1 ] The Attorney General of Canada, has brought an application to dismiss Mr. Schafer’s application for a hearing under s. 74 of the Firearms Act for want of jurisdiction. I have considered submissions from both Mr. Schafer and Mr. Stark, on behalf of the Attorney

General, in addition to receiving written arguments from both and a book of authorities. [ 2 ] By way of background, on May 1, 2020, pursuant to ss. 84(1) and 117.15(1) of the Criminal Code , the Governor-in-Council (“GIC”) issued an Order-in-Council (“OIC”) amending the classification regulations so that previously unrestricted and restricted firearms became classified as prohibited, and that is the OIC. [ 3 ] Further, pursuant to s. 117.14 of the Criminal Code , the GIC issued an amnesty order protecting owners from criminal liability for unlawful possession of newly prohibited firearms.

This amnesty order is in effect until April 30, 2022. On that same date the OIC amended classification regulations, a regulatory impact analysis statement and amnesty order were published in the Canada Gazette . [ 4 ] The GIC's decision to amend the classification regulations resulted in the reclassification of the respondent's restricted firearm, for which he held a registration certificate. The classification regulations now prescribe this firearm as prohibited. [ 5 ] On July 20, 2020, the Registrar wrote to the respondent, Mr.

Schafer, to inform him of the legal effect of the GIC's decision to amend the classification regulations. The letter also advised him of the amnesty order and the Government of Canada's intention to implement a buy-back program for the newly prohibited firearms. The Registrar's letter specifically states: Certain restricted firearms which were registered to you have been affected by the recent regulatory 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now classified as prohibited and the previous registration certificates are automatically nullified and are therefore no longer valid, but should be retained as a historical registration record. [ 6 ] There are currently six applications before the Federal Court and one application before the Court of Queen's Bench of Alberta challenging the changes to the classification regulations.

In addition, there have been a number of Provincial Court applications, both in British Columbia, Ontario, and otherwise. [ 7 ] The jurisdiction of the Provincial Court depends upon the Firearms Act for the source of its authority. Under s. 74(1)(

a) of the Firearms Act , a holder of a registration certificate may refer a decision made by the registrar to revoke that registration certificate to the Provincial Court. It is the letter of July 20, 2020 that the respondent seeks to refer to this Court as a decision of the Registrar in accordance with s. 74. The Attorney General's Position: [ 8 ] The Attorney General’s position is that the July 20, 2020 letter of the Registrar did not constitute a revocation and, therefore, does not trigger the Provincial Court's jurisdiction to hold a reference under s. 74(1)(

a) of the Firearms Act . The Attorney General states the Registrar's letter simply informed the respondent about the effect of the GIC decision on his registration certificate. As a result of the OIC, Mr. Schafer’s registration certificate ceases to have any validity with respect to his lawful possession of the newly prohibited firearm, and that invalidity arose independently of any decision made by the Registrar. Mr. Schafer's position [ 9 ] Mr.

Schafer submits that the Registrar's letter purports to “nullify” his registration certificate, a term not previously used and that, by using the term nullify, such decision removes itself from the language of s. 74, which would allow the remedy of a reference hearing before the Provincial Court.

Moreover, the respondent submits that the Registrar's letter was more than simply informational and therefore resulted in the exercise of discretion, as it purported to: (1) nullify his registration certificate, being a term not previously used, rather than revoke, which was beyond the scope of the Firearms Act , Criminal Code , and the OIC, as there was no mechanism set out for "automatic nullification"; and (2) act in a manner inconsistent with prior reclassifications, which resulted in the grandfathering of restricted firearms that had become prohibited as set out in s. 12 of the Firearms Act .

Applicable Case Law: [ 10 ] A number of Provincial Court decisions were referred to by the Attorney General wherein the court declined to find the Registrar's letter to be a notice of revocation or an exercise of discretion reviewable by a reference under s. 74. These cases included H. v. Canada , In the Matter of an Application for a Reference Hearing Made Pursuant to Section 74(1) of the Firearms Act , R.S.C. 1985, Provincial Court of Newfoundland and Labrador, October 26, 2020 (unreported decision); Wyville v. R. , 2020 ONCJ 555 ; Barrett v. Canada , 2010 BCSC 345 , Young v.

R. , (NBPC Letter dated September 18, 2020), A.G. v. Fritz, Ontario Court of Justice, Reasons for Judgment dated January 14, 2020; and the recent decision of the Honourable Judge Smith in A.G. v. Clarke , Oral Ruling dated January 4, 2021, Provincial Court of B.C. Surrey Registry file number 241017-1. [ 11 ] There are a line of cases arising from the Provincial Court of Alberta (specifically, nine decisions of Judge Fradsham) rendered on the same date, including A.G. v.

Stark , [2020] AJ 2300 , wherein The Honourable Judge Fradsham disagreed with the line of decisions before him and the approach taken in other provinces. Judge Fradsham found the Registrar's letter, in those related cases, constituted revocations for the purposes of s. 74(1) of the Firearms Act . [ 12 ] As stated by The Honourable Judge Smith in R. v. Clarke of the Provincial Court of British Columbia, at paragraph 12, “In my view, the decision that is binding upon this court is the case of Scherbey v. Canada (A.G.) ” being a 2009 decision of the British Columbia Supreme Court: Scherbey v.

Canada , 2009 BCSC 1445 . I agree with Judge Smith’s analysis. [ 13 ] In Scherbey , the Supreme Court upheld the Provincial Court judge's conclusion that the firearms officer had not made a decision but had merely stated the effect of the law in writing to advise the applicant of the invalidation of his licence. The Court concluded that

there was no decision to review pursuant to s. 74 of the Firearms Act . Scherbey supports the Attorney General's position that there is only revocation where the law says there has been a revocation. [ 14 ] Applying Scherbey to the matter before the Court in R. v. Clarke , Judge Smith went on to state at paragraph 13: For this application, the registrar's letter does not meet the threshold requirements for this court to assume jurisdiction under s. 74(1)(

a) of the Firearms Act . As such, the process and remedies requested by the applicant fall outside of this Provincial Court's jurisdiction. [ 15 ] I am not persuaded by the arguments of Judge Fradsham. I agree that the Registrar's letter was overwhelmingly informational in nature. As stated by The Honourable Judge Guay in A.G. v.

Fritz , Ontario Court of Justice, Reasons for Judgment dated January 14, 2020, at paragraph 17: [17] As in the case before me, there was no evidence in Stark that the Registrar of Firearms had been called upon to determine which formerly “restricted” weapons were now to be classified as “prohibited”. There was no evidence that it was the Registrar who prepared the list of firearms identifying certain “restricted” firearms as “prohibited”. It was not the Registrar who selected these firearms to be reclassified.

It was Orders-in-Council SOR/2020-96 passed by the Governor-in-Council and not the Registrar who made the selection. Other than to provide evidence during an amnesty period that the firearms had previously been legally acquired, there was almost no remaining purpose for the registration certificates previously permitting their holders to be in possession of their restricted firearms. [ 16 ] As further stated by Judge Guay at paragraph 24: The power to revoke was simply not invoked when the Registrar sent out the letter… [ 17 ] In this case, the Registrar’s letter dated July 20, 2020 was sent to Mr.

Schafer and other restricted firearm owners. The power to revoke was simply not invoked by the Registrar’s letter. [ 18 ] In conclusion, I find that the power to revoke Mr. Schafer's registration certificate was not used, as it was not needed to effect the reclassification of his firearm and the consequent invalidity of the accompanying registration certificate. This was done by the OIC. As such, the Provincial Court of BC, by operation of s. 74 of the Firearms Act , does not have jurisdiction in this matter. The Attorney General's application to dismiss is therefore granted. (REASONS CONCLUDED)