R. v. Sehrndt, 2011 ONCJ 405

Citation: R. v. Sehrndt , 2011 ONCJ 405 ONTARIO COURT OF JUSTICE IN THE MATTER OF a reference pursuant to s. 74 of the Firearms Act, S.C. 1995, c. 39 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (CHIEF FIREARMS OFFICER) ( RESPONDENT) — AND — UWE SEHRNDT ( APPLICANT) Before Justice P.

Harris Reasons for Judgment released on August 8 th , 2011 Appearances: Kate Doorly. ......…........................................................................for the Respondent (Crown) Paul DeCaire ……………………………………………………for the Chief Firearms Officer Uwe Sehrndt………….......................................................... (the Applicant) Self Represented 1 . P.J. HARRIS J. ― This is a judgment following a reference hearing under s. 74 of the Firearms Act brought by Uwe Sehrndt as Applicant.

An Ontario Firearms Officer, Paul DeCaire, refused to issue a licence allowing the Applicant to possess and acquire prohibited firearms and upon the issuance of a Notice of Refusal this reference for a review of that decision was commenced. 2 . The facts are as follows: A. On March 31, 1983 the Applicant was issued a registration certificate for a Luger 9mm. semi-automatic handgun. B. On March 31, 1983, the Applicant was issued a registration certificate for a Bomische Waffenfabrik 7.65mm. semi-automatic handgun. C.

On June 15, 1989 the Applicant was issued a registration certificate for a Walther Model PP 7.65mm. semi-automatic handgun. 3 . Consequently, under the old Firearms Act , the Applicant was fully registered and legally compliant. 4 . On December 1, 1998, the Firearms Act (S.C. 1995, c. 39 ) came into force as did amendments to the Criminal Code . One of the effects of the legislative changes was to re-classify all of Mr.

Sehrndt’s handguns from restricted weapons to prohibited firearms by virtue of their having a barrel length of less than 105 mms as well as in case of handguns B. and C., above, by virtue of their being .32 calibre handguns.

5 . Another effect of the legislative changes was to impose concurrent licensing and registration requirements. Under the old Act, a gun owner was only required to hold a registration certificate for a restricted handgun; the new Act requires every person who intends to possess and acquire a firearm to be licenced and that he or she has registration certificates for every firearm possessed. The net effect of these changes for Mr.

Sehrndt was that since his guns had been reclassified he had to apply for a licence to own or possess the guns and then apply for registration certificates for each gun once he was properly licenced. Mr. Sehrndt could not get to first base with these new procedures because his licence was refused. 6 . But Mr. Sehrndt could have been properly licenced and registered if he had not missed the window of opportunity to bring his guns into compliance with the law.

To permit the Applicant and other in a similar position to legally possess the newly classified prohibited firearms, Parliament provided a period of time, by way of an amnesty or grace period to come into compliance with the new Act by applying for and being issued licences and registration certificates for each prohibited firearm. 7 . There were two grandparenting periods. The Applicant had from December 1, 1998 to June 30, 2002 to licence the prohibited firearms and from December 1, 1998 to December 31, 2002 to obtain registration certificates for each handgun. 8 .

The Firearms Act provided that the registration certificates issued before December 1, 1999 (A,B and C, above) would continue to be valid to December 31, 2002 at which time they were deemed to have expired. If nothing was done to replace the old restricted weapon registration certificates with new prohibited firearm certificates by December 31, 2002, by reason of 12(6.1) of the Firearms Act, Mr. Sehrndt was not eligible to be licenced to own and possess the above-noted weapons. FIREARMS ACT S.C. 1995, c. 39 Registration certificates 127.

(1) A registration certificate is deemed to be a registration certificate issued under

section 60 if it (

a) was (

i) issued under subsection 109(7) of the former Act, or (ii) continued under subsection 6(2) of the Criminal Law Amendment Act, 1968-69 ,

chapter 38 of the Statutes of Canada, 1968-69, or subsection 48(2) of the Criminal Law Amendment Act, 1977 ,

chapter 53 of the Statutes of Canada, 1976-77; and (

b) had not been revoked before the commencement day. Expiration

(2) A registration certificate that is deemed to be a registration certificate issued under

section 60 expires on the earlier of (

a) its expiration under

section 66, and (

b) December 31, 2002, or such other date as is prescribed. _____________________________________________________ Grandfathered individuals — pre-December 1, 1998 handguns 12

(6) A particular individual is eligible to hold a licence authorizing that particular individual to possess a handgun referred to in subsection (6.1) if (

a) on December 1, 1998 the particular individual (

i) held a registration certificate under the former Act for that kind of handgun, or (ii) had applied for a registration certificate that was subsequently issued for that kind of handgun; and (

b) beginning on December 1, 1998 the particular individual was continuously the holder of a registration certificate for that kind of handgun. Grandfathered handguns — pre-December 1, 1998 handguns (6.1) Subsection (6) applies in respect of a handgun

(

a) that has a barrel equal to or less than 105 mm in length or that is designed or adapted to discharge a 25 or 32 calibre cartridge; and (

b) in respect of which (

i) on December 1, 1998 a registration certificate had been issued to an individual under the former Act, (ii) on December 1, 1998 a registration certificate had been applied for by an individual under the former Act, if the certificate was subsequently issued to the individual, or (iii) a record was sent before December 1, 1998 to the Commissioner of the Royal Canadian Mounted Police and received by that officer before, on or after that date. 9 . Section 127(2)(

b) provided that all registration certificates issued prior to December 1, 1998, under the former Act, would continue in force until December 31, 2002 ─ at which time they expired ─ unless in that four year grace period the person possessing those registration certificates applied to obtain a licence and registration certificates under the Firearms Act . Section 12(6) sets out the requirements a person has to meet to hold a licence to possess a s. 12(6.1) prohibited firearm.

Only persons who are grandparented by s. 12(6) of the Act are lawfully entitled to hold a licence allowing them to possess prohibited firearms. That’s where Mr. Sehrndt missed the boat. He did not apply to be grandparented under the four year grace or amnesty period and when he finally applied to the Chief Firearms Office for Ontario for licensing in 2006, the Firearms Office, Paul James DeCaire, acting under the authority of the Chief Firearms Officer, concluded he had no discretion to issue a licence because Mr.

Sehrndt could not meet condition 12(6)(b), above (he was not was continuously the holder of a registration certificate for that kind of handgun from December 1, 1998 to 2006 because his registration certificates expired on December 31, 2002). 10 . Without a Licence, Mr. Sehrndt was precluded from applying to the Federal Firearm Registrar’s Office for registration certificates for the handguns. Currently, the prohibited handguns cannot legally be possessed by the Applicant due to the absence of licences and registration certificates and they are currently in the possession of the Toronto Police Services. 11 .

I found Paul DeCaire to be credible in every respect and he was candid about simply not having any discretion in the matter because of the specific wording of the Firearms Act . Because the Act was federal legislation, the Federal Government had the responsibility of informing the public about these legislative changes and the approach taken was to communicate by way of press releases and through organizations such as gun clubs. 12 .

Uwe Sehrndt testified and stated he was never notified about the change in classification of his guns and the new licencing and registration regime with the four year grace period during which he could be grandparented into legal possession of the handguns. He believed that it was wrong for government to deprive him of his property without notice. He indicated he certainly would have complied with the statutory requirements if he were aware of the legal changes and their impact on him. He gave evidence that the guns have great sentimental value to him as a collector.

He stated he has a long history of safe and careful gun possession and he stands to lose approximately $5,000.00 in terms of the value of the guns if he can’t own them legally. I found Mr. Sehrndt to be honest, sincere and credible and I am not unsympathetic about his plight. It would have added very little to the administrative burden of the legislative changes to have notified everyone with properly registered restricted weapons of the legislative changes and their impact. 13 . That being said, MacDonnell J in R v. Whitmore 2008 ONCJ 166 (Ont.

C.J.) (at para. 36 ) sets out the law on procedural fairness in this area: In other words when Parliament takes away a benefit or a privilege to possess certain firearms notice an opportunity to make a defence is not required. 14 . The test I apply on a reference hearing is based on the wording in s. 75(3) of the Firearms Act : 75(3) on the hearing of the reference, the burden of proof is on the Applicant or holder to satisfy the provincial judge that the refusal to issue a license... was not justified. 15 . The case authorities are in agreement that the standard of review to be applied is “reasonableness”.

This has been interpreted to mean that the Applicant must show unreasonableness (by the firearms officer) on a balance of probabilities. (See B. C. v. Fahlman 2004 BCCA 343 at para 23 . 16 . There are a number of decisions across the country upholding firearms officer’s refusals to licence handguns where Applicants have become ineligible for licencing because of a failure to act within the statutory grace period that provided the opportunity for the grandparenting of firearms that would otherwise be prohibited. (See for example Canada v. Wilson 2010 BCSC 976 ; Canada v. Couchman 2008 O.J. 4940 ). 17 .

In my view the Firearms Officer’s decision in the instant case was reasonable in light of the evidence and the legislative framework. In other words, it was not unreasonable to have concluded that the Firearms Act simply did not authorize him to issue a licence to an individual whose registration certificates had expired under sections 127(2)(

b) and 12(6)(b). 18 . Most importantly it should be understood that the public policy in respect to firearms such as handguns that are designed to kill in an instant is that they have been prohibited from public use and possession for all except policing authorities and a special group with

historic entitlements. Extraordinary arrangements were made in legislation to permit continued possession by these members of the public through the process outlined above known as grandparenting. Above all, the underlying policy in this legislation is that the ability to possess dangerous firearms is a privilege that entails a responsibility to be attentive to any legislative changes that impact on the ability to continue to possess such items and a responsibility to react in a timely way and take all necessary steps to remain in compliance with the firearms law as it evolves and changes. 19 .

While I have some sympathy for Mr. Sehrndt’s predicament in the circumstances, I am bound by the case authorities that state that Parliament is free to do as it sees fit within its constitutional boundaries and to enact legislation without regard for procedural fairness (such as notice) or any adverse impact the legislation may have on specific individuals. (See A.O. Farms Inc. v. Canada; Wells v.

N.F.L.D. (1999) 3 S.C.R. 149 (S.C.C.) in which the Supreme Court held that legislative decision-making is not subject to any known duty of fairness. “The rules governing procedural fairness do not apply to a body exercising purely legislative functions”). 20 . The Firearms Act has taken away the Applicant’s opportunity to possess the handguns noted above when he did not make the application to be grandparented with the four-year grace period. The Firearms Officer is not required to do any more than determine whether the Applicant applied within the timeframe allowed by the statute.

Since the Applicant had not applied to regularize his possession of the reclassified prohibited firearms, the decision to refuse to issue a licence was not unreasonable. The Application is therefore dismissed. Released: August 8, 2011. Peter Harris J.