2021 QCCQ 1620, 2021 QCCQ 1620

Ek c. Registrar of Firearms JP 2080

Loi sur les armes à feu / Reclassification / Référence à un juge de la Cour provinciale / Juridiction 2021 QCCQ 1620 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-38-027689-206 DATE: January 19, 2021 ______________________________________________________________________ BY THE HONOURABLE YVES PARADIS, J.C.Q. ______________________________________________________________________ Nils EK Applicant v.

THE REGISTAR OF FIREARMS and THE ATTORNEY GENERAL OF CANADA Respondents ______________________________________________________________________ JUDGMENT ON MOTION TO DISMISS AN APPLICATION FOR A REFERENCE HEARING ______________________________________________________________________ OVERVIEW [ 1 ] The Applicant applies for a reference to a provincial court judge under

section 74 of the Firearms Act [1] as a result of a letter sent to him by the Registrar of Firearms (Registrar) to the effect that his previous registration certificates of two restricted firearms were automatically nullified by amendments to the regulations. [ 2 ] By his application, the Applicant seeks an order cancelling what he referred to as a revocation by the Registrar of the registration certificates regarding these firearms. [ 3 ] The Attorney General of Canada (AGC) asks this Court to summarily dismiss this application on the basis of lack of jurisdiction.

CONTEXT [ 4 ] The Applicant holds a firearms licence authorizing him to possess and acquire non-restricted and restricted firearms [2] . [ 5 ] On February 5, 2018, a firearm registration certificate [3] is issued to the Applicant for a restricted firearm, a Bushmaster semi- automatic rifle.

[ 6 ] On October 3, 2019, a firearm registration certificate [4] is issued to the Applicant for a restricted firearm, a Black Creek Labs semi-automatic rifle. [ 7 ] Prior to May 1, 2020, these two firearms were classified as restricted firearms by the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted [5] ( Classification Regulations ). [ 8 ] Since May 1, 2020, these two firearms are classified as prohibited firearms according to amendments to the Classification Regulations by 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 [6] , resulting from the Order in Council 2020-298. [ 9 ] On May 8, 2020, as a result of the amendments, the registration status of these two registration certificates was modified in the Canadian Firearms Registry [7] .

Since then, they are noted as "administratively expired".

This registration status is the entry the Registrar uses when registration certificates are no longer valid in cases such as deactivation, exportation, destruction of a firearm or through changes in law affecting the status of a registration certificate. [ 10 ] In June 2020, an application for judicial review, declaratory relief and a constitutional challenge in respect of Order in Council 2020-298, that is to say in respect of the amendments to the Classification Regulations , has been filed before the Federal Court by the Applicant and a group of individuals [8] . [ 11 ] A letter dated July 20, 2020, entitled "Firearm Registration Certificate Impacted by the Amended Classification Regulations" [9] was sent to the Applicant by the Registrar.

This letter informs the Applicant of the consequences of the amendments to the classification of his firearms, more precisely that the firearms already mentioned are now classified as prohibited firearms and that the previous registration certificates concerning them were automatically nullified and are no longer valid. This letter also refers the Applicant to an Amnesty Order protecting owners from criminal liability for unlawful possession of a newly prohibited firearm, which was previously restricted, under certain conditions until April 30, 2022.

The letter also informs the Applicant that these previous registration certificates should be retained as a historical registration record. POSITION OF THE PARTIES [ 12 ] The Applicant emphasizes that the amended Classification Regulations never mention that the previous certificates are null and void. He adds that the Classification Regulations never call for action on the part of the Registrar. He submits that the Registrar necessarily expressed an

interpretation of the Classification Regulations and made a decision when he wrote that "the previous registration certificates are automatically nullified and are therefore no longer valid". For the Applicant, the Registrar thus makes a decision to revoke the certificates. The Applicant also alleges that "the Orders in Council giving rise to the purported change in the law are both illegal and unconstitutional and therefore of no force or effect". [ 13 ] The AGC submits that the letter sent by the Registrar is not a decision but an information notice. Consequently, there is no decision by the Registrar to revoke the registration certificates and this Court has no jurisdiction under

section 76 of the Firearms Act . According to the AGC, the real target of the application is the decision of the Governor in Council to make the amendments to the Classification Regulations , which can only be contested in Federal Court. THE LAW [ 14 ] According to subsection 74 (1) of the Firearms Act , where the Registrar revokes a registration certificate, the holder of the registration certificate may refer the matter to a provincial court judge. [ 15 ] According to

section 76 of the Firearms Act , the provincial court judge may confirm the decision of the Registrar or cancel the revocation of the registration certificate. ANALYSIS [ 16 ] The primary question to be resolved is the following: Did the Registrar make a decision to revoke the registration certificates of the Applicant? [ 17 ] The letter sent to the Applicant mentions that, as a result of recent regulatory amendments, the Applicant’s rifles are now classified as prohibited firearms.

There is also a statement that the registration certificates describing these firearms as restricted firearms were nullified by the amendments and are no longer valid. [ 18 ] The Applicant relies on the decisions of the British Columbia Supreme Court in R . v. Porter [10] and Canada (Attorney General) v. Bennell [11] . [ 19 ] In Porter , the accused had been released on a recognizance order prohibiting him from being in the possession of firearms. While under that recognizance, he was found in possession of non-restricted and restricted firearms at his residence. Mr.

Porter had registration certificates which referred to restricted firearms found at his residence. Mr. Porter was charged with counts relating to the possession, storage, licensing and registration of firearms and ammunition. The validity of these certificates was in issue. The prosecution submitted that, by operation of sections of the Firearms Act , the recognizance prohibiting Mr. Porter from being in possession of firearms made him ineligible to hold a licence and therefore ineligible to hold registration certificates.

Accordingly, the recognizance prevented him from being the lawful holder of either a licence or registration certificates. Justice Dorgan concluded that an individual’s becoming ineligible to possess a firearm does not automatically prevent him from being the lawful holder of an existing licence or registration certificates. Justice Dorgan also concluded that, except for an automatic revocation resulting from the change of any alteration in a firearm as described in the application for the registration certificate, no revocations are automatic and must be done according to the procedure set out in the Act.

[20] In Bennell, the accused pleaded guilty to a charge of careless storage of a firearm. He was granted a conditional discharge with aprobation of twelve months, including a prohibition to possess firearms. At the expiration of the probation order, the firearms officeradvised the police not to return the firearms that had been seized. The firearms officer also sent a letter to Mr. Bennell advising him thatevery licence and registration certificate he holds was revoked or amended on the commencement of the prohibition order.

JusticeHalfyard concluded that although the provincial court judge held that the firearms officer had not made a decision to revoke the licencebut rather had relied on the automatic operation of subsection 116 (1) of the Criminal Code, there were several decisions implicit in thefirearms officer’s letter, including the fact that a probation order is a prohibition order and has the effect of permanently revoking Mr.Bennell’s firearms licence.

In his opinion, the provincial court judge erred in holding that a condition in a probation order is a prohibitionorder within the meaning of subsection 84(1) of the Criminal Code. [21] The AGC replies with the decision on appeal in Scherbey v. Canada (Attorney General)[12]. Mr. Scherbey was ordered into arecognizance pursuant to

section 810 of the Criminal Code. This recognizance included a condition prohibiting the possession of anyfirearm. This was followed by a letter from the firearms officer advising him that every authorization, licence or registration certificateissued to him was revoked or amended to the extent of the prohibitions in the order prohibiting the possession of firearms. The provincialcourt judge ruled that he had no jurisdiction to conduct a reference hearing because the firearms officer had not made a decision but hadmerely stated the effect of the law.

Justice McEwan decided that the provincial court judge was correct because the letter of the firearmsofficer was not a decision but a notice of the consequences of a prohibition under

section 810 of the Criminal Code. [22] These three judgments deal with what constitutes a prohibition order and the consequences which flow from such a prohibitionon the validity of a licence or a registration certificate.

They do not address the effects of amendments to the regulations concerning theclassification of firearms. [23] Conflicting decisions have been rendered with respect to situations similar to the present one. [24] In The Matter of an Application for a Reference Hearing, Made Pursuant to Section 74(1) of the Firearms Act, R.C.S.1985,Judge Gorman concluded that: the provincial court does not have jurisdiction to hear Mr. H’s application for a reference pursuant to section 74(1) of the Firearms Act. Ihave reached this conclusion because Mr.

H’s registration certificate was not revoked by the Registrar of Firearms or a chief firearmsofficer. Neither had any involvement in this matter. The nullification of Mr. H’s registration certificate was solely as a result of a changein the regulations. This Court does not have the jurisdiction to review such a decision.[13] [25] In R. v. Wyville[14], Judge Griffin agrees with Judge Gorman: 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 [44] of his October 23rd, 2020, decision in the matter of the applicationof a reference hearing made pursuant to Section 74(1) of the Firearms Act RSC , Newfoundland and LabradorProvincial 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. [26] Judge Fradsham came to a different conclusion in Canada (Attorney-General) v.

Imler[15] to decide that the Registrar didrevoke a registration certificate: [61] Through the letter, the Registrar of Firearms told Mr. Imler that the registration certificate specifically identified and listedin the letter is “automatically nullified and [is] no longer valid”. [62] Nothing in either the Firearms Act or SOR202-96 says that the registration certificate is “nullified”, “automatically” orotherwise. Likewise, nothing in either the Firearms Act or SOR202-96 says that the registration certificate is “no longer valid”.

Indeed,as previously explained, the registration certificate continued to exist in law after the firearm reclassification effected on May 1, 2020, bySOR2020-96. SOR202-96 did not nullify or make invalid the registration certificate. [63] Consequently, if the Registrar of Firearms was of the opinion expressed in his or her July 20, 2020, letter that the listedregistration certificate was “nullified” and was “no longer valid”, which was the message sent by the Registrar to Mr. Imler, then thatnullification and invalidity must have come about as a result of

an act of the Registrar of Firearms. [27] Judge Fradsham reached the same conclusion in Canada (Attorney-General) v. Stark[16]. [28] With respect, I agree with Judges Gorman and Griffin. [29] As explained in Canada (Registrar of Firearms) v. Whitmore[17] regarding decisions of the Chief Firearms Officer and theRegistrar to refuse to issue licences and registration certificates in accordance with a provision of the Firearms Act providing that allregistration certificates would expire on December 31, 2002: With respect to his due process argument, Mr.

Burlew pointed to the procedures provided for in other situations, such as where theRegistrar seeks to revoke a registration certificate. He submitted that similar procedures were required for s. 127(2) to meet constitutionalmuster. The analogy to revocations is inapt. Revocation requires the exercise of judgment or discretion in light of particular facts. Thereis no judgment or discretion to be exercised by the Registrar under s. 127(2). [30] On April 30, 2020, the Applicant held registration certificates for the following firearms: a Black Creek Labs BCL15 and aBushmaster Carbon 15.

These two firearms are specifically classified as prohibited firearms pursuant to subsections 87 (z.13) and 87

(z.105) of

Part 1 of the new

Schedule of the Classification Regulations . There was no exercise of judgment or discretion by the Registrar as to their classification as prohibited firearms. [ 31 ] The direct consequence of the amendments is that the registration certificates describing them as restricted firearms no longer comply with the law. The fact that the registration certificates describing them as restricted firearms are no longer valid does not result from a decision of the Registrar but from the application of the law. [ 32 ] The Registrar never exercised judgment or discretion in light of particular facts .

In his letter, he simply informed the Applicant about the amendments to the Classification Regulations and their impact on his registration certificates. [ 33 ] These firearms are currently prohibited firearms. The registration certificates referring to these weapons as restricted firearms were nullified by the law, not revoked by the Registrar. [ 34 ] Accepting the Applicant’s proposal would result in the following situations: a person in possession of a prohibited firearm with a registration certificate describing this firearm as restricted and a licence not allowing this person to possess prohibited firearms.

Such a result is legally unsustainable. [ 35 ] For those who may doubt the immediate impact of the amendments to the validity of registration certificates, the adoption of the Order Declaring an Amnesty Period [18] pursuant to subsection 117.14(1) of the Criminal Code is, however, unequivocal.

A two-year amnesty period was established for the possession of newly prohibited firearms which were restricted firearms if the person who owned or possessed that firearm held a registration certificate for the specified firearm on April 30, 2020. [ 36 ] According to subsection 84(1) of the Criminal Code , restricted firearms and prohibited firearms include any firearm prescribed to be a restricted or prohibited firearm. [ 37 ]

Section 117.15 of the Criminal code empowers the Governor in Council to make regulations prescribing anything to be a prohibited firearm or a restricted firearm. It is pursuant to this power that the Governor in Council made and amended the Classification Regulations . [ 38 ] In paragraphs 5 and 6 of his application, the Applicant submits that the Order in Council modifying the regulations is illegal and not constitutional, and therefore of no force and effect. Alleging similar arguments, the Applicant is also party to proceedings in Federal Court.

It should be noted that these proceedings were instituted before the receipt of the Registrar's letter by the Applicant. [ 39 ] By this present application to a provincial court judge, the Applicant seeks declaratory relief concerning the constitutionality of the amendments. The essential nature of this application is therefore not a challenge to a decision of the Registrar but rather a declaratory relief against the decision of the Governor in Council to amend the regulations. [ 40 ]

Section 18 of the Federal Courts Act [19] provides that the Federal Court has exclusive original jurisdiction to grant declaratory relief against any federal board, commission or other tribunal. Federal board, commission or other tribunal is defined in

section 2 of this Act as meaning any body, person or persons exercising jurisdiction or powers conferred by or under

an Act of Parliament. [ 41 ] By making the Classification Regulations , the Governor in Council is exercising jurisdiction or powers under

an Act of Parliament. The Federal Court has exclusive original jurisdiction to grant declaratory relief. [ 42 ] Moreover, regarding the Applicant’s argument that the Order in Council modifying the regulations is illegal and not constitutional, the jurisdiction of a provincial court judge was discussed by the Supreme Court of Canada in R . v. Lloyd : The law on this matter is clear.

Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982 ; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. [20] CONCLUSION [ 43 ] The Registrar did not revoke the registration certificates.

Accordingly, a provincial court judge has no jurisdiction under sections 74 to 76 of the Firearms Act . [ 44 ] The Applicant is seeking declaratory relief against amendments made by the Governor in Council. The Court of Quebec does not have jurisdiction to grant such relief. THEREFORE, For these reasons, the Court: DISMISSES the Applicant’s reference to a provincial court judge.

__________________________________ Yves Paradis, J.C.Q. Me Joshua Wilner For the Attorney General of Canada Me Steven G. Slimovitch For Mr. Nils Ek Hearing : October 9, 2020 and December 9, 2020