Her Majesty the Queen in Right of Canada - v. -, 2012 SKPC 055

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 055 Date: April 9, 2012 Location: Swift Current _____________________________________________________________________________ IN THE MATTER OF A REFERENCE HEARING PURSUANT TO

SECTION 74 OF THE FIREARMS ACT , S.C. 1995, c-39 Between: Her Majesty the Queen in Right of Canada - and - Mick Boon, on behalf of SaskSten Mr. Cailen Brust For the Crown Ms. Lindsay Gates and Mr. Mick Boon For SaskSten DECISION L.A. MATSALLA, J A. After receiving a Notice of Revocation and a Notice of Refusal To Issue Registration Certificates in respect of a number of firearms, the applicant requested a hearing under the Firearms Act S.C. 1995 c-39 (“the Act ”). SaskSten has been and continues to be engaged in the manufacture and modification of firearms. It is not a legal entity.

On November 27, 2008, it was licenced to possess firearms for certain purposes however the licence expired on April 18, 2011, only to be reinstated on December 8, 2011. At the time that the notices in this case were issued, the business was not licenced. Mr. Boon, who operates the business, does have a licence. In his case, the licence that was issued to him on January 17, 2007, has an expiry date of January 4, 2013. B. The Act purports to regulate the possession of firearms in Canada by businesses and individuals.

The legislative scheme requires a business to apply for and to hold a valid firearms licence that pertains to a certain class or classes of firearms and which

specifies the purposes for which the firearm may be used. The classes of firearms include non-restricted, restricted and prohibited classes. In addition, a valid registration certificate must be held for each firearm. The Registrar of Firearms (“the Registrar”) has the authority to issue and to revoke licences and certificates. C. On June 1, 2010, Mr. Boon (on behalf of SaskSten) applied for a registration certificate for a firearm called a Police Carbine.

As is the practice, the firearm was submitted to the Registrar for testing to determine the nature of the weapon and the class in which it could be said that the weapon belonged. Then on June 11, 2010, Mr. Boon again (on behalf of SaskSten) applied for and successfully obtained a registration certificate to permit the business to possess a semi-automatic firearm known as a Simonov. The firearm was known to have serial number 189. Subsequently on July 20, 2010, SaskSten applied to register an SSSP bolt action rifle. It, too, was submitted for testing.

It is common ground that this weapon was a modified version of the same Simonov referred to above. D. It is also common ground that on September 24, 2010, the offices of the R.C.M.P. responsible for testing firearms for the Registrar advised Mr. Boon by email that the Police Carbine was a prohibited firearm. SaskSten was not licenced to possess prohibited firearms. Mr. Boon took issue with the description of the action of the weapon arguing that the firearm was a bolt action weapon.

When the weapon was sent to him in September of 2010, he refused to accept it and it was returned to the office that had tested it where it remains to date. In April of 2011, SaskSten’s licence expired and, it appears, the issue as to the action of the firearm was not pursued by the applicant. E. By a notice dated August 3, 2011, the Registrar notified SaskSten that the office had refused to issue a registration certificate for the SSSP and the Police Carbine. The reason provided in the notification was that SaskSten did not, at that time, hold a valid firearms licence for such firearms.

Then, by notice dated August 5, 2011, SaskSten was advised that the Registrar had revoked the registration certificate for the Simonov firearm for the same reason. At this hearing, the Registrar has raised the additional concern that the Carbine is a prohibited weapon because it could easily be converted to an automatic firearm. While SaskSten presently holds a licence to engage in business activities in relation to restricted and non-restricted firearms, it is not authorized to possess prohibited weapons. F. On November 15, 2011, the Registrar accepted Mr.

Boon’s request that the Simonov firearm be transferred to him. It is described as a weapon that has semi-automatic action. He possessed the appropriate licence to possess such a weapon. Subsequently, this hearing was scheduled to take place on January 30, 2012. Issues

a) Whether the Registrar’s refusal to issue a registration certificate for the Police Carbine was justified, and

b) Whether the Registrar, having issued a certificate for the Simonov, was justified in revoking the registration certificate for the weapon. Arguments The Police Carbine G. The applicant takes issue with the assertion by the Registrar that the weapon is an automatic firearm and, accordingly, a prohibited weapon. He, too, is a person capable of verifying the classification of a firearm and he says that it is not such a prohibited weapon. Rather, it is a “manually operated bolt-action rifle” (paragraph 9 of the affidavit of Mr. Boon). The Registrar has not provided Mr.

Boon with any specific information pertaining to the analytical process that was used to determine that the firearm falls into the class of a prohibited weapon. Therefore he seeks an order that would declare the firearm a non-restricted weapon and that would direct the Registrar to issue a certificate in his favour or in favour of SaskSten since both of the parties possess a licence to possess a non-restricted weapon. H. The Crown takes the position that at the time of the refusal to issue a registration certificate, SaskSten did not possess a valid licence and so the Registrar’s decision was justified.

That ends the matter. If SaskSten is properly licenced it should now make a new application for a registration certificate for the consideration of the Registrar. Furthermore, the Crown now argues that the firearm is a prohibited weapon and a registration certificate cannot be issued in favour of SaskSten or in favour of Mr. Boon.

Simonov I. The applicant argues that a certificate should be issued describing the firearm as an SSSP with bolt action to correct the existing certificate. The Crown argues that the Registrar’s decision was justified at the time and the applicant should apply to amend the registration certificate. In response, the applicant urged the Court to proceed to resolve the matter at this hearing to avoid the delay that would result if the applicant were to seek an amendment to the certificate. Relevant Legislation J. Certain sections in the Act have application to this proceeding: Registration certificates 69.

The Registrar may refuse to issue a registration certificate, authorization to export or authorization to import for any good and sufficient reason including, in the case of an application for a registration certificate, where the applicant is not eligible to hold a registration certificate. Revocation of registration certificate 71.

(1) The Registrar (

a) may revoke a registration certificate for any good and sufficient reason; Notice of refusal to issue or revocation 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. Material to accompany notice

(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. Idem

(5) A notice given under subsection (1) in respect of a registration certificate must specify a reasonable period during which the applicant for or holder of the registration certificate may deliver to a peace officer or a firearms officer or a chief firearms officer or otherwise lawfully dispose of the firearm to which the registration certificate relates and during which sections 91 , 92 and 94 of the Criminal Code and

section 112 of this Act do not apply to the applicant or holder. Reference to judge of refusal to issue or revocation, etc. 74.

(1) Subject to subsection (2), where (

a) 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, (

b) a chief firearms officer decides under

section 67 that a firearm possessed by an individual who holds a licence is not being used for a purpose described in

section 28, or (

c) a provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for the purposes of this Act , 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.

(2) An applicant or holder may only refer a matter to a provincial court judge under subsection (1) within thirty days after receiving notice of the decision of the chief firearms officer, Registrar or provincial minister under

section 29, 67 or 72 or within such further time as is allowed by a provincial court judge, whether before or after the expiration of those thirty days. Burden of proof

(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. Decision by provincial court judge 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. The Law K. The onus is on the applicant at the hearing of a reference to satisfy this Court that the decision to refuse and revoke the registration certificates in question “was not justified”. L. Numerous cases have discussed the nature of the review that is authorized under the Act . One of the cases that conducts a thorough analysis of the issue is the case of R. v. Pogson [1] . It is clear that a reference hearing is not a hearing de novo in which a consideration of the evidence afresh can be conducted with little or no deference to the decision of the Registrar.

Rather the courts have determined that the standard of review that is applicable is that of “reasonableness”. That is, the applicant must show, on the balance of probabilities, that the Registrar’s decision was unreasonable and the judge, in deciding the matter, is required to show deference to the initial decision of the Registrar [2] . The decision made at the reference hearing is to be based on the record as amplified by the evidence heard during the hearing. M. Sanderman J. in Chief Firearms Officer (Alta.) v.

Holland [3] said this about the process: After amplification , the reviewing provincial court judge must decide whether the original decision is a reasonable one that can be justified even if the reviewing judge does not agree with it. If it is reasonable and can be justified it must stand. If not, the reviewing provincial court judge can change it. In this scheme deference to the original decision must be shown and it can only be altered and changed if the record and relevant evidence heard reveal that the original decision cannot be justified. Then interference is permitted.

An “amplified” record would include information that was not initially before the Registrar. N. In Pogson the Court examined the impact of new evidence at the hearing on the decision making process and Mr. Justice Slatter said the following: On the other hand, where the provincial court judge has before him or her significant and meaningful evidence that was not before the firearms officer, or the evidence on the reference shows that the factual assumptions of the firearms officer were clearly wrong, a different process is called for.

That significant and meaningful evidence might be evidence that was simply not before the firearms officer, or it might relate to events that have occurred or circumstances that changed after the initial decision was made. In cases of “new evidence” a two-stage process is called for: (

a) since the reference is not a hearing de novo , the provincial court judge should still examine the decision of the firearms officer, to see if it was reasonable based on the evidence that was before the firearms officer. If the decision was reasonable, some deference should still be given to it. (

b) the provincial court judge should then examine the new evidence to see whether it is significant enough to undermine the factual assumptions or inferences drawn by the firearms officer. If so, the provincial court judge would be entitled to interfere even if the decision, as originally made, was reasonable.

Of course the mere fact that the record discloses grounds for interfering with the decision of the firearms officer does not necessarily mean that the provincial court judge should simply substitute his or her opinion for that of the firearms officer. In many cases it will be appropriate to refer the matter back to the firearms officer for reconsideration.

This would particularly be the case when changed circumstances are alleged, and particularly where the firearms officer has not had a fair opportunity at the reference hearing to marshal evidence that might rebut the suggestion of changed circumstances. [4] Analysis The Decision of the Registrar O. The reasons provided by the Registrar in the case of the refusal and in the case of the revocation is that SaskSten’s business licence had expired and so it was not eligible to hold a registration certificate. No further reasons were provided in either of the notices. Evidence at the Hearing a. Police Carbine P.

The Police Carbine had been tested by the Registrar in September of 2010 and the results of the test were made known to Mr. Boon. He does not agree with the results and he submits that he is qualified to categorize the firearm differently. There is insufficient evidence before me as to the basis of the Registrar’s conclusion that the weapon is a prohibited weapon and there is insufficient evidence from the applicant as to the basis of his conclusion that it is not a prohibited weapon. b. Simonov Q. The evidence before me is that the Police Carbine and the SSSP firearm were submitted for testing.

I must assume that the Simonov was similarly submitted for testing and that the Registrar concluded that the weapon was a semi-automatic. Prior to the Registrar’s decision, Mr. Boon had taken issue with the examination of the action of the Simonov arguing that it was a bolt action firearm. It appears that Mr. Boon claims that he is qualified to determine the question. In any event, on November 15, 2011, the Registrar issued a registration certificate for the weapon to Mr. Boon without resolving the point. Conclusion R.

The Registrar may revoke a certificate for “any good and sufficient reason” [see s. 71(1)(a)] and it is mandatory that the Notice of Refusal include reasons for the decision [see s. 72(2)]. In respect of the Police Carbine, it appears that the Registrar now takes the position that the lack of a licence was not the only reason for the refusal but that the weapon is a prohibited weapon and so there exists yet another basis upon which to refuse the registration.

The Registrar not only knew that SaskSten did not have a licence but, for about a year prior to the refusal to register the weapon, was aware that the tests on the firearm concluded that it was a prohibited weapon. There is a serious question about the bona fides of the Registrar’s decision and perhaps the validity of the test results. Furthermore there is evidence from the applicant that the firearm is not a prohibited firearm. Clearly, then, the refusal does not set out all of the reasons for the decision to refuse registration as is required by the Act .

There is good and sufficient reason to conclude that the decision of the Registrar, while justified in part, was not reasonable as a whole because it appears to be incomplete. The Registrar must reconsider the decision. S. With respect to the Simonov, I must conclude that the Registrar’s decision to revoke the registration of the firearm was justified in that the applicant did not have the appropriate licence. The evidence adduced at the hearing is that a registration certificate in

favour of Mr. Boon has now issued which is to say that there is no reason for a registration certificate to exist in favour of the applicantfor the same firearm. I must hold that the decision of the Registrar was reasonable. The matter of the description of the Simonov remainsan issue for Mr. Boon now that he holds the certificate, he can seek to have the certificate amended. At this hearing, I must deal with arequest for a reference hearing by Mr. Boon on behalf of SaskSten only. I have no jurisdiction to deal with his certificate.

However, ithas been held that the Registrar ought to take the necessary steps to deal with the certificate if it is not correct. The Manitoba Court of Appeal in Hintz v. Chief Firearms Officer for Manitoba[5] said this about the role of the Chief Firearms Officer in relation to a suggestionthat a weapon was classified in error: His role does not extend to going behind the Registration Certificates.

If they are incorrect, it is not for the respondent to correct them, ashe has no responsibility for registration of weapons; rather, it would be the responsibility of the Registrar to take whatever steps areappropriate. T. It is entirely pointless to request a person who holds a registration certificate to resubmit an application for registration inorder to correct a potential error on the certificate. The Registrar should objectively examine the evidence in such a case and, if an errorhas been made, the certificate ought to be corrected.

If there is no error on the face of the certificate then adequate reasons should beprovided to the holder of the certificate. U. As I have said above, I am not in a position to determine whether the Registrar’s decision in respect of the Police Carbine isreasonable. Therefore, in respect of the matter of the refusal to issue a registration certificate for that firearm I refer the matter back to theRegistrar for reconsideration. The Registrar may find it helpful to advise Mr. Boon of the specific tests employed to analyse the weaponand for Mr.

Boon to advise the Registrar of the particulars relied upon by him in reaching his conclusion. This reference hearing has notconcluded and so it shall be adjourned to Monday, May 7, 2012 at 9:30 a.m. to conclude the matter. L. A. Matsalla, J [1] (2005), 2005 ABQB 179 , 369 A.R. 121 (Q.B.) [2] British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, at para. 23 [3] (2004), 2004 ABQB 44 , 350 A.R. 194 (Q.B.) [4] Supra, at para. 42 [5] [2011] N.J. No. 256