R. v. Vivares, 2011 ONCJ 313

Information No. 09-06940 Citation: R. v. Vivares , 2011 ONCJ 313 ONTARIO COURT OF JUSTICE MALAQUIAS VIVARES v. ATTORNEY GENERAL OF CANADA

(REGISTRAR OF FIREARMS) REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE P. WRIGHT on April 20, 2011, at NEWMARKET, Ontario APPEARANCES : D. Murlog Student-at-law, Department of Justice E. Burlew Counsel for Malaquias Vivares WEDNESDAY, APRIL 20, 2011 REASONS FOR JUDGMENT Wright, J (Orally) Reference Hearing and Position of the Parties [ 1 ] On the 24th of June 2009, the Federal Registrar of Firearms, the “Registrar”, refused to register two handguns owned by Malaquias Vivares, who is the Applicant.

The Applicant sought a reference hearing before this court challenging the Registrar’s decision pursuant to the Firearms Act , the “ Act ”. The Applicant is seeking an order from this court directing the Registrar to issue a registration certificate to him in relation to the two handguns.

These handguns are short-barrelled handguns colloquially referred to as handguns under 12(6) and I will refer to them as such in the course of my ruling. [ 2 ] The Registrar, as respondent in this reference hearing, is opposed to the review order being sought by the Applicant and seeks instead an order confirming the Registrar’s refusal to issue a registration to the Applicant in relation to these two 12(6) handguns. [ 3 ] The reference hearing is the process by which the Registrar’s decision to refuse to issue registration to the Applicant for the two handguns can be dealt with in law.

The standard of review in this reference hearing is an assessment of the reasonableness of the Registrar’s decision. During the course of the reference hearing, both Applicant and Respondent have provided extensive oral and written submissions to this court related to the facts of this case and the applicable law. Evidence was presented as well. Analysis

[ 4 ] I have carefully considered the facts, the evidence, the law, and the submissions of counsel. With significant regret and concern as an officer of this court, I have had to come to the conclusion that the Registrar’s decision to refuse to register the Applicant’s two handguns was reasonable and can be sustained. [ 5 ] This case has probably given me more anxious moments of consideration than many that I have had in this court over the almost ten years I have been on this bench. At the root of our criminal justice system is a determination of moral wrongdoing, culpability based upon moral wrongdoing. Mr.

Vivares has done absolutely nothing wrong morally and yet, because of the tangled legislation and the zealous way in which the Department of Justice has proceeded in this matter, I am left with no alternative but to conclude as I have. Ruling [ 6 ] As a consequence of that regrettable decision, I have further concluded that the only appropriate order to issue is the one that confirms the decision of the Registrar in refusing to register Mr. Vivares’ two handguns. I will be providing significant written reasons for my decision within 30 days.

Analytic Overview [ 7 ] At the core of my decision was an analysis of factors which I will review briefly so that Mr. Vivares is aware of the thought process in which I engaged and came to this regrettable decision. [ 8 ] First, was the decision of the Registrar to refuse the application of Mr. Vivares to reregister unreasonable or unjustified? The Registrar, in this case, gave reasons for the refusal to register Mr. Vivares’ handguns and that was the fact that the registrant, Mr. Vivares, he did not hold a valid license to allow for proper registration under the Firearms Act .

It is not a case where there were no reasons given or insufficient reason to refuse the application for registration. Therefore, in a bare bones manner, the refusal complied with s. 72(2) of the Firearms Act . Given that the notice of refusal contained reasons, the refusal cannot be said to be unreasonable as that term is described in law. If it were otherwise, I would have ruled otherwise in accordance with the provisions of the decision of R. v. Cross , [2007] O.J.

No. 2124 (S.C.J.) , at paragraph 26 , permitting a chief firearms officer to revoke a license, or parenthetically a Registrar refusing to permit registration without giving reasons, is an anathema in a free and democratic society and an invitation to arbitrariness. This case and the decision borders on the sharp edges of arbitrariness from beginning to end. [ 9 ] The Registrar found that Mr. Vivares did not hold a license at the time of his application and, therefore, was not eligible for registration. The Applicant, that is to say Mr. Vivares, cannot be registered if he is not licensed.

The facts of this case point to that situation and so, not only is the position of the Registrar reasonable, it is defenceable in respect of the facts and the law in this case. [ 10 ] Secondly, does the reason for refusal matter where there is a situation such as this where there is no registration under the new Firearms Act as was indicated by use of the grandfathering clause?

An individual is permitted to possess prohibited weapons and restricted weapons only if authorized by legislation. [ 11 ] In order to possess a firearm, in this case a handgun, an individual must hold a license to possess that kind of firearm, issued by the chief firearms officer for the Province. The handgun in question must be registered under the Federal registration provisions of the Firearms Act with the Registrar.

In short, the Federal government controls the registration of handguns; the provinces control the licensing of the individual who wishes to be in possession; both must be in harmony with each other. Accordingly, under s. 13 of the Act the Registrar of firearms cannot issue a registration certificate for a firearm unless the individual is properly licensed to possess that kind of firearm. An individual is eligible to hold a license for a 12(6) firearm, which are the two handguns which are the subject matter of this particular reference hearing, if he or she meets the conditions outlined in s. 12(6) of the Act .

Section 12(6) provides that individuals who had possessed registration certificates under the former Act , as Mr. Vivares did, continue to be eligible for license privileges and registration certificates under certain specific conditions. [ 12 ] The Applicant, in this particular case, fails to meet the criteria set out in those conditions because he did not continuously hold a registration certificate for the two 12(6) handguns between December the 31st, 2002 and June the 19th, 2007. This is spelled out in the affidavit of Grace Zhang, which is filed as an exhibit, in paragraphs 13 and 22.

[13] What is so regrettable about this matter is that Mr. Vivares who came to this country from the Philippines with these handguns andis now a Canadian citizen, took all the steps that were required of him, all of the registration and licensing steps, but for one problem, thelack or failure to register these guns when the Criminal Code provisions of the Act were passed on through the Firearms Act. He got lostin the administrative shuffle. I repeat, he did nothing wrong. These guns that mean so much to him as part of his cultural history arenow going to be taken from him.

I find this decision most distasteful particularly when we pride ourselves in this country as a societybased on the rule of law which should apply fairly to people. There is no fairness in this decision, there are just hard rules. [14] The registration certificates for the two 12(6) handguns expired on the 31st of December, 2002 under s. 127(2) of the Act.

Consequently, because the Applicant did not continuously hold registration certificates between December 31st, 2002, and June the 19th,2007, he was not eligible to hold a license under s. 12(6) and the Registrar was required to refuse the Applicant’s application for theissuance of a registration certificate. In short, the Act did not permit, or does not permit, the Registrar to issue registration certificates pursuant to s. 13 because he was noteligible. That is to say, Mr. Vivares was not eligible, as a result of this gap between the 31st of December 2002, and the June date of2007.

The Registrar, ultimately, had no discretion but to refuse the application under s. 69 of the Act. Her Majesty the Queen v. Ehnes,[2007] N.W.T.J. No. 111. [15] While politicians and legislators and those who have a political interest would say, and do say, that this highly regulated area ofhandgun possession is designed to ensure safety of the public it has worked a gross and disproportionate result on Mr. Vivares. He wasnever, in my view, intended to be captured by this legislation.

When one considers the thousands of handguns that are coming into thiscountry without registration, possessed by people who do not have licenses, involved in the commission of criminal offences, and thenwe have Mr. Vivares who is an honest Canadian citizen with no record who is trying to get it right, trying to find his way through thiscomplicated legislation and gets ensnared, he is shown absolutely no discretion. That is just simply not fair. [16] The Quebec chief firearms officer issued a license to Mr. Vivares in November of 2003.

That license contained right on it aspecific provision that entitled this gentleman to be in possession of a 12(6) handgun almost a year after the last date upon which thehandguns could be registered, December the 31st, 2002. I searched anxiously through the materials that were provided to me, theexhibits and the documents, to see if I could discover anywhere the basis upon which the provincial chief firearms officer for theProvince of Quebec could have issued such a license to Mr. Vivares with the 12(6) provision contained right in it.

I was lookingsomewhere to see a scintilla of evidence that would allow me to conclude that this man must have been registered, that there must havebeen some mistake made by the Federal government because how could the chief firearms officer for the Province, almost a year afterthe end of the grandfathering provisions, have issued such a license if there were not a registered gun. After all, this is a highly regulatedarea. The chief firearms officer is required by statute to keep account of all of the registrations. The Registrar, federally, is required tokeep account of all of the registrations of the guns.

These two high-ranking offices, one provincial, one federal, have a duty to beinformed and to keep each other informed. So again I continued in my review of the evidence in this case. I struggled where and howwas it that the provincial chief firearms officer had issued this license with the 12(6) authorization in favour of Mr. Vivares when I amhearing from the Registrar that, “No, there were no guns registered”. The onus is on the Applicant, deference must be given to theRegistrar.

The legislation is set up in such a way that unless the Applicant can prove over and over his entitlement, he loses. [17] This case is singularly different from any other case that I reviewed because we have a senior member of the provincialgovernment of Quebec, the chief firearms officer of that province, issued a license to Mr. Vivares with a 12(6) authorization printed righton it. It is filed as an exhibit. When I asked the agents from the Department of Justice during the course of these proceedings, howcould that have happened, I received no response.

I asked the members from the Department of Justice, “Did you inquire of the chieffirearms office in the Province of Quebec how it could be that such a license could be issued with a 12(6) authorization in it?” “No, wedidn’t”. Shockingly indifferent! [18] I fall back to the law and statutory

interpretation and precedent, which work this terrible hardship on Mr. Vivares, this unfairhardship. The decision of Canada (Registrar of Firearms) v. Whitmore, 2008 ONCJ 166 , [2008] O.J.

No. 1374(O.C.J.)confirms that the test is whether the individual seeking to be licensed was continuously the holder of a registration certificate. [19] Paragraph 16 of the affidavit of Grace Zhang, which has been filed in these proceedings, confirms that the chief firearms officer forthe Province of Quebec was responsible for the issuing of firearms licenses and the Registrar of firearms responsible for the issuing ofthe registration certificates related to handguns. While it may have well been reasonable and, indeed, I conclude that it was reasonablefor Mr.

Vivares to assume on the basis of the issuance of his Possession and Acquisition License by the chief firearms officer for theProvince of Quebec, the so-called PAL, that he was validly licensed and ought, therefore, to be eligible for registration and that somehowthere was an error committed by the Registrar or by the chief firearms officer respecting the person’s eligibility for a license. But I couldnot find it in the evidence. All I found was this gap, this unexplained gap. It does not require a positive duty, apparently, on theRegistrar to make inquiries. R. v. Jorgensen, [1995] 4 S.C.R.

[ 20 ] One would have expected and a reasonable person, a fair-minded person, would have expected that the notice provided to Mr. Vivares would have articulated the fact that the 12(6) handguns had not been registered. After all, that notice coming from the Registrar’s office was to deal with handguns. It did not contain that at all. What it did contain was reference to the fact that Mr. Vivares was not licensed. Now how did that happen? Well, when Mr. Vivares made his application in 2007 he was licensed. That PAL license that had been issued by the Province of Quebec in November of 2003 was valid.

What did the Registrar’s office do in relation to the application? Sat on it, did nothing as time passed. In fact, the Registrar did not actually assess Mr. Vivares’ application until 2009 after the license for the Province of Quebec had expired. It was open for the Registrar then to send a letter to Mr. Vivares, a notice, saying, “You don’t have a license.” He had had one when he applied, but the law says that the assessment, the determinative time for the assessment, is when the Registrar gets around to it. In this case, two years later at which time the license had expired. [ 21 ] Mr.

Vivares contends that there are problems with the quality of the information in that notice and also the delay which impact upon fairness. Mr. Vivares’ argument that the Registrar’s delay in issuing the notice of refusal or ignoring the state of the license that Mr. Vivares had at the time of his application support de facto registration of the firearms. But that cannot be supported in law and it cannot be supported on the facts. Indeed, so far as I am aware, the Applicant, Mr.

Vivares, has cited no authority in support of this argument nor adduced any evidence that he did not receive notice under the Act to register any restricted or prohibited firearms and, alternatively, paragraph 25 of the affidavit of Grace Zhang filed by the Department of Justice states that the C.A.F.C. sent out notices to licensed individuals and made every effort to advise clients of their requirements under the Act and their responsibility to take action with regard to the firearms for which registration certificates were issued under the former Act .

Further, the process delay by the Registrar from June of 2007 to June of 2009 did not cause the continuous registration to lapse because there was no registration. In this particular case, Mr. Vivares was not continuously registered because all of the deemed certificates which related to the 12(6) handguns expired December the 31st, 2002. The Applicant did not reapply until June the 19th, 2007. The fact that a PAL license was subsequently issued or that notice of refusal was not provided until June the 24th, 2009, does not make the Registrar’s decision in law unreasonable or wrong.

I say “in law” given the eligibility requirements and the case law precedents. I cannot say, and I do not say, that the Registrar deliberately delayed responding. [ 22 ] Those are the points that I will deal with in the course of my written reasons which will be released shortly. [ 23 ] The order, therefore, that will go as a result of this review, is to confirm the decision of the Registrar in refusing to register the two 12(6) handguns.

FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, TRACEY BEATTY, certify* that this document is a true and accurate transcript of the recording of Malaquias Vivares v.

Attorney General of Canada (Registrar of Firearms) in the Ontario Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on April 20, 2011 taken from my Recording No. 4911-204-155/2011 which has been certified in Form 1. [ORIGINAL SIGNED BY REPORTER] Tracey Beatty, Certified Court Reporter May 25, 2011 Note: Photostat copies of this transcript are not certified and have not been paid for unless they bear an original signature in blue and,

accordingly, are in direct violation of Ontario Regulation 587/91 , Administration of Justice Act, January, 1, 1990. *This certification does not apply to this Reasons for Judgment which were judicially edited. Transcript Ordered: April 20, 2011 Transcript Completed: May 25, 2011 Ordering Party Notified: May 26, 2011