2023 FC, 2023 FC 1419

Date: 20231030 Docket: T-569-20 T-577-20 T-581-20 T-677-20 T-735-20 T-905-20 Citation: 2023 FC 1419 Ottawa, Ontario, October 30, 2023 PRESENT: The Honourable Madam Justice Kane Docket: T-569-20 BETWEEN: CASSANDRA PARKER AND K.K.S. TACTICAL SUPPLIES LTD. Applicants and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA Intervener Docket: T-577-20 AND BETWEEN: CANADIAN COALITION FOR FIREARM RIGHTS, RODNEY GILTACA, RYAN STEACY, MACCABEE DEFENSE INC., AND WOLVERINE SUPPLIES LTD.

Applicants and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA Intervener Docket: T-581-20 AND BETWEEN: JOHN PETER HIPWELL Applicant and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA Intervener Docket: T-677-20 AND BETWEEN:

MICHAEL JOHN DOHERTY, NILS ROBERT EK, RICHARD WILLIAM ROBERT DELVE, CHRISTIAN RYDICK BRUHN, PHILIP ALEXANDER MCBRIDE, LINDSAY DAVID JAMIESON, DAVID CAMERON MAYHEW MARK ROY NICHOL AND PETER CRAIG MINUK Applicants and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA Intervener Docket: T-735-20 AND BETWEEN: CHRISTINE GENEROUX, JOHN PEROCCHIO AND VINCENT PEROCCHIO Applicants and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA Intervener Docket: T-905-20 AND BETWEEN: JENNIFER EICHENBERG, DAVID BOT, LEONARD WALKER, BURLINGTON RIFLE AND REVOLVER CLUB, MONTREAL FIREARMS RECREATION CENTRE, INC., O’DELL ENGINEERING LTD Applicants and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA Intervener JUDGMENT AND REASONS Table of Contents I.

Introduction 4 II. Background and Context 9 A. The Statutory Provisions 9 B. Who is the Governor in Council and how do they make Regulations? 12 C. The Order in Council and Regulations 14 D. The Legislative History 16 E. The Firearms Reference Table 21 F. The Regulatory Impact Analysis Statement 22 III. Overview: The Applicants, the Intervener, and their Positions 27 A. Parker et al v AGC (T-569-20) [Parker Applicants] 27 B. Canadian Coalition for Firearm Rights et al v AGC (T-577-20) [CCFR Applicants] 30

C. Hipwell v AGC (T-581-20) 32 D. Doherty et al v AGC (T-677-20) [The Doherty Applicants] 34 E. Generoux et al v AGC (T-735-20) [The Generoux Applicants] 36 F. Eichenberg et al v AGC (T-905-20) [The Eichenberg Applicants] 38 G. The Attorney General of Alberta (Intervener) 40 H. The Relief Sought by the Applicants 42 IV. Overview: The AGC’s Position 43 V. The Issues 45 VI. The Evidence 47 VII. The Standard of Review 50 A. The Applicants’ Submissions 50 B. The AGC’s Submissions 51 C. The Jurisprudence 52 VIII.

Should an adverse inference be drawn from the AGC’s assertion of Cabinet confidence and failure to produce the record before the Governor in Council? 57 A. The Applicants’ Submissions 57 B. The AGC’s Submissions 59 C. No adverse inference should be drawn 60 IX. Are the Order in Council and Regulations ultra vires subsection 117.15(2) of the Criminal Code ? Are the Governor in Council’s opinion and decision reasonable? 64 A. The Submissions of the Intervener, Alberta 64 B. The Applicants’ Submissions 65

(1) The Regulations are ultra vires and the opinion and decision of the Governor in Council are not reasonable 65

(2) The now-prohibited firearms are reasonable for use in hunting and sport 72 C. The AGC’s Submissions 75

(1) The Regulations are not ultra vires and the Governor in Council’s decision is reasonable 75

(2) The now-prohibited firearms are not reasonable for hunting and sport 80 D. The Regulations are not ultra vires and the Governor in Council’s opinion and decision are reasonable 81

(1) Judicial Review of Regulations 81

(2) The relevant factual and legal context does not include the manner in which the Government proceeded 85

(3) Parliament has not abdicated its legislative role 86

(4) Consistency with the overall purpose of the legislation and the specific statutory provision 88

(5) The Governor in Council formed the opinion 90

(6) The Governor in Council’s opinion is reasonable 91 X. Is there an unlawful sub-delegation of authority from the Governor in Council to the SFSS to classify firearms as prohibited? 107 A. The Applicants’ Submissions 107

(1) Only the Governor in Council has the authority to prescribe firearms as prohibited 107

(2) The FRT is a de facto regulatory regime 108

(3) The constraints of subsection 117.15(2) should also apply to the SFSS 109

(4) No criteria to determine a “variant” 110

(5) All variants should be named in the Regulations; no unnamed variants 110

(6) Future variants cannot be prescribed as prohibited 111 B. The AGC’s Submissions 111

(1) There is no sub-delegation to the SFSS; the Regulations prohibit variants 111

(2) Both named and unnamed variants are prohibited 113

(3) Updates to the FRT since May 2020 114

(4) Criteria for the classification of firearms 114

(5) Classification is not immune from review 115 C. There is no sub-delegation of the Governor in Council’s authority pursuant to subsection 117.15(2) 115

(1) The statutory provisions 115

(2) The FRT is not a de facto regulatory regime 117

(3) The FRT is a database and administrative resource 118

(4) Courts ultimately determine whether a variant is a prohibited firearm 122

(5) Criteria for classification 124

(6) Quality assurance for classification and listing on the FRT 126

(7) A review process exists 127

(8) Prohibition of “future” variants 127 XI. Was there a breach of the duty of procedural fairness in the decision of the Governor in Council or in the assessments of firearms made by the SFSS? 129 A. The Applicants’ Submissions 129 B. The AGC’s Submissions 130 C. There was no breach of procedural fairness 131 XII. Do the Regulations infringe

section 7 of the Charter as vague, overbroad or arbitrary, and if so, is the infringement justified by

section 1? 133 A. The Applicants’ Submissions 133

(1) The term “variant” is vague 134

(2) The prohibitions on bore diameter and muzzle energy are vague 136

(3) The Regulations set out an exhaustive list of variants 137

(4) The Regulations are arbitrary and overbroad 138

(5) The infringement is not saved by

section 1 138 B. The AGC’s Submissions 139

(1) The right to security of the person is not infringed 139

(2) The right to liberty is engaged, but is in accordance with the principles of fundamental justice 139

(3) The Regulations are not impermissibly vague 140

(4) The Regulations do not set out an exhaustive list of variants 141

(5) Prohibitions on bore diameter and muzzle energy are not vague 142

(6) The Regulations are not arbitrary or overbroad 142

(7) Any infringement of the Charter is justified by

section 1 143

C. The Regulations do not infringe the

section 7 right to security of the person. To the extent that the Regulations infringe the

section 7 liberty interest, they are not vague, overbroad or arbitrary. 145

(1) The

section 7 right to security of the person is not engaged 145

(2) The

section 7 liberty interest is engaged 146

(3) The Regulations are not impermissibly vague, overbroad or arbitrary 146

(4) Any infringement of

section 7 is a reasonable limit pursuant to

section 1 162 XIII. Do the Regulations infringe sections 8, 11, 15 or 26 of the Charter , and if so, is any infringement justified by

section 1? 176 A. The Applicants’ Submissions 176

(1) Section 8 176

(2) Section 11 177

(3) Section 15 178

(4) Section 26 181 B. The AGC’s Submissions 181 C. The Regulations do not infringe Sections 8, 11, 15 or 26 183

(1) Section 8 is not engaged. 183

(2) Section 11 is not engaged 184

(3) Section 15 is not engaged 184

(4) Section 26 is not engaged 186 XIV. Do the Regulations infringe the Canadian Bill of Rights ? 187 A. The Applicants’ Submissions 187 B. The AGC’s Submissions 187 C. The Regulations do not infringe the Canadian Bill of Rights 188 XV. Conclusion 190 I. Introduction [ 1 ] Six Applications for judicial review, most of which involved several applicants and raised several common issues, were case managed and heard together.

This Judgment and Reasons applies to all Applications. [ 2 ] The Applications focus on regulations promulgated by the Governor in Council on May 1, 2020 — 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 , SOR/2020-96 [the Regulations].

The Regulations were made pursuant to the authority set out in the Criminal Code , RSC, 1985, c C-46 and have the effect of prohibiting the possession and use of listed firearms, variants or modified versions of the listed firearms, and firearms that have certain physical characteristics. [ 3 ] The Applications raise many issues, several of which are common and some, unique. The common issues include: whether the Regulations are ultra vires the delegated authority set out in subsection 117.15(2) of the Criminal Code ; whether the Regulations infringe

section 7 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 [ Charter ] due to vagueness, arbitrariness or overbreadth; whether the Regulations infringe other Charter rights; and, whether the Regulations violate the Canadian Bill of Rights , SC 1960, c 44 .

All the issues are set out in detail below. [ 4 ] The Attorney General of Alberta was granted leave to intervene with respect to the issue whether the Regulations are ultra vires and intervened as of right with respect to the constitutional issues raised by the Applicants. [ 5 ] One of the Applicants questioned whether these Applications were really about the need for further regulation of firearms in Canada. This judgment is not an opinion on whether or how firearms should be further regulated in Canada.

The debate on whether and how to reduce the risk posed by firearms has raged on for decades and will no doubt continue. The issue before this Court is a legal issue— whether the Governor in Council acted within its authority to make the Regulations and made a reasonable decision to prescribe as prohibited the firearms that, in its opinion, are not reasonable for hunting and sporting purposes. [ 6 ] The Applicants generally take the position that firearms are not the real threat to public safety, rather people who obtain and/or use

firearms illegally pose this threat. The Applicants highlight that their use of firearms is already highly regulated and that they take safety extremely seriously and abide by all the existing laws, licensing and registration requirements.

A common theme is that no further regulation is necessary, and more particularly, that the Regulations will not further contribute to the protection of public safety. [ 7 ] The Applicants argue that the focus on public safety as the goal of the Regulations is misplaced because the issue is only whether the now prohibited firearms are reasonable for use in hunting and sport. [ 8 ] The Applicants’ position is that the firearms prescribed as prohibited in the Regulations are indeed reasonable for hunting and sport and that the Governor in Council has not respected the constraint on its delegated authority and its opinion is not reasonable.

The Applicants point to extensive evidence about the history of use of these firearms for such purposes and submit that these firearms are not " “assault-style” " or " “military-style” " as suggested by the Respondent. [ 9 ] The Respondent, the Attorney General of Canada’s [AGC] position is that the Governor in Council acted within its authority in forming the opinion that the firearms are not reasonable for civilian use in hunting and sport because of their various attributes, inherent deadliness, potential to cause serious harm and, more generally, their impact on public safety. [ 10 ] The Applicants and the AGC have all provided a " “mountain of evidence” " (to adopt the Applicants’ own words) in support of their respective positions.

A list of the affiants is attached as ANNEX A. Many of the affiants attached several exhibits. An overview of the evidence of some affiants is attached as ANNEX B. [ 11 ] The Applicants made detailed and extensive arguments. Even on the common issues, some of the arguments differ or are nuanced. The AGC responded to all the arguments. The Court has endeavoured to acknowledge all the issues and arguments and to focus on the determinative issues, the relevant jurisprudence, and as much of the relevant evidence as is reasonably possible, particularly, the evidence highlighted in the parties’ submissions.

As is often the case, the Applicants and AGC are critical of each other’s evidence and submit that the Court should attribute little or no weight to this evidence. [ 12 ] The extensive arguments and volumes of evidence lead to a long judgment. The relevant statutory provisions, some history of legislative reforms to address firearms, the Order in Council (Regulations) and other background information is first set out for context. An overview of the six Applications and the issues raised in each is also provided.

The more detailed submissions made by the Applicants and AGC are set out on an issue-by-issue basis, followed by the Court’s analysis. [ 13 ] The Court finds, for the reasons that follow, that the Applications are dismissed. [ 14 ] The Order in Council and Regulations are not ultra vires . The Governor in Council did not exceed the statutory grant of authority delegated to it by Parliament pursuant to subsection 117.15(2) of the Criminal Code . The decision of the Governor in Council to promulgate the Regulations is reasonable.

The Regulatory Impact Analysis Statement [RIAS], which the jurisprudence establishes is accepted as the reasons for decisions of the Governor in Council to promulgate regulations, explains why the Governor in Council determined that the prescribed firearms are not suitable for civilian use and not reasonable for hunting and sporting purposes due to their inherent deadliness and the serious threat they pose to public safety, including the degree to which they can increase the severity of mass shootings. [ 15 ] The Governor in Council did not sub-delegate its authority to prescribe firearms as prohibited.

The prescribed firearms and their variants are prohibited based on the Criminal Code and the Regulations. The role of the Royal Canadian Mounted Police’s [RCMP] Specialized Firearms Support Service in assessing and classifying firearms as non-restricted, restricted or prohibited and posting the classification on the Firearms Reference Table is not an exercise of legal authority, but rather reflects the opinion of the Specialized Firearms Support Service and provides guidance to firearm owners and others.

Where a person is charged with the possession of a prohibited firearm or a variant of a prohibited firearm, the Crown must prove that the firearm is prohibited and the Court will make the ultimate determination. [ 16 ] There was no breach of the duty of procedural fairness in the decision of the Governor in Council to promulgate the Regulations. The jurisprudence is clear that the duty of procedural fairness does not apply to the legislative process. [ 17 ] The Regulations do not infringe

section 7 of the Charter ; the Regulations are not vague, overbroad or arbitrary. Alternatively, if the Court had found that the Regulations infringed

section 7 in a manner not in accordance with the principles of fundamental justice, the Court would find that any infringement is justified pursuant to

section 1 of the Charter as a reasonable limit. The overriding goal of public safety outweighs any possible infringement on the rights of firearm owners who are now more limited in their choice of firearm for hunting and sporting purposes. [ 18 ] The Regulations do not infringe sections 8 , 11 , 15 or 26 of the Charter . [ 19 ] The Regulations do not infringe the Canadian Bill of Rights . II. Background and Context A. The Statutory Provisions [ 20 ] Generally, firearms are categorized as non-restricted, restricted, or prohibited. [ 21 ] Subsection 84(1) of the Criminal Code provides

definitions that apply to

Part III of the Criminal Code ( Firearms and Other Weapons ), including the following:

" non-restricted firearm means " " arme à feu sans restriction " " Arme à feu qui, selon le cas : " " (

a) a firearm that is neither a prohibited firearm nor a restricted firearm, or " " a) " " n’est ni une arme à feu prohibée ni une arme à feu à autorisation restreinte; " " (

b) a firearm that is prescribed to be a non- restricted firearm; " " b) " " est désignée comme telle par règlement. (non-restricted firearm) " " prescribed means prescribed by the regulations; " " Blanc " " … " " […] " " prohibited firearm means " " arme à feu prohibée " " (

a) a handgun that " " a) " " Arme de poing pourvue d’un canon dont la longueur ne dépasse pas 105 mm ou conçue ou adaptée pour tirer des cartouches de calibre 25 ou 32, sauf celle désignée par règlement pour utilisation dans les compétitions sportives internationales régies par les règles de l’Union internationale de tir; " " (

i) has a barrel equal to or less than 105 mm in length, or " " Blanc " " (ii) is designed or adapted to discharge a 25 or 32 calibre cartridge, " " Blanc " " but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union, " " Blanc " " (

b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted, " " b) " " arme à feu sciée, coupée ou modifiée de façon que la longueur du canon soit inférieure à 457 mm ou de façon que la longueur totale de l’arme soit inférieure à 660 mm; " " (

i) is less than 660 mm in length, or " " Blanc " " (ii) is 660 mm or greater in length and has a barrel less than 457 mm in length, " " Blanc " " (

c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or " " c) " " arme automatique, qu’elle ait été ou non modifiée pour ne tirer qu’un seul projectile à chaque pression de la détente; " " (

d) any firearm that is prescribed to be a prohibited firearm; " " [Emphasis added] " "

d) arme à feu désignée comme telle par règlement . (prohibited firearm) " " [Je souligne] " " restricted firearm means " " arme à feu à autorisation restreinte " " (

a) a handgun that is not a prohibited firearm, " " a) " " Toute arme de poing qui n’est pas une arme à feu prohibée; " " (

b) a firearm that " " b) " " toute arme à feu — qui n’est pas une arme à feu prohibée — pourvue d’un canon de moins de 470 mm de longueur qui peut tirer des munitions à percussion centrale d’une manière semi-automatique; " " (

i) is not a prohibited firearm, " " Blanc " " (ii) has a barrel less than 470 mm in length, and " " Blanc " " (iii) is capable of discharging centre-fire ammunition in a semi-automatic manner, " " Blanc " " (

c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or " " c) " " toute arme à feu conçue ou adaptée pour tirer lorsqu’elle est réduite à une longueur de moins de 660 mm par repliement, emboîtement ou autrement; " " (

d) a firearm of any other kind that is prescribed to be a restricted firearm. " " [Emphasis added] " " d) " " toute arme à feu désignée comme telle par règlement . (restricted firearm) " " [Je souligne] " [ 22 ]

Section 117.15 of the Criminal Code provides,

" 117.15

(1) Subject to subsection (2), the Governor in Council may make regulations prescribing anything that by this

Part is to be or may be prescribed. " " 117.15 (1) " "

Sous réserve du paragraphe (2), le gouverneur en conseil peut, par règlement, prendre toute mesure d’ordre réglementaire prévue ou pouvant être prévue par la présente partie. " "

(2) In making regulations, the Governor in Council may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes. " " (2) " " Le gouverneur en conseil ne peut désigner par règlement comme arme à feu prohibée, arme à feu à autorisation restreinte, arme prohibée, arme à autorisation restreinte, dispositif prohibé ou munitions prohibées toute chose qui, à son avis, peut raisonnablement être utilisée au Canada pour la chasse ou le sport. " "

(3) Despite the

definitions prohibited firearm and restricted firearm in subsection 84(1), a firearm that is prescribed to be a non- restricted firearm is deemed not to be a prohibited firearm or a restricted firearm. " "

(3) Malgré les définitions de arme à feu prohibée et de arme à feu à autorisation restreinte au paragraphe 84(1), une arme à feu désignée par règlement comme étant une arme à feu sans restriction est réputée ne pas être une arme à feu prohibée ni une arme à feu à autorisation restreinte. " "

(4) Despite the definition prohibited firearm in subsection 84(1) , a firearm that is prescribed to be a restricted firearm is deemed not to be a prohibited firearm. " " (4) " "

Malgré la définition de arme à feu prohibée au paragraphe 84(1) , une arme à feu désignée par règlement comme étant une arme à feu à autorisation restreinte est réputée ne pas être une arme à feu prohibée. " B. Who is the Governor in Council and how do they make Regulations? [ 23 ] The AGC’s affiant, Mr. Randall Koops attached the Cabinet Directive on Regulation to his affidavit.

The Directive describes the regulatory process and describes the Governor in Council as follows: Governor General in Council, or Governor in Council, means the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada. Since December 2003, advice to the Governor General on behalf of the Queen's Privy Council has been provided by the Treasury Board.

Treasury Board ministers consider the regulatory submission and decide whether to recommend that the Governor General make the regulations as presented in their final form. [ 24 ] Treasury Board, in this context, refers to a Cabinet Committee.

The Members of the Treasury Board are Cabinet Ministers. [ 25 ] In Canada (Citizenship and Immigration) v Canadian Council for Refugees , 2021 FCA 72 [ Canadian Council for Refugees ], the Governor in Council was described in the same way, at para 37: [37] The Governor in Council is the “Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada” :

Interpretation Act , R.S.C. 1985, c. I- 21, subsection 35(1) , and see also the Constitution Act , 1867 , (UK), 30 & 31 Vict., c. 3, s. 91 , reprinted in R.S.C. 1985, Appendix II, No. 5, sections 11 and 13. All the Ministers of the Crown, not just the Minister, are active members of the Queen’s Privy Council for Canada. They meet in a body known as Cabinet.

Cabinet—sitting at the apex of the executive of the Canadian government—is “to a unique degree the grand co-ordinating body for the divergent provincial, sectional, religious, racial and other interests throughout the nation” and, by convention, it attempts to represent different geographic, linguistic, religious, and ethnic groups: Norman Ward, Dawson’s the Government of Canada , 6th ed., (Toronto: University of Toronto Press, 1987) at pages 203-204; Richard French, “The Privy Council Office: Support for Cabinet Decision Making” in Richard Schultz, Orest M. Kruhlak and John C.

Terry, eds., The Canadian Political Process , 3rd ed. (Toronto: Holt Rinehart and Winston of Canada, 1979) at pages 363-394. All the levers of government are present at the Cabinet table. [ 26 ] Contrary to the suggestion by one of the Applicants, the Governor in Council is not a group of selected " “appointees” " influenced by gun control lobbyists; the Governor in Council is comprised of elected members of Parliament that have formed the Government and have been named as Ministers of the Crown by the Prime Minister. C.

The Order in Council and Regulations [ 27 ] On May 1, 2020, the Prime Minister announced amendments to existing regulations, (made in 1998) to prescribe additional types of firearms and related devices as prohibited.

These amendments were the result of the Order in Council (PC 2020-298): 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 : SOR/2020-96 [the Order in Council or the Regulations]. [ 28 ] The Regulations were made pursuant to the authority granted to the Governor in Council in subsection 117.15(2) of the Criminal

Code . The scope of the authority granted to the Governor in Council and the

interpretation of subsection 117.15(2) is a key issue in the Applications. [ 29 ] The Order in Council states: Whereas the Governor in Council is not of the opinion that any thing prescribed to be a prohibited firearm or a prohibited device, in the Annexed Regulations, is reasonable for use in Canada for hunting or sporting purposes; Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to the

definitions “non-restricted firearm”, “prohibited device”, “prohibited firearm” and “restricted firearm” in subsection 84(1) of the Criminal Code and to subsection 117.15(1) of that Act, makes the annexed 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 . [ 30 ] The Regulations are lengthy and can be found at https://www.canadagazette.gc.ca/rp-pr/p2/2020/2020-05-01-x3/pdf/g2-154x3.pdf. [ 31 ] In brief, the Regulations prescribe firearms by general " “family,” " make and model, and any variants or modified versions, and by two physical characteristics. [ 32 ] The nine firearm " “families” " (see sections 83 and 87-94 of the Regulations) are: 1 .

SG-550 rifle, SG-551 carbine (also referred to as the Swiss Arms Classic Green and Four Seasons series); 2 . M16, AR-10, AR-15 rifles and M4 carbine; 3 . Ruger Mini-14 rifle; 4 . US Rifle, M14; 5 . Vz58 rifle; 6 . Robinson Armament XCR rifle; 7 . CZ Scorpion EVO 3 carbine and pistol; 8 . Beretta CX4 Storm carbine; and, 9 .

SIG Sauer SIG MCX and SIG Sauer SIG MPX carbines and pistols; [ 33 ] Sections 95 and 96 of the Regulations prohibit firearms based on two physical characteristics—firearms with a bore diameter that is 20mm or greater; and firearms with the capacity to discharge a projectile with a muzzle energy greater than 10,000 joules. [ 34 ] The Regulations list approximately 1,500 firearms that are either variants of the nine families or have the two characteristics noted above.

This format is generally consistent with the format of the 1998 regulations and its predecessors; the makes and models of firearms are set out plus " “any variants or modified versions of them.” " [ 35 ] The Order in Council was not pre-published in the Canada Gazette. The Order in Council came into force immediately upon promulgation on May 1, 2020, and was published in final form along with a Regulatory Impact Analysis Statement [RIAS].

The RIAS sets out the background and objectives, describes the Regulations, notes the regulatory development process and describes several considerations related to the regulatory impact. [ 36 ] A related Order in Council, the Order Declaring an Amnesty Period (2020), SOR/2020-97 [ Amnesty Order ] was promulgated on the same day. D. The Legislative History [ 37 ] The Applicants note the extensive law reform over the past several decades, which has incrementally limited their access to many types of firearms.

The Applicants suggest that the existing regime is sufficient and that the Regulations at issue do not reflect a balance between protecting public safety and permitting the legitimate use of firearms for hunting and sport. The AGC also points to the long history of gun control legislation to improve public safety. Given the submissions, a brief overview of the legislative history follows. [ 38 ] The affidavit of the AGC’s affiant, Professor R. Blake Brown, a legal historian, provides a chronology of gun control legislation in Canada.

Professor Brown notes that the current approach to regulating long guns dates back to the late 1960s. He describes the following key legislative reforms, among others. " [ " " 39 " " ] " In 1969, the Criminal Code was amended to set out three classifications of weapons: non-restricted, restricted and prohibited weapons. In addition to the

definitions of restricted and prohibited weapons, the legislation granted the Governor in Council the authority to declare a weapon to be a restricted weapon. Similarly, the Governor in Council could declare any weapon to be a prohibited weapon that was " “not being a restricted weapon or a shotgun or rifle of any kind not commonly used in Canada for hunting or sporting purposes.” " " " [ 40 ] Professor Brown notes that this wording was relied on by successive governments to restrict many firearms. [ 41 ] In 1977 the Criminal Code was amended to change and expand the definition of restricted and prohibited weapons. This resulted in

the restriction of short-barreled semi-automatic firearms.

The Minister of Justice of the day, Ron Basford, noted that there was no proper hunting use for these firearms. [ 42 ] The 1977 amendments changed the definition of a restricted weapon to " “a weapon of any kind, not being a prohibited weapon or a shotgun or rifle of a kind that, in the opinion of the Governor in Council, is reasonable for use in Canada for hunting or sporting purposes, that is declared by order of the Governor in Council to be a restricted weapon.” " [ 43 ] The prohibited weapon definition was also expanded to include automatic weapons that were not subject to a grandfathering clause and to modify the authority of the Governor in Council to declare firearms to be prohibited weapons; a firearm " “of any kind, not being an antique firearm or a firearm of a kind not commonly used in Canada for hunting or sporting purposes, that is declared by order of the Governor in Council to be a prohibited weapon.” " [ 44 ] In 1991, Bill C-17 slightly modified the definition of prohibited weapon and also prohibited large-capacity magazines for semi- automatic firearms, automatic firearms that had been converted to avoid the previous prohibitions, and rifles manufactured as semi- automatic based on modified fully automatic designs.

The Minister of Justice, Kim Campbell, explained the Government ’s intention to limit access to " “modern semi-automatic military assault weapons.” " Minister Campbell noted that the Government ’s reliance on regulations would continue to permit flexibility to protect the public while respecting, to the extent possible, the interests of legitimate firearm owners and users. " [ " " 45 " " ] " Professor Brown notes several Orders in Council that prohibited or prescribed many firearms.

The Orders in Council made under the authority of the Criminal Code provisions dating back to 1969 and 1977 list many makes and models of firearms as prohibited and " “any variants or modified thereof.” " Similarly, Orders in Council listed firearms as restricted and " “any variants or modified thereof.” " " " [ 46 ] The 1994 Order in Council prescribed additional firearms as prohibited. The Minister of Justice, Allan Rock, noted that these firearms were " “military type weapons” " and were not intended for hunting or sport. Many semi-automatic rifles were prescribed as prohibited, rather than as restricted.

" [ " " 47 " " ] " In December 1995, Bill C-68 received Royal Assent. Bill C-68 created the Firearms Act , SC 1995, c 39 and moved the regulatory aspects of gun control (licensing, registration, possession, transfer, storage and transportation) from the Criminal Code into the Firearms Act . Bill C-68 also amended the Criminal Code , including to add new offences and stricter penalties . The majority of the Criminal Code provisions were proclaimed into force three years later, in 1998. Among other amendments, the

definitions of prohibited and restricted firearms and the power of the Governor in Council to prescribe firearms as prohibited were revised. Bill C-68 enacted the provision now found in

section 117.15 which provides that the Governor in Council may not prescribe any thing to be a prohibited firearm " “if in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.” " " " " [ " " 48 " " ] " The 1998 Order in Council made pursuant to

section 117.15 prescribed certain firearms as either prohibited or restricted. The Order in Council encompassed several former prohibited weapons orders that set out types of firearms, including long lists of specific firearms and included " “any variants or modified version thereof.” " " " [ 49 ] In 2012, Bill C-19 ( Ending the Long Gun Registry Act ) came into force, removing the requirement to register non-restricted firearms. [ 50 ] In 2019, Bill C-71 (

An Act to Amend Certain Acts and Regulations in Relation to Firearms ) repealed amendments made in 2015 that permitted the Governor in Council to classify firearms to a less restrictive class. [ 51 ] In 2016, Private Members Bill C-230 was introduced. Bill C-230 sought to define the term " “variant” " as a firearm " “with an unmodified frame or receiver of another firearm.” " The Bill was not supported by the Government and did not pass.

The Government noted that the term " “variant” " had been used for a long time and the proposed definition was too narrow and would result in the classification of many assault-style rifles as non-restricted. [ 52 ] In 2018 and 2019, the Government engaged in national consultations regarding the civilian ownership and use of handguns and " “assault weapons.” " [ 53 ] On May 1, 2020, the Governor in Council made the Order in Council and Regulations prescribing approximately 1,500 firearms as prohibited. Professor Brown notes that these firearms are similar in capability to the firearms prohibited in the 1990s.

Professor Brown also notes that the types of firearms listed have been used by police or the military, although the military generally use versions that can be fired as automatic firearms. E. The Firearms Reference Table [ 54 ] The purpose and influence of the Firearms Reference Table [FRT], a database maintained by the RCMP, is an issue in the Applications. [ 55 ] The RCMP, as the national police service, is responsible for the Canadian Firearms Program [CFP].

The CFP oversees firearms licensing and registration, maintains national firearm safety training standards, assists law enforcement agencies, and enhances public safety by educating the public regarding safe storage, transport and use of firearms. [ 56 ] The Specialized Firearms Support Service [SFSS] is part of the CFP. The SFSS is composed of firearm technicians who collect and assess technical information to classify firearms for the purposes of firearms registration, import/export control and to assist national and international law enforcement agencies with firearm identification and investigations.

According to Mr. Murray Smith, the AGC’s affiant, the SFSS conducts a technical assessment of firearms and forms an opinion whether a firearm is prohibited, restricted or non-

restricted. Mr. Smith explained that the SFSS make assessments on an ongoing basis based on the Criminal Code

definitions and the types of firearms prescribed in the 1998 Regulations and the 2020 Regulations. [ 57 ] The FRT is an online firearms database maintained by the SFSS. It lists and describes a wide range of firearms, noting whether the firearm is non-restricted, restricted or prohibited based on the assessment of the SFSS.

The FRT database currently includes over 200,000 entries. [ 58 ] The FRT includes the firearms set out in the Regulations (referred to as named variants) and other firearms that have been assessed after the promulgation of the Regulations (unnamed variants) and continue to be assessed. [ 59 ] The AGC explains that since the promulgation of the Regulations, the FRT has been updated only to address new firearms in the marketplace and to update two firearms (the 8-gauge Parker shotgun with a bore diameter over 20mm and the Blaser R8 Rifle with a muzzle energy in excess of 10,000 joules).

The AGC states that there were 180 unnamed variants as of June 15, 2020. [ 60 ] The Applicants contend that since May 1, 2020, the SFSS has updated the FRT to list up to 340 more firearms as variants of firearms set out in the Regulations. [ 61 ] Access to the FRT was originally limited to law enforcement. The AGC’s affiants explain that the FRT is now publicly available through software available to businesses that provides up-to-date information. It is also available in a downloadable PDF form, which reflects the status as of the date of the PDF.

In addition, the CFP operates a call centre to respond to specific questions from firearms businesses, owners and members of the public. F. The Regulatory Impact Analysis Statement [ 62 ] A RIAS accompanies all Regulations. It is not part of the Regulations or the Order in Council. It is a public statement issued at the time the Regulations are pre-published in the Canada Gazette (where required) and at the time of final publication.

Generally, a RIAS describes the regulations, the considerations that led to the development of the regulations and the various impacts. [ 63 ] The RIAS for the Regulations appears to follow a standard approach as similar headings appear in other RIAS’s for other regulations. (More specific references to the RIAS are noted in the analysis of the reasonableness of the Regulations.) [ 64 ] The RIAS states that the Regulations amend the previous regulations to prescribe certain firearms as prohibited firearms.

The RIAS notes that the Regulations prohibit approximately 1,500 models of assault-style firearms, including current and future variants. [ 65 ] The Background

section of the RIAS notes that Canada has experienced mass shootings and that the deadliest mass shootings, in Canada and elsewhere, commonly involve assault-style firearms. The RIAS states: Giv en these events, the growing concern for public safety, the increasing public demand for measures to address gun violence and mass shootings and, in particular, the concern resulting from the inherent deadliness of assault-style firearms that are not suitable for civilian use, these firearms must be prohibited in Canada . [Emphasis added.] [ 66 ] The Background

section describes the now prohibited firearms as being: Primarily designed for military or paramilitary purposes with the capability of injuring, immobilizing or killing humans in large numbers within a short period of time given the basic characteristics they possess, such as a tactical or military design and capability of holding a quickly reloadable large-capacity magazine. [ 67 ] The RIAS acknowledges that these firearms have been used in the past, but concludes that the significant risk to public safety posed by these firearms " “outweighs any justification for their continued use and availability within Canada given that numerous types of firearms remain available for lawful ownership for hunting or sport shooting purposes.” " [ 68 ] The Objective

section of the RIAS reiterates the growing public concern about the risk posed by assault-style firearms and states that the intention of the prohibition is to limit their access and reduce the availability of firearms that exceed safe civilian use.

" [ " " 69 " " ] " The RIAS explains that the Regulations prescribe " “nine principal models and known variants of these principal models.” " The RIAS notes that the nine principal models (or families) of firearms were prohibited because they " “(1) have semi-automatic action with sustained rapid fire capability (tactical/military design with large magazine capacity), (2) are of modern design, and (3) are present in large volumes in the Canadian market.” " " " [ 70 ] The RIAS states that " “[t]he Regulations apply to all variants of the principal model, current or future, whether they are expressly listed or not.” " [ 71 ] The RIAS notes that, in addition, two new categories of firearms are prohibited that exceed safe civilian use; firearms with a bore diameter of 20mm or more and firearms with the capacity to discharge a projectile with a muzzle energy greater than 10,000 joules ( e.g. , a .50 calibre BMG).

The RIAS explains that these two categories of firearms are primarily designed to produce mass human casualties or cause significant property damage at long ranges, and that the potential power of these weapons exceeds safe or legitimate civilian use. [ 72 ] The RIAS further notes that the Regulations also prescribe the upper receivers of certain firearms as prohibited devices. [ 73 ] The RIAS describes the regulatory development process, including that the Government engaged in consultations (online and in- person) with a wide range of stakeholders—including those in support of banning handguns and assault-style firearms and those opposed to further limitations.

The RIAS notes that " “many participants” " called for a ban on assault-style firearms to protect public safety. [ 74 ] The RIAS explains that the Amnesty Order was implemented at the same time as the Regulations because of the possibility of

criminal liability associated with possession of a prohibited firearm. The RIAS describes the Amnesty Order as permitting the limited use of the newly prohibited firearms (those previously non-restricted) to hunt for sustenance or to recognize a right pursuant to

Section 35 of the Constitution Act, 1982 (existing aboriginal and treaty rights).

The RIAS also notes that a buy-back program will be implemented, and that firearm owners can deactivate a prohibited firearm and arrange to deliver it to a police officer before the buy-back program is implemented. [ 75 ] The costs, benefits and other impacts of the Regulations are described in the Regulatory Analysis section. [ 76 ] The RIAS acknowledges that 1.4 million Canadians participate in sport shooting and that sport shooting contributed $1.8 billion to Canada’s gross domestic product [GDP] in 2018, $868 million in labour income, and supports approximately 14,555 full-time equivalent jobs (citing the Conference Board of Canada). [ 77 ] The RIAS also acknowledges that 1.3 million Canadians participate in legal hunting.

Hunting contributes an estimated $4.1 billion to GDP, $2 billion in labour income and supports approximately 33,313 full-time equivalent jobs. The RIAS notes that hunters who have been using firearms that were non-restricted and are now prohibited may be affected. [ 78 ] The RIAS describes the impact on firearms businesses, noting that the buy-back program may mitigate some negative impacts. [ 79 ] The RIAS explains that the Government did not provide advance notice of the Regulations to the World Trade Organization [WTO], but rather relied on an exemption due to public safety considerations.

In addition, no advance notice was provided to avoid " “creating a potential run on the market before it is frozen by the prohibition.” " [ 80 ] The Rationale

section of the RIAS restates the considerations set out above, and notes that " “[d]ue to the public safety concerns posed by these firearms, they are not reasonable for use in Canada for hunting or sport shooting purposes.” " [ 81 ] The RIAS also provides the rationale for the accompanying Amnesty Order and again notes the intention to implement a buy-back program and a grandfathering regime for owners of newly prohibited firearms. [ 82 ] The RIAS addresses implementation, compliance and enforcement, noting, among other things, the notice to affected owners regarding their obligations and that compliance will depend on several factors, includ ing compensation to be offered. [ 83 ] The RIAS notes that those who remain in possession of prohibited firearms at the end of the Amnesty period could be subject to criminal liability.

III. Overview: The Applicants, the Intervener, and their Positions A. Parker et al v AGC (T-569-20) [Parker Applicants] [ 84 ] Ms. Cassandra Parker is a licensed firearm owner who, along with her husband, owns a small firearms business, KKS Tactical Supplies. Ms.

Parker states that as a result of the Regulations, she can no longer use several of her firearms for hunting and sport shooting, including her Typhoon F-12 12 gauge semi-automatic shotgun, CZ Scorpion EVO 3 S1 Carbine, or Maccabee SLR (Black Creek Labs Coyote SLR). [ 85 ] The Parker Applicants submit that as a result of the Regulations, KKS has worthless inventory of now prohibited firearms exceeding $80,000. [ 86 ] The Parker Applicants argue that the Regulations are ultra vires the authority set out in subsection 117.15(2) of the Criminal Code . [ 87 ] The Parker Applicants address the statutory context, describe the Criminal Code provisions and

definitions, and note the limit on the Governor in Council’s authority to prescribe prohibited firearms and other devices pursuant to subsection 117.15(2) . They submit these sweeping provisions that expose firearm owners to criminal sanctions should be the result of legislation, not regulations. [ 88 ] The Parker Applicants submit that Bill C-68 was enacted in 1995 in an open and transparent way with full Parliamentary scrutiny and debate.

They further submit that the resulting Criminal Code amendments, which included subsection 117.15(2) , resulted from the Parliamentary process that addressed the need to balance the ability to prohibit additional firearms by way of regulation with the need to respect the use of firearms that are reasonable for use for hunting and sport. [ 89 ] The Parker Applicants characterize the Regulations as breaking the " “bargain” " with firearms owners.

They submit that at the time of Bill C-68, the Government acknowledged that firearms continued to be reasonable for hunting and sport and that the power to prohibit firearms was limited. [ 90 ] The Parker Applicants submit that the notion that the simple possession of commonly used firearms can be changed by regulation to expose owners to criminal charges without a legislative amendment is inconsistent with the " “bargain” " reflected in subsection 117.15(2). [ 91 ] The Parker Applicants argue that the AGC’s focus on the need to prevent mass shootings and the complexities of gun control do not address the issue on this judicial review, which is whether the Governor in Council formed the requisite opinion and whether the opinion —that the prohibited firearms are not reasonable for use in Canada for hunting and sporting purposes—is a reasonable opinion. [ 92 ] The Parker Applicants submit that if Parliament intended to grant authority to the Governor in Council to prohibit certain firearms to

enhance public safety, the wording of subsection 117.15(2) would have so stated, but did not.

They argue that the restriction on the Government ’s authority to prescribe firearms as prohibited in subsection 117.15(2) must be given meaning. [ 93 ] The Parker Applicants note that reams of evidence have been provided by the Applicants to show that the prohibited firearms are indeed reasonable for hunting and sport. [ 94 ] The Parker Applicants submit that granting the Amnesty, which only permits firearm owners to possess and store—but not to use the prohibited firearms—yet permits indigenous and sustenance hunters to use the prohibited firearms, is inconsistent with the Governor in Council’s opinion that these firearms are not reasonable for use due to public safety concerns.

If these firearms remain necessary for some hunters, they must also be reaso nable for use by other hunters. [ 95 ] The Parker Applicants also argue that the affidavits and research relied on by the AGC regarding the impact of gun control measures on mass shootings should be given little to no weight. B. Canadian Coalition for Firearm Rights et al v AGC (T-577-20) [CCFR Applicants] [ 96 ] The Canadian Coalition for Firearm Rights [CCFR] is a not-for-profit organization that provides advocacy and public relations for the Canadian firearm community.

As of October 2021, the CCFR had approximately 31,000 members. [ 97 ] Mr. Rodney Giltaca is the Executive Director of the CCFR. Mr. Giltaca states that several of his firearms are now prohibited. [ 98 ] Mr. Ryan Steacy is a retired corporal of the Canadian Armed Forces now working as the Technical Director at International Barrels Inc, a manufacturer of precision barrels for firearms. Mr.

Steacy states that he can no longer use his Armalite Rifle (an AR-15 firearm) or his North Eastern Arms Rifle (a named variant of the AR-15, or Aero Precision Rifle (a named variant of the AR-15). [ 99 ] Maccabee Defense Inc is an Alberta-based designer, manufacturer and retailer of the SLR-Multi Rifle (SLR-Multi), now prohibited. Maccabee was founded by Mr. Wyatt Singer and his wife, Shaina Singer. Mr.

Singer states that Maccabee has lost out in hundreds of thousands of dollars in gross revenue from lost sales and has had to shut down production. [ 100 ] Wolverine Supplies Ltd is a Manitoba-based retailer of firearms, founded by Mr. John Hipwell (the Applicant in T-581-20) and now owned by his son, Mr. Matthew Hipwell. Mr. Matthew Hipwell states that at least six of Wolverine's product lines, including two of their top five lines, were prohibited by the Regulations. [ 101 ] The CCFR Applicants argue that the Regulations are ultra vires

section 117.15(2) of the Criminal Code .

They submit that the Court’s role is to review the Governor in Council’s decision to make the Regulations in the same way as other administrative decisions, by applying the Vavilov principles, which will lead to the conclusion that the Regulations are ultra vires and are not reasonable. [ 102 ] The CCFR Applicants argue that the Court should draw an adverse inference from the AGC’s refusal to provide the material that was considered by the Governor in Council when it formed the opinion that the prescribed firearms were not reasonable for hunting and sport shooting. [ 103 ] The CCFR Applicants submit that the Governor in Council cannot further sub-delegate its authority to prohibit firearms to the RCMP ( i.e. , the SFSS).

They argue that the FRT, which lists variants of prohibited firearms as determined by the SFSS, and which is relied on by law enforcement, reflects an unlawful sub-delegation of the Governor in Council’s authority. The CCFR adds that the FRT’s listing of variants does not permit firearm owners to challenge such findings and is a breach of the duty of procedural fairness. [ 104 ] The CCFR Applicants also argue that the Regulations violate firearm owners’ rights to security of the person and to liberty, contrary to

section 7 of the Charter . [ 105 ] In addition, they assert that the Regulations violate the Bill of Rights because the prohibitions deprive Mr. Giltaca and Mr. Steacy of their property. C. Hipwell v AGC (T-581-20) [ 106 ] Mr. John Peter Hipwell is the founder of Wolverine Supplies (an Applicant in T-577-20), which is now owned by his son. Mr. Hipwell notes his decades of experience using firearms. [ 107 ] Mr. Hipwell states that he has owned, among others, a prized Springfield M1 A1 National Match Target Rifle for over 40 years and has safely maintained and used it for target shooting.

His antique Manton Large Bore Rifle, which he has used for hunting large game (including in Africa) is now prohibited. He submits that these, and other now prohibited firearms, were not designed for war or to be used against humans and are suitable for hunting and sport shooting. [ 108 ] Mr. Hipwell provides an overview of the existing laws and regulations, noting the emphasis on public safety. [ 109 ] Mr.

Hipwell points to the provisions of the Firearms Act and the Criminal Code , which he submits comprehensively and sufficiently regulate all aspects of firearms, including classification, possession, licensing, safety, purchase and sale, retention of records by firearms businesses, transportation, use and misuse and offences for those that do not adhere to the regulations and those who use firearms illegally.

Among other things, he notes the requirements to take safety courses to obtain a licence (the Canadian Firearms Safety Course or the Restricted Firearms Safety Course), additional safety courses to use a shooting range or become a member of a gun club, and recent amendments to ensure that background checks consider various factors over a much longer period of time. [ 110 ] He submits that firearm owners willingly comply with all the laws and regulations, recognizing that owning a gun is a privilege.

He adds that firearm owners are aware that they are already subject to much oversight and that their non-compliance exposes them to

criminal sanctions. [ 111 ] Mr. Hipwell argues that the Regulations are ultra vires . He submits that the Regulations unreasonably prohibit firearms that are indeed reasonable for hunting and sport shooting. He notes the hundreds of emails he received from firearm owners describing how they have safely used their firearms, which are now prohibited, for hunting and sport shooting. He argues that the Regulations will not have an impact on public safety. [ 112 ] Mr.

Hipwell submits that the Court should draw an adverse inference from the AGC’s refusal to produce the material considered by the Governor in Council and to assert cabinet confidence. [ 113 ] He further argues that the Regulations infringe

section 7 of the Charter because the lack of a definition of " “variant” " renders the Regulations vague to the extent that there is no notice of what will constitute a variant and, in turn, expose a firearms’ owner to criminal sanctions. [ 114 ] Mr. Hipwell also argues that the Regulations infringe

section 11 of the Charter , which sets out the rights of persons charged with offences, including to be informed of the specific offence and to be presumed innocent until proven guilty. He submits that the many variants of prohibited firearms, which are identified by the SFSS and noted in the FRT, and are constantly changing, make it impossible for a person to know that their firearm has been prohibited. He further submits that this violates the presumption of innocence. D. Doherty et al v AGC (T-677-20) [The Doherty Applicants] [ 115 ] Mr. Michael Doherty is a hunter and competitive target shooter. Mr.

Doherty and the eight other applicants all note that several of the firearms they own and use are now prohibited, including AR-15 rifles, the Alberta Tactical Rifle Modern Sporter rifle (an unnamed variant) and the Alberta Tactical Rifle Modern Hunter rifle (an unnamed variant). [ 116 ] The Doherty Applicants acknowledge that gun control is a divisive issue. They submit that whether further and specific prohibitions will enhance public safety should be the subject of Parliamentary debate.

They do not dispute that some firearms that are not reasonable for hunting or sport shooting could be prohibited, but such prohibitions should be determined by Parliament, not by the Governor in Council and not by the SFSS. [ 117 ] The Doherty Applicants argue that the Regulations are ultra vires , reliance on the FRT reflects an unlawful sub-delegation of authority to the SFSS to prohibit variants, and the Regulations infringe the Charter . [ 118 ] The Doherty Applicants submit that the issue on this judicial review is narrow; whether it was reasonable for the Governor in Council to reach the opinion that the firearms prohibited by the Regulations are not reasonable for hunting or sport use in Canada.

They submit that it is not.

They point to several examples of firearms that have been used for decades for hunting and sport and continue to be reasonable for such purposes, but are now prohibited, without any rationale. [ 119 ] The Doherty Applicants argue that the " “sweeping” " Regulations, which prohibit approximately 1,500 firearms, plus an unknown number of unnamed variants, is unprecedented and is not supported by any evidence from the AGC. [ 120 ] The Doherty Applicants submit that the AGC’s failure to produce the information relied on by the Governor in Council and to assert Cabinet Confidence should lead the Court to infer that the Governor in Council did not have information to support its opinion. [ 121 ] The Doherty Applicants further submit that the Respondent’s reliance on the RIAS and on affidavits prepared after the fact and only for the purpose of this litigation, which focus on gun violence, various gun control measures and concerns about public safety, do not assist in informing whether the Governor in Council acted within its authority or made a reasonable decision. [ 122 ] The Doherty Applicants rely on the evidence of their firearms experts and sport shooters who propose criteria to guide whether a firearm is reasonable for hunting or sport shooting and conclude that the now prohibited firearms remain reasonable for hunting and sport.

" [ " " 123 " " ] " They add that there are no criteria to guide how the SFSS determines a firearm to be a variant and suggest that it is a " “lottery.” " " " [ 124 ] The Doherty Applicants adopt the arguments of the CCFR Applicants in support of their arguments that reliance on the FRT to identify variants is an unlawful sub-delegation of authority and that the Regulations infringe

section 7 of the Charter . E. Generoux et al v AGC (T-735-20) [The Generoux Applicants] [ 125 ] Ms. Christine Generoux hunts and is also involved in shooting competitions. She attests that she can no longer use her firearms of choice, including her AR-15. [ 126 ] Mr. John L. Perocchio previously owned a firearms business which he states he had to close due to Bill C-68. (Bill C-68 received Royal Assent in 1995 but most provisions came into force in December 1998.) [ 127 ] Mr. Vincent Perocchio is the son of Mr. John L. Perocchio.

He states that he has lost his inheritance because his father’s business has closed and his family’s collection of guns is now worthless. He adds that he can no longer use his custom-built AR-15 pattern semi- automatic firearm. [ 128 ] The Generoux Applicants argue that the Regulations are ultra vires and that the Governor in Council’s decision to list firearms as prohibited is unreasonable. They submit that the Court should draw an adverse inference that the Governor in Council’s decision was not informed by supporting evidence.

[ 129 ] The Generoux Applicants further submit that a " “gun culture” " exists and should be protected pursuant to

section 15 of the Charter . [ 130 ] The Generoux Applicants argue that the Regulations have destroyed the gun culture. They submit that " “99% of semi-automatic firearms are banned” " and predict that other semi-automatic firearms likely will be banned, leaving no firearms available that are suitable for hunting or sport.

They point to the impact on a shooting range that lost 75% of its members due to the Regulations and to Professor Mauser’s evidence to show that the number of gun owners in Canada has declined. [ 131 ] The Generoux Applicants note that the RCMP and Canadian Armed Forces [CAF] benefit from practicing their marksmanship skills using their personal firearms and attending on their own time at private gun ranges. The Generoux Applicants argue that the ability of the RCMP, other police, and the CAF to practice their marksmanship is in jeopardy due to the prohibition of certain firearms and the closure of gun ranges.

The Generoux Applicants contend that private ranges are needed in order for the police and CAF to fulfil professional training requirements. [ 132 ] The Generoux Applicants argue that the Regulations violate

section 7 of the Charter due to their vagueness,

section 8 due to the unreasonable seizure of property,

section 15 , due to discrimination against gun culture and

section 26 . F. Eichenberg et al v AGC (T-905-20) [The Eichenberg Applicants] [ 133 ] The Eichenberg Applicants include Ms. Jennifer Eichenberg, Mr. David Bot, the Burlington Rifle and Revolver Club (BRRC), the Montreal Firearms Recreational Centre Inc., (Centre récréatif d'armes à feu de Montréal inc or CRAFM), and O'Dell Engineering. [ 134 ] Ms. Eichenberg is a firearms owner and avid national and international sports shooter.

She states that Regulations prevent her from competing in two types of shooting competitions because the only firearm that is suitable for use in these sports—the Stag Arms Stag-15 rifle (an AR-15 platform rifle)—is now prohibited. [ 135 ] The BRRC is an approved shooting club under the Firearms Act for members to carry out target shooting and hunting-related preparation. [ 136 ] The CRAFM operates the Montreal Shooting Club, a federally licensed shooting range under the Firearms Act . [ 137 ] O'Dell Engineering is owned by Mr. Philip O’Dell.

O'Dell Engineering is an importer and distributor of firearms, ammunition and related gear. [ 138 ] The Eichenberg Applicants note that sport shooters, gun clubs and shooting ranges are exceptionally highly regulated and have been severely impacted by the Regulations. For example, the BRRC’s ability to host international competitions and for its members to train for such competitions is curtailed by the new prohibitions and by the uncertainty of what will be prohibited as a variant.

Similarly at CRAFM, one third of the rifles owned by members are now prohibited, yet these firearms continue to be used in shooting competitions internationally. [ 139 ] The Eichenberg Applicants argue that the Regulations are ultra vires . They argue that the Regulations ignore the objective of subsection 117.15(2) and the constraint on the Governor in Council’s authority. They submit that subsection 117.15(2) of the Criminal Code is intended to permit—not restrict—the use of firearms that are reasonable for hunting and sport shooting. [ 140 ] The Eichenberg Applicants raise related issues, including the

interpretation of subsection 117.15(2), whether the Governor in Council can form an opinion about firearms that do not yet exist, subdelegation to the SFSS to prohibit firearms and the vagueness of the terms used in the Regulations. [ 141 ] Like the Doherty Applicants, they argue that the Government should have pursued amendments to the Criminal Code and engaged in a debate in Parliament rather than relying on and exceeding their delegated authority and avoiding pre-publication of the Regulations in the Canada Gazette.

They note that, although the AGC states that Regulations permit flexibility to prescribe firearms as restricted or prohibited, no such regulations were made between the late 1990s and 2020. [ 142 ] The Eichenberg Applicants submit that the AGC’s failure to disclose the record before the Governor in Council and to instead rely on

section 39 of the Canada Evidence Act , RSC, 1985, c C-5 [ CEA ] to assert cabinet confidence should lead the Court to draw an adverse inference that the Governor in Council either did not have information before it to inform its opinion or had information that did not support its opinion. [ 143 ] The Eichenberg Applicants also argue that the Governor in Council has subdelegated the determination of variants to the SFSS, which has no authority to make such decisions, and they adopt the arguments of the CCFR Applicants.

Alternatively, they argue that if the RCMP has such authority, it must be bound by the same restriction in subsection 117.15(2) ( i.e. , that only a firearm that is not reasonable for hunting and sport shooting can be a variant.) G.

The Attorney General of Alberta (Intervener) [ 144 ] The Attorney General of Alberta [Alberta] submits that robust judicial review in accordance with the principles set out in Vavilov is called for and will demonstrate that the Regulations are ultra vires and unreasonable. [ 145 ] Alberta submits that while Parliament may enact legislation to address public safety, the Governor in Council must respect the authority delegated to it by Parliament. [ 146 ] Alberta argues that the Governor in Council exceeded its authority by failing to apply the " “precondition” " in subsection 117.15(2) ( i.e. , of reaching the opinion that the firearms were not reasonable for hunting and sport shooting).

Alberta submits that subsection

117.15(2) must be given meaning and should be narrowly interpreted in accordance with the principles of statutory

interpretation. [ 147 ] Alberta submits that Parliament is responsible for enacting the criminal law and creating new criminal offences.

Alberta argues that Parliament has abdicated its legislative role by permitting the Governor in Council to prescribe anything to be prohibited (citing References re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 at para 85 [ Re GGPPA ]). [ 148 ] Alberta argues that if subsection 117.15(2) is interpreted to give unfettered discretion to the Governor in Council, which would permit it to prescribe anything as a prohibited firearm without the guidance of Parliament, the provision is an unconstitutional delegation of authority and ultra vires of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3 , s 91, reprinted in RSC 1985, Appendix II, No 5 [ Constitution Act, 1867 ]. [ 149 ] Alberta adds that there is no record to support the Governor in Council’s decision given the assertion of Cabinet confidence, the RIAS refers to irrelevant considerations, and the Regulations were not pre-published, all of which permitted the Regulations to avoid necessary scrutiny. [ 150 ] Alberta acknowledges that the RIAS refers to considerations that may have informed the Governor in Council’s opinion, but submits that these considerations are irrelevant.

Alberta argues that the presence of the newly listed firearms in the Canadian market, does not support finding that the firearms are not reasonable for hunting and sport shooting, rather it would support that they are reasonable for these purposes. The potential for misuse of the firearms and the focus on public safety are not considerations informing reasonable use for hunting or sport shooting. Alberta emphasizes that the Governor in Council, in order to act within its delegated authority, must reach an opinion only on whether the firearms are reasonable for hunting and sport shooting.

Alberta argues that the RIAS does not set out any analysis regarding whether the newly prohibited firearms are reasonable for hunting and sport shooting. [ 151 ] Alberta argues that the Governor in Council does not have the authority to reach an opinion about an unnamed variant and to prohibit that firearm prospectively.

Alberta also argues that the prohibition of variants cannot be further delegated. [ 152 ] Alberta further argues that the Governor in Council was required—but failed—to conduct a discrete analysis of each firearm it prescribed as prohibited to determine its reasonableness for hunting and sport shooting. Alberta submits that the Governor in Council conflated the term " “reasonable” " with " “necessary” " , which is the wrong

interpretation. [ 153 ] Alberta adds that the Regulations are in conflict with Alberta’s Wildlife Act , RSA 2000, c W-10 , which permits the use of firearms now prohibited for specific hunting purposes. Alberta submits that this conflict is inconsistent with the spirit of cooperative federalism. H.

The Relief Sought by the Applicants [ 154 ] The Doherty Applicants summarise the relief that they and all Applicants seek as follows: A Declaration that the Regulations are ultra vires the Criminal Code and should be quashed; A Declaration that the Regulations infringe the Charter , cannot be saved, and are of no force and effect; A Declaration that the RCMP has no legal authority to classify firearms and prohibiting them from doing so; A Declaration that the FRT is not a legal instrument and that the classifications of firearms in the FRT does not have the force of law; A Declaration that the firearms listed in the Regulations are reasonable for hunting and sport; and, A Declaration that the Regulations are inoperative for being inconsistent with the Bill of Rights .

IV.

Overview: The AGC’s Position [ 155 ] The AGC submits that the Governor in Council acted well within the authority granted to it pursuant to subsection 117.15(2) of the Criminal Code to make the Order in Council prescribing specific firearms and their variants as well as firearms with particular physical characteristics (bore diameter and muzzle energy) as prohibited firearms. [ 156 ] The AGC submits that the Order in Council explicitly states that the Governor in Council is not of the opinion that the firearms prescribed are reasonable for use in Canada for hunting or sport purposes as required by subsection 117.15(2).

The AGC points to the RIAS which explains that these firearms pose a serious threat to public safety because they can increase the severity of mass shootings and that due to these public safety risks, these firearms are not reasonable for hunting and sport. [ 157 ] The AGC acknowledges that many of these firearms were previously used for hunting and sport, but contends that past use does not mean that the Governor in Council cannot now be of the opinion that these firearms are not reasonable for hunting and sport.

The AGC notes that many firearms remain available that may be used for hunting and sport. [ 158 ] The AGC notes that the views of firearm owners about what firearms are reasonable for hunting and sport are not determinative, but rather the Governor in Council’s opinion. [ 159 ] The AGC submits that Parliament has granted broad discretionary authority to the Governor in Council to prohibit firearms in the interest of public safety.

The AGC notes that the 2020 Regulations added to an existing list of prohibited firearms that had not been updated in a comprehensive way since the late 1990s, although some amendments had been made to the 1998 Regulations ( Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted , SOR/98-462 ). [ 160 ] The AGC also notes that the firearms industry has since expanded and the previous regulations did not capture the many newer makes and models of " “assault-style” " firearms.

[ 161 ] The AGC submits that there is no basis to draw an adverse inference from the Government ’s reliance on

section 39 of the Canada Evidence Act , as the Government was entitled to invoke the privilege, the Applicants did not challenge the

section 39 certificate and the Court is not thwarted in its ability to conduct judicial review. [ 162 ] The AGC disputes the Applicants’ argument that the Governor in Council subdelegated its authority to prohibit firearms to the SFSS (and to post the prohibited firearms on the FRT). The AGC explains that it is only the Governor in Council that prescribes the firearms as prohibited by way of the Regulations, as well as variants and modified versions of the prescribed firearms. The FRT is only a reference guide without any force of law.

The AGC notes that if the FRT did not exist, variants and modified versions of prescribed firearms would still be prohibited. [ 163 ] The AGC submits that the Regulations do not infringe any other Charter rights nor the Canadian Bill of Rights . V. The Issues [ 164 ] As noted above, the six Applications raise several common issues and some unique issues.

The Court addresses the following issues: The standard of review for the judicial review of the Regulations; Whether an adverse inference should be drawn from the AGC’s failure to disclose the information considered by the Governor in Council in forming its opinion and making the Regulations and on its reliance on

section 39 of the Canada Evidence Act ; Whether the Order in Council and Regulations are ultra vires subsection 117.15(2) of the Criminal Code ; whether the Governor in Council formed the requisite opinion and whether the opinion is reasonable; Whether there has been an unlawful subdelegation of authority from the Governor in Council to the RCMP’s SFSS to prescribe firearms as prohibited by assessing and classifying firearms as variants and listing the variants on the FRT; Whether there was a breach of the duty of procedural fairness in the decision of the Governor in Council or in the SFSS’s assessment and classification of firearms and their listing on the FRT without notice to firearm owners or a review mechanism; Whether the Regulations infringe the Applicant’s rights to liberty and security of the person under

section 7 of the Charter as being vague, overbroad or arbitrary, and if so, whether the infringement is justified by

section 1 ; Whether the Regulations infringe sections 8 , 11 , 15 or 26 of the Charter , and if so, whether any infringement is justified by

section 1 ; and, Whether the Regulations infringe paragraph 1(

a) of the Canadian Bill of Rights . VI. The Evidence [ 165 ] The Applicants and Respondent filed extensive records including affidavits from firearm owners, firearm business owners, gunsmiths, industry-recognized firearm experts, sport shooting champions, academics, medical doctors, criminologists, and historians. As noted, a list of the affiants is attached at ANNEX A.

An overview of the evidence of a cross-section of the affiants relied on by the Applicants and Respondent is attached as ANNEX B. [ 166 ] The Applicants challenge the evidence of several of the AGC’s affiants, including Professor Chapman, Professor Klarevas and Dr. Najma Ahmed, as irrelevant to the issue of whether the Regulations will impact public safety and question their impartiality and the credibility of their research. [ 167 ] The Applicants are also critical of the Mr. Murray Smith’s evidence.

They suggest that he is not impartial as he is defending his " “life’s work.” " They also argue that he was inconsistent in his responses regarding the criteria for the classification of firearms, whether the SFSS’s classification of firearms was a technical or legal assessment, and how bore diameter is measured. [ 168 ] The AGC notes that contrary to the Applicants’ submissions, the evidence of the Applicants’ affiants is not unchallenged.

The AGC explains that some of the Applicants’ affiants were cross-examined on relevant issues, but that the AGC did not cross-examine other affiants on their opinions, which remain opinions. [ 169 ] The AGC submits that Mr. Smith’s evidence responded to several of the comments and opinions of several of the Applicants’ affiants, including Dr. Caillin Langmann, Professor Gary Mauser, Mr. Travis Bader, Mr. Mathew DeMille, Mr. Rodney Giltaca, Mr. Philip O’Dell, and Mr. Richard Delve. Mr.

Smith was also extensively cross-examined by the Applicants. [ 170 ] The AGC is also critical of the evidence of the Applicants’ experts as not relevant to the determinative issues and/or tainted by a vested interest. [ 171 ] For example, the AGC notes that Mr. DeMille is employed by the Ontario Federation of Anglers and Hunters, an organization that advocates for hunters, sport shooters and gun collectors. The AGC submits that Mr. DeMille’s opinion about what is reasonable for hunting and sport is not relevant to the issues before the Court. [ 172 ] The AGC submits that Mr.

Bader’s evidence should be given little weight given that Mr. Bader has an economic interest in the outcome as a gunsmith with a firearm training business and website to buy and sell firearms, which casts doubt on his impartiality. [ 173 ] The AGC submits that Mr. O’Dell was not properly qualified to provide expert opinion evidence and that he lacks impartiality and objectivity. In addition, he is one of the applicants. [ 174 ] The ACG had previously sought to exclude the Generoux Applicants’ proposed expert witness, Mr.

Bruce Gold, on the grounds that he lacked the necessary qualifications, impartiality, independence, and objectivity. The Generoux Applicants disputed the objection, noting that it was raised on the eve of the close of pleadings and the exclusion of Mr. Gold’s evidence would prejudice their ability to

support their arguments. By the direction of Associate Chief Justice Gagné, this issue was deferred to the hearing of the judicial review. [175] Mr. Gold is described as a researcher and firearms historian. His professional qualifications indicate that he has a master’s degreein Intellectual History and in Public Administration. His purported expertise is not apparent in his work experience. Mr. Gold hasprovided information about the history of the use of guns in Canada. However, Mr. Gold’s evidence does not inform the determinativeissues before the Court.

It is not necessary to make any determination regarding his professed expertise. [176] The Court has considered the evidence tendered as it relates to the particular issues. The evidence has provided useful informationto varying extents—although not always highly relevant or persuasive. [177] Many of the Applicants’ affiants have vested personal and or economic interests in the outcome of this judicial review, beingfirearm owners or business owners or advocates for less regulation.

Many affiants described their own preferences for the use of theirnow prohibited firearms and their personal views about what is reasonable for use, but this evidence does not address the issue ofwhether the Governor in Council’s opinion is reasonable. The evidence shows that opinions differ and differ for different reasons. [178] Generally, the Court finds that, contrary to the Applicants’ assertions, Mr. Smith’s evidence is helpful and the Court has relied onthis evidence, as noted below, on certain issues. Mr. Smith does not show any partiality or defence of his "“life’s work”" and has novested interest. Mr.

Smith was candid and provided detailed answers, with explanations, based on his experience and knowledge.

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