Moulaison v. Canada (Attorney General), 2021 NSPC 7

PROVINCIAL COURT OF NOVA SCOTIA Citation: Moulaison v. Canada (Attorney General) 2021 NSPC 7 IN THE MATTER OF AN APPLICATION FOR A REFERENCE HEARING PURSUANT TO s. 74(1) OF THE FIREARMS ACT Date: 2021-02-02 Registry: Halifax Between: Ian Moulaison v.

The Attorney General of Canada Judge: The Honourable Judge Amy Sakalauskas Heard: November 30, 2020 and January 7, 2021, in Halifax, Nova Scotia Decision February 2, 2021 in Halifax, Nova Scotia Counsel: Ian Moulaison, on his own behalf, Applicant Patricia McPhee, for the Respondent By the Court: Overview [ 1 ] On May 1, 2020, the Government of Canada amended the Classification Regulations under the Firearms Act by way of Order- in-Council SOR/2020-96, such that firearms previously classified as restricted are now prohibited. The Registrar of Firearms mailed Mr.

Moulaison a letter dated July 20, 2020, entitled “Firearm Registration Certificate Impacted by the Amended Classification Regulations”. Mr. Moulaison is the owner of one firearm impacted by this change, a North Eastern Arms Rifle. The Notice advises of the amnesty period by way of Order-in-Counsel SOR/2020-97 , during which previously lawful owners are protected from criminal prosecution. [ 2 ] Mr. Moulaison filed an Application for a Reference Hearing in the Provincial Court as he maintains that the Registrar made the decision to revoke his Firearm Registration Certificate.

The AG argues that the letter did not constitute a revocation and as such, this Court has no jurisdiction to hold the Reference Hearing. To that end, the AG made a preliminary motion to determine the issue of jurisdiction. As this decision explains, I am granting the AG’s motion and finding that this Court does not have jurisdiction to hold the Reference Hearing. Legal Framework [ 3 ] Our laws concerning firearms are outlined in the Criminal Code (regarding offences) and the Firearms Act (regarding possession, acquisition, transportation , and storage).

Possession of a firearm is an offence under the Criminal Code unless the person holds the necessary authorization. As per s. 84 of the Code, firearms are either non-restricted, restricted, or prohibited. The Governor in Council has the authority, under s. 117.15(1) of the Code, to prescribe firearms to be of a certain class.

These prescribing regulations are the Regulations Prescribing Certain Firearms and Other Weapons, Components and Part of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted , SOR/98-462 (commonly referred to as the Classification Regulations ). [ 4 ] This case comes about because on May 1, 2020, the Governor in Council amended the Classification Regulations, and provided for an amnesty period to protect from criminal liability those whose previously restricted firearms are now prohibited (until April 30, 2022).

They cannot use the firearms during this period but will not be prosecuted for having them . The letter also sets out how

people can dispose of the affected firearms and mentions an intention to implement a buy-back program, and possible grandfathering. [ 5 ] The Registrar of Firearms sent a letter of July 20, 2020, to Mr. Moulaison entitled “Firearms Registration Certificate Impacted by the Amended Classification Regulations”. In it, he is advised of the changed law and that his listed firearm was “now classified as prohibited and the previous registration certificates are automatically nullified and therefore no longer valid”. [ 6 ] The Firearms Act provides a process whereby the Registrar can revoke a Registration Certificate.

The Registrar’s power to do so is wide, “for any good and sufficient reason”, as outlined in s. 71(1). If the Registrar does so, the Firearms Act specifies that notice be provided to the holder of the registration certificate in the prescribed form (s. 72(2)). In addition, the Registrar must include reasons for the decision disclosing the nature of the information relied on for it and a copy of s. 74 – s. 78 of the Firearms Act (s. 72(2)). The notice must also include information about disposal of the firearm in question. [ 7 ]

Section 74 of the Firearms Act provides an avenue of review for holders of registration certificates in such circumstances, as follows: Reference to judge of refusal to issue or revocation, etc. 74(1) Subject to subsection (2), where (

a) A chief firearms officer or the Registrar refuses to issue or revokes a license, registration certificate, authorization to transport, authorization to export or authorization to import, (

b) A chief firearms officer decides under

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

section 28, or (

c) A provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for purposes of this Act, The applicant for or holder of the license, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides. . . . Hearing of reference 75(1) On receipt of a reference under

section 74, the provincial court judge shall fix a date for the hearing of the reference and direct that notice of the hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or holder of the license, registration certificate, authorization or approval, in such manner as the provincial court judge may specify. . . . Decision by provincial court judge 76 On the hearing of a reference, the provincial court judge may, by order, (

a) confirm the decision of the chief firearms officer, Registrar or provincial minister, (

b) direct the chief firearms officer or Registrar to issue a license, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or (

c) cancel the revocation of the license, registration certificate, authorization or approval or the decision of the chid firearms officer under

section 67. The Request before the Court [ 8 ] Mr. Moulaison filed an Application for a Reference Hearing on August 20, 2020, attaching the letter from the Registrar, and outlined his request as follows: I am requesting a reference hearing to a provincial court judge for a review of a decision by the Registrar of Firearms to revoke a Firearm Registration Certificate. I will be asking the judge to make findings of fact and findings of law in relation to whether or not this is a valid decision of the registrar, and if this is a valid notice of that decision.

I will be asking the judge to determine that this is not a valid decision of the registrar, and/or that the notice to the effect is also invalid, and therefore I will be asking the judge to order that my

certificate as issued is still valid, and ordering the registrar to reinstate the validity of my certificate in CFIS. [ 9 ] Mr. Moulaison further explained his position that the letter from the Registrar constituted a de facto revocation in different and deficient language, but with the same effect. [ 10 ] The AG did not initially receive notice, and when the matter came before the Court on August 27, 2020, I directed that notice be provided. I agreed to provisionally set a reference hearing date given the pressures on the docket with respect to scheduling but queried whether the matter qualified for same.

When the matter came back before the Court after the requisite notice was provided, the AG advised of its preliminary motion on the issue of jurisdiction. After reviewing briefs from both parties, and hearing oral submissions, I reserved this decision. Related Court Decisions [ 11 ] Judicial ink has quickly been spilled in a short period of time on this exact issue.

In the following reported decisions out of Alberta, Newfoundland and Labrador, and Ontario, judges allowed the AG’s preliminary motion on jurisdiction, and refused to hear the reference: • In the Matter of an Application for a Reference Hearing, Made Pursuant to Section 74(1) of the Firearms Act, R.S.C. 1985 . October 26, 2020 (Provincial Court of Newfoundland and Labrador); • R. v. Wyville , 2020 ONCJ 555 (dated November 27, 2020; “ Wyville ”); and, • R. v. Fritz (Ontario Court of Justice, Court File No: Sudbury, 20-2694; “ Fritz ”).

January 14, 2021. [ 12 ] There is a line of 9 cases out of Alberta, heard together, where The Honourable Judge Fradsham found in each case that the Provincial Court had jurisdiction to hear the reference, dismissing the AG’s preliminary motion (with nearly identical reasons, all dated November 30, 2020): • Attorney-General for Canada v. Der , 2020 ABPC 235 (“ Der ”); • Attorney-General for Canada v. Cridland , 2020 ABPC 233 (“ Cridland ”); • Attorney-General for Canada v. Dolhun , 2020 ABPC 237 (“ Dolhun ”); • Attorney-General for Canada v. Imler , 2020 ABPC 232 (“ Imler ”); • Attorney-General for Canada v.

Nelson , 2020 ABPC 231 (“ Nelson ”); • Attorney-General for Canada v. Sandhu , 2020 ABPC 238 (“ Sandhu ”); • Attorney General for Canada v. Seda , 2020 ABPC 234 (“ Seda ”); • Attorney General for Canada v. Smykot , 2020 ABPC 236 (“ Smykot ”); and, • Attorney General for Canada v. Stark , 2020 ABPC 230 (“ Stark ”). [ 13 ] I was provided with a Notice of Appeal filed by the Attorney General of Canada in relation to the Stark case (and was advised the AG is appealing the other related decisions as well). The Stark appeal is scheduled to be heard in the Court of Queen’s Bench of Alberta on April 30, 2021. Mr.

Moulaison heavily relies on the reasoning in Stark and its companion cases. Analysis [ 14 ] I do not have power to review the decision of the Governor in Council to change the Classification Regulations . Mr. Moulaison stated that he is not taking issue with that, and his issue is with the Registrar. The issue of the government’s action is to be reviewed in the Federal Court. I am advised by the AG that there are 7 applications before the Federal Court in Toronto, Ottawa, and Calgary and 1 application before the Court of Queen’s Bench of Alberta challenging the amendments to the Classification Regulations.

They were scheduled to be heard in the Federal Court on January 18, 2021. [ 15 ] The issue before this Court is whether the Provincial Court has jurisdiction to hear Mr. Moulaison’s application under s. 74 of the Firearms Act . Of course, the jurisdiction of this Court is completely dependent on statute, in this case the Firearms Act . For this Court to have jurisdiction the Registrar must have decided to revoke a Registration Certificate.

[ 16 ] Aside from the recent decisions supportive of its position, the AG pointed to earlier decisions such as that in R. v. Drader , 2001 MBQB 321 . Mr. Drader held a certificate to possess a prohibited firearm. He then entered into a s. 810 peace bond that prohibited him from possessing any firearms. The

summary conviction appeal court, the Court of Queen’s Bench, agreed with the Provincial Court decision that it did not have jurisdiction, as the loss of the entitlement was by operation of law ( Criminal Code provision). Mr. Drader had received a Notice of Revocation of a Registration Certificate, but the

summary conviction appeal court judge found that the Notice was actually a nullity and there was no decision by the Registrar to review despite the sending of the Notice. [ 17 ] Scherby v. Canada (A.G.), 2009 BCSC 1445 , was another case in which Mr. Scherby entered into a s. 810 Peace Bond prohibiting him from possessing any firearms. He received a letter from the chief firearms officer advising him of the effect of this on his firearms license.

On appeal, the British Columbia Supreme Court agreed that the chief firearm officer’s letter was not a decision but was notice of the author’s view of the consequences of the peace bond prohibition. There was no decision to review. [ 18 ] In Stark , the judge found that this decision was not helpful to the AG as the registration certificates in question remained valid after the SOR/2020-96, and unlike in Drader there was no

section of the Code or the Firearms Act , or the two Orders in Council, that made any mention of the registration certificate being revoked as a result of the reclassification. Instead, the Court relied upon Barrett v. Canada (Registrar of Firearms ), 2010 BCSC 345 .That case came about as a result of changes in 1995, when the Firearms Act replaced the Code as the legislation controlling registration and regulation of firearms. Without getting into the facts of that case, I can simply say that I agree with the AG that this is a red herring.

The complicated scheme when the Firearms Act came into law was a very different situation than the one now before the Court. [ 19 ] In In the Matter of an Application for a Reference Hearing, Made Pursuant to Section 74(1) of the Firearms Act, R.S.C. 1985 (October 26, 2020), Judge Gorman of the Provincial Court of Newfoundland and Labrador considered a request for a reference on the basis of the same letter that is before me. Judge Gorman concluded that the Provincial Court did not have jurisdiction given that the Registrar did not revoke the registration certificate and was not involved in the matter.

His Honour determined that the nullification of the certificate was solely as a result of the change in the Classification Regulations . Judge Gorman wrote: [41] As we have seen,

section 74 of the Firearms Act allows a provincial court judge to hear a reference only if a registration certificate has been revoked by the Registrar or a chief firearms officer. In this case that did not occur. Mr. H’s registration certificate was cancelled, revoked or nullified by legislative action. This occurred as a result of an order-in-council, not a decision of the Registrar or a chief firearms officer. Thus, there is nothing for this Court to review. [42] This point can be illustrated by considering the orders that

section 76 of the Firearms Act allows the Court to issue and the test to be applied. [43]

Section 76 allows this Court to confirm the decision of the chief firearms officer or the Registrar; to direct the chief firearms officer or the Registrar to issue a registration certificate; or to cancel the revocation of the registration certificate. [44] The difficulty here is that since neither the Registrar nor a chief firearms officer made a decision, there is nothing to confirm, cancel or review. There is no decision which can be assessed to determine if it was justified.

In addition, if I were to issue an order directing that a registration certificate be issued, I would be ordering the Registrar to issue a registration certificate for a prohibited weapon. The authority to issue such a certificate rests with the Registrar or a chief firearms officer (see

section 54 of the Firearms Act ). This requires an application and a decision, neither of which has occurred. [45] In

summary, in the absence of a decision having been made by the Registrar or a chief firearms officer, this Court does not have jurisdiction to consider a reference made pursuant to s. 74(1) of the Firearms Act . . . [ 20 ] Judges in other jurisdiction have agreed with Judge Gorman’s reasoning. In Wyville , Justice Griffin of the Ontario Court of Justice dealt with this same issue again in relation to the July 20, 2020 letter from the Registrar, which he described as an explanatory document.

He decided that a provincial court judge did not have jurisdiction to hold the reference and noted (starting on page 16): The Canadian Oxford Dictionary’s definition of decide is “Come to a resolution as a result of consideration. Have or reach one’s resolution about something. Resolve or settle a question, dispute, et cetera.” While the definition of decision in the Canadian Oxford Dictionary is, “The act or process of deciding.

A conclusion or resolution reached as to future action upon consideration.” It cannot be said in these circumstances that the Registrar of Firearms cane to a resolution as a result of consideration to nullify Mr. Wyville’s registration certificate. The Registrar of Firearms was not deciding as the decision was made by the Government of Canada when it passed into law SOR/2020-96.

The Registrar of Firearms was not engaged in the process of consideration of resolving a question or dispute over Mr. Wyville’s registration certificate. The Registrar of Firearms had no choice in the matter as compliance with the law is mandatory. Mr. Wyville’s Colt automatic rifle is no longer a restricted weapon as SOR/2020-96 has declared it to be a prohibited weapon.

So the firearms registration certificate, which had been classified as restricted, is, by operation of law, nullified. [ 21 ] In Fritz , Justice Guay of the Ontario Court of Justice found no jurisdiction at this level of Court for hearing a reference, which was also based on the July 20, 2020 letter. He found that there was no evidence that the Registrar of Firearms was called upon to determine which formerly restricted weapons were now classified as prohibited. It was not the Registrar, but rather Orders-in-Council passed by the Governor-in-Council that made this selection.

The Registrar simply let the owners of reclassified restricted firearms know they were now prohibited and what that meant for them. The judge noted, at paragraph 22, “The Registrar does the bidding of the Governor-in-Council, not the opposite”.

This was not a situation where the Registrar used their discretionary powers under the Firearms Act , and the Court concluded the power to revoke was not invoked when the Registrar sent the letter as it was not needed to affect the reclassification of the firearm and consequent invalidity of the registration certificate. [ 22 ] That leaves the contrary line of reasoning in Stark and the associated decisions in Alberta. In those causes ( Stark , Der , Dolhun , Imler , Nelson , Sandhu , Seda , Smykot, Cridland ), Judge Fradham decided that the provincial court had jurisdiction.

Justice Fradham paid particular attention to the use of the word “nullify” in the July 20, 2020 letter. The Registrar does not have the power to nullify under the Firearms Act but has the power to revoke. “Revoke” is not defined in the Firearms Act or the Criminal Code . Comparing

definitions of “nullify” and “revoke”, the judge found them sharing the same denotation and connotation. He reasoned, in Stark : [70] Consequently, one must conclude that the act of the Registrar which “nullified” and made “no longer valid” the registration certificates listed in the July 20, 2020 letter was the revocation of those registration certificates by the Registrar. I find that the Registrar of Firearms did revoke the registration certificates listed in the July 20, 2020 letter directed to Mr. Stark. [71] The July 20, 2020 letter from the Registrar told Mr.

Stark the reason for the revocation (the reclassification of the firearms specified in the letter brought about by the amendment to the Classification Regulations). The letter also informed Mr. Stark what he could do with the reclassified firearms, and that he would have until April 30, 2022 under an Amnesty Order to dispose of the firearms. In my respectful view, the July 20, 2020 letter from the Registrar of Firearms to Mr. Stark gave notice to Mr.

Stark “of the decision of the … Registrar” [section 72(2)’ to “revoke” [section 74(1)(a)] the registration certificates listed in the letter. [72] As previously noted, I am mindful that the July 20, 2020 letter was not “in the prescribed form” for a section 72(1) notice, and that it was not accompanied by a copy of sections 74 to 81. However, in all other respects it complied with the notice provisions of the Firearms Act, and the deficiencies noted do not change the character (a notice of revocation) of the document.

The deficiencies may have other consequences, but that is not for me to decide in this application by the Attorney-General. [ 23 ] Mr. Moulaison submits that the letter of the Registrar was a revocation, not in proper form, when considering the Registrar’s actions as a whole. And, even if the Registrar made no decision and provided no notice, Mr. Moulaison argues that the Registrar gave effect to a registration by amending her record to cancel the issued registration certificates. Relying on Stark , Mr.

Moulaison points to the legislative scheme that governs registration certificates and the distinction between a reclassification by the Governor-in-Council and the validity of a registration certificate managed by the Registrar as separate issues, with separate decision makers under separate statutory regimes. On this point, he finds support tin Stark : [52] . . . I agree that it was the Governor-in-Council who reclassified Mr. Stark’s firearms with attendant consequences (somewhat ameliorated by SOR2020-97 ) in relation to the ability to possess those firearms.

However, the Governor-in-Council did not cause those registration certificates to cease to exist in law. They could only cease to exist in law, absent new legislation eliminating them, by was of revocation, expiry, or surrender. . . [ 24 ] Also in Stark , the Court found that the Registrar made a decision when she decided that SOR/2020-96 applied to specific firearms and the associated registration certificates, which was not evident from simply reading the listed firearms in SOR/2020-96. With respect, I cannot agree.

While it may not be evident by the list to the general public, it would surely be evident (and not open to

interpretation) to the Registrar of Firearms. There was no individualized decision, as the decision had already been made by the government by way of the changed law. Decision

[ 25 ] I am sympathetic to Mr. Moulaison’s desire to have these decisions reviewed and note that the Federal Court hearings in that respect are the way to do so. I am not persuaded by the reasoning in Stark and its related cases. I agree with the distinction made in decisions declining jurisdiction that the actions of the Registrar were informational in nature and not based on separate decision making. The Registrar had no discretion here, made no independent decision, but advised Mr. Moulaison of the impact of the decisions made by the government. This Court does not have jurisdiction to hold the reference requested. The AG’s preliminary jurisdiction motion is granted. Amy Sakalauskas, JPC