Henkel v. Ontario (Chief Firearms Office for the Province of Ontario, 2013 ONSC 5430

CITATION: Henkel v. Ontario (Chief Firearms Office for the Province of Ontario, 2013 ONSC 5430 COURT FILE NO.: 787/12 DATE: 20130910 ONTARIO SUPERIOR COURT OF JUSTICE In the matter of a refusal by the Chief Firearms Office to issue a requested s. 19 Authorization to Transport a restricted firearm and ammunition outside of a residence; And in the matter of the confirmation of the refusal to issue such Authorization to Transport, confirmed pursuant to s. 76 (

a) of the Firearms Act upon a reference hearing in the Ontario Court of Justice; And in the matter of an appeal of the said confirmation order, pursuant to s. 77(1) of the Firearms Act ; B E T W E E N: ) ) James Edward Henkel ) ) ) Self-represented ) Appellant ) ) - and - ) ) ) Ontario (Chief Firearms Office) ) ) ) S. Sterling for the Crown ) Respondent ) ) ) ) HEARD: July 23, 2013

LEITCH J. [ 1 ] This is an appeal of an order of Pockele J. made pursuant to s. 76 (

a) of the Firearms Act , S.C. 1995, c. 39, in which he confirmed the refusal of the Chief Firearms Office (“CFO”) to issue to Mr. Henkel an authorization to transport (“ATT”) a restricted firearm to any border crossing into Ontario, at any time, and to any licensed gunsmith in Ontario, at any time. [ 2 ] Mr. Henkel seeks an order directing the CFO to grant the ATT conditions as requested, particularly the ability to transport his restricted firearm to and from all international border crossing points by air, land, and water; and to and from all licensed gunsmiths.

He also seeks an order directing the CFO to comply with such an order and an order directing the CFO to revoke his current ATT only as it becomes unnecessary and in conflict with the conditions of the amended ATT. [ 3 ] The CFO seeks an order dismissing the appeal and confirming its refusal of Mr. Henkel’s request for the ATT. Background Facts [ 4 ] Mr. Henkel is an experienced, long-time gun owner. In January 2012, he sought renewal of his firearms acquisition certification.

On February 29 and March 23, 2012, he sought a five-year-long ATT in relation to his restricted firearm, to and from: i. an unspecified point of exit/entry (round trip); ii. an unspecified approved shooting club or shooting range for target practice; iii. an unspecified club and/or clubs within the United States adjacent to the Province of Ontario and an unspecified target shooting competition under the auspices of an unspecified approved shooting club or range; iv. for all other purposes not prohibited by federal statute, and for all other purposes permitted by federal statute; v. all approved licensed gunsmiths in the Province of Ontario; vi. all border crossing points in the Province of Ontario, including land, air, and water crossing points; and, vii. for the purpose of hunting with a handgun in all jurisdictions where handguns are permitted for hunting. [ 5 ] The CFO ultimately refused these requests under s. 68 of the Firearms Act as being unjustifiable broad as they pertain to unspecified locations and because they presented an unnecessary risk to the public at large.

The requests were contrary to CFO policy and precedent in Ontario. [ 6 ] Mr. Henkel sought a reference of the CFO’s refusal before the Ontario Court of Justice pursuant to s. 74(1) (

a) of the Firearms Act . Pockele J. confirmed the CFO’s refusal under s. 76 (

a) of the Firearms Act. He confirmed the decision of the CFO as reasonable. [ 7 ] Mr. Henkel exercised his right to appeal the decision of Pockele J. to this court pursuant to s. 77(1) of the Firearms Act . The Standard of Review [ 8 ] Section 79(1) of the Firearms Act provides as follows:

(1) On the hearing of an appeal, the superior court may (

a) dismiss the appeal; or (

b) allow the appeal and, in the case of an appeal against an order under paragraph 76(a), (

i) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range, or (ii) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under

section 67. [ 9 ] Section 79(2) of the Firearms Act outlines the burden on Mr. Henkel. It states that a superior court shall dispose of an appeal against an order made under para. 76 (

a) by dismissing it, unless the appellant establishes to the satisfaction of the court that a disposition referred to in para. 79(1) (

b) is justified. [ 10 ] Goudge J.A. in Canada (A.G.) v. Henderson , 2011 ONCA 696 , at paras. 40-42 provided the following guidance with respect to the appropriate standard of review on this appeal: 40. This issue also turns on the wording of the Act. Section 77(1) gives the applicant a right of appeal from a provincial court order under s. 76 (

a) confirming the decision of the Registrar to refuse to issue a registration certificate. Section 77(2) gives a right of appeal to the Attorney General from a provincial court order under s. 76 (

b) directing the Registrar to issue a registration certificate that has previously been refused.

41. In my view the proper standard of review to be applied by the superior court depends on whether it is an appeal by the applicant of an order under s. 76 (

a) or an appeal by the Attorney General of an order under s. 76 (b). 42. If it is the former, the applicant, to succeed, must discharge the burden set out in s. 79(2) of the Act. Unless the applicant satisfies the superior court that a disposition under s. 79(1) (

b) directing the Registrar to issue the registration certificate is justified, the appeal must be dismissed. To be satisfied of this, the superior court must find that the provincial court erred in finding that the Registrar’s refusal is reasonable. In other words, only if the superior court determines that, contrary to the provincial court’s finding, the Registrar’s decision is unreasonable will the applicant’s appeal be allowed and the Registrar directed to issue the registration certificate.

The superior court does not accord deference to the provincial court decision, but determines whether it was wrong in finding the Registrar’s decision to be reasonable.

This approach is true to the legislative intent that the Registrar’s decision prevails unless it is unreasonable in the sense I have described. [emphasis added] [ 11 ] While Henderson concerned a review of a decision in relation to a registration certificate for possession of a firearm, whereas this case concerns a decision as regards an ATT, both a registration certificate and an ATT stem from the same rubric within the Firearms Act— that is, the requirement that an applicant apply to the CFO for its decision on the issuance of a particular permit concerning some aspect of the applicant’s firearm ownership. [ 12 ] Therefore, a reasonableness standard of review applies on this appeal within the context of s. 79(2) of the Firearms Act.

To paraphrase the words of Goudge J.A. in Henderson , the question is whether Pockele J. was wrong in finding the CFO’s decision to be reasonable, or in other words, is the CFO’s decision reasonable? [ 13 ] I note that Mr. Henkel in his materials contended that the appeal was to this court “under the auspices of the criminal proceedings division of this court”. That statement is wrong in law. The Relevant Provisions of the Firearms Act [ 14 ] The sections of the Firearms Act in issue are as follows: 17.

Subject to sections 19 and 20, a prohibited firearm or restricted firearm, the holder of the registration certificate for which is an individual, may be possessed only at the dwelling-house of the individual, as recorded in the Canadian Firearms Registry, or at a place authorized by a chief firearms officer. 19.

(1) An individual who holds a licence authorizing the individual to possess prohibited firearms or restricted firearms may be authorized to transport a particular prohibited firearm or restricted firearm between two or more specified places for any good and sufficient reason, including, without restricting the generality of the foregoing, (

a) for use in target practice, or a target shooting competition, under specified conditions or under the auspices of a shooting club or shooting range that is approved under

section 29; (a.1) to provide instructions in the use of firearms as part of a restricted firearms safety course that is approved by the federal Minister; or (

b) if the individual (

i) changes residence, (ii) wishes to transport the firearm to a peace officer, firearms officer or chief firearms officer for registration or disposal in accordance with this Act or

Part III of the Criminal Code , (iii) wishes to transport the firearm for repair, storage, sale, exportation or appraisal, or (iv) wishes to transport the firearm to a gun show. [ 15 ]

Section 20 relates to carrying restricted firearms and pre-February 14, 1995 handguns. [ 16 ] As stated by Code J. in R. v.

Nur , 2011 ONSC 4874 , at para. 95 : [Sections] 17, 19 and 20 place further limits on where [a licensed and registered] gun must be kept (presumptively, only in a “dwelling house”) and when it may be transported between two places (for example, “for use in target practice” or when the individual “changes residence”). [ 17 ] While the CFO noted that Nur has been appealed to the Court of Appeal, I note that the appeal relates to the imposition of a minimum sentence for unauthorized firearms possession and transport and not to the basic proposition outlined here.

Therefore, it is only with permission under ss. 19 and 20 of the Firearms Act that restricted firearms can travel beyond a dwelling house. [ 18 ] Pursuant to s. 57 of the Firearms Act , the CFO is responsible for issuing authorizations to carry and ATTs.

Section 58 allows the CFO to attach any reasonable condition to an authorization to carry or an ATT that it considers desirable in the particular circumstances and in the interests of the safety of the holder or any other person. [ 19 ]

Section 68 of the Firearms Act provides that the CFO may refuse to issue an authorization to carry or an ATT for any good and sufficient reason. The Issue on this Appeal [ 20 ] Considering the standard of review set out above, the issue on this appeal is whether Mr. Henkel has satisfied the burden placed

on him under s. 79(2) of the Firearms Act: has he established to the satisfaction of this court that a different disposition is justified? Inother words, was Pockele J. wrong in finding the CFO’s decision to be reasonable? The Position of the Appellant [21] Mr. Henkel argues that the central purpose of the Firearms Act is public safety and that this notion should inform alladministrative decisions taken under it. He argues that the CFO determinations on ATTs under this public safety paradigm must bemade on an applicant-specific basis, relying on R. v. Davidson, 2011 ONSC 249; R. v.

Bokhari, 2009 ONCJ 691; and R. v. Lovatt, [2002]O.J. No. 4770 (S.C.). I note, however, that each of these cases concern firearm possession and fitness to do so and not ATTs. [22] Mr. Henkel alleges that Pockele J. erred by using a reasonableness standard instead of considering whether he posed a publicsafety risk by transporting his restricted firearm. He cites a number of cases as his authority for that proposition, including R. v. Morales, (SCC), [1992] 3 S.C.R. 711 and R. v.

Melnychuk, 2002 SKQB 409, 229 Sask.R. 197, both of which discuss public safetyand firearms possession within the context of the Criminal Code and not the Firearms Act. [23] Mr. Henkel also relies on R. v. D.L.B., [2003] O.T.C. 568 (S.C.); Boudreault (Re.) (1994), (AB KB), 160 A.R.227 (P.C.); and Bohn v. British Columbia (Chief Firearms Officer), 2002 BCPC 378, all of which discuss public safety concerns but donot touch upon the sections of the Firearms Act in issue in any manner probative to this appeal. [24] Essentially, Mr.

Henkel contends that public safety is the only controlling factor and that, in his opinion, his proposed firearmtransportation poses no threat to public safety. He argues that the CFO failed to provide “good and sufficient reason” in its refusal unders. 68 of the Firearms Act.

In support of that proposition, amongst other things, he cites Reference re: Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 37: The courts will interpret the words “good and sufficient reason” in ss. 68 and 69 in line with the public safety purpose of the Act,ensuring that the exercise of discretion by the chief firearms officer and the Registrar is always wed to that purpose. [25] I note that this paragraph concerns the power of

interpretation of the Ontario Court of Justice in its review of CFO decisionsunder s. 74 of the Firearms Act and not the review powers of this court under s. 77(1). [26] I note also that Mr. Henkel raised several new arguments on this appeal which cannot be considered because they related to newevidence which is inadmissible on appeal (for example, reference to R.C.M.P. Special Bulletin to Police No. 2; USATF Form 6; thedoctrines of Lenity and Strict Construction, which are not part of Canadian law in any event; and the CFO policy on “Long TermATTs”). Analysis and Conclusions [27] Much of Mr.

Henkel’s submissions, while perhaps not his intention, addressed the right to possess a firearm in Canada. Such aright, or any statutory

interpretation as regards this right, is not at issue in this appeal. Only ss. 17, 19 and 20 of the Firearms Actconcerning the ability to transport restricted arms are at issue in this appeal. [28] As the CFO has outlined in its factum, the Firearms Act sets out a comprehensive scheme for licensing, registration, transfer,transportation, use, and storage of firearms; each separate issue is essentially controlled by particular provisions in the Firearms Act. ATTs are distinctly controlled by ss. 17, 19 and 20. [29] While the CFO concedes that Mr.

Henkel is an upstanding gun owner with a history of safe, specified transportation of hisrestricted firearm in the past, such personal attributes create no exemption from the requirements for ATT decisions under ss. 17, 19 and20. [30] According to the statutory scheme in the Firearms Act, all restricted firearms are to be kept in the “dwelling house” of the personlicensed to possess the firearm. [31] Restricted firearms cannot be moved or transported from a dwelling house except with specified permission granted under ss.19-20 of the Firearms Act. [32] Mr. Henkel does not address this statutory scheme.

Rather, in my view, Mr. Henkel’s argument in this appeal focused on hisassertion that he posed no risk to public safety and that, accordingly, his ATT request should be granted. [33] It is within the powers of the CFO to grant an ATT; request supporting information for ATT requests; withhold decisions untilsuch information is provided; set the conditions desirable for what it believes protects the public; and refuse to grant ATT for reasons itsees fit (Firearms Act, ss. 19, 55, 57, 58, 68; Authorizations to Transport Restricted Firearms and Prohibited Firearms Regulations,S.O.R./ 98-206, s. 4). [34]

Section 68 permits the CFO to refuse to grant an ATT “for any good and sufficient reason”, which the CFO contends includes theabsence of any grounds being set out by an applicant that could justify issuing an ATT. The CFO notes that Mr. Henkel did not provideany details in his requested ATT, and instead requested unrestricted permission to transport his restricted firearm, which the CFOrefused.

The CFO on this appeal submitted that it honoured Parliament’s intention and right to create restrictive but preventative lawsconcerning firearms in the hope to protect public safety in the largest sense, referencing Reference re: Firearms Act (Can.), at paras. 37and 45; R. v. Felawka, (SCC), [1993] 4 S.C.R. 199, at para. 21; R. v. Hurrell (2002), (ON CA), 60O.R. (3d) 161 (C.A.), at paras. 28, 31-35; R. v. Manson (2004), (ON CA), 184 O.A.C. 201, at paras. 31-34. [35] I note that the Ontario Court of Justice has repeatedly refused to grant an expansive ATT request: see R. v.

Balofsky, [2012] O.J.No. 6212; Johnson v. Ontario (Chief Firearms Officer), 2011 ONCJ 567; R. v. Minuskin, [2009] O.J. No. 6441.

[ 36 ] I agree with the submission of the CFO that its denial of the broadest conceivable ATT as was requested by Mr. Henkel was not only reasonable, but the only rational response permitted. [ 37 ] Although I have reached this conclusion, it was unnecessary that I ventured this far because I only needed to consider whether the CFO’s decision fell within a range of reasonable responses; or to put it another way, I only needed to determine whether Mr.

Henkel met his burden under s. 79(2) of the Firearms Act and satisfied me that the CFO’s decision was unreasonable and that, consequently, Pockele J. was wrong in confirming it. [ 38 ] I am satisfied that Pockele J. appropriately confirmed the CFO’s refusals to be reasonable. As a result, the appeal is dismissed. “Justice L. C. Leitch” Justice L. C. Leitch Released: September 10, 2013