Henderson v. Canada (Attorney General), 2011 ONCA 696

Henderson v. The Attorney General of Canada [Indexed as: Henderson v. Canada (Attorney General)]

108 O.R. (3d) 290

2011 ONCA 696

Court of Appeal for Ontario,

Goudge, Juriansz and MacFarland JJ.A.

November 9, 2011

Firearms -- Registration -- Registrar of Firearms refusing application for registration certificate for applicant's Armi Jager AP80 firearm on ground that it was prohibited firearm -- Standard of review of registrar's decision on reference to Ontario Court of Justice was reasonableness -- Court of Justice failing to apply that standard in concluding that AP80 could not be variant of AK-47 -- Court of Justice failing to consider whether registrar's decision that AP80 was variant of AK-47 was within range of defensible outcomes in light of fact that AP80 is same weapon as AK-22 (which is expressly declared by regulation by be variant of AK-47) -- Standard of review of decision of Superior Court of Justice on appeal by Attorney General from Court of Justice's decision being correctness -- Correct interpretation of relevant Order-in-Council being that AP80 is variant of AK-47.

The applicant applied for a registration certificate for his Armi Jager AP80 firearm. The application was refused by the Registrar of Firearms on the basis that the AP80 is a prohibited firearm. On a reference to the Court of Justice under s. 74(1) of the Firearms Act, S.C. 1995, c. 39, the court reversed the registrar's decision. The court identified the issue as whether the AP80 is an "unnamed variant" of the AK-47 for the purpose of s. 64 of Part 1 of the Schedule to SOR/ 98-462. The court found that the fact that the AK-47 is an automatic weapon and the AP80 is a semi-automatic weapon prevented the AP80 from being an unnamed variant of the AK-47. The court concluded that the registrar's decision was unreasonable and directed the registrar to issue a registration certificate to the applicant. The Attorney General appealed to the Superior Court of Justice which restored the registrar's refusal. The applicant appealed.

Held, the appeal should be dismissed.

The Court of Justice correctly identified the standard of review of the registrar's decision as reasonableness but erred in applying that standard. The court failed to evaluate whether, in light of the fact that the AP80 is the same weapon as the AK-22 (which is expressly declared by the Regulation to be a variant of the AK-47), the decision that the AP80 is a variant of the AK-47 was within the range of defensible outcomes. Had it done so, it would have confirmed the registrar's decision. [page291]

The Superior Court of Justice erred in applying a standard of reasonableness to the Court of Justice's decision. The standard of review on an appeal by the Attorney General of an order under s. 76(b) of the Firearms Act is correctness. However, the mistake was of no moment. The Court of Justice was incorrect in failing to find that a weapon (the AP80) that is the same as a weapon (the AK-22) named expressly as a variant of the AK-47 must itself be a variant of the AK47 and is therefore a prohibited weapon.

APPEAL from the judgment of Tulloch J., [2010] O.J. No. 4522, 2010 ONSC 5168 allowing an appeal from a decision of the Court of Justice reversing the decision of the Registrar of Firearms.

The judgment of the court was delivered by

Cases referred to Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; Henderson v. Canada (Attorney General), [2009] O.J. No. 3324, 2009 ONCJ 363; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 [as am.], s. 84(1) [as am.] Firearms Act, S.C. 1995, c. 39 [as am.], ss. 13, 69, 72(1), (2), 74(1) [as am.], 75, (2), (3), 76, (a), (b), (c), 77(1), (2), 79(1), (b), (2), 80

Rules and regulations referred to 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, s. 2, Sch., Part 1, s. 64

Lorne Honickman and Michael Blinick, for appellant. Philippe Alma, for respondent.

GOUDGE J.A.: --

Introduction

1Canada has a detailed legislative scheme designed to protect the public against the misuse of firearms. If a weapon is designated as a prohibited firearm by an Order-in-Council, its owner can lawfully possess the weapon only by obtaining a registration certificate from the Registrar of Firearms (the "Registrar"). If the Registrar refuses, the owner can refer the matter to the particular provincial court. The provincial court's decision can then be appealed to the superior court of that province. The superior court's decision can be further appealed to the [page292] province's court of appeal, but only with leave on a question of law alone.

2Mr. Henderson's application for a registration certificate for his Armi Jager AP80 firearm ("AP80") was refused by the Registrar. That decision was reversed by the Ontario Court of Justice, Ontario's provincial court. The Attorney General of Canada appealed to the Superior Court of Ontario, which restored the Registrar's refusal.

3In his appeal to this court, Mr. Henderson seeks to raise the following questions of law: whether the Ontario Court of Justice and the Superior Court each erred by applying an incorrect standard of review to the decision before it; and whether the proper interpretation of the relevant Order-in- Council would render the AP80 a prohibited firearm.

4For the reasons that follow, I conclude that the Ontario Court of Justice incorrectly applied the standard of reasonableness to the Registrar's decision. Secondly, while the Superior Court applied a standard of review to the Ontario Court of Justice decision that in my view was incorrect, ultimately the Superior Court was correct in finding that the Registrar interpreted the relevant Order-in-Council properly and in restoring the Registrar's decision to refuse the application. The Superior Court therefore reached the right result. Consequently, I would dismiss the appeal.

The Facts

The Registrar's decision

5Mr. Henderson purchased his AP80 in 1984 from a gun shop in Brampton. It is a .22 calibre rifle that is semi-automatic, meaning that a bullet can be fired with each separate pull of the trigger and the gun automatically reloads after each discharge. At the time, it did not have to be registered with the government and Mr. Henderson was entitled to acquire it.

6The Firearms Act, S.C. 1995, c. 39 (the "Act") was enacted in 1995 as part of the tightening of government control of the possession of firearms. Its purpose is to provide for the issuance of licences, registration certificates and authorizations to permit the possession of firearms in circumstances that would otherwise constitute an offence under the Criminal Code, R.S.C. 1985, c. C-46. A licence allows an individual to possess firearms of particular kinds. A registration certificate allows the individual to possess a specific firearm. An authorization allows the individual to do certain things with a firearm, such as importing. In this case, we are concerned with a registration certificate. [page293]

7On December 28, 2000, Mr. Henderson applied to the Registrar for a registration certificate for his AP80. The application form required only the model number, serial number, calibre and barrel length of his firearm. He had no further correspondence with the Registrar until he received notice of the Registrar's refusal to issue the registration certificate on June 2, 2008. This long delay was apparently caused by the volume of registration applications following the introduction of the Act.

8Several sections of the Act are germane to the Registrar's decision.

9Section 13 provides:

13. A person is not eligible to hold a registration certificate for a firearm unless the person holds a licence authorizing the person to possess that kind of firearm.

10Section 69 provides:

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

11Section 72(1) provides for notice to an applicant of refusal to issue a registration certificate. Section 72(2) provides:

72(2) A notice given under subsection (1) must include reasons for the decision disclosing the nature of the information relied on for the decision and must be accompanied by a copy of sections 74 to 81.

12The notice of refusal received by Mr. Henderson indicated that his AP80 is a prohibited firearm for the purposes of the Criminal Code because it is declared to be a prohibited firearm by s. 64 of Part I of the Schedule to the 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, an Order-in-Council made on September 16, 1998 pursuant to s. 84(1) of the Criminal Code. Section 2 of the Order-in-Council provides that the firearms listed in Part 1 of the Schedule to SOR/98-462 are prohibited firearms for the purposes of the Criminal Code. The relevant part of s. 64 of Part 1 reads:

64. The firearm of the design commonly known as the AK-47 rifle, and any variant or modified version of it except for the Valmet Hunter, the Valmet Hunter Auto and the Valmet M78 rifles, but including the . . . . .

(z.22) Mitchell AK-22[.] [page294]

13The notice of refusal then went on to explain that because Mr. Henderson's licence to possess firearms did not allow him to possess prohibited firearms, he was therefore ineligible to hold a registration certificate for his AP80, since it was a prohibited firearm. His application was therefore refused.

The reference to the Ontario Court of Justice

14Section 74(1) of the Act allows the applicant whose application is refused to "refer the matter to a provincial court judge in the territorial division in which the applicant . . . resides". However, if the application is allowed and the registration certificate is granted by the Registrar, the Attorney General of Canada has no counterpart right of referral.

15On receiving the reference, the provincial court must direct that notice of the hearing be given to the Registrar and to the applicant. Section 75 of the Act requires that the applicant be accorded a hearing by the provincial court, something not contemplated at the Registrar stage.

16Section 75(2) and (3) then provide for the hearing of all relevant evidence by the provincial court, with the burden resting on the applicant in the reference:

75(2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.

(3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.

17Section 76 says that the provincial court may confirm the Registrar's decision or direct the Registrar to issue a registration certificate.

18At the hearing of Mr. Henderson's reference, the Ontario Provincial Court received evidence called by the Registrar about the AK-47 rifle and the Mitchell AK-22 and, most importantly, evidence that the AP80 and the AK-22 are the same firearm made under two different trade names by an Italian manufacturer. Mr. Henderson called no evidence, but the Registrar agreed that Mr. Henderson's assertion that no parts of the AP80 are interchangeable with the AK-47 was one that could be treated as evidence.

19The Ontario Court of Justice identified the issue in these terms: is the AP80 an "unnamed variant" of the AK-47 for the purpose of s. 64 of Part 1 of the Schedule to SOR/98-462? The court held that the burden placed on the applicant by s. 75(3) is to show that the Registrar's decision was not reasonable, in [page295] other words, that the standard of review the court should apply is reasonableness.

20However, the court incorrectly applied the standard of reasonableness by resting its decision on the fact that the AK- 47 is an automatic weapon (that is, one pull of the trigger discharges a burst of bullets) and the AP80 is a semi-automatic weapon. In its view, that prevented the AP80 from being an unnamed variant of the AK-47. The court came to this conclusion without considering that the AP80 is the same firearm as the AK-22, which is a named variant of the AK-47 in s. 64. In the result, the Ontario Court of Justice concluded that the Registrar's decision was unreasonable and therefore directed the Registrar to issue a registration certificate to Mr. Henderson for his AP80 firearm [[2009] O.J. No. 3324, 2009 ONCJ 363].

The appeal to the Superior Court

21Section 77(1) of the Act gives the applicant the right to appeal to the superior court from an order by the provincial court under s. 76(a) confirming the decision of the Registrar.

22Section 77(2) of the Act gives the Attorney General of Canada a counterpart right of appeal from an order by the provincial court under s. 76(b) (or s. 76(c), which is not relevant to this case). Here, the order was made under s. 76(b) and directed the Registrar to issue a registration certificate that he had previously refused to issue.

23Section 79(1) sets out how the superior court may dispose of an appeal. The pertinent part reads:

Disposition of appeal

79(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 made 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[.]

24When the applicant appeals from a provincial court order under s. 76(a), s. 79(2) defines the burden on the applicant:

Burden on applicant

(2) A superior court shall dispose of an appeal against an order made under paragraph 76(a) by dismissing it, unless the appellant establishes to the satisfaction of the court that a disposition referred to in paragraph (1)(b) is justified. [page296]

25On the other hand, when the Attorney General appeals, there is no counterpart provision setting out a specific burden on the appellant.

26In Mr. Henderson's case, on receipt of the Ontario Court of Justice decision, the Attorney General appealed to the Superior Court of Ontario. In its reasons for judgment, the Superior Court first considered the standard of review it should apply to the decision appealed. It agreed with the parties that under s. 79(2), the appellant, whether the applicant or the Attorney General, had the burden of demonstrating that the decision under appeal was not justified. It therefore concluded that it should apply a standard of reasonableness to the decision under appeal.

27The Superior Court found that the decision was clearly wrong and unreasonable in finding that the applicant's firearm is not a variant of the AK-47, given that it is the same weapon as the AK-22, which is a declared variant of the AK-47. It went on to find that the Ontario Court of Justice also erred in the standard of review it applied to the Registrar's decision and should not have substituted its own views for the decision of the Registrar. Rather, it should have determined if the Registrar's decision was reasonable. In the end, the Superior Court found no error in the Registrar's decision to refuse the application. It allowed the appeal and restored that decision.

28The applicant then took the final step in the process as provided in s. 80 of the Act by seeking to appeal to this court on grounds that involve a question of law alone.

Analysis

29This appeal raises four issues for disposition. I will deal with each in turn.

Leave to appeal

30Mr. Henderson seeks to raise three issues in this court: (a) whether the Superior Court erred in finding that the Ontario Court of Justice applied an erroneous standard of review to the decision of the Registrar; (b) whether the Superior Court erred in applying an erroneous standard of review to the decision of the Ontario Court of Justice; (c) whether the Superior Court erred in finding that the Provincial Court rendered an incorrect interpretation of "variant" in s. 64 of Part 1 of the Schedule to SOR/ 98-462. [page297]

31In my view, these are all questions of law alone. Moreover, they are of some significance to the general administration of justice. I say this in light of the volume of applications made pursuant to the Act and, more importantly, the large number of reported cases, many of which reflect inconsistent approaches to these issues. I would therefore grant leave to appeal.

The standard of review of the Registrar's decision

32In my view, the approach to be taken by a provincial court to a decision of the Registrar depends on the rather unique scheme set up by the Act and the legislative intention it reflects.

33A number of aspects of the scheme are relevant. The application to the Registrar is simply a form containing basic information about the firearm. The Registrar is not required to hold a hearing, nor offer the applicant any other way to provide information or make submissions, before deciding to issue the registration certificate or refuse the application. If the application is refused, the Registrar is required to provide the applicant with both the decision and reasons that include the nature of the information relied on. The applicant can then refer the matter to the provincial court.

34The Act obliges the provincial court to hear all relevant evidence presented by both the applicant and the Registrar. It is clear that the provincial court is to engage in its own fact-finding process. That is why it is described as a reference and not an appeal from the Registrar's decision. Nor is it a hearing de novo, since the Registrar has not held a hearing. Clearly, the legislative intent is that the provincial court is to find its own facts and need give no deference to any facts recited in the reasons of the Registrar.

35However, having done that, s. 75(3) of the Act directs the provincial court to decide, in light of the facts it has found, if the applicant has satisfied it that the Registrar's refusal was "not justified". That is, the applicant must do more than show that, given the facts found, the decision was wrong. Rather, the provincial court must be satisfied that the refusal was not justified. In my view, this reflects the legislative intent that the provincial court accord deference to the Registrar's decision. I say this for several reasons.

36The first is the particular language of the Act. The pertinent definition of "justification" in Black's Law Dictionary, 8th ed. (St. Paul, MN: Thomson/West, 2004) is "a lawful or sufficient reason for one's acts or omissions". That is, a decision is not justified if there is no sufficient reason for it. As well, the Supreme Court of Canada has linked the deferential standard of [page298] reasonableness to the concept of justification. In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 47, the court describes the qualities that make a decision reasonable and makes clear that justification is a key aspect of reasonableness. Thus, I think the language of s. 75(3) of the Act directs the provincial court to apply a deferential standard of review to the Registrar's decision itself. The provincial court is to test that decision against the facts it has found. It is not to determine if it agrees with the decision, but whether it has been satisfied by the applicant that the decision is not reasonably defensible. This mandates deference.

37A deferential approach is also supported by the undoubted specialized expertise of the Registrar in administering the complex firearms registration regime. That regime encompasses both the legislation and the relevant subordinate legislation, including SOR/98-462. In addition, the nature of the questions of law that arise for the Registrar is compatible with a standard of deference. As in this case, where the question is the meaning of "variant" in the relevant Order- in-Council, these questions are within a very specialized area of the legal system and have limited general application.

38In my view, the deferential standard of review to be applied by the provincial court to the Registrar's refusal is best described as one of reasonableness. That notion is well known in judicial review of administrative decisions, and that is, of course, what is going on here. A new label would simply complicate an area of law which the Supreme Court in Dunsmuir has said should be simplified. The provincial court's task is not to assess the process used by the Registrar about which it may know very little. Rather, it is to evaluate the Registrar's decision in the context of the facts it has found to decide if the applicant has satisfied it that the decision does not fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, at para. 47. It is in this sense that the provincial court should apply a standard of reasonableness.

39Turning to this case, I agree with the Superior Court that the Ontario Court of Justice did not apply this standard of review to the Registrar's refusal. It concluded that the applicant's firearm, the AP80, could not be a variant of the AK-47 because it was a semi-automatic weapon, not an automatic one. The court did not evaluate whether, in light of the fact that the AP80 is the same weapon as the AK-22 (which is expressly declared by the regulation to be a variant of the AK- 47), the decision that the AP80 is a variant of the AK-47 is within [page299] the range of defensible outcomes. In my view, had the Ontario Court of Justice done so, it would have confirmed the Registrar's decision.

The standard of review of the Provincial Court decision

40This 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.

41In 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).

42If 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.

43In this case, the appeal is by the Attorney General from an order made under s. 76(b). The Act provides no special burden on the Attorney General as appellant. It simply empowers the superior court to dismiss or allow the appeal. I see no reason why the superior court should approach this task any differently than any appellate court considering an appeal from a lower court. The normal standard of review described in the seminal case of Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33 should be applied with respect to the questions of fact, questions of law and questions of mixed fact and law.

44Here, the Superior Court applied a standard of reasonableness to the decision of the Ontario Court of Justice. It found [page300] that decision to be clearly wrong, and therefore unreasonable, in failing to find that the AP80 is a variant of the AK-47.

45While in my view this mistakes the standard of review to be applied, it is of no moment. Scrutinizing the Ontario Court of Justice decision properly, pursuant to the normal appellate standard of review, it is evident that the court was incorrect in its interpretation of the Order-in-Council in failing to find that a weapon (the AP80) that is the same as a weapon (the AK-22) named expressly as a variant of the AK-47 must itself be a variant of the AK-47 and is therefore a prohibited weapon. This incorrect interpretation constitutes an error of law by the court to be reviewed on a standard of correctness. Had the Superior Court done so, the result would have been the same as it in fact reached. The appeal would have been allowed and the Registrar's decision restored.

Interpretation of SOR/98-462

46This Order-in-Council prescribes in its Schedule firearms that are prohibited for the purposes of the Criminal Code. Section 64 of the Schedule prescribes the AK-47 rifle and "any variant or modified version of it", including the Mitchell AK-22. In other words, the Governor General in Council has declared the AK-22 to be a variant of the AK-47. If, as is clear, the legislative intent is that the AK-22 is a variant of the AK-47, the same must be true of a weapon which is the same as the AK-22, namely, the AP80. The correct interpretation of the Order-in-Council is therefore that the AP80 is a variant of the AK-47. In finding otherwise, the Provincial Court erred in law.

Conclusion

47In summary, I conclude that Mr. Henderson's weapon is a prohibited firearm pursuant to SOR/98-462. Because of this, the Registrar's decision to refuse his application was not unreasonable and should have been confirmed by the Ontario Court of Justice. That court's decision to do otherwise was based on an error of law, namely, a misinterpretation of the governing Order-in-Council. The Superior Court therefore reached the correct result in allowing the appeal and restoring the Registrar's decision.

48I would grant leave to appeal, but dismiss the appeal.