Ontario Court of Justice

Date: 2021 01 14 Court File No.: Sudbury, 20-2694

Application for the Reference hearing pursuant to s.74 of the Firearms Act, SC1995, C.39 Attorney General’s Application to Dismiss the Application for a Reference.

BETWEEN:

ATTORNEY GENERAL OF CANADA (REGISTRAR OF FIREARMS) Respondent

— AND —

GEORGE FRITZ Applicant

Before: Justice André L. Guay

Heard on: December 18, 2020 Reasons for Judgment released on: January 14, 2021

Counsel: A. G. Kelly Keenan, counsel for the Crown George Fritz, on “his” own behalf

Guay J.:

I. BACKGROUND

[1] The applicant is the owner of three firearms previously classified under the Firearms Act as restricted weapons namely: a Smith & Wesson firearm, a Dominion arms firearm and a Palmetto State firearm. On May 20th, 2020 these firearms lost their designation as “restricted” weapons and became “prohibited” weapons by virtue of Order-in-Council SOR/2020-96. An accompanying Orders-in-Council, SOR/2020-97, provided an amnesty period during which owners of the now prohibited firearms could dispose of them.

[2] In May 2020, the R.C.M.P. sent out a generic notice to firearm owners notifying them of the new Orders-in-Council reclassifying their firearms. On July 20th, 2020 this generic notice was followed by a letter from the Registrar of Firearms to the Applicant (and other similarly affected firearms owners) notifying him of the fact that his three firearms had been reclassified to “restricted” firearms by virtue of the Order-in-Council SOR/2020-96. If this letter was meant to be a “notice of revocation”, as alleged by the Applicant, it was not consistent in its form and content with the notice requirements of S.72 of the Firearms Act.

[3] The letter contained a description of the Applicant’s firearms and notified him that the registered firearms certificates permitting him to possess his three previously restricted weapons were “automatically nullified and therefore no longer valid”. As indicated on the R.C.M.P. website for October 5th, 2020, the Attorney General of Canada (Registrar of Firearms) appeared to adopt the position that the nullification of the registration certificates for formerly restricted and now prohibited weapons was effected by operation of law and not any act or acts of revocation on the part of the Registrar of Firearms.

[4] The Applicant interpreted the Registrar’s actions and letter of July 20th, 2020 as a veiled “revocation” of the registration certificates for his three firearms. Without these certificates, he would not, except for the amnesty period ending on April 30th, 2022 continue to own and use these firearms. Seeking to have the Registrar’s revocation set aside and his certificates continued in effect, the applicant applied for a Reference by the Ontario Court of Justice pursuant to s.74(1) of the Firearms Act.

II. CASE LAW

[5] In R v. Wyville, 2020 ONCJ 555, (File No. 2011-998-20-00537-00), the court considered the same issue before this court today on facts very similar to it. The issue boiled down to a determination of whether the Registrar of Firearms had made a decision to “revoke” the Applicant’ registration certificate for a Colt M4 assault-style firearm. The Applicant was one of the firearm owners notified of the nullification of his registration certificate. His certificate, he was informed, was no longer valid but was to be retained as a historical registration record (presumably for grandfathering purposes under the Act). The applicant applied for a Reference arguing that the July 20th, 2020 letter was in effect a decision of the Registrar of Firearms to revoke the registration certificate for his Colt semi-automatic rifle.

[6] Counsel for the Attorney General of Canada maintained that the Registrar’s letter was informational only and that the regulatory changes in the Act had the effect of nullifying the Applicant’s registration certificate. Counsel argued that since the Registrar had not made a “decision” to revoke the Applicant’s registration certificate, the court had no jurisdiction under the Firearms Act to hear a Reference on the matter.

[7] Noting its lack of jurisdiction to review the decision by the Governor-in-Council to amend the Regulations determining the classification of firearms, the court examined the meaning of the words “decide” and “decision”, concluding that the Registrar had not made a “decision” in the matter of the Applicant’s registration certificate since he had not engaged in the resolution of the matter involving cancellation of the certificate after considering it. The Registrar of Firearms, the court maintained, had not been “…engaged in the process of consideration of resolving a question or dispute over Mr. Wyville’s registration certificate”. The Registrar, the court held, “had no choice in the matter since compliance with the law is mandatory”. Quite frankly, the court concluded, “the July 2020 correspondence from the Registrar was an explanatory document and aptly titled “Firearms Registration Certificate Impacted by the Amended Classification Regulations” (page 18 of the decision).

[8] With this and similar decisions in mind, I reviewed an opposing decision of the Alberta Court in Canada (Attorney General) v. Stark, 2020 ABPC 230. The applicant in that case was the owner of three semi-automatic rifles, all held by him under registration certificates and all classified under those certificates as “restricted” firearms. Again, the issue was whether the registration certificates had been revoked as the result of the Registrar of Firearms “decision” evidenced in the letter sent to the Applicant by the Registrar on July 20th, 2020. Given the court’s reasoning in its decision to accept jurisdiction and hold a Reference, I find it is reasonable to conclude that unless the court had been able to bring the facts into a finding that there had been a revocation of the Applicant’s registration certificates, the Applicant would have been without a remedy under s.74(1) of the Firearms Act.

[9] Given the use of the term “nullify” by the Registrar in his July 20th, 2020 letter and the absence of this term in the Orders-in-Council and the Regulations under the Act, the applicant argued that the alleged nullification and declaration of the invalidity of his registration certificate was the work of the Registrar. It constituted evidence, he argued, that the Registrar had exercised his decision-making power to revoke his registration certificates, thereby entitling him to a Reference under the Firearms Act.

[10] The Attorney General’s response was that the re-classification of the Applicant Stark’s firearms from “restricted” to “prohibited” rendered the registered certificates for those firearms “invalid”. Citing s.12.1 and s.13 of the Act, the Registrar argued that since the Applicant was not licensed to possess prohibited firearms, neither could he possess registration certificates for them. The Alberta Court took issue with the Attorney General’s position that since the Registrar of Firearms had not exercised his judgment or discretion, he had not revoked the applicant’s registration certificates (see Registrar of Firearms v Whitmore, 2008 ONCJ 166).

[11] Relying on what it found was the continued existence of the registration certificates as well as procedural sections of the Act and the wording of the Registrar’s July 20th, 2020 letter to the applicant, the court considered the Canadian Oxford Dictionary definition of the word “nullify”. Here “nullify” was defined as meaning: “Make legally null and Void”, “Annul, Invalidate; Make of no value or use; Cancel out, Neutralize”.

Having considered these factors, the court stated:

The only power available to the Registrar the exercise of which would render the registration certificates “nullified” and “no longer valid” is the power of revocation. Indeed, the terms “revoke” and “nullify” and “invalidate” share the same denotation and the same connotation… Consequently, one must conclude that the act of the registrar which “nullified” and made “no longer valid” the registration certificates listed in the July 20th, 2020 letter was the revocation of those registration certificate by the Registrar. (Stark paras.68-70).

[12] Considering various terms from the July 20th, 2020 letter, the court in Stark went on to describe how the letter had “informed” the applicant about the reason for revocation, “informed” him of what he could do with his firearms and “gave him notice” of the Registrar’s decision. While not in the proper form, the letter to the applicant, the court concluded, “…in all other respects ...complied with the notice provisions in the Firearms Act”. With this, the court concluded that it had jurisdiction to hear the s.74(1) Reference sought by the Applicant.

III. CONCLUSION

[13] It is sometimes the case that in the rush to find a remedy or solution to a pressing social problem, the rights of others are ignored or trampled upon. In the present case, the Applicant, George Fritz, is a law-abiding citizen who acknowledges the right of the Government to make regulations controlling the ownership and use of firearms. What he opposes is the summary manner in which this has been done in his case and that of other firearm owners.

[14] George Fritz has expressed concerns about the issue of timely compensation for the loss of his property. He fears that the result of the Registrar’s “nullification” may be to exclude him from being grandfathered and able to claim compensation for his now prohibited firearms. His concerns find echo in section 8 of the Canadian Charter of Rights and Freedoms. That section of the Charter guarantees Canadians protection against unlawful search and seizure of their property. While that concern is not a matter over which this court has jurisdiction in the present case, it may eventually be addressed by a court of superior jurisdiction in the context of similar matters before it.

[15] There is clearly a preponderance of judicial thinking indicating that the provincial court does not have jurisdiction to entertain a s.74(1) Reference respecting the effect of the Government’s recent procedural amendments to the Regulations governing the classification of firearms as noted earlier, however, there is another point of view on this issue. It is found in the decision of the Albert Court Canada (Attorney General) v. Stark, 2020 ABPC 230. Here the Alberta Court ruled that it did have jurisdiction to deal with such matters brought with respect to the Firearms Act.

[16] I carefully considered then the arguments of the Alberta Court in favour of assuming jurisdiction under s.74(1) of the Firearms Act to grant the Applicant Stark’s request for a Reference. Unfortunately, I am not persuaded by the Alberta Court’s arguments in that case. This is not because no actions were taken by the Registrar in that case; there were some. Rather, it was because I determined that actions which were taken by the Registrar in Stark (not dissimilar to the actions taken by the Registrar in the case before me) were overwhelmingly informational in nature.

[17] As in the case before me, there was no evidence in Stark that the Registrar of Firearms had been called upon to determine which formerly “restricted” weapons were now to be classified as “prohibited”. There was no evidence that it was the Registrar who prepared the list of firearms identifying certain “restricted” firearms as “prohibited”. It was not the Registrar who selected these firearms to be reclassified. It was Orders-in-Council SOR/2020-96 passed by the Governor-in-Council and not the Registrar who made the selection. Other than to provide evidence during an amnesty period that the firearms had previously been legally acquired, there was almost no remaining purpose for the registration certificates previously permitting their holders to be in possession of their restricted firearms.

[18] Citizens are expected to know the law. The maxim “ignorance of the law is no defense” is well-known by those in the legal profession. That being the case, was it not incumbent upon the Registrar of Firearms of Canada to let owners of reclassified restricted firearms know that their firearms could no longer be legally owned or possessed by them unless they had a license and a registration certificate or certificates making it legally permissible for them to do so?

[19] Was it not appropriate for the Registrar of Firearms to ensure that firearm owners know which of their restricted firearms, if any, had by May 1st, 2020 been reclassified by the Governor-in-Council? Was it not the duty of the Governor-in-Council to make known to restricted and now prohibited firearm holders through its designated officials Order-in-Council SOR/2020-97 creating a limited amnesty for the owners of the reclassified firearms? Could it be reasonably argued that it was the Registrar who established that amnesty period and who determined its very restrictive conditions? Unless authorized by law to do so, the Registrar in that event would simply have been giving firearm owners his views on firearm classification.

[20] Did the Registrar deliberate as to which firearms were reclassified? There is no evidence that he did this. Rather, what he did was to identify for the benefit of the restricted firearms owners which of their firearms had been reclassified by SOR/2020-96. The list of newly reclassified firearms was clearly not a document produced by the Registrar. Practically speaking, how else but by advertisement or letter were restricted firearm owners to learn with any degree of certainty which of their firearms had been reclassified from “restricted” to “prohibited”? Who was the government official best-suited to the task of correctly notifying restricted firearms holders about the changed status of their firearms and the corresponding registered certificates?

[21] The Registrar does the bidding of the Governor-in-Council, not the opposite. He or she is not a legislator or in the business of drafting legislation. This is done by trained drafters employed by the Department of Justice. The Registrar is an official whose task it is to assist in the administration of the Firearms Act. This includes publishing or making known information which the Governor-in-Council wishes interested members of the public to know. This is particularly the case if interested members of the public are being directed to do something which the failure to do has criminal law consequences.

[22] True, the Registrar of Firearms and his or her delegates are not without certain discretionary powers under the Firearms Act. They are authorized by statute to grant or revoke licenses and registered certificates to own and possess certain categories of firearms and specific firearms within those categories. In doing so, they must follow established guidelines. When they do make a decision to grant or cancel licenses or registered certificates, they must exercise their discretion within established parameters. Under s.74 of the Act, they must give reviewable reasons for their decisions. What power they do have is very much circumscribed and exists only to the extent that is required for them to carry out their duties under the Firearms Act.

[23] The power to revoke was simply not invoked when the Registrar sent out the letter dated May 20th, 2020 to George Fritz and other restricted firearm owners. The power to revoke his registration certificate was not used as it was not needed to affect the reclassification of his firearm and the consequent invalidity of the accompanying registration certificate. The restricted firearms registration certificate was consequently rendered useless for the purpose for which it had been granted. That purpose was to legitimize the applicant’s ownership and possession of his restricted firearm. Following SOR/2020-96, the registration certificate’s principal, remaining use was limited to assist in establishing the legality of the applicant’s ownership and possession during the amnesty period expiring on April 30, 2022. It was Order-in-Council SOR/2020-96 which in effect terminated the usefulness of his registration certificate.

[24] This court has then no jurisdiction to hear a Reference in this matter. Consequently, Attorney General’s application is granted. George Fritz’s application is therefore dismissed for want of jurisdiction.

Released: January 14, 2021 Signed: Justice André L. Guay (OCJ)