COURT OF APPEAL FOR ONTARIO

DATE: 20040309

DOCKET: C39318

LASKIN, MOLDAVER and CRONK JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Appellant

• and -

KENNETH DALE MANSON

Respondent

Counsel: Beverly J. Wilton and Lisa Mathews for the appellant Calvin Martin for the respondent

Heard: July 15, 2003

On appeal from the order of Justice John R. McIsaac of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated December 19, 2002, allowing an appeal from the order of Justice Jon-Jo Douglas of the Ontario Court of Justice, sitting as a reference court judge, dated June 26, 2001.

LASKIN J.A.:

A. Introduction

[1] This appeal raises a difficult question of interpretation of the federal government’s gun legislation.

[2] The respondent, Kenneth Manson, and William Michelson are both avid gun collectors. Manson is the registered owner of several firearms, including two semi‑automatic weapons. He has never owned a fully automatic firearm. Michelson is also the registered owner of a number of firearms, including a fully automatic Thompson Model 1928 A-1 submachine gun (the FA Tommy gun). Manson wants to buy the FA Tommy gun from Michelson.

[3] All fully automatic firearms and many semi-automatic firearms, including those that Manson owns, are now prohibited weapons. However, the grandfathering provisions in s. 12 of the 1995 Firearms Act, S.C. 1995, c. C-39 (the Act) permit individuals who owned registered, prohibited weapons when the Act came into force to keep their weapons and acquire others under certain conditions. Both Manson and Michelson own registered, prohibited firearms. The issue on this appeal is whether the Act’s grandfathering provisions allow Manson, the registered owner of semi‑automatic firearms, to acquire a fully automatic firearm.

Procedural background

[4] Manson applied under the Act for a registration certificate for Michelson’s FA Tommy gun. The Registrar of Firearms refused to issue a certificate. He held that only individuals licenced to possess fully automatic firearms under s. 12(2) of the Act were eligible to acquire another one. Manson referred the matter to a provincial court judge, as he was entitled to do under s. 74 of the Act. Douglas J. confirmed the Registrar’s decision and dismissed the reference.

[5] Manson then appealed under s. 77 of the Act to a Superior Court judge sitting as a summary conviction appeal court judge. McIsaac J. allowed his appeal. He held that Manson could acquire the FA Tommy gun under s. 12(5) of the Act, the grandfathering provision that authorized Manson to possess his two semi‑automatic firearms. McIsaac J. directed the Registrar to issue Manson a registration certificate. The Crown now appeals to this court. I would allow the appeal. I agree with the Registrar and would refuse to allow Manson to acquire Michelson’s gun.

B. Discussion

(i) The prohibition of automatic and semi‑automatic firearms

[6] Beginning with the Criminal Law Amendment Act, S.C. 1977, c. 53, s. 3 (the CLAA) the federal government has progressively limited the pool of people who may own firearms. The CLAA prohibited all automatic firearms unless their owners had registered them as “restricted weapons” by January 1, 1978.

[7] Between 1978 and 1994 a series of orders of the Governor in Council declared other weapons to be prohibited or restricted. In July 1992 the Governor in Council issued Prohibited Weapons Order, No. 11, S.O.R./92-465, Prohibited Weapons Order, No. 12 S.O.R./92-466 and a Restricted Weapons Order, S.O.R./92-467. According to the explanatory note for all three orders, the government intended to crack down on “military or paramilitary” firearms, which included both fully automatic and semi‑automatic weapons. In 1994 Prohibited Weapons Order, No. 13, S.O.R./94-741 (PWO 13) “declared to be prohibited” a lengthy list of weapons, consisting largely of those in the 1992 Restricted Weapons Order. As I will discuss, the FA Tommy gun appears on PWO 13’s list of prohibited weapons.

[8] The provisions of the CLAA and the Prohibited Weapons Orders are reflected in the Act and the current Criminal Code. Section 84(1) of the Code defines “prohibited firearm” to include, inter alia, all automatic firearms[^1] and “any firearm that is prescribed to be a prohibited firearm”. Section 91(1) of the Code makes it a criminal offence for a person to possess a “prohibited firearm” unless the person holds a valid licence and registration certificate for that firearm. Section 2 of the Act incorporates ss. 84(1) and 91(1) of the Code.

[9] Michelson’s FA Tommy gun is a fully automatic firearm and, therefore, under s. 84(1) of the Criminal Code and s. 2 of the Act, a prohibited weapon. Michelson requires (and holds) a licence and registration certificate to keep it.

[10] Manson’s two semi‑automatic firearms are also prohibited weapons, as they were prescribed to be prohibited weapons by PWO 13. Manson, too, requires (and holds) a licence and registration certificate to keep his firearms.

(ii) The grandfathering of individuals in possession of registered, prohibited weapons

[11] The Act, most of whose provisions came into effect on December 1, 1998, introduced a universal gun registration system. Under s. 12(1) of the Act individuals are not eligible to hold a licence authorizing them to possess prohibited firearms “except as provided in this section”. The remainder of s. 12 – subsections (2) through (8) – “grandfathers” individuals who already own registered, prohibited firearms. Grandfathered gunowners may hold licences to continue to possess their prohibited weapons and to acquire others, provided they satisfy the registration requirements of the relevant subsection of s. 12. The two subsections of s. 12 relevant to this appeal are s. 12(2) and s. 12(5).

(a) Manson is not a s. 12(2) grandfathered individual

[12] I begin with s. 12(2). Under this subsection, grandfathered individuals can continue to possess their fully automatic firearms and acquire others. Michelson is grandfathered under this section for his FA Tommy gun. Section 12(2) reads:

Grandfathered individuals – pre-January 1, 1978 automatic firearms

An individual is eligible to hold a licence authorizing the individual to possess automatic firearms that, on the commencement day, were registered as restricted weapons under the former Act if the individual

(a) on January 1, 1978 possessed one or more automatic firearms;

(b) on the commencement day held a registration certificate under the former Act for one or more automatic firearms; and

(c) beginning on the commencement day was continuously the holder of a registration certificate for one or more automatic firearms.

[13] When the CLAA came into force on January 1, 1978, individuals owning automatic firearms were required to register them if they wanted to keep them. Automatic firearms that were not registered became prohibited. If they were registered, they became “restricted weapons”. Section 12(2) allows owners of registered, restricted fully automatic firearms to acquire other fully automatic firearms that had similarly been registered as restricted weapons under the CLAA.

[14] Michelson registered his FA Tommy gun as a restricted weapon. He now satisfies the requirements of s. 12(2) of the Act. On January 1, 1978 he possessed an automatic firearm, the FA Tommy gun; on the day the Act came into force he held a registration certificate for this gun under the CLAA; and since the Act came into force he has continuously held that registration certificate. Michelson is therefore licenced to keep his FA Tommy gun and to acquire other automatic firearms that were similarly registered as restricted weapons under the CLAA.

[15] On the other hand, Manson cannot rely on s. 12(2) to obtain a licence to possess fully automatic firearms. Manson has never owned an automatic firearm. He is therefore not grandfathered under s. 12(2) to acquire Michelson’s gun.

(b) Manson is a s. 12(5) grandfathered individual

[16] However, Manson does not claim that he can rely on s. 12(2). Instead, he submits that he is “grandfathered” to acquire Michelson’s FA Tommy gun under s. 12(5) of the Act. Section 12(5) provides:

Grandfathered individuals – Prohibited Weapons Order, No. 13

An individual is eligible to hold a licence authorizing the individual to possess firearms that were declared to be prohibited weapons under the former Act by the Prohibited Weapons Order, No. 13, made by Order in Council P.C. 1994-1974 of November 29, 1994 and registered as SOR/94‑741 and that, on January 1, 1995, either were registered as restricted weapons under the former Act or were the subject of an application for a registration certificate under the former Act if the individual

(a) before January 1, 1995 possessed one or more firearms that were so declared;

(b) on the commencement day held a registration certificate under the former Act for one or more firearms that were so declared; and

(c) beginning on the commencement day was continuously the holder of a registration certificate for one or more firearms that were so declared.

[17] From the time the Act came into force and continuously since then Manson has held a valid registration certificate for each of his semi‑automatic firearms: one was registered on March 5, 1993, the other on October 18, 1993. Both were declared prohibited weapons under PWO 13. Therefore, Manson meets the conditions of s. 12(5) for holding a licence for these semi‑automatic firearms. He is grandfathered to keep them and acquire other semi‑automatic weapons similarly declared prohibited by PWO 13. This is not in dispute.

[18] Manson submits, however, that s. 12(5) also entitles him to acquire Michelson’s FA Tommy gun because it too was declared a prohibited weapon under PWO 13. This submission is the crux of this appeal. The summary conviction appeal court judge accepted Manson’s argument. I disagree. At first blush s. 12(5) does appear to entitle Manson to acquire any other weapon prohibited by PWO 13, including Michelson’s FA Tommy gun. Read in context, however, such an interpretation of s. 12(5) is not supportable.

(iii) Can Manson rely on section 12(5) of the Firearms Act to acquire Michelson’s gun?

[19] At bottom, this is a question of Parliamentary intent. Did Parliament intend that registered owners of semi‑automatic weapons be able to trade with registered owners of fully automatic weapons? In my view, the answer is no.

[20] PWO 13 declared a long list of semi‑automatic firearms to be prohibited weapons. Most were semi‑automatic weapons. But among the weapons declared to be prohibited, PWO 13 listed a number of fully automatic weapons, including the FA Tommy gun. Section 2(w)(iii) of PWO 13 provides:

The following weapons are hereby declared to be prohibited weapons:

(w) The firearm of the design commonly known as the Thompson submachine gun, and any variant or modified version thereof, including the

(iii) Thompson Model 1928.

The Crown acknowledges that s. 2(w)(iii) of PWO 13 refers to the fully automatic FA Tommy gun owned by Michelson.

[21] Manson has continuously held registration certificates for his two semi-automatic weapons since 1993; and PWO 13 declared the FA Tommy gun to be a prohibited weapon. Manson therefore seems eligible under s. 12(5) of the Act to obtain a licence for Michelson’s gun.

[22] The Crown puts forward two main arguments to escape this conclusion. I find neither argument persuasive.

[23] First, the Crown argues that the FA Tommy gun was declared a prohibited weapon not by PWO 13, but by the CLAA. This argument ignores the distinction drawn in the 1977 CLAA Act between prohibited and restricted weapons. The CLAA regulated automatic firearms in Canada for the first time. It created two categories of “weapon”: prohibited and restricted. A prohibited weapon meant any automatic firearm that was not a restricted weapon. A restricted weapon meant any automatic firearm that was “registered as a restricted weapon and formed part of a gun collection in Canada of a bona fide gun collector”. Because Manson had registered his FA Tommy gun under the 1977 statute as a restricted weapon, it did not become a prohibited weapon until PWO 13 declared it to be so in 1994.

[24] Second, the Crown argues that this court should give effect to the Regulatory Impact Analysis Statement accompanying PWO 13. The Statement’s “Description” section emphasizes that the focus of PWO 13 is semi‑automatic firearms:

The Orders in Council amend the Restricted Weapons Order to delete therefrom 23 semi‑automatic variants of assault rifles. These firearms, as well as certain other firearms...are then declared to be “prohibited weapons” pursuant to the definition of that term in subsection 84(1) of the Criminal Code.

[25] The summary conviction appeal court judge rejected this argument, holding that the Statement forms no part of the Order and “at best, articulates mere unachieved regulatory intent.” For different reasons, I agree that the Regulatory Impact Analysis Statement does not assist the Crown.

[26] Although the Statement is expressly said not to be part of PWO 13, courts have used regulatory impact analysis statements like it to understand how regulations are intended to work. See RJR–MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paras. 90-91 and Friesen v. R., [1995] 3 S.C.R. 103 at para. 63. However, the caselaw does not go so far as to say that these statements are a complete guide to the purpose of the regulations they describe. In Sullivan and Driedger on the Construction of Statutes, 4th ed. (Butterworths Canada, 2002) at 210, Professor Sullivan warns against relying too heavily on purpose statements in legislation:

[T]he assistance they offer is limited. They typically recite the primary objects of legislation, which are apt to be obvious in any event, while failing to mention secondary purposes.

[27] Professor Sullivan’s caution applies equally to regulatory impact analysis statements in regulations. Here, the Statement accompanying PWO 13 is helpful in understanding the Order’s “primary object”: declaring a wide array of semi‑automatic firearms to be prohibited weapons. But the Statement does not address a “secondary purpose” of PWO 13: declaring to be prohibited fully automatic firearms that previously had been restricted weapons.

Section 12(5) in context

[28] Although I disagree with the Crown’s submissions on the interpretation of PWO 13, I do not accept that Manson can rely on s. 12(5) of the Act to acquire Michelson’s FA Tommy gun. It seems to me that the flaw in both Manson’s position and the reasoning of the summary conviction appeal court judge is that they look at s. 12(5) in isolation. Instead, s. 12(5) must be analyzed in relation to s. 12(2) and the overall purposes of the Act.

[29] Section 12(2) limits the group of individuals entitled to acquire automatic firearms to those individuals who had an automatic firearm before 1978 and had registered it as a restricted weapon under the CLAA by January 1, 1978.

[30] I interpret s. 12(2) to be the only grandfathering provision under which an individual can obtain a licence to acquire a fully automatic firearm. Section 12(2) excludes resort to s. 12(5) for the acquisition of fully automatic firearms. Individuals who do not meet the requirements of s. 12(2) cannot acquire fully automatic firearms; not even the owner of a firearm declared to be prohibited by PWO 13 can do so. In other words, grandfathered individuals can only acquire the type of weapon for which they were grandfathered. Therefore, they can only obtain new weapons from other gunowners who have been grandfathered under the same subsection of s. 12 as them.

[31] To the extent that the wording of s. 12(5) creates any ambiguity, I resolve that ambiguity in favour of an interpretation that gives effect to the overall purposes of the Act. Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paras. 21-22.

[32] The Act seeks principally to ensure public safety. See Reference re: Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783. Parliament’s gun legislation has sought continuously to limit the number of people who can own firearms and to impose onerous restrictions on those who do own them. Goodman J.A. made this point in Re Her Majesty the Queen and Barnes et al. (1996), 27 O.R. (3d) 626 at 629 (C.A.):

A brief review of the history of the provisions of the Code with respect to the possession and use of firearms is indicative of a clear and continuing intention on the part of Parliament to impose more restrictive safeguards with respect to the possession, registration and use of firearms in order to protect the public from the dangers involved in the possession and use of such weapons and, in particular, from the dangers involved in the possession of automatic firearms.

[33] Cory J. echoed this court’s views about the dangers of permitting individuals to possess automatic weapons in R. v. Hasselwander, [1993] 2 S.C.R. 398 at 414-17:

Let us consider for a moment the nature of automatic weapons, that is to say, those weapons that are capable of firing rounds in rapid succession during one pressure of the trigger. These guns are designed to kill and maim a large number of people rapidly and effectively. They serve no other purpose. They are not designed for hunting any animal but man. They are not designed to test the skill and accuracy of a marksman. Their sole function is to kill people...There can be no doubt that they pose such a threat that they constitute a real and present danger to all Canadians.

Collectors are attractive targets for thieves who are seeking these weapons with every intention of using them or selling them to others who wish to make use of them. Members of the community are entitled to protection from the use of automatic weapons.

[34] The overall purpose of the government’s gun legislation, reflected in the judgments of this court in Barnes and of the Supreme Court of Canada in Hasselwander, strongly supports an interpretation of the grandfathering provisions of the Act that would restrict, not expand, access to these dangerous weapons.

C. Conclusion

[35] Because Manson is not a registered owner of an automatic weapon he cannot rely on s. 12(5) to acquire one. Therefore, he cannot acquire Michelson’s FA Tommy gun.

[36] I would grant leave to appeal, allow the appeal and set aside the decision of the summary conviction appeal court judge. I would restore the Registrar’s refusal to issue a registration certificate to Manson for the FA Tommy gun.

RELEASED: March 9, 2004 (“JL”)

“John Laskin J.A.”

“I agree M.J. Moldaver J.A.”

“I agree E. A. Cronk J.A.”

[^1]: Under s. 84(1), an automatic firearm means “a firearm that is capable of, or assembled or designed and manufactured with the capability of, discharging projectiles in rapid succession during one pressure of the trigger”. However, many fully automatic firearms can be converted to semi‑automatic firearms – discharging only one projectile with one pressure of the trigger – and then back to fully automatic weapons. Therefore, in declaring an automatic firearm to be a prohibited weapon, Parliament added the phrase “whether or not it has been altered to discharge only one projectile with one pressure of the trigger”.