Court of Appeal for Ontario

Citation: R. v. Vivares, 2016 ONCA 1 Date: 2016-01-05 Docket: C60254 and M44923

MacPherson, Tulloch and Pardu JJ.A.

Between

Her Majesty the Queen

Responding Party/Respondent

and

Malaquias Vivares

Moving Party/Appellant

Counsel: Malaquias Vivares, acting in person Rebecca Huang, appearing as amicus curiae Shain Widdifield, for the respondent

Heard: November 20, 2015

On appeal from the judgment of Justice John R. McIsaac of the Superior Court of Justice dated, November 24, 2014, affirming the order of Justice P. Wright of the Ontario Court of Justice, dated April 20, 2011.

MacPherson J.A.:

A. Introduction

[1] The appellant owns two handguns that were registered in the 1980s. After the Firearms Act, S.C. 1995, c. 39, established a new regulatory system, the appellant applied to re-register his handguns in 2007. In 2009, the Registrar of Firearms ("Registrar") refused to issue registration certificates. This decision was upheld by Wright J. of the Ontario Court of Justice in 2011 and McIsaac J. of the Superior Court of Justice in 2014. The appellant seeks leave to appeal from McIsaac J.'s decision and, if leave is granted, an order directing the Registrar to issue registration certificates for his handguns.

B. Facts

(1) The parties and events

[2] The appellant registered two semi-automatic Smith and Wesson handguns under the relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46, in 1980 and 1986.

[3] In 1995, Parliament enacted the Firearms Act[^1] which made significant changes to the firearms regulation system. The new Act divided responsibility for the regulation of firearms between the federal and provincial governments. The federal Registrar is responsible for issuing registration certificates for firearms. The Chief Firearms Officer of a province is responsible for licensing individuals to possess firearms. As explained by MacDonnell J. in R. v. Whitmore, 2008 ONCJ 166, at para. 3:

A central component of the new regime is the requirement that an individual must hold a license to possess the kind of firearm in question and a registration certificate for that firearm. Eligibility to hold a license and/or a registration certificate is determined by reference to the provisions of the Firearms Act. Pursuant to the Act, the Chief Firearms Officer is responsible for issuing licences and the Registrar of Firearms is responsible for issuing registration certificates.

[4] Under the new Firearms Act, the appellant's handguns were designated as what is known as "s.12(6)" handguns. Section 12(6) of the Firearms Act provides:

Grandfathered individuals – pre-December 1, 1998 handguns

12(6) A particular individual is eligible to hold a licence authorizing that particular individual to possess a handgun referred to in subsection (6.1) if

(a) on December 1, 1998 the particular individual

(i) held a registration certificate under the former Act for that kind of handgun, … and

(b) beginning on December 1, 1998 the particular individual was continuously the holder of a registration certificate for that kind of handgun.

[5] The appellant's 1980 and 1986 gun registrations were deemed to be registration certificates under s. 127 of the Firearms Act. However, this 'grandfathered' protection was not unlimited; s. 127(2) of the Act gave 'grandfathered' registrants until December 31, 2002, a period of four years, to re-register their handguns. If s. 12(6) handguns were not re-registered, their registration certificates would expire and the registrant would no longer meet the continuous holder requirement in s. 12(6) of the Act.

[6] The appellant did not re-register his handguns by this date. On January 1, 2003, his handguns were no longer registered. He was in breach of the Firearms Act.

[7] However, the appellant did apply for a firearms licence in Quebec. The Chief Firearms Officer of Quebec issued a licence with s. 12(6) privileges in November 2003, with an expiry date of January 25, 2009.

[8] On June 19, 2007 – four and a half years after his deemed registrations had expired – the appellant applied to the Registrar for registration certificates for his two handguns.

[9] On November 19, 2008, the Chief Firearms Officer of Ontario issued a new firearms licence to the appellant. It did not include s. 12(6) privileges.

[10] On January 25, 2009, the appellant's Quebec licence, containing s. 12(6) privileges, expired.

[11] On June 24, 2009, the Registrar issued a Notice of Refusal to Issue a Registration Certificate to the appellant. In the notice, the Registrar said:

The [Smith and Wesson] firearms are prohibited firearms for the purpose of the definition "prohibited firearm" in subsection 84(1) of the Criminal Code. Your present [possession and acquisition license] does not include the privilege referred to in s. 12(6)… of the Firearms Act to possess or acquire a prohibited firearm referred to in s. 12(6.1)… of the same Act.

Pursuant to Section 13 of the Firearms Act, you are not eligible to hold a registration certificate for a firearm unless you hold a licence authorizing you to possess that kind of firearm.

[12] Pursuant to s. 74 of the Firearms Act, the appellant sought a reference hearing before a judge of the Ontario Court of Justice challenging the Registrar's decision.

(2) The judicial decisions

(a) Ontario Court of Justice

[13] Although sympathetic to the appellant's situation, the provincial court judge confirmed the Registrar's decision to refuse to register the two s. 12(6) handguns. He stated that the standard of review at the reference hearing was "an assessment of the reasonableness of the Registrar's decision." After a comprehensive analysis, the provincial court judge summarized his reasoning and conclusion in this fashion:

In this particular case, Mr. Vivares was not continuously registered because all of the deemed certificates which related to the 12(6) handguns expired December the 31st, 2002. The applicant did not reapply until June the 19th, 2007. The fact that a [possession and acquisition] license was subsequently issued or that notice of refusal was not provided until June the 24th, 2009, does not make the Registrar's decision in law unreasonable or wrong. I say "in law" given the eligibility requirements and the case law precedents. I cannot say, and I do not say, that the Registrar deliberately delayed responding.

The order, therefore, that will go as a result of this review, is to confirm the decision of the Registrar in refusing to register the two 12(6) handguns.

[14] The appellant appealed this decision to the Superior Court of Justice.

(b) Superior Court of Justice

[15] In brief reasons (two paragraphs), the appeal judge dismissed the appeal, saying that the appellant "has failed to satisfy me that the decision by Wright, P.C.J. … was incorrect."

(c) Court of Appeal for Ontario

[16] The appellant applied for leave to appeal the appeal judge's decision. On a motion for directions on February 25, 2015, Strathy C.J.O. ordered that "the motion for leave to appeal will be heard at the same time as the appeal, if leave is granted."

[17] At the hearing on November 20, 2015, the panel granted leave to appeal at the start of the hearing and heard the appeal on the merits.

C. Issues

[18] The appellant raises three issues:

(1) Did the provincial court judge err in law in admitting Ms. Zhang's statements about Mr. Vivares' licence and his eligibility for licence?

(2) Did the provincial court judge err by applying the standard of reasonableness to the Registrar's Notice of Refusal without testing the reasonableness of the Registrar's decision with the facts as found by the court?

(3) Did the superior court judge err in confirming the correctness of the provincial court judge's decision when he erroneously applied the standard of reasonableness to the Registrar's decision?

D. Analysis

(1) Ms. Zhang's statements

[19] The appellant contends that the provincial court judge relied on inadmissible evidence from the Registrar. Grace Zhang was a senior analyst at the Canadian Firearms Program of the RCMP in Ottawa. Ms. Zhang was in charge of the records of the Canadian Firearms Registry. She was responsible for administering the Firearms Act and Regulations with respect to the registration of firearms. She had authority under the Act to issue, refuse and revoke registration certificates for firearms.

[20] Ms. Zhang provided an affidavit that described the regulatory provisions and process for firearms registration. She also explained how the relevant provisions precluded the appellant from obtaining registration certificates after he applied in 2007.

[21] In his reasons, the provincial court judge referred several times to paragraphs from Ms. Zhang's affidavit. The appellant contends that this was improper because Ms. Zhang was a fact witness and parts of her affidavit tread into impermissible legal opinion.

[22] I do not accept this submission. I note that the appellant did not cross-examine Ms. Zhang on her affidavit or challenge its admissibility at the reference hearing. On a reference hearing, the provincial court judge is required to hear "all relevant evidence presented by or on behalf of the… Registrar": Firearms Act, s. 75(2).

[23] Read in context, Ms. Zhang's statement is evidence supporting the Registrar's position that because he could not hold a licence authorizing possession of s. 12(6) handguns (as he did not continuously hold a registration certificate after December 31, 2002), he could no longer hold a registration certificate pursuant to s. 13 of the Firearms Act. In my view, this was relevant and admissible evidence. In any event, I observe that the trial judge engaged in a comprehensive assessment of the relevant sections of the Act and clearly reached his own legal conclusions based on that assessment.

(2) The provincial court judge's decision

[24] The starting point for the analysis on this issue is recognition that the Registrar has specialized expertise in administering a complex firearms registration regime. A Registrar's decision is entitled to deference and is reviewed on a reasonableness standard: see Henderson v. Canada (Attorney General), 2011 ONCA 696, 108 O.R. (3d) 290, at paras. 37-38.

[25] On review, the provincial court engages in its own fact finding, but under the umbrella of deference. As explained by Goudge J.A. in Henderson, at paras. 34 and 36:

The 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.

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.

[26] The provincial court judge was faithful to the Henderson analytical framework. He reviewed the history of the appellant's registrations and licences for the two handguns. He then applied the relevant provisions of the Firearms Act and upheld the Registrar's decision, essentially for two reasons.

[27] First, the provincial court judge held that the appellant could not obtain a firearms licence because he had not taken advantage of the 'grandfathering' re-registration provisions of the Firearms Act:

The registration certificates for the two 12(6) handguns expired on the 31st of December, 2002 under s. 127(2) of the Act. Consequently, because the Applicant did not continuously hold registration certificates between December 31st, 2002, and June the 19th, 2007, he was not eligible to hold a license under s. 12(6) and the Registrar was required to refuse the Applicant's application for the issuance of a registration certificate.

[28] In my view, this analysis is correct. The wording of ss. 12(6) and 127(2) of the Act, set out above, compels this conclusion which, on its own, is determinative of the appeal.

[29] I make a final observation on this issue. Unlike the provincial court judge, I do not regard this interpretation of the 'grandfathering' provisions of the Act as leading to a harsh or even undesirable result.

[30] In Manson v. Ontario (Chief Firearms Officer) (2004), 2004 CanLII 10304 (ON CA), 183 C.C.C. (3d) 169 (Ont. C.A.), at paras. 32 and 34, Laskin J.A. said:

The Act seeks principally to ensure public safety. See Reference re: Firearms Act (Canada), 2000 SCC 31, [2000] 1 S.C.R. 783, 144 C.C.C. (3d) 385. 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.

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. [Emphasis added.]

[31] The appellant had four years to re-register his handguns. He did not do so, and offered no reason for his choice.

[32] Second, the Notice of Refusal issued to the appellant stated, correctly, that registration certificates could not be issued because his current Ontario firearms licence did not contain s. 12(6) privileges. Nevertheless, the provincial court judge acknowledged that, inexplicably, the Chief Firearms Officer of Quebec had issued a licence with s. 12(6) privileges to the appellant in 2003 (one year after his deemed registrations had expired). This Quebec licence was still in force in 2007 when the appellant finally made his re-registration applications, but it had lapsed by 2009 when the Registrar made the refusal decision.

[33] The provincial court judge explored this puzzling situation (how had Quebec issued a licence a year after the deemed registrations expired?) and decided that the relevant date for assessing eligibility for registration was June 24, 2009, the date of the Registrar's decision, not June 19, 2007, the date of the appellant's application. Thus, the expired Quebec licence was irrelevant.

[34] Again, in my view the provincial court judge was correct. Section 13 of the Firearms Act 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. [Emphasis added.]

[35] Section 13 is worded in the present tense. It creates, with s. 12(6), two concurrent obligations. First, in order to obtain a registration certificate, a person must have a licence for that kind of firearm. Second, to have a licence for a s. 12(6) handgun, a person must have continuously held a registration certificate from December 1, 1998. If either a registration certificate or a licence lapses, a person is no longer eligible to hold the other.

[36] When the appellant made his application in 2007, he did hold a Quebec licence with s. 12(6) privileges. But he did not when the Registrar considered his application in 2009. Given that s. 13 creates a continuing obligation on the appellant to hold a licence with s. 12(6) privileges, he was no longer eligible to obtain registration certificates for those handguns.

[37] Reading s. 13 in light of the purpose of the Firearms Act and the intention of Parliament also supports the conclusion that the relevant time for review is when the Registrar makes a decision. As this court stated in Manson, Parliament has sought to limit the ability to own firearms through comprehensive regulation. The regulation requires both registration and licensing. When a person does not hold a registration certificate for a prohibited handgun, they cannot be licensed: s. 12(6). When a person is not licensed to possess a prohibited handgun, they cannot obtain a registration certificate: s. 13. This is how Parliament has chosen to regulate dangerous handguns. Parliament's choice must be applied.

[38] Finally, I note that the provincial court judge specifically disclaimed the relevance of the two year delay between the appellant's application and the Registrar's decision:

Further, the process delay by the Registrar from June 2007 to June 2009 did not cause the continuous registration to lapse because there was no registration.

I cannot say, and I do not say, that the Registrar deliberately delayed responding.

[39] Again, I agree with this reasoning. I also observe that it hardly lies in the appellant's mouth to complain about the Registrar's delay. The appellant did not apply for re-registration during the four year 'grandfathering' period (1998-2002). And after his registration expired, he waited another four and a half years (2003-2007) before finally applying for a registration certificate.

(3) The superior court judge's decision

[40] In light of my conclusion on the second issue, this issue does not arise. The appeal judge affirmed the correctness of the provincial court judge's decision. So would I.

E. Disposition

[41] I would dismiss the appeal and confirm the decision of the Registrar refusing registration certificates for the appellant's two s. 12(6) handguns.

Released: January 5, 2016 ("J.M.")

"J.C. MacPherson J.A."

"I agree. M. Tulloch J.A."

"I agree. G. Pardu J.A."

[^1]: The bulk of the provisions of the Act came into force on December 1, 1998.