ONTARIO COURT OF JUSTICE

CITATION: Ruan v. Canada (Attorney General), 2021 ONCJ 745

COURT FILE No.: Thunder Bay 20-3293

BETWEEN:

Xiaozhou Ruan

Applicant

— AND —

Attorney General of Canada (Registrar of Firearms)

Respondents

Before Justice D.J. MacKinnon

Heard on April 27, 2021

Reasons for Judgment released on July 13, 2021

S. Kurelek.................................................... counsel for the Attorney General of Canada

Xiaozhou Ruan........................................................................................... on his own behalf

MacKinnon J.:

Background

[1] The Applicant was authorized to own two restricted firearms, namely:

1. a Colt Rifle,
2. a Norinco Rifle.

[2] Registration certificates were issued for each of the firearms.

[3] On May 1, 2020, the new regulation under the Criminal Code came into effect which re-classified firearms[^1]. The firearms owned by the Applicant were reclassified from the restricted category to being prohibited firearms.

[4] The Registrar sent a letter to the Applicant on July 20, 2020 informing him of the change in the regulation. The letter told him that his firearms had been reclassified and that they were now prohibited. The letter said:

Certain restricted firearms which were registered to you have been affected by the recent regulatory amendments. These firearms, listed below, are now classified as prohibited and the previous registration certificates are automatically nullified and are therefore no longer valid but should be retained as a historical registration record.

This Application

[5] The Applicant brings his application under s.74 of the Firearms Act. The section provides:

s.74 (1) Subject to subsection (2), where,

a) a chief firearms officer or the Registrar refuses to issue or revokes a license, registration certificate….

the applicant for or holder of the license, registration …may refer the matter to a provincial court judge…

[6] To bring this application the firearms owner must show that the Registrar of Firearms revoked the registration certificates for his rifles.

[7] The Attorney General of Canada has brought a motion for dismissal of the application of Mr. Ruan on jurisdictional grounds and as there was no decision made by the Registrar for review by this court.

[8] Considerable caselaw has been provided by both sides related to similar requests across the country for review of the reclassifications by virtue of the passing of the regulation. I do not intend to recite those cases here but have considered them in arriving at a decision.

Were the registration certificates for the firearms revoked by the Registrar?

[9] This is the contention of the Applicant; that the letter from the Registrar to him represents an act of revocation of the registrations for his rifles by the Registrar. He argues that the proper procedure for such revocation was not followed and needs to be reviewed.

[10] The Oxford English Dictionary defines the term “revoke” as:

“cancel, repeal, rescind, reverse, abrogate, annul, nullify, declare null and void, make void, void, invalidate, render invalid, quash, abolish, set aside, countermand, retract, withdraw, overrule, override”

There is no evidence, however, that the Registrar took any action against the registration of the firearms, other than informing the owner that the classification of his firearms had changed and the registration certificates could no longer represent the firearms and were no longer accurate. In fact, the Registrar did not demand return of the registration certificates, their destruction or their return.

[11] This can be equated to a shell game where the firearms were under the shell of the owner’s lawful license and the restricted registration certificates, and after the reclassification, the firearms are no longer under the shell and protection of the registration certificates, but had been moved under the prohibited shell which Mr. Ruan cannot access. The registration certificates have not been recalled, but clearly are nullities as the firearms they protected no longer exist as their description has changed.

[12] The only action that precipitated the change to the firearms held by the Applicant was a legislative change. The Registrar is not authorized to pass regulations. The office only acts within the context of the governing legislation to issue and revoke gun registrations.

[13] The registration certificates for the rifles owned by Mr. Ruan were revoked by operation of law. The regulation changed the classification of the firearms to the prohibited category. The registration certificates were for restricted weapons and the firearms of the Applicant no longer fit into that category. The registrations were not revoked by the Registrar but they became nullities as the regulation changed the character of the firearms. Even without the existence of the Registrar, the firearms would still be classified as prohibited; a category which the Applicant is unable to be licensed to hold.

[14] In this way I find that there was no decision by the Registrar to revoke the registration certificates of the Applicant. I agree with the reasoning in R. v. Wyville 2020 ONCJ 555 and Nagy v. Attorney General of Canada Jan 29, 2021 Simcoe 20-636.

Was there a categorization decision?

[15] The Applicant has raised the issue that the characteristics of his weapons would have to be assessed by the Registrar to determine that the firearms were indeed the ones now moved to the prohibited category. This, he suggests, is a decision by the Registrar. In other words, did the Registrar, in sending him the letter, make a determination that his firearms fit the description of the firearms in the now prohibited category?

[16] I had asked for further submissions on this issue as the list of firearms in the regulation does not exactly describe these firearms in the terms found on the registration certificates. The Attorney General states that it is known to the Applicant that his firearms fit under the broader descriptors set out in the regulation for his type of rifle.

[17] If the firearm owner had been sent a notice such as the Applicant was, but his firearm was improperly labelled as one in the list of prohibited firearms, where would he have recourse to have such an error reviewed or to appeal such a misclassification? It is little solace to think that he would have to be charged under the Criminal Code first in order to have the matter of an error reviewed.

[18] The issue is speculative in this case. The Applicant does not suggest that his firearms have been placed in one of the categories in the regulation in error. For example, he does not say that his Colt rifle is not one on the list of prohibited firearms because it is not of the same description as the Colt rifles which are prohibited. His claim instead is that the Registrar did not follow the procedures in determining to revoke the registrations. As I have indicated above, there is no revocation by the Registrar in this case but a legislative action.

[19] In any event, even if there was an error in the regulation, the proper forum would be the Federal Court in regard to a federal regulation of the Criminal Code.

Decision

[20] In regard to the threshold issue, that is whether a decision was made by the Registrar such that the Application to review the decision should be allowed to continue, I find that there was no decision by the Registrar and therefore no review should occur. The motion of the Attorney General of Canada to dismiss the Application is granted.

Released: July 13, 2021

Signed: Justice D.J. MacKinnon

[^1]: Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/2020-96