SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Barbra Schlifer Commemorative Clinic, Applicant

AND:

Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada, The Commissioner of Firearms, The Registrar of Firearms and The Chief Firearms Officer, Respondents

BEFORE: D. M. Brown J.

COUNSEL: S. O’Brien, E. Shaffir and R. White, for the Applicant

G. Scarcella, C. Mohr and N. Rosen, for the Respondent, Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada, the Commissioner of Firearms and the Registrar of Firearms

S. Weinrib, for the Respondent, the Chief Firearms Officer

A. Lokan and R. Centa, for the intervenor/friend of the court, The City of Toronto

HEARD: July 30 and September 13, 2012; with subsequent written submissions.

REASONS FOR DECISION

I. OVERVIEW: LONG-GUN REGISTRY MOTIONS

1On April 5, 2012, Bill C-19, An Act to amend the Criminal Code and the Firearms Act, received Royal Assent.¹ Broadly speaking, the Act repealed the federal legislative regime which required the registration of non-restricted firearms, the so-called long-guns. I will refer to Bill C-19, as enacted, as the “Repealing Act”. Section 29(1) of the Repealing Act requires the Commissioner of Firearms to “ensure the destruction as soon as feasible of all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under the Commissioner’s control.”

2In a few days, on October 1, 2012, the federal government will fulfill the direction contained in section 29 of the Repealing Act by destroying accumulated data contained in the federal long gun registry. The data concerning long guns registered in Québec will not be destroyed. Immediately following the enactment of the Repealing Act the Québec government obtained a preliminary injunction preventing the destruction of the data.² Last week that injunction was made final by the Québec Superior Court. Québec intends to establish its own long gun registry, and the province regards the historic federal data as necessary for that purpose.³

3Ontario has not followed Quebec’s approach. Indeed, apart from Québec, no other provincial government has sought to prevent the destruction of the data contained in the federal long gun registry.

4Instead, on May 16, 2012, a private group which provides a very valuable public service for the victims of domestic violence, the Barbra Schlifer Commemorative Clinic, commenced this application seeking declarations that most of the provisions of the Repealing Act violated rights guaranteed by sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms and are of no force and effect. A previous order of this Court set dates in March, 2013 for the hearing of the application on its merits.

5On July 30, 2012, I heard argument on the motion by Her Majesty the Queen in right of Canada, the Commissioner of Firearms and the Registrar of Firearms (the “AGC”) to strike out the Notice of Application under Rule 21.01(1)(b) of the Rules of Civil Procedure as disclosing no reasonable cause of action and Rule 21.01(3) as beyond the jurisdiction of the court. Due to timing constraints, I reserved judgment on that motion until I heard the motion by the applicant on September 13, 2012 for an interlocutory injunction restraining the destruction of all records in the Canadian Firearms Registry related to the registration of non-restricted firearms and requiring the continued collection of data on long-gun transfers.

6By order made August 5, 2012 I granted the City of Toronto leave to intervene on the injunction motion and in the application as a friend of the Court.⁴

7In the result, for the reasons set out below, I dismiss the Rule 21 motion of the AGC to strike out the application as disclosing no reasonable cause of action or as beyond the jurisdiction of the Court, and I dismiss the Clinic’s motion for an interlocutory injunction.

II. THE LEGISLATIVE SCHEMA

A. Prior to the enactment of Bill C-19

A.1 The types of firearms

8In Canada the possession and use of firearms is governed by two pieces of federal legislation. The Firearms Act⁵ creates, in part, a scheme for the licensing of individuals who possess firearms, as well as for the registration of the actual firearm. The Criminal Code establishes certain offences involving or related to firearms and prescribes the punishments for committing such offences.

9The definition of “firearm” is found in the Criminal Code. It is a broad definition, capturing any:

barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.⁶

In turn, the Criminal Code divides firearms into two categories – prohibited firearms and restricted firearms.⁷ Handguns, sawed-off shotguns and automatic weapons fall into these two categories.

10Firearms which fall neither into the prohibited nor restricted firearms classifications are commonly termed “non-restricted firearms”, although no such statutory term exists. In common parlance non-restricted firearms are equated with long guns, such as hunting rifles and shotguns. I will use the terms “non-restricted firearms” and “long guns” interchangeably in these Reasons.

A.2 The Chief Firearms Officer and the Registrar of Firearms

11The Firearms Act establishes regimes to license those individuals who wish to acquire a firearm and to register the firearm itself. To administer these regimes the Firearms Act created two offices: the Chief Firearms Officer and the Registrar of Firearms.

12On the licensing side, each province and territory has a Chief Firearms Officer responsible for the adminstration of licensing under the Firearms Act. Five provinces have opted, pursuant to the Firearms Act, to appoint a Chief Firearms Officer who has juridsiction over their territory – Ontario, Nova Scotia, Prince Edward Island, Québec and New Brunswick. In the other five provinces - Newfoundland and Labrador, Manitoba, Saskatchewan, Alberta and British Columbia - and the three territories, the Chief Firearms Officers are employees of the federal government, specifically, the Royal Canadian Mounted Police.

13As to the registration of firearms, the Registrar of Firearms is a federal employee responsible for the establishment, maintenance, and day-to-day operation of the Canadian Firearms Registry. The Registry operates within the organizational structure of the RCMP.

14Under the Firearms Act, information in relation to a licence for the possession and acquisition of a firearm is collected and held by the respective Chief Firearms Officer. Information in relation to a certificate of registration for a firearm is collected and held by the Registrar .

15All this information is kept in a central computerized registry called the Canadian Firearms Information System (CFIS). A subset of the information in CFIS is provided to police forces by way of the Canadian Firearms Registry OnLine (CFRO). Police forces have access to the CFRO by way of the Canadian Police Information Centre (CPIC) which is administered by the RCMP.

A.3 The licensing of persons to acquire firearms

16Since 1979 every individual who has sought to acquire a firearm has been required to obtain a licence, whether the firearm was classified as a prohibited firearm, a restricted firearm, or a non-restricted firearm. Since 1994, to obtain this licence every individual must complete a licence application and, unless alternatively certified by the Chief Firearms Officer of the province in which he or she resides, pass the examination associated with the Canadian Firearms Safety Course or the Canadian Restricted Firearms Safety Course.

17In considering a licence application the Chief Firearms Officer may make inquiries with the individual’s neighbours, community workers, social workers, any person who has worked or lived with the individual, the spouse or common-law partner of the individual, family members or any other person they believe may be able to provide relevant information.⁸ The Firearms Act specifies the criteria against which the Chief Firearms Officers must make a determination of whether an applicant is eligible for a licence. The CFO must have regard to whether the licence applicant:

• has been convicted of an offence where the threat of violence was used;

• has been convicted of criminal harassment;

• has been convicted of a trafficking offence under the Controlled Drug and Substances Act;

• has been treated for mental illness associated with violence or threatened violence; and/or,

• has a history of violent behaviour.

Individuals who are prohibited by court order from possessing a firearm are not eligible for a licence.⁹

18When a person applies for a firearm licence they must disclose, on their application:

the name, date of birth, current address and telephone number of every spouse, common-law partner and other person with whom the applicant is in a conjugal relationship at the time of making the application or with whom the applicant has been in a conjugal relationship within the two years before the application is made.

If an applicant does not know the current address or telephone number of such a person, the application must be accompanied by a statement to that effect.¹⁰

19Pursuant to the Firearms Act the CFO may issue, refuse to issue, or place conditions on a licence. A possession and acquisition licence is valid for a five‑year period and must be renewed at the end of that period.

20The AGC filed an affidavit from Mr. Robert MacKinnon, the manager of IT Integration and Business Improvement for the Canadian Firearms Program of the RCMP. According to Mr. MacKinnon, as of May 31, 2012, there were 1,919,105 firearms licences issued across Canada as shown on the following table:

Valid Licences through May 2012

Province/Territory	Possession only licence	Possession and acquisition licence	Minor licence	Total	Licences per 100,000 population*
Alberta	61,086	171,443	1,487	234,016	7,127
British Columbia	74,877	156,840	470	232,187	5,643
Manitoba	26,790	55,822	337	82,949	7,232
New Brunswick	40,107	33,347	143	73,597	10,091
Newfoundland and Labrador	27,293	46,699	219	74,211	14,682
Northwest Territories	522	4,646	37	5,205	12,553
Nova Scotia	40,297	34,584	1,099	75,980	8,318
Nunavut	47	3,013	2	3,062	10,389
Ontario	190,958	339,444	3,778	534,180	4,393
Prince Edward Island	3,292	3,186	15	6,493	4,780
Quebec	167,414	329,348	23	496,785	6,576
Saskatchewan	30,507	63,361	111	93,979	9,712
Yukon	1,063	5,359	39	6,461	21,273
Total	664,253	1,247,092	7,760	1,919,105	6,071

• Licences per 100,000 population are calculated using provincial/territorial populations from 2006 census

Between 2006 and September, 2011, 2,768 licence applications were refused and 11,713 were revoked. Between September 2011 and May 2012, 510 licence applications were refused and 2070 were revoked.

21The respondent, the Chief Firearms Officer, filed an affidavit from Superintendent Christopher Wyatt, the Chief Firearms Officer for Ontario. Superintendent Wyatt deposed that Ontario’s approximately 530,000 firearms licensees collectively own about 2.1 million unrestricted firearms, 180,000 restricted firearms and 85,000 prohibited firearms. Records disclose that approximately 80% of all individual Ontario licensees own only non-restricted firearms.

22The Clinic filed an affidavit from a former Ontario Provincial Police officer, Mr. Douglas Carlson. In their affidavits both Mr. Carlson and Mr. MacKinnon talked about a report called the Firearms Interest Police report, or “FIP”. Mr. MacKinnon described a FIP as follows:

The FIP reports provide notification of incidents of violent acts. These incidents are then matched with individuals holding firearms licences. Matches are forwarded electronically to the CFOs for review in accordance with the eligibility criteria mentioned above. When the CFO or Registrar is reviewing eligibility upon receiving a FIP, the firearm licence is still valid, however no transaction such as the acquisition of a firearm will be completed without review by the CFO or Registrar.

A.4 The registration of firearms

23The regulatory regime for the registration of firearms has changed over the years. Prior to 1998 there were requirements to register prohibited and restricted firearms, but none for non-restricted firearms. In December, 1998, pursuant to the 1995 Firearms Act, an obligation was imposed on a person who possessed or sought to acquire a non-restricted firearm to register it. In order to register a newly acquired non-restricted firearm an individual was required first to have a valid licence and then to fill out a registration application. Once the non-restricted firearm was registered, if the individual wanted to transfer the registered firearm, he or she was required to contact the Registrar and provide specified information.

24Over the years several amnesties were given allowing those who possessed a non-restricted firearm more time to register the weapon before attracting possible criminal liability.

B. Following the enactment of Bill C-19

B.1 Licensing

25The Repealing Act did not alter the requirement for all individuals to hold a licence in order to possess or acquire a firearm. The licensing eligibility requirements, safety training, and safe storage requirements for anyone who uses or owns a firearm continue in force.

B.2 Registration

26The Repealing Act made three main changes to the firearms registration regime. First, it repealed the statutory requirement to register non-restricted firearms. That change is encapsulated by the amendment of the Firearms Act to include section 12.1 which now provides:

12.1 A registration certificate may only be issued for a prohibited firearm or a restricted firearm.

27Second, the Repealing Act directed the destruction of all records related to the registration of non-restricted firearms collected since the introduction of that part of the Registry in December, 1998. Specifically, section 29 of the Repealing Act provides, in part:

29. (1) The Commissioner of Firearms shall ensure the destruction as soon as feasible of all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under the Commissioner’s control.

(2) Each chief firearms officer shall ensure the destruction as soon as feasible of all records under their control related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under their control.

28In his affidavit Mr. MacKinnon described the operational changes which must be made in order to comply with the Repealing Act:

[39] Outside of Quebec, the following changes to the systems of the Canadian Firearms Program are required to comply with the legislation:

• The deletion of all non-restricted firearms registration records in the CFIS relating to non-restricted firearms and as a consequence, their removal from CFRO;

• The disabling of the functions on the web portal that permit the submission of applications from individuals and businesses for the registration of non-restricted firearms;

• The removal of the CFIS functions that support the registration of non-restricted firearms and that allow for the acceptance and storage of non-restricted firearms registration records; and

• Although non-restricted firearms registration records are separate and identifiable in the CFIS system, there are electronic links between non-restricted firearms registration records and other records, e.g. licence records which adds a layer of complexity to the deletion process.

29Third, the Repealing Act also changed the requirements imposed on the transfer of non-restricted firearms. Prior to its recent amendment the Firearms Act required a person transferring a non-restricted firearm to, amongst other conditions, “inform the Registrar of the transfer”.¹¹ That notification requirement has been removed from the Firearms Act and replaced by the following provisions:

23. A person may transfer a firearm that is neither a prohibited firearm nor a restricted firearm if, at the time of the transfer,

(a) the transferee holds a licence authorizing the transferee to acquire and possess that kind of firearm; and

(b) the transferor has no reason to believe that the transferee is not authorized to acquire and possess that kind of firearm.

23.1 (1) A transferor referred to in section 23 may request that the Registrar inform the transferor as to whether the transferee, at the time of the transfer, holds and is still eligible to hold the licence referred to in paragraph 23(a), and if such a request is made, the Registrar or his or her delegate, or any other person that the federal Minister may designate, shall so inform the transferor.

30Supt. Wyatt described the effect of this change as moving “from a system of prior approval of transfers by the Registrar to a system of post facto enforcement by way of prosecution”. He continued:

Prior to the enactment of Bill C-19, the CFO could access the records of the Registrar to monitor firearms transfers by licensees (for example, to inquire into the volume of transfers by an individual licensee). With the enactment of Bill C-19, this sort of monitoring is no longer possible. For example, an individual licensee may carry on a large volume of non-restricted firearms transfers without the CFO’s knowledge. The CFO is inhibited from investigating such a situation to determine whether the individual is in fact carrying on a firearms business without a business licence.

31In his affidavit Superintendent Wyatt identified impacts of the Repealing Act on three other areas of the functions and operations of the CFO: (i) licence revocation or expiry; (ii) business inspections; and, (iii) prohibition orders. In the area of licence revocation or expiry Supt. Wyatt deposed:

Formerly, when a licence expired or was revoked by the CFO, the Registrar would be notified electronically, and would in turn would revoke all of that licensee’s registration certificates and send correspondence to the local police service advising that the licensee was no longer in lawful possession of firearms. This notice from the Registrar to the local police influenced individuals to take steps to renew their licence and come back into in compliance with the law.

With the enactment of Bill C-19, police will no longer receive this type of notice respecting individuals who own only non-restricted firearms and whose licence has expired or been revoked by the CFO.

32Mr. MacKinnon deposed that Supt. Wyatt had not explained accurately what occurred on the revocation and expiry of a licence. He agreed that upon the revocation of a licence the Registrar would not notify the police. However, in the case of the expiration of a licence, in some circumstances the Registrar might notify the police:

As a result of a licence expiring, pursuant to the Firearms Act, a person is no longer eligible to possess firearms and accordingly, any registration certificates for that individual are revoked by the Registrar of Firearms. This process is fully automated. Within thirty (30) days after a licence expires the Canadian Firearms Information System (CFIS), on behalf of the Registrar, issues a revocation notice to the person whose licence has expired, revoking the registration certificate for each firearm registered to the person. If, within 90 days of the issuance of the revocation notice, the individual has not renewed their licence or, disposed of the firearm(s), and therefore there are still firearms indicated in the CFIS, the Registrar sends a letter to the police advising them that the person whose licence expired is still in possession of firearms.

33As to business inspections, Supt. Wyatt explained that historically firearms businesses were required, as a condition of their licence, to maintain a record of all firearms transactions in ledgers. Under this system firearms businesses were required to account for every firearm, non-restricted or otherwise, registered to the business or in the business’s possession. The Repealing Act altered this part of the firearms regime:

With the enactment of Bill C-19 and the subsequent Firearms Information Regulations (Non-Restricted Firearms), which prohibited the CFOs from imposing, as a condition of a business licence, an obligation to maintain ledgers, businesses are no longer required under the Firearms Act to keep any records at all of transactions involving non-restricted firearms.

As a result, CFO business inspectors are not able to use registry information or ledgers to monitor or account for non-restricted firearms coming into or leaving a business. For example, should there be a dramatic increase the volume of firearms going through a business, the CFO and the police will not be aware of this important change.

34As to prohibition orders, under section 89 of the Firearms Act courts must inform the CFO without delay whenever a prohibition order is made, varied or revoked. Supt. Wyatt explained:

The CFO receives copies of all firearms prohibition orders from Ontario courts. CFO firearms officers make inquiries into licensees who are subject to prohibition orders to ensure all registered firearms have been seized by the police or transferred to other licensed individuals. Where registered firearms are not accounted for, CFO firearms officers alert local police in an attempt to secure and account for all firearms registered to the prohibited individual. By reviewing records of registrations and reconciling them against records of firearms already seized by the police, the CFO furthers its public safety mandate and thereby assists law enforcement in ensuring that prohibited persons are dispossessed of all of their firearms.

With the enactment of Bill C-19, CFO firearms officers and police officers will not be able to use registry information to readily determine the number of non-restricted firearms a prohibited individual possesses. Police will be required to undertake further investigations to determine what non-restricted firearms the prohibited individual may possess.

C. The plan to expunge registration information about non-restricted firearms

35According to Mr. MacKinnon, considerable time has been spent developing a plan to implement the requirements of the Repealing Act directing the destruction of registration records concerning non-restricted firearms. Given the links amongst all data in the Registry, destruction of only that dealing with non-restricted firearms has turned out to be “a complex task”. Since April 5, 2012 there have been no registration certificates issued for non-restricted firearms outside of Québec. Towards the end of last May non-restricted firearm records, excluding those for Québec, were removed from the Canadian Firearm Registry OnLine and were no longer accessible to police through CPIC. Phase III of the plan will see the destruction of the non-restricted firearms registration data. The testing of the destruction scripts will be completed by the end of September and, according to Mr. MacKinnon, it will take the entire month of October, 2012, to perform the actual deletion of the non-restricted firearms registration records in the CFIS. Next year will see the destruction of non-restricted firearms registration records stored outside of CFIS, for example information kept in paper format.

D. The 2000 Firearms Reference case

36The enactment in 1995 of the registration regime for non-restricted firearms resulted in a reference, initiated by the government of Alberta, seeking the advice of the courts about the constitutionality of the new scheme. The Supreme Court of Canada upheld the legislation as a valid exercise of the federal criminal law power.¹²In the course of its decision the Supreme Court addressed an argument advanced by two provinces that even if the licensing provisions of the law were valid criminal legislation, the registration provisions were mainly provincial property legislation which should be severed and struck out. The Court rejected that argument, observing that they were “not persuaded that the registration provisions can be severed from the rest of the Act, nor that they fail to serve Parliament's purpose in promoting public safety.” It was in the context of that division of powers analysis that the Court stated:

These interconnections demonstrate that the registration and licensing portions of the Firearms Act are both tightly linked to Parliament's goal in promoting safety by reducing the misuse of any and all firearms. Both portions are integral and necessary to the operation of the scheme.¹³

37The Court also commented on its role in reviewing the constitutional validity of the Firearms Act:

We recognize the concerns of northern, rural and aboriginal Canadians who fear that this law does not address their particular needs. They argue that it discriminates against them and violates treaty rights, and express concerns about their ability to access the scheme, which may be administered from a great distance. These apprehensions are genuine, but they do not go to the question before us -- Parliament's jurisdiction to enact this law. Whether a law could have been designed better or whether the federal government should have engaged in more consultation before enacting the law has no bearing on the division of powers analysis applied by this Court. If the law violates a treaty or a provision of the Charter, those affected can bring their claims to Parliament or the courts in a separate case. The reference questions, and hence this judgment, are restricted to the issue of the division of powers.

We also appreciate the concern of those who oppose this Act on the basis that it may not be effective or it may be too expensive. Criminals will not register their guns, Alberta argued. The only real effect of the law, it is suggested, is to burden law-abiding farmers and hunters with red tape. These concerns were properly directed to and considered by Parliament; they cannot affect the Court's decision. The efficacy of a law, or lack thereof, is not relevant to Parliament's ability to enact it under the division of powers analysis. Furthermore, the federal government points out that it is not only career criminals who are capable of misusing guns. Domestic violence often involves people who have no prior criminal record. Crimes are committed by first-time offenders. Finally, accidents and suicides occur in the homes of law-abiding people, and guns are stolen from their homes. By requiring everyone to register their guns, Parliament seeks to reduce misuse by everyone and curtail the ability of criminals to acquire firearms. Where criminals have acquired guns and used them in the commission of offences, the registration system seeks to make those guns more traceable. The cost of the program, another criticism of the law, is equally irrelevant to our constitutional analysis.¹⁴

III. THE CLINIC’S CONSTITUTIONAL CHALLENGE

38According to the affidavit of Ms. Amanda Dale, the Clinic’s executive director, the applicant was established to commemorate the life and values of Barbra Schlifer, an Osgoode Hall law student who was brutally sexually assaulted and murdered on the night of her call to the Bar in 1980. Since opening its doors in 1985, the Clinic has provided services to over 44,000 women who have experienced violence. The Clinic's services include free legal representation, professional counselling and multilingual interpretation. The Clinic also engages in various public advocacy initiatives, including public legal education, professional development of legal, healthcare and social service professionals, clinical education for law students and law reform, especially in the areas of family law and related issues of domestic violence. The Clinic also runs a new family court support program in the Toronto courts for victims of domestic assault and is part of the provincial training consortium for all family court support workers in every provincial family court jurisdiction. The Clinic also acts as a consultant for policy makers concerning domestic and sexual violence issues.

39Ms. Dale articulated the essence of the Clinic’s constitutional challenge to the Repealing Act as follows:

The issues in this Application are extremely serious. The Application alleges that the changes to the existing gun control regime will increase the risk of physical violence, forcible confinement based on threats of physical violence, serious physical harm, serious psychological harm, and homicide to women in situations of domestic violence.

IV. RULE 21 MOTION BY THE AG CANADA

40The AGC moved to dismiss the Clinic’s application under Rules 21.01(1)(b) and 21.01(3)(a) of the Rules of Civil Procedure arguing that the court had no jurisdiction over the subject matter of the application and the application disclosed no reasonable cause of action.

41Rule 14.09 provides that an originating process, like a notice of application, may be struck out in the same manner as a statement of claim. I would note, however, that whereas a statement of claim must contain “a concise statement of the material facts on which the party relies for the claim”,¹⁵ a notice of application need only state “the grounds to be argued, including a reference to any statutory provision or rule to be relied on”.¹⁶ The facts supporting an application usually are found in the accompanying affidavit material, not necessarily in the notice of application. Consequently, some degree of caution must be exercised when applying a pleadings-oriented rule, such as Rule 21.01, to a notice of application, making due allowance for the different requirements mandated for the content of those different originating processes.

A. Rule 21.01(3)(a): Does the court lack jurisdiction to hear the application?

42Dean Lorne Sossin has described justiciability as a term relating “to the subject matter (ratione materiae) of a court”.¹⁷ As applied to the subject of the passage of legislation, the case law consistently applies, as part of the constitutional separation of powers amongst the legislative, executive and judicial branches of government, the principle that the judiciary must allow the legislature to do its job in considering new legislation. As Sopinka J. put the principle: “The formulation and introduction of a bill are part of the legislative process with which the courts will not meddle.”¹⁸ Applying that principle courts have rebuffed efforts by litigants to obtain injunctions to restrain legislatures from passing legislation. For example, Williamson J., in Campbell v. British Columbia (Attorney General), stated:

Under our system of government, it is essential that the courts respect the right of Parliament and of the legislative assemblies to exercise unfettered freedom in the formulation, tabling, amendment, and passage of legislation. This obligation is no less than that of the duty of the legislative and executive branches to respect and defend the independence of the judiciary. These are matters fundamental to our democratic beliefs, our history and our constitution. They should not be impinged upon lightly, if at all.

The result is that the legislative branch must be given free reign to introduce bills and to explore in debate the ramifications of proposed legislation. Legislatures are, nonetheless, bound by the rule of law. Should they pass legislation which the courts subsequently find to be unconstitutional, they are bound to respect such a ruling.¹⁹

To the same effect Lederman J., in the recent case of Hamalengwa v. Bentley stated:

The question of whether Parliament should pass a particular law is not a justiciable question. The role of courts is not to legislate, but to interpret and apply the law. Thus, courts are not relevant in this context until after legislation has been enacted (Re Resolution to Amend the Constitution, [1981] 1 SCR 753 at 785). As such, any pleading alleging a failure to enact law fails to assert a reasonable cause of action against the federal government.²⁰

43Some commentators have remarked that this principle of judicial non-interference potentially contains a certain amount of wiggle room because in the CAP case Sopinka J., after stating that “it is not the place of the courts to interpose further procedural requirements in the legislative process”, enigmatically added:

I leave aside the issue of review under the Canadian Charter of Rights and Freedoms where a guaranteed right may be affected.²¹

Subsequent decisions have not considered that comment.

44Such, then, is the situation before the passage of a law. However, once legislation is passed and enacted, courts then possess the jurisdiction to supervise the exercise of legislative power where a statute is ultra vires or contrary to the Charter.²²

45The AGC submitted, in its factum, that:

33. The policy choice made by this Parliament to repeal the registration regime for non-restricted firearms cannot be reversed by a court. The order sought by the applicant are for unprecedented remedies that directly intervene in the legislative process and usurp the role of Parliament in circumstances where there was no constitutional obligation to enact the scheme in the first place. Accordingly, as the subject matter of the application is not justiciable it ought to be struck out as being beyond the jurisdiction of the court.

46I disagree that the subject matter of the application is not justiciable and lies beyond the jurisdiction of this Court. The Repealing Act is an enactment of the Parliament of Canada. As such, section 52 of the Constitution Act, 1982 requires that it be consistent with the provisions of the Constitution and section 32(1)(a) results in the application of the Charter to it. As the Supreme Court of Canada recently held in the case concerning safe drug injection sites in Vancouver:

The issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions. There is room for disagreement between reasonable people concerning how addiction should be treated. It is for the relevant governments, not the Court, to make criminal and health policy. However, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter: Chaoulli, at para. 89, per Deschamps J., at para. 107, per McLachlin C.J. and Major J., and at para. 183, per Binnie and LeBel JJ.; Rodriguez, at pp. 589-90, per Sopinka J. The issue before the Court at this point is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use. It is simply whether Canada has limited the rights of the claimants in a manner that does not comply with the Charter.²³

47Further, the Repealing Act is indistinguishable in this respect from the Job Quotas Repeal Act, 1995, Ontario legislation, the constitutionality of the repeal of which was considered by the Court of Appeal in Ferrel v. Ontario (Attorney General).²⁴ In that case Morden A.C.J.O., writing for the Court, stated:

The Job Quotas Repeal Act, 1995 is an enactment of the legislature of Ontario. As such, regardless of what may be argued to be its effect (changing the law, returning to the status quo before the Employment Equity Act, 1993, etc.) it is clearly a form of government action which requires scrutiny under the Charter - in this case, under s. 15.²⁵

48So, too, the Repealing Act is clearly a form of government action subject to scrutiny under the Charter. I therefore dismiss that part of the motion of the AGC based on Rule 21.01(3)(a) and turn, now, to consider the argument of the AGC that the application discloses no reasonable cause of action.

B. The principles applicable to a Rule 21.01(1)(b) motion

49Earlier this year, in Brookfield Financial Real Estate Group Limited v. Azorim Canada (Adelaide Street) Inc.,²⁶ I attempted to summarize the principles governing motions to strike out claims as disclosing no reasonable cause of action:

Last year, in R. v. Imperial Tobacco Canada, the Supreme Court of Canada reviewed the purpose of a motion to strike out a claim and the test applicable on such a motion. As to the purpose of such a motion, the Supreme Court observed that “the power to strike out claims that have no reasonable prospect of success…unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” This promotes two goods: “efficiency in the conduct of the litigation and correct results.” However, the Court sounded a note of caution about motions to strike:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed…

With regards to the test applicable on a motion to strike out a claim as disclosing no reasonable cause of action the Supreme Court stated:

A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action… Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial…

A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven… No evidence is admissible on such a motion…It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.

[A motion to strike] is not about evidence, but the pleadings. The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike. The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show.

The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding.

Finally, as our Court of Appeal recently recalled in Piedra v. Copper Mesa Mining Corporation:

Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect … should the relevant portions of a plaintiff’s statement of claim be struck out [under a summary proceedings rule].

The nature of the “radical defect” required to justify striking out a claim was described in very narrow terms by Epstein J., as she then was, in Dalex Co. v. Schwartz Levitsky Feldman:

In order to foreclose the consideration of an issue past the pleadings stage, the moving party must show that there is an existing bar in the form of a decided case directly on point from the same jurisdiction demonstrating that the very issue has been squarely dealt with and rejected by our courts. Only by restricting successful attacks of this nature to the narrowest of cases can the common law have a full opportunity to be refined or extended…

Whether the standard is so unambiguously strict may be open to some debate, but the judicial sentiment expressed in the Dalex case reflects the strong reluctance of courts to strike out claims unless they are devoid of any reasonable prospect of success.

In sum, Rule 21.01(1)(b) operates to weed out the hopeless claims, based on a review of the pleadings, because they fail to state legally sufficient claims. If the pleading asserts a legally sufficient claim, Rule 21.01(1)(b) does not subject the claim to an analysis of the strength or weakness of the evidence advanced by the party in support of its claim. That is why under the Rule a court assumes the facts pleaded in the claim can be proved. Put another way, Rule 21.01(1)(b) does not provide a vehicle by which an opposing party can seek a final disposition of a claim on the evidence – that function falls to a motion for summary judgment or the trial. The purpose of Rule 21.01(1)(b) is more modest – to assess the tenability at law of a pleaded claim.

C. The Clinic’s section 7 Charter claim

C.1 The claim as pleaded

50In its Amended Notice of Application the Clinic pleaded the following facts which, for purposes of the Rule 21 motion, must be taken as capable of proof at the hearing on the merits:

Harm to Women

The amendments to the Firearms Act as set out in Bill C-19 cause harm to women. The victims of domestic violence are predominantly women. The changes to the existing gun control regime will increase the risk of physical violence, forcible confinement at threat of physical violence, serious physical harm, serious psychological harm, and homicide to women in situations of domestic violence. Specifically, inter alia:

Non-restricted rifles and shotguns are the guns most often used in domestic violence. This is because they are more easily available than prohibited and restricted firearms. There is a strong link between the availability of firearms and the homicide of women by their partners.

The Canadian Firearms Registry On-line is an important tool used by police to remove all guns from situations of domestic violence and to enforce safe storage of guns in situations of potential domestic violence.

The requirement to register non-restricted firearms encourages owner accountability of their firearms, which decreases the likelihood of unauthorized transfers and unsafe storage. These factors assist women in situations of domestic violence by keeping firearms in the possession of licensed owners and by allowing for the enforcement of safe storage of firearms.

Mandatory licence checks upon the transfer of non-restricted firearms ensure that perpetrators of domestic violence, who are not eligible to hold a licence, are not permitted to acquire and possess a firearm. This is particularly important for women in situations of domestic violence given that potential domestic violence often is not publicly known or suspected.

The requirements under the Firearms Act to register firearms, including non-restricted firearms, has prevented spousal homicides.

51Having pleaded those facts, the Clinic then set out the elements of its claim that the Repealing Act violated rights guaranteed by section 7 of the Charter:

j/ The provisions of Bill C-19 set out…above violate the section 7 Charter rights of women.

k/ Section 7 of the Charter guarantees the right to life, liberty and security of the person and the right to not to be deprived thereof except in accordance with the principles of fundamental justice.

l/ Bill C-19 infringes the rights to life, liberty and security of the person by causing physical harm to women, who are the predominant victims of domestic violence. As set out above, the provisions of Bill C-19 increase the risk of physical violence, serious physical harm and homicide to women in situations of domestic violence.

m/ Bill C-19 infringes the right to liberty of women in situations of domestic violence by increasing the ability of perpetrators of domestic violence to forcibly confine them at threat of physical violence with a firearm.

n/ Bill C-19 further infringes the security of the person of women who experience domestic violence by causing serious, state-imposed psychological stress to them resulting from the removal of the protections in the previous Firearms Act.

o/ The deprivations of life, liberty and security of the person are not in accordance with the principles of fundamental justice.

C.2 The positions of the parties

52The position of the AGC was set out in the following portions of its factum on the Rule 21 motion:

[58] The legislation at issue in this appeal concerns the repeal of the non-restricted firearms registration scheme. The application contains no allegations to the effect that the legislation itself deprives women of their interests to life, liberty or security of the person. Instead, the application seeks to impose a positive obligation on the state to maintain a specific policy response to a complex social issue.

[59] The Charter does not require the state to legislate measures that may be thought to reduce or prevent harm. If the Constitution does not guarantee a right to be protected from harm caused by others, then the failure of Parliament to take steps towards this end cannot be a breach of section 7.

[65] The applicant asserts that the repeal of the legislation concerning registration of non-restricted firearms will increase the risk of domestic violence to women. There is no causal connection between the alleged harm and the impugned Act. The law does not permit the use of illegal firearms, nor does it permit violence against women. The licensing regime continues to prevent the acquisition and possession of any type of firearms by persons who pose a risk to the public, including those who are at risk of using violence against their spouse.

53The Clinic framed its response to the AGC’s motion to strike in the following terms in its factum:

The Applicant submits that it is not plain and obvious that this application discloses no violation of s. 7. Contrary to the Respondents claims, the Applicant submits that (a) the application relates to the administration of justice and in any event s. 7 is not limited to the administration of justice context; (b) the s.7 claim has a reasonable basis in the existing caselaw; (c) there is a reasonable basis to conclude that the Applicant can show a causal connection between the alleged harm and the impugned legislation; and (d) there is a reasonable basis to conclude that the Applicant will be able to make out the infringement of a principle of fundamental justice.

C.3 The applicable section 7 jurisprudence and analysis

54The constituent elements of a claim under section 7 of the Charter recently were summarized succinctly by the Court of Appeal in Bedford v. Canada (Attorney General):

Although the language of the English version of s. 7 might suggest otherwise, the case law has established that s. 7 creates a single constitutional right: the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. There is no freestanding right to life, liberty and security of the person...Legislation that limits the right to life, liberty and security of the person will attract s. 7 scrutiny. It will, however, survive that scrutiny and avoid judicial nullification unless it is shown to be contrary to the principles of fundamental justice.

An applicant alleging a breach of s. 7 must demonstrate on the balance of probabilities that: (1) the challenged legislation interferes with or limits the applicant's right to life, or the right to liberty, or the right to security of the person; and (2) that the interference or limitation is not in accordance with the principles of fundamental justice. While non-compliance with s. 7 can theoretically be justified under s. 1 of the Charter, in reality s. 1 will rarely, if ever, trump a s. 7 infringement…²⁷

A law that interferes with any of the rights described in section 7 may be said to "engage" section 7 of the Charter or constitute a "deprivation" under s. 7.²⁸

55On its face the Clinic’s application engages section 7 rights, as can be seen from the following portion of its Amended Notice of Application:

Bill C-19 infringes the rights to life, liberty and security of the person by causing physical harm to women, who are the predominant victims of domestic violence. As set out above, the provisions of Bill C-19 increase the risk of physical violence, serious physical harm and homicide to women in situations of domestic violence.²⁹

56The phrase “principles of fundamental justice” is not self-defining; its meaning has grown through judicial interpretation.³⁰ The judicial inquiry under section 7, however, is not a “free-standing” one into whether a particular legislative measure strikes the right balance between individual and societal interests in general - achieving such a right balance is not itself an overarching principle of fundamental justice.³¹ While the balancing of individual and societal interests may be relevant to elucidating a particular principle of fundamental justice, the inquiry into whether there has been a violation of section 7 depends upon the identification of a specific principle of fundamental justice.³²

57In their dissenting judgment in Chaoulli v. Quebec (Attorney General),³³ Binnie and LeBel JJ. wrote that “[t]he real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. The further a challenged state action lies from the traditional adjudicative context, the more difficult it will be for a claimant to make that essential link.”³⁴

58The dominant view in the jurisprudence is that for a principle to be one of fundamental justice, it must count among the basic tenets of our legal system.³⁵ For example, in Gosselin v. Quebec (Attorney General),³⁶ Chief Justice McLachlin, writing for the majority of the Supreme Court of Canada, stated:

As emphasized by my colleague Bastarache J., the dominant strand of jurisprudence on s. 7 sees its purpose as guarding against certain kinds of deprivation of life, liberty and security of the person, namely, those "that occur as a result of an individual's interaction with the justice system and its administration"…”[T]he justice system and its administration" refers to "the state's conduct in the course of enforcing and securing compliance with the law"… This view limits the potential scope of "life, liberty and security of the person" by asking whom or what s. 7 protects against. Under this narrow interpretation, s. 7 does not protect against all measures that might in some way impinge on life, liberty or security, but only against those that can be attributed to state action implicating the administration of justice…

This Court has indicated in its s. 7 decisions that the administration of justice does not refer exclusively to processes operating in the criminal law, as Lamer C.J. observed in G. (J.), supra. Rather, our decisions recognize that the administration of justice can be implicated in a variety of circumstances: see Blencoe, supra (human rights process); B. (R.), supra (parental rights in relation to state-imposed medical treatment) ; G. (J.), supra (parental rights in the custody process); Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 (liberty to refuse state-imposed addiction treatment). Bastarache J. argues that s. 7 applies only in an adjudicative context. With respect, I believe that this conclusion may be premature. An adjudicative context might be sufficient, but we have not yet determined that one is necessary in order for s. 7 to be implicated.

In my view, it is both unnecessary and undesirable to attempt to state an exhaustive definition of the administration of justice at this stage, delimiting all circumstances in which the administration of justice might conceivably be implicated. The meaning of the administration of justice, and more broadly the meaning of s. 7, should be allowed to develop incrementally, as heretofore unforeseen issues arise for consideration. The issue here is not whether the administration of justice is implicated -- plainly it is not -- but whether the Court ought to apply s. 7 despite this fact.³⁷

59Several years later in their decision in Chaoulli Binnie and LeBel JJ. followed this approach stating:

For a principle to be one of fundamental justice, it must count among the basic tenets of our legal system: ... it must generally be accepted as such among reasonable people. As explained by the majority in Malmo-Levine, [2003] 3 S.C.R. 571, at para. 113:

The requirement of "general acceptance among reasonable people" enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental "in the eye of the beholder only" ... In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of section 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

Thus, the formal requirements for a principle of fundamental justice are threefold. First, it must be a legal principle, second, the reasonable person must consider it as vital to our societal notion of justice which implies a significant societal consensus. Third, it must be capable of being identified with precision and applied in a manner that yields predictable results.³⁸

60More recently, in Bedford, the Court of Appeal stated:

Perhaps no area of the law has felt the impact of the expansive interpretation of the "principles of fundamental justice" as much as the substantive criminal law. The Supreme Court has established a catalogue of principles of fundamental justice that together fix the minimum substantive standards that crime-creating provisions must meet to survive a s. 7 challenge. Those minimum standards include the concepts of arbitrariness, overbreadth and gross disproportionality. The constitutional measurements required by at least one of those concepts - gross disproportionality - inevitably draw the court into an assessment of the merits of policy choices made by Parliament as reflected in legislation.³⁹

61Yet, a strain of jurisprudence exists under section 7 that where a law creates a risk to health by preventing access to health care, a deprivation of the right to security of the person is made out.⁴⁰ So, for example, in Chaoulli Chief Justice McLachlin and Major J. pointed out that the jurisprudence had held that delays in obtaining medical treatment which affected patients physically and psychologically could also trigger the protection of section 7, and they proceeded to find a violation of section 7 in a non-administration of justice context – i.e. health care legislation. To the same effect, in the PHS Community Services Society case involving a safe drug injection facility, the Court held that the law could deprive the site’s clients of potentially lifesaving medical care, thus engaging their rights to life and security of the person.⁴¹

62The Clinic’s Amended Notice of Application did not identify which principle of fundamental justice was engaged by the deprivation pleaded. However, in its factum filed on the Rule 21 motion the Clinic claimed that the changes introduced by Bill C-19 were arbitrary and grossly disproportionate. The recognized principles of fundamental justice include the principle that laws should not be arbitrary, in the sense of bearing no relation to or being inconsistent with the objective that lies behind the law,⁴² as well as the principle that the means taken to achieve an objective can be so disproportionate to the desired end so as to offend the principles of fundamental justice, in the sense that the response of a government is so extreme to a problem that it is disproportionate to any legitimate government interest; the applicable standard is one of gross disproportionality, the proof of which rests on the claimant.⁴³ Accordingly, for the purposes of the Rule 21 motion I will proceed on the basis that the Clinic has pleaded properly breaches of those two principles of fundamental justice.

63But, in the circumstances of this case, pleading a deprivation of life or security of the person and referring to recognized principles of fundamental justice does not end the inquiry into whether the Clinic has asserted a tenable legal claim under section 7 of the Charter. The distinctive feature of the state action in issue in this application is that the Clinic does not challenge a federal law which imposes some obligation on a member of the public or exposes him or her to possible legal sanction. Rather, the Clinic challenges the act of Parliament which repealed provisions of the Firearms Act, thereby de-criminalizing certain conduct and ordering the destruction of data previously collected to track the compliance of the owners of non-restricted firearms with the requirements of the Firearms Act. The AGC submitted that a law which repeals legislative provisions cannot be said to deprive an individual of the right to life or security of the person because to do so would require a finding that the Constitution imposed an obligation on Parliament to enact these legislative provisions.

64The AGC referred to a large volume of authorities which have held that section 7 of the Charter does not impose upon legislatures a duty to enact legislation. In Gosselin the majority of the Supreme Court stated:

Even if s. 7 could be read to encompass economic rights, a further hurdle emerges. Section 7 speaks of the right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice. Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these…⁴⁴

Similarly, our Court of Appeal, in Sagharian (Litigation guardian of) v. Ontario (Minister of Education), a case involving the availability of educational and developmental services for autistic children, held:

The appellants plead that their rights to security of the person were infringed because wait lists and the alleged policy of mutual exclusivity created unreasonable obstacles hindering their use of ABA and educational services. The motion judge concluded that the court in Wynberg determined this issue when it held that the security of the person is affected only where an individual suffers a deprivation on account of government action. In Auton (Guardian ad litem of) v. British Columbia, [2004] 3 S.C.R. 657 at paras. 64-67, the Supreme Court of Canada also rejected a comparable argument that British Columbia's refusal to fund any IBI services violated s. 7. Government action in not providing specific programs to the appellants cannot be said to deprive the appellants of constitutionally protected rights.⁴⁵

65Turning, more specifically, to the context of legislation which criminalizes conduct, in R. v. Malmo-Levine⁴⁶ the Supreme Court of Canada considered, in part, whether Parliament possessed the legislative authority to criminalize the simple possession of marihuana. Accused who had been convicted of simple possession and possession for the purposes of trafficking under the Narcotic Control Act⁴⁷ argued that the criminalization of simple possession infringed rights guaranteed under section 7 of the Charter. The Supreme Court of Canada dismissed their appeals from convictions and, in so doing, commented extensively on the power of Parliament to criminalize and decriminalize conduct.

66The arguments advanced by the accused in Malmo-Levine were, in a sense, the flip-side of some of the arguments put forward by the Clinic in this proceeding. Specifically, in Malmo-Levine all parties agreed that while the existence of harm, especially harm to others, constituted a state interest sufficient to ground the exercise of the criminal law power, the accused contended that the absence of demonstrated harm to others deprived Parliament of the power to impose criminal liability. The Supreme Court of Canada rejected that assertion, holding that the harm principle was not the constitutional standard for what conduct might or might not be the subject of the criminal law for the purposes of section 7.⁴⁸ The Court recognized, however, that a state interest in the avoidance of harm to those subject to its laws could justify parliamentary action.⁴⁹

67Against that background, in Malmo-Levine the Supreme Court commented on the role of the elected Parliament to weigh the issue of harm when considering the criminalization of specific conduct:

We do not agree with Prowse J.A. that harm must be shown to the court's satisfaction to be "serious" and "substantial" before Parliament can impose a prohibition. Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is "not [in]significant or trivial", the precise weighing and calculation of the nature and extent of the harm is Parliament's job. Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do. A "serious and substantial" standard of review would involve the courts in micromanagement of Parliament's agenda. The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected, as will be discussed. …

However, if Parliament is otherwise acting within its jurisdiction by enacting a prohibition on the use of marihuana, it does not lose that jurisdiction just because there are other substances whose health and safety effects could arguably justify similar legislative treatment. To hold otherwise would involve the courts in not only defining the outer limits of the legislative action allowed by the Constitution but also in ordering Parliament's priorities within those limits. That is not the role of the courts under our constitutional arrangements.

Parliament may, as a matter of constitutional law, determine what is not criminal as well as what is. The choice to use the criminal law in a particular context does not require its use in any other: RJR-MacDonald, supra, at para. 50. Parliament's decision to move in one area of public health and safety without at the same time moving in other areas is not, on that account alone, arbitrary or irrational.⁵⁰

68Those comments echoed the distinction, emphasized by the Supreme Court at the outset of its decision in Malmo-Levine, about the distinction between the wisdom and the legality of legislation:

The appellants have assembled much evidence and argument attacking the wisdom of the criminalization of simple possession of marihuana. They say that the line between criminal and non-criminal conduct has been drawn inappropriately and that the evil effects of the law against marihuana outweigh the benefits, if any, associated with its prohibition. These are matters of legitimate controversy, but the outcome of that debate is not for the courts to determine. The Constitution provides no more than a framework. Challenges to the wisdom of a legislative measure within that framework should be addressed to Parliament. Our concern is solely with the issue of constitutionality. We conclude that it is within Parliament's legislative jurisdiction to criminalize the possession of marihuana should it choose to do so. Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marihuana laws that it no longer considers to be good public policy.⁵¹

69The comments made by the Supreme Court of Canada in Malmo-Levine would seem to indicate that just as the courts cannot impose a constitutional obligation on Parliament to criminalize certain conduct, so too they cannot interfere with a decision by Parliament to decriminalize certain conduct. But is the matter so clear cut? During the course of the injunction hearing I asked counsel, somewhat rhetorically, whether Parliament’s repeal of the provisions of the Criminal Code criminalizing homicide could engage judicial scrutiny under section 7 of the Charter? The repeal of our homicide laws certainly would expose Canadians to greater risks of death. Would an individual enjoy a cause of action seeking to strike down such a repeal as violating her section 7 Charter rights? Of course, if we reached that stage as a country, all notions of civilized conduct would have broken down, so I doubt that many would care what a court might say in those circumstances.

70But consider another hypothetical. What if our homicide laws were repealed in a more targeted way so as to reduce the prospect of criminal sanction where the lives of the elderly were ended without their agreement because their lives, in the view of some, were no longer worthy of living and significant health care savings would result? Would an elderly person enjoy a cause of action to strike down such a repeal because the lessened protection under the criminal laws risked a deprivation of life or security of the person? Or would some ability of Parliament to decide what conduct to criminalize or de-criminalize, without judicial review, prevent such a legal action?

71Of course the AGC’s submissions in this proceeding were not made in the context of those two hypotheticals, but by taking two extreme examples to test the constitutional logic of the AGC’s position, one perhaps is left with the view that, arguably, no absolute principle of constitutional law exists to the effect that an act of Parliament to de-criminalize certain conduct would not violate section 7 of the Charter. Perhaps it would depend upon the degree of harm to individuals which such a repeal might work.

72No appellate authority was put before me that directly dealt with this issue – i.e. whether a cause of action existed under section 7 of the Charter in respect of the repeal of legislation which previously had criminalized certain conduct. The novelty of the proposition placed before the court in this proceeding by the Clinic is a factor militating against striking out its section 7 cause of action, especially in light of the unpredictability of how appellate courts might interpret section 7 in the years ahead. One need look no further than the decision of the majority of the Supreme Court in Gosselin where they stated:

One day s. 7 may be interpreted to include positive obligations…The question therefore is not whether s. 7 has ever been - or will ever be - recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.

…With due respect for the views of my colleague Arbour J., I do not believe that there is sufficient evidence in this case to support the proposed interpretation of s. 7. I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances.⁵²

With Canada’s constitutional forest populated with living trees, how can one say with certainty that the interpretation of section 7 of the Charter advanced by the Clinic stands no hope of success?

73Although the Repealing Act does not eliminate any Criminal Code offence involving the use of firearms against a person, the Clinic has pleaded that:

Bill C-19 infringes the rights to life, liberty and security of the person by causing physical harm to women, who are the predominant victims of domestic violence. As set out above, the provisions of Bill C-19 increase the risk of physical violence, serious physical harm and homicide to women in situations of domestic violence.

In view of the absence of binding authority on the section 7 violation alleged by the Clinic and the high hurdle under Rule 21.01(1)(b) which the AGC must clear, I conclude that the AGC has not demonstrated, in a clear and convincing fashion, that the Clinic’s section 7 constitutional challenge to the validity of the repeal of the provisions of the Firearms Act concerning the registration of non-restricted firearms stands no hope of success. Since section 29 of the Repealing Act – requiring the destruction of accumulated data about non-restricted firearms in the Registry – concerns a matter inextricably connected to the operation of the registry for non-restricted firearms, the AGC’s motion to strike out that part of the application also must fail. Accordingly, I dismiss the AGC’s motion to strike out the Clinic’s section 7 claim.

D. The Clinic’s section 15 claim

D.1 The claim as pleaded

74In its Amended Notice of Application the Clinic set out the elements of its claim that the Repealing Act violated rights guaranteed by section 15 of the Charter:

q/ The provisions of Bill C-19 set out…above also violate the section 15 Charter rights of women.

r/ Bill C-19 creates a distinction based on an enumerated or analogous ground – that is, women, who are the predominant victims of domestic violence. The provisions of Bill C-19 will have a disproportionate impact on women who experience domestic violence by putting them at increased risk of injury or death due to their gender.

s/ In addition, sufficient attention has not been given to the interests of women, specifically in relation to domestic violence, in the provisions of Bill C-19.

t/ The distinction caused by Bill C-19 perpetuates prejudice. Women historically have suffered from pre-existing disadvantage and vulnerability in relation to domestic violence. This includes the pre-existing stereotype that domestic violence is a private matter not entitled to public protection.

D.2 Positions of the parties

75The position of the AGC was summarized in the following portions of its factum on the Rule 21 motion:

[83] The applicant effectively asks this Court to find that section 15 imposes a positive obligation to take steps to eliminate all disadvantage and achieve equality in a general or abstract sense. Courts have repeatedly rejected this proposition and have found that the cancellation of an existing program or benefit does not in and of itself violate the Charter. There will be a violation only if the program’s beneficiaries had a prior right under the Charter to the benefit or program in question. As noted by the Ontario Court of Appeal, “if there is no constitutional imperative for a policy in the first place, reversing it cannot be unconstitutional.”

[84] A finding of discrimination in this case would have the effect of constitutionalizing a program requiring the registration of non-restricted firearms which the government was not legally obligated to introduce in the first place. It is well-established in law that absent an independent pre-existing Charter right to a benefit or program, its withdrawal by the government does not violate the Charter.

[88] There is no positive obligation on Parliament to enact laws or otherwise take measures to combat domestic violence against women. If there is no constitutional obligation to take positive steps to redress all inequality, there cannot be a legislative distinction involved as a first step in a subsection 15(1) analysis. In this case, the effect of the repeal of a portion of legislation is that there is now no registration requirement for non-restricted firearms in the firearms program, as was the situation prior to 1998. This does not involve any distinction or any issue of equal protection of the law.

[96] In order to prove a distinction under subsection 15(1) and to succeed on this application, the applicant must establish the requisite causal connection between the repeal of the registration requirements for non-restricted firearms and an increased risk to women in situations of domestic violence. Where claimants seek to establish that a facially neutral law creates a distinction by way of an adverse impact, they bear a high evidentiary burden, particularly when the adverse impact is not self-evident, as is the case here. The focus will be on the effect of the law and the situation of the claimant group. The claimants cannot possibly meet this burden and the case should not be permitted to proceed.

76In its factum the Clinic framed the key elements of its section 15 claim as follows:

[74] … while governments may not have a general obligation under the Charter to enact new programs or to refrain from repealing whole pieces of legislation, the courts have repeatedly held that where a government does choose to put in place a particular legislative regime, it must ensure that it does so in a non-discriminatory manner. As courts have recognized, governments should not be the cause of further inequality for already disadvantaged groups.

[77] … In this case, Parliament did not repeal the whole Firearms Act but instead it eliminated the protections relating to non-restricted firearms which are the weapons most likely to be used in situations of domestic violence. By eliminating the protections relating to these firearms, and the registration requirements in particular, the government discriminated against women due to the adverse impact against them of eliminating these protections.

D.3 The applicable section 15 jurisprudence and analysis

77As the Supreme Court of Canada stated in the recent case of Withler v. Canada (Attorney General),⁵³ section 15 of the Charter is concerned with the concept of substantive equity. An analysis under section 15(1) asks two questions: (i) Does the law create a distinction based on an enumerated or analogous ground? and (ii) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? ⁵⁴

78Comparison plays a role throughout the section 15 analysis. In the first stage comparison is engaged because a claimant asserts that she is denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1):

It is unnecessary to pinpoint a particular group that precisely corresponds to the claimant group except for the personal characteristic or characteristics alleged to ground the discrimination. Provided that the claimant establishes a distinction based on one or more enumerated or analogous grounds, the claim should proceed to the second step of the analysis. ⁵⁵

79A law may make a distinction on its face on the basis of an enumerated or analogous ground. In the case of alleged indirect discrimination, the distinction requires proof that although the law purports to treat everyone the same, it has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds. In such cases the focus will be on the effect of the law and the situation of the claimant group, and the claimant likely will rely on historical or sociological disadvantage to assist in demonstrating that the law imposes a burden or denies a benefit to the claimant that is not imposed on or denied to others.⁵⁶

80At the second stage of the section 15 analysis comparison may bolster the contextual understanding of a claimant's place within a legislative scheme and society at large, thereby helping to determine whether the impugned law or decision perpetuates disadvantage or stereotyping. The probative value of such comparative evidence will depend on the circumstances.⁵⁷ As the Supreme Court stated in Withler:

The particular contextual factors relevant to the substantive equality inquiry at the second step will vary with the nature of the case. A rigid template risks consideration of irrelevant matters on the one hand, or overlooking relevant considerations on the other: Kapp. Factors such as those developed in Law - pre-existing disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected - may be helpful. However, they need not be expressly canvassed in every case in order to fully and properly determine whether a particular distinction is discriminatory… Just as there will be cases where each and every factor need not be canvassed, so too will there be cases where factors not contemplated in Law will be pertinent to the analysis. At the end of the day, all factors that are relevant to the analysis should be considered. As Wilson J. said in Turpin,

In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context.⁵⁸

81In economic benefit cases, the contextual inquiry at the second step of the section 15(1) analysis typically will focus on the purpose of the provision that is alleged to discriminate, viewed in the broader context of the scheme as a whole. A court will ask whether the lines drawn by a law are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme. As the Supreme Court observed in Withler: “Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required. Allocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered.”⁵⁹

82The Clinic’s Amended Notice of Application pleads that the Repealing Act creates a distinction based on gender, albeit one consisting of indirect discrimination or disproportionate effect on women who experience domestic violence. The application also pleads that the Repealing Act perpetuates prejudice because women historically have suffered from pre-existing disadvantage and vulnerability in relation to domestic violence: “This includes the pre-existing stereotype that domestic violence is a private matter not entitled to public protection.” In these respects the Clinic has pleaded the constituent elements of a claim alleging a violation of section 15(1) of the Charter.

83The AGC submitted, however, that:

The applicant effectively asks this Court to find that section 15 imposes a positive obligation to take steps to eliminate all disadvantage and achieve equality in a general or abstract sense. Courts have repeatedly rejected this proposition and have found that the cancellation of an existing program or benefit does not in and of itself violate the Charter. There will be a violation only if the program’s beneficiaries had a prior right under the Charter to the benefit or program in question.

84The AGC pointed to the decision of our Court of Appeal in Ferrel v. Ontario (Attorney General)⁶⁰ which considered a challenge under section 15(1) of the Charter to an act that repealed provincial employment equity legislation. In his decision Morden A.C.J.O, writing for the Court, stated:

I do not think that in arriving at an ultimate conclusion on the validity of the repeal of the Employment Equity Act, 1993 one can properly ignore the question of whether there was a constitutional obligation to enact this Act in the first place.⁶¹

Later in his reasons Morden A.C.J.O. elaborated his thinking on this point:

If there is no constitutional obligation to enact the 1993 Act in the first place I think that it is implicit, as far as the requirements of the constitution are concerned, that the legislature is free to return the state of the statute book to what it was before the 1993 Act, without being obligated to justify the repealing statute under section 1 of the Charter. If this is so, it cannot be said that there is any legislative distinction involved as a first step in a s. 15(1) analysis. The effect of the repeal is that there is, as was the case before the enactment of the 1993 Act, no mandatory affirmative action law operating in the area of employment. This does not create or involve any distinction or any issue of equal protection of the law - and the effect is not a distinction which results from an underinclusive law exemplified in such cases as Eldridge and Vriend.⁶²

Although not expressing a “determinate conclusion” on whether section 15(1) imposed a positive duty on legislatures to enact legislation to combat systemic discrimination in employment, based upon his review of the jurisprudence Morden A.C.J.O. expressed his “present view” that no such obligation existed.⁶³

85The Clinic attempted to distinguish the reasoning of the Court of Appeal in Ferrel by relying on an earlier decision of this Court which had considered an amendment to provincial pay equity legislation – Service Employees International Union, Local 204 v. Ontario (Attorney General).⁶⁴ The pay equity regime in place at the time had authorized three methods of conducting job pay comparisons. A newly elected government enacted a regulation which discontinued the use of one of the three methods – the proxy method – and capped the amounts of pay adjustments applicable to the class of employees for whom the proxy method had been used – i.e. workplaces filled almost exclusively by women and for whom job-to-job comparisons with male employees was not possible. O’Leary J. held that the removal of the proxy method resulted in prejudicial differential treatment based on gender for pay equity and he found that the differential treatment was not justified under section 1 of the Charter.⁶⁵

86The Clinic argued that Ferrel involved the repeal of an entire piece of legislation. By contrast, in SEIU the Court found that the repeal of part of a piece of legislation could violate section 15(1) of the Charter. The Clinic contended that the Repealing Act resembled the partial repeal legislation in SEIU, not the entire repeal legislation in Ferrel, because it left in place the registration requirements for prohibited and restricted firearms. I have difficulty with that argument for two reasons. First, the Court of Appeal decided Ferrel after the decision of this court in SEIU, yet it made no such distinction in its reasons. Second, at the heart of the SEIU case was the allegation that the repealing legislation resulted in under-inclusiveness with respect to a group of human beings – the female employees who worked in an exclusively female environment and for whom the proxy method had been adopted. In this case the Repealing Act does not result in under-inclusiveness with respect to a group of human beings – everyone, male or female, may be subject to the consequential effects of doing away with the requirement to register non-restricted firearms. Instead, the Repealing Act results in a legislative regime which is under-inclusive with respect to things – i.e. prohibited and restricted firearms must be registered, but not non-restricted firearms.

87That said, a liberal reading of the Clinic’s Amended Notice of Application suggests that the applicant intends to prove, with admissible evidence, that the Repealing Act will have a disproportionate impact on women by putting them at increased risk of injury or death due to their gender. Although the legislative conduct in Ferrel closely resembles that involved in this case, Ferrel did not involve public safety legislation; it only dealt with economic legislation. Personal safety is a more important constitutional interest than money, as our Constitution is drafted, and, again, no appellate authority was put before me that directly dealt with this issue – i.e. whether a cause of action existed under section 15 of the Charter in respect of the repeal of legislation which previously had criminalized certain conduct. Just as in the case of the Clinic’s section 7 claim, the novelty of the proposition placed before the court in this proceeding is a factor militating against striking out the Clinic’s section 15 cause of action. In view of the absence of binding authority on the section 15 violation alleged by the Clinic and the high hurdle under Rule 21.01(1)(b) which the AGC must clear, I conclude that the AGC has not demonstrated, in a clear and convincing fashion, that the Clinic’s section 15 constitutional challenge to the validity of the repeal of the provisions of the Firearms Act concerning the registration of non-restricted firearms stands no hope of success. Accordingly, I dismiss the AGC’s motion to strike out the Clinic’s section 15 claim.

E. Summary on Rule 21 motion

88For the reasons set out above, I dismiss the motion of the AGC seeking to strike out the Clinic’s application under Rules 21.01(1)(b) and 21.01(3)(a).

V. CLINIC’S MOTION FOR AN INTERLOCUTORY INJUNCTION

A. The interlocutory relief sought

89In its Amended Notice of Motion the Clinic sought several kinds of interlocutory orders against the Respondents until the final resolution of the application:

(i) orders restraining the respondents from destroying all data contained in the Canadian Firearms Registry, requiring them to preserve the integrity, accessibility and availability of all such data and requiring them to preserve any equipment required to access such data;

(ii) an order requiring the Respondents to permit legally entitled persons to access the data contained in the Canadian Firearms Registry and to continue the employment of all staff necessary to permit legally entitled persons to access the data contained in the Registry; and,

(iii) an order requiring the Respondents to continue to register every transfer of a firearm which is neither prohibited nor restricted (“non-restricted”) until the final resolution of this Application.

As can be seen, the interlocutory injunctive relief sought by the Clinic goes beyond simply preserving previously collected data in the Registry to requiring the continued operation of the Registry with respect to the access to data and the registration of the transfers of non-restricted firearms.

B. The positions of the parties

90The AGC, the Commissioner of Firearms and the Registrar of Firearms opposed the Clinic’s request. The respondent, the Chief Firearms Officer, an employee of the Ontario provincial government, took no position on the motion. The intervenor, the City of Toronto, supported the Clinic’s injunction request.

C. The governing legal principles

91In Corp. of the Canadian Civil Liberties Assn. v. Toronto (City) Police Service⁶⁶ I attempted to summarize the general principles applicable to requests for interlocutory injunctions in Charter cases:

The test articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) remains the one to be applied on motions for interlocutory injunctions containing claims under the Charter:

77 As indicated in Metropolitan Stores, the three-part American Cyanamid test should be applied to applications for interlocutory injunctions and as well for stays in both private law and Charter cases.

78 At the first stage, an applicant for interlocutory relief in a Charter case must demonstrate a serious question to be tried. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. The fact that an appellate court has granted leave in the main action is, of course, a relevant and weighty consideration, as is any judgment on the merits which has been rendered, although neither is necessarily conclusive of the matter. A motions court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statute can be determined as a pure question of law. Instances of this sort will be exceedingly rare. Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test.

79 At the second stage the applicant must convince the court that it will suffer irreparable harm if the relief is not granted. 'Irreparable' refers to the nature of the harm rather than its magnitude. In Charter cases, even quantifiable financial loss relied upon by an applicant may be considered irreparable harm so long as it is unclear that such loss could be recovered at the time of a decision on the merits.

80 The third branch of the test, requiring an assessment of the balance of inconvenience, will often determine the result in applications involving Charter rights. In addition to the damage each party alleges it will suffer, the interest of the public must be taken into account. The effect a decision on the application will have upon the public interest may be relied upon by either party. These public interest considerations will carry less weight in exemption cases than in suspension cases. When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.

It is worth repeating that in RJR-MacDonald the Supreme Court of Canada acknowledged that “the complex nature of most constitutional rights means that a motions court will rarely have the time to engage in the requisite extensive analysis of the merits of the applicant’s claim.” Consequently:

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.

In light of the “relatively low threshold of the first test and the difficulties in applying the test of irreparable harm in Charter cases”, the Supreme Court of Canada has recognized that many interlocutory proceedings fall to be decided on the third branch of the test – the balance of convenience, or balance of inconvenience.

Justice Sharpe, in his leading text on injunctions, offers the following summary of the jurisprudence involving requests for injunctions in Charter cases:

The net effect of Metropolitan Stores and RJR-Macdonald is that interlocutory injunctions will be difficult to obtain in constitutional litigation. There appear to be three situations where interlocutory relief may receive favourable consideration. First are those cases where a pure question of law is presented and the court can as readily decide that issue on an interlocutory application as at trial although the court has said that these cases will be rare. The second is where circumstances giving rise to the litigation are so urgent and transient that the constitutional claim will never be adjudicated upon the merits unless the matter is resolved at the interlocutory stage. Third are the exemption cases where the law or regulation at issue applies to a limited number of individuals and no significant public harm would be suffered…

VI. Does a serious question to be tried exist?

A. The Québec injunction proceedings

92Before turning the evidence filed on this motion, I should consider the effect on this proceeding of the decisions of the Quebec Superior Court of Justice in the matter of Québec (Procureur général) c. Canada (Procureur général). On April 20, 2012 the Québec Superior Court granted interlocutory injunctions which required the AGC to maintain for the duration of the litigation the integrity of, access to and the availability of the computer system housing the general firearms registry and to continue to register any transfer of a non-restricted firearm related to a Quebec resident or a non-restricted firearm in Québec. In effect, the interlocutory injunction prevented the AGC from implementing section 29 of the Repealing Act in Québec. Then, on September 10, 2012, that Court granted declaratory relief which, in essence, turned the interlocutory injunction into a permanent one.

93The Clinic placed much weight on these two decisions and submitted that I should follow them.

94The nature of the legal claim before the Québec Superior Court differed materially from that advanced by the Clinic in its application and motion. In Québec the provincial government expressed its desire to establish its own registry for non-restricted firearms and the government sought to preserve the integrity of the data contained in the existing Registry, as it related to licenses and registrations in Québec, pending its ability to get a new registry up and running. As I read the decisions of the Québec Superior Court, the provincial government, relying on bilateral agreements with the federal government, asserted a joint ownership right in the data contained in the Registry, and it took the position that in light of such joint ownership, the federal government could not destroy unilaterally such data. Blanchard J. accepted the position put forward by the Québec government. His analysis focused on principles of federalism and their consequences. Blanchard J. was not asked to adjudicate any Charter claims.

95In his recent decision Blanchard J. found that Québec enjoyed an interest in the data concerning non-registered firearms contained in the Registry:

[148] Tel qu'énoncé précédemment, les données consignées au registre découlent d'un partenariat avec les provinces et, pour le Québec, l'Accord en balise, d'une certaine façon, le traitement.

[149] Il n'existe pas de « propriétaire » de ces données et elles ne relèvent pas d'une seule juridiction. Il s'ensuit que le Québec peut obtenir ces données.⁶⁷

He found that the destruction of Registry data would impede Québec’s efforts to set up its own provincial registry:

[142] Les effets juridiques et pratiques de l'article 29 de C-19 se révélant identiques : la destruction des données empêche leur transfert et leur utilisation pour toute province. Cela heurte de plein fouet le désir du Québec de maintenir un registre à jour pour les armes d'épaules;

[150] En effet, en appliquant les principes d'interprétation constitutionnelle énoncés auparavant, on peut assurément et raisonnablement conclure que l'article 29 de C-19 :

• participe à la négation de l'équilibre constitutionnel juste et fonctionnel entre le Canada et le Québec;

• nuit de façon importante à la capacité du Québec de réglementer la propriété et les droits civils relativement aux armes à feu;

• constitue une tentative directe pour empêcher une province d'exercer un domaine de sa compétence constitutionnelle;

• crée de facto l'équivalent d'un vide juridique en établissant des compartiments étanches entre les compétences provinciales et fédérale;

• va à l'encontre de l'intérêt public notamment en empêchant la coordination entre les régimes législatifs fédéral et provincial.

That led Blanchard J. to grant the following declaratory relief:

POUR CES MOTIFS, LE TRIBUNAL :

[194] DÉCLARE inopérant l'article 29 de la Loi modifiant le Code criminel et la Loi sur les armes à feu uniquement quant aux données provenant du Québec ou celles concernant les citoyens de cette province et ceux qui s'y trouvent ainsi que ceux qui y commettent des événements impliquant une arme à feu contenues dans tous les fichiers ou registres relatifs à l'enregistrement des armes à feu autre que les armes à feu prohibées ou les armes à feu à autorisation restreinte qui se trouvent au registre canadien des armes à feu qui relèvent d'eux.

[195] DÉCLARE que le Procureur général du Québec est en droit de recevoir du Procureur général du Canada, du Commissaire aux armes à feu et du Directeur de l'enregistrement, dans un délai de trente (30) jours du jugement final, toutes les données provenant du Québec ou celles concernant les citoyens de cette province et ceux qui s'y trouvent ainsi que ceux qui y commettent des événements impliquant une arme à feu contenues dans tous les fichiers ou registres relatifs à l'enregistrement des armes à feu autre que les armes à feu prohibées ou les armes à feu à autorisation restreinte qui se trouvent au registre canadien des armes à feu qui relèvent d'eux.

[196] DÉCLARE que le Procureur général du Canada et le Directeur de l'enregistrement doivent continuer d'enregistrer jusqu'au transfert des données, ou au plus tard dans un délai de trente (30) jours du jugement final, toute cession d'une arme à feu sans restriction qui se rapporte à un résident du Québec ou à une arme à feu sans restriction qui s'y trouve.

[197] DÉCLARE que l'article 11 de la Loi sur l'abolition du registre des armes d'épaule est sans effet à l'égard de l'enregistrement des armes à feu sans restriction, et ce uniquement quant au dispositif du présent jugement…

96In the present case the Ontario government has not sought to preserve the Registry’s non-restricted firearms data for its own use. The Clinic, instead, asserts Charter-based claims. Given that the legal basis of the Clinic’s claims differ materially from the federalism claims considered by the Québec Superior Court, the decisions of that Court provide little guidance for the determination of the Clinic’s claim for a Charter-based injunction.

B. The section 7 Charter claim

B.1 Preliminary considerations

97In oral submissions AGC counsel argued that the Clinic’s application was frivolous and vexatious, as those concepts are understood at law for the purposes of assessing whether there exists a serious question to be tried. That submission requires some review of the evidence in order to assess, in a preliminary way, the strength of the Clinic’s case.

98In considering the AGC’s motion to strike out the application I concluded that the AGC had failed to demonstrate the Clinic’s legal claims enjoyed no chance of success. At the same time, I observed that the Clinic’s legal claims were novel and went against the grain of existing jurisprudence under both sections 7 and 15(1) of the Charter to the effect that a legislature was not required, as a matter of constitutional law, to enact laws to provide protections or benefits to people, and that the decision to criminalize or de-criminalize conduct generally was one left to Parliament. I noted that the unpredictability associated with Charter jurisprudence made it difficult for a lower court to state, in any definitive manner, that a novel claim would not succeed. Although those conclusions were sufficient to reject the AGC’s motion to dismiss, they did not indicate that the Clinic was advancing a strong claim at law. Quite the contrary. In my view, the Clinic’s legal argument runs counter to the weight of existing jurisprudence which I canvassed at length in the Rule 21 section of these Reasons. In a very real sense it must persuade the courts to make new law or, at least, to extend general Charter principles into an area not previously dealt with by the courts.

99On the Rule 21 motion I was required, by the law, to accept the factual assertions put forward by the Clinic as capable of proof at trial. By contrast, on the injunction motion the factual assertions advanced by the Clinic must undergo some degree of scrutiny, making allowance for the possibility of further evidence as the case develops. That said, on an injunction a moving party must put its “best foot forward” to the extent possible given the time constraints under which interlocutory injunctions usually are brought. I would note that the Clinic’s injunction motion does not fall into the category of one in which exigent circumstances necessitated going to court only a few days after learning about the conduct sought to be restrained. The Repealing Act underwent the standard multi-stage passage through Parliament; the timing of its enactment was foreseeable to a certain degree. Further, close to four months elapsed between the commencement of this application and the hearing of the injunction motion. Time did exist to create a record. The strength of the Clinic’s case therefore must take into account the fact that this applicant enjoyed more time than normally exists on an interlocutory injunction to prepare its record.

100Finally, whereas the Rule 21 analysis did not address the issue of causation, accepting that the Clinic could prove its factual allegations at the main hearing on the merits, causation plays some role in the assessment of the strength of the Clinic’s case for the purpose of considering its injunction request.

B.2 Applicable principles of causation

101The need for a Charter claimant to establish some causal link between the government action at issue and the harm about which the claimant complains has been discussed in several Supreme Court of Canada cases. In Operation Dismantle Inc. v. Canada the Supreme Court stated:

I do not believe the action impugned in the present case can be characterized as contrary to the duties of the executive under the Charter. Section 7 of the Charter cannot reasonably be read as imposing a duty on the government to refrain from those acts which might lead to consequences that deprive or threaten to deprive individuals of their life and security of the person. A duty of the federal cabinet cannot arise on the basis of speculation and hypothesis about possible effects of government action. Such a duty only arises, in my view, where it can be said that a deprivation of life and security of the person could be proven to result from the impugned government act.⁶⁸

More recently, in Chaoulli, Chief Justice McLachlin and Major J. wrote:

In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person’s liberty and security, the more clear must be the connection. Where the individual’s very life may be at stake, the reasonable person would expect a clear connection, in theory and in fact, between the measure that puts life at risk and the legislative goals.⁶⁹

102The recent decision of the Court of Appeal in Bedford is instructive for present purposes in that it described the nature of the causal analysis required when a claimant alleges that crime-creating legislation interferes with section 7 rights. The Court of Appeal stated that in those circumstances the causation analysis should proceed as follows:

When a court is required to decide whether there is a sufficient connection between crime-creating legislation and an alleged interference with an individual's right to security of the person, the court must examine the effect of that legislation in the world in which it actually operates. This assessment is a practical and pragmatic one.

The court must first determine what it is that the legislation prohibits or requires. This is essentially an exercise in statutory interpretation. The court must next determine how the statutory prohibition or requirement impacts on those who claim to have suffered a limitation on their right to security of the person because of the legislation. Finally, the court must take the impact of the legislation as it is found to be, and determine whether that impact limits or otherwise interferes with an individual interest protected by the concept of security of the person. The second and third determinations outlined above require findings of fact. In litigation where the constitutionality of legislation is challenged, those findings will usually be based on a blending of adjudicative facts, social or legislative facts, judicial notice and common sense inferences. This record contains all those elements.⁷⁰

103In sum, in Bedford the Court of Appeal sketched the following paradigm in which to examine a claim that enacted crime-creating legislation interferes with an individual’s right to security of the person:

(i) Identify what conduct the legislation prohibits or requires;

(ii) Determine how the statutory prohibition or requirement impacts those who claim to have suffered a limitation on their right to security of the person because of the legislation; and,

(iii) Taking the impact of the legislation as it is found to be, determine whether that impact limits or otherwise interferes with an individual interest protected by the concept of security of the person.

104How does one apply this type of causation analysis to the section 7 claims asserted by the Clinic? In regards to section 29 of the Repealing Act which imposes an obligation on the Commissioner of Firearms to destroy records, one could go through each of the three steps identified by the Court of Appeal, but the section only imposes obligations on a government official, not on a member of the public. With regards to the rest of the Repealing Act which the Clinic challenges, how does one undertake the causation analysis described in Bedford where the statute in question does not enact a prohibition or requirement on persons, but simply de-criminalizes a class of conduct? To put the question that way highlights a fundamental difficulty with the Clinic’s legal claim in that it essentially seeks to find that Parliament is obligated, as a matter of constitutional law, to criminalize certain conduct.

105In the injunction decision in the Ferrel case, which also involved a Charter challenge to the repeal of legislation, this Court dealt with that issue by finding that the applicant had not met the threshold test of demonstrating the existence of a serious question to be tried, and it refused to grant an injunction suspending the operation of the repealing act which included a directive to destroy data collected under the previous legislation. MacPherson J. (as he then was) wrote:

I acknowledge that “the threshold is a low one” for this component of the test…I do not think the Applicants meet this threshold. The problem with the Applicants’ position is that Bill 8 is a repealing statute. It repeals a statute, and several provisions in other statutes, enacted by a previous legislature. It does not enact any new substantive provisions that can be measured against the Charter, including s. 15. The purpose of the Charter is to ensure that governments comply with the Charter when they make laws. The Charter does not go further and require that governments enact laws to remedy societal problems, including problems of inequality and discrimination. One can hope that governments will regard this as part of their mission; however, the Charter does not impose this mission at the high level of constitutional obligation – section 32 of the Charter states that the Charter applies to governments. Governments speak through laws, regulations and practices. In Ontario, the current legislature has decided not to speak in the domain of employment equity. It has decided to leave this, at least for the time being, to the realm of private activity. Although many people including the Applicants may regret and oppose this decision, the legislature is entitled to make it…⁷¹

106Against that background, let me turn to consider the evidence. The parties adduced on the motion several different types of evidence: (i) statistical evidence about the incidence of the use of firearms in certain offences; (ii) statements about the effectiveness of the Registry made by law-enforcement officials and organizations; and (iii) the evidence of the Clinic’s Executive Director and Jane Doe.

B.3 Statistical evidence

107The universal registration system for all firearms was enacted by the 1995 Firearms Act, but the registration requirements did not commence until 1998 and were not implemented fully until January 1, 2003. The Clinic adduced in evidence reports about the use of firearms in violent crimes, including spousal homicides, both before and after the enactment of the 1995 Firearms Act.

Statistical reports up to 1995

108In 1992 the Department of Justice Canada published a working document, “Domestic Homicides Involving the Use of Firearms”, which reported on information for 1989 and 1990.⁷² The document reported that since 1975 there had been “a modestly declining trend in the number of victims” of domestic homicides involving firearms: “domestic homicides with firearms have exhibited a sharper decline in recent years than homicides in general”. The data for 1989 and 1990 showed that handguns were used in 15% of domestic homicides, shotguns in 31% and rifles in 53%. More than half of the handguns used were not in the legal possession of the accused prior to the incident; police respondents reported that in most cases involving rifles and shotguns, they were not aware of any gun violation by the accused.

109The recommendations of the authors of the 1992 report focused on tightening the licensing requirements for firearms by requiring applicants to disclose previous criminal convictions and the receipt of mental health treatment, as well as better reporting of domestic violence occurrences to the police.

110A 1995 Statistics Canada publication, “Weapons and Violent Crime”,⁷³ reported that the majority of violent crimes victims did not encounter a weapon - violent crimes consisting mainly of homicide, attempted murder, assaults, sexual assaults and robberies. Assaults made up most of that violent crime. The same proportions of males and females were victims of violent crimes (50%):

Overall, while males and females were both likely to encounter the same types of weapons during a violent incident, slightly more males encountered assailants armed with firearms, knives and blunt objects (14% and 6% respectively), while a slightly higher proportion of females faced unarmed assailants (74% versus 69%).

111The publication continued by noting that in 1995 homicides generally accounted for a very small proportion of all violent crime (less than 1%), and firearm homicides represented only a small proportion of all annual firearm deaths in Canada – 13% - while suicides accounted for 81% of all firearm deaths and accidents the remaining 6%. Between 1991 and 1995 both the national homicide and firearm homicide rates declined, but the use of handguns in homicides had increased since 1991, with handguns used in half of all firearm homicides, while rifles and shotguns were used in 37%.

112The 1995 publication reported that when looking at homicide in general, the majority of victims were male - males comprised two-thirds of homicide victims. Male homicide victims were more likely to face a firearm or sharp object, while females were more likely to encounter blunt objects or physical force. Females more commonly were victims in cases of spousal homicides – i.e. homicides involving people in registered marriages, common-law unions, as well as those separated or divorced from such unions. The 1995 publication stated:

In 1995, almost one of every six solved homicide cases involved a victim killed by a spouse or ex-spouse. In 1995, as in previous years, three-quarters of spousal homicide victims were women. While these women were slightly more likely to be stabbed than shot in 1995, prior to this time, shooting was the most common cause of death…In fact, between 1985 and 1995, the large majority of victims in spousal homicides involving a firearm were women (86%).

The use of firearms in all spousal homicides has declined slightly, from 36% of victims between 1985 and 1994 to 28% by 1995. Patterns in the types of firearms used, however, have not changed. For example, between 1985 and 1995, by far the most common type of firearms used by both husbands and wives were rifles and shotguns (71%). A further 24% of spousal homicides involved handguns, while 4% involved sawed-off firearms and 1% involved other types of firearms.

Statistical reports after 1995

113The 2009 Report of the Commissioner of Firearms⁷⁴ reported on “crime guns”, that is any firearm which was used or suspected to have been used in a crime, was illegally possessed, or had an obliterated serial number. Of the 4,083 “crime guns” in 2009, 1,619 (40%) were non-restricted firearms, 28% were prohibited, and 22% were restricted firearms. Unregistered non-restricted firearms would appear to fall within the category of “crime gun”

114In 2010 the RCMP Canadian Firearms Program released a Program Evaluation. Part of the Program involves operating the repository for firearm licence and registration information. In its Evaluation the RCMP observed that under the 1995 Firearms Act individuals had been given until January 1, 2003 to register their firearms.⁷⁵ The statistics reported in the Evaluation to which the parties pointed in their submissions included the following:

(i) Homicides involving firearms dipped slightly after 2001, but returned to the same level by 2004;⁷⁶

(ii) The use of long-guns in homicides decreased slightly over that period (72% to 69%), while the use of handguns increased slightly (25% to 26%);⁷⁷

(iii) As a national average, handguns were the preferred firearm for homicide, however long-guns were used in approximately one-third of homicides;

(iv) The Evaluation stated: “Recent findings also show that the spousal homicide rates have declined significantly, particularly with respect to long guns.”⁷⁸

115Support for that last statement was set out in a chart recording the victims of spousal homicide committed with firearms, by type of firearm, for the period 1996 to 2007.⁷⁹ Most victims of spousal homicide were women. As with any set of statistical data different conclusions can be drawn depending upon how one views the data. On an overall basis, spousal homicides using firearms declined from 27 deaths in 1996 to 9 in 2007; welcome news indeed. It is unfortunate that the data did not extend further because the 9 deaths recorded in 2007 represented the only year in the period under review when spousal homicides reached a single digit. From 1996 until 2002, just prior to the full implementation of the non-restricted firearm registration requirements, spousal homicides fell from 27 deaths to 16 deaths; the level then fluctuated between 16 and 23 from 2003 to 2006, before falling to 9 in 2007. The Evaluation did not contain data identifying how many spousal homicides were committed with unregistered firearms and how many resulted from the use of registered firearms.

116Spousal homicides using a rifle or shotgun fell from 20 in 1996 to 6 in 2007, but the number had already fallen to 10 by 2002, fell further to 7 in 2004, rose to 14, fell to 9, then declined to 6 in 2007. As a percentage of total spousal homicides, rifles and shotguns caused 74% of spousal homicides in 1996, declined to 62% in 2002, then rose to 67% in 2007.

117In 2011 Statistics Canada published “Family Violence in Canada: A Statistical Profile”.⁸⁰ As noted above, in 1995 it was reported that almost one of every six solved homicide cases (16%) involved a victim killed by a spouse or ex-spouse. The 2011 report stated that between 2000 and 2009 spousal homicides accounted for 16% of all solved homicides. As to the trend in the frequency of spousal homicide, the 2011 report stated:

Following nearly three decades of general decline, the spousal homicide rate remained stable in 2009 for the third consecutive year…The rate of 3.5 victims per million spouses in 2009 was 44% lower than 30 years ago. Some research has suggested that more equitable male to female employment ratios, increasing levels of education and higher rates of divorce may have contributed to the long-term decline in spousal homicide rates…

While males were more likely to be the victims of homicide, females were more likely to be the victims of family-related homicide, particularly spousal homicide. Over the past 30 years, the rate of spousal homicides against females has consistently been about three to four times higher than that for males…

118As to the use of particular methods to commit spousal homicide, the 2011 report stated that throughout the past decade the most commonly used methods to commit spousal homicide against a female victim were: stabbings (32%); shooting (26%); strangulation, suffocation or drowning (22%); and, beatings (16%). More generally, the report stated:

The use of firearms, particularly rifles and shotguns, during the commission of spousal homicides has dropped steadily over the past 30 years. The rate for spousal homicides involving firearms fell 74% from nearly 3 per million spouses in 1980 to less than 1 per million spouses in 2009…Nevertheless, shootings were the cause of death in nearly one-quarter (23%) of spousal homicides between 2000 and 2009, second only to stabbings (41%).

119The Clinic submitted that I should take into account certain findings of fact made by Blanchard J. in his preliminary injunction reasons, which he adopted in his more recent final judgment. Specifically, the Clinic argued that I should accept the following findings of fact:

[16] La preuve non contredite montre que les armes d'épaule constituent plus de 90% des armes à feu enregistrées au Québec et que le commerce de celles-ci s'avère une préoccupation provinciale. En effet, selon cette preuve de sécurité publique, depuis qu'il existe l'obligation de les enregistrer, on constate :

• Une baisse de la criminalité associée aux armes à feu;

• Q'on répertorie moins d'homicides conjugaux perpétrés par une arme à feu;

• Que les suicides commis au moyen d'une arme à feu sont moins nombreux;

• Que le nombre d'homicides commis à l'aide d'une arme d'épaule a chuté de 30%...

I do not know what evidence was before Blanchard J. I can only decide this motion on the evidence adduced before me.

B.4 Statements about the effectiveness of the Registry made by law-enforcement officials and organizations

Public agency documents

120The 2010 RCMP Evaluation found that firearms registration “is a critical component of the entire firearms program. The program, as a whole, is an important tool for law enforcement.”⁸¹ The Report stated that the firearms Registry was a useful tool for law enforcement because it provided, in part, “improved public safety: (seizure of firearms in situations of domestic or mental health.)” The Evaluation regarded registration as a driver of accountability by firearms owners,⁸² and commented that “the registry is a law enforcement tool for seizing firearms during domestic disputes and it allows police to know about other firearms that may not be registered.”⁸³ The Evaluation recommended “that the existing full registry be maintained as part of the Canadian Firearms Program in order to increase the non-restricted firearms compliance rates in accordance with current legislation.”⁸⁴

121In May, 2010 the Canadian Association of Police Boards, the Canadian Police Association and the Canadian Association of Chiefs of Police issued a joint statement supporting the licensing of firearms owners as well as the registration of all firearms.

122On May 19, 2011, Police Chief William Blair, President of the Canadian Association of Chiefs of Police, wrote to the Minister of Public Safety Canada about the proposed amendments to the Firearms Act. Chief Blair observed that “the current requirement to renew [firearms] licences every five years is a key component of the managing these risks, because it allows a fresh look at applicants’ family situations and other risk factors on a regular basis.” Although recognizing the government’s intention to repeal the registration requirements for non-restricted firearms, Chief Blair made several proposals to the Minister:

(i) preserve the existing data for registered non-restricted firearms under the control of the RCMP so that it would remain available to all Canadian police through CPIC;

(ii) re-institute the requirements for businesses to keep records of the sales of non-restricted firearms from the importer through to the first retail sale; and,

(iii) require transferors of non-restricted firearms to confirm the validity of the purchaser’s licence with the RCMP.

The government did not accept those recommendations from the Association.

123The record on the motion also contained several extracts of evidence given by police officers during the course of Parliamentary hearings on Bill C-19 in which the officers disputed the effectiveness of the long-gun registry and testified that the true cornerstone of public safety is the training, screening and licensing of owners, not registering long-guns.⁸⁵

The expert evidence of Mr. Carlson adduced by the Clinic

124The Clinic filed an affidavit from Douglas Carlson, a retired Ontario Provincial Police officer, whom it tendered as an expert witness. It is clear from Mr. Carlson’s affidavit that over the years he developed extensive experience with the administration of the Firearms Act, including a six-year tenure as the Area Firearms Officer for the Northwest region of Ontario. Mr. Carlson summarized his opinions in the following portions of his affidavit filed on the motion:

The removal of the registration requirements for non-restricted firearms will negatively affect the integrity of the entire firearms system. Individuals will not be accountable for their firearms and firearms will more easily fall into the wrong hands. It will be much more difficult for police to remove all firearms from individuals who pose a domestic violence threat. I firmly believe that the changes to the system brought about by Bill C-19 will result in the death of women who are subject to domestic violence.

In short, the removal of the registration requirements for non-restricted firearms impacts the integrity of the entire Firearms Act. Without being able to assign an individual to each firearm, it makes it much more difficult to enforce almost every aspect of the legislation, including those aspects which are of most significance to women who live in situations of domestic violence.

125As I read his evidence Mr. Carlson offered discrete opinions on two issues: (i) the prudence of the Repealing Act, and (ii) the impact of the Repealing Act on the safety of women who find themselves in situations of domestic violence. In respect of the prudence of the Repealing Act, Mr. Carlson appended the May 19, 2011 letter to the Minister of Public Safety Canada from Chief Blair. From the perspective of police officers involved in responding to calls to attend situations where violence might be occurring, Mr. Carlson deposed:

[T]he firearms registry was an extremely important tool which provided us with detailed information to ensure we were aware of all firearms owned by an individual, even those which were hidden. It made us more effective in removing all firearms from persons we deemed dangerous.

126As to the impact of the Repealing Act on the occurrence of, and investigation of, domestic violence, Mr. Carlson offered several opinions:

(i) Ability of the police to remove firearms from a scene of domestic violence

As a police officer who was involved in criminal investigations for many years, I am very aware that firearms violence often occurs at the spur of the moment and in the heat of passion, simply because a firearm is available. In my opinion, the registration requirements for non-restricted firearms made the police more effective in removing firearms from situations of domestic violence and decreased the risk of harm, including fatalities, to victims of domestic violence.

(ii) Enhancing accountability of the owners of non-restricted firearms

It is also my opinion that the registration requirements for non-restricted firearms ensure that individuals are more accountable for their non-restricted firearms. This also reduces the risk of harm in situations of domestic violence.

Without registration requirements, it is easier for individuals to loan or transfer a non-restricted firearm to an unlicensed individual, who has not been vetted for safety concerns…This is important in the context of domestic violence. If unlicensed individuals are able to obtain firearms, women will be at greater risk…There is no doubt in my mind that without the accountability of an individual attached to each non-restricted firearm, those firearms will end up in the hands of individuals who should not possess them for reasons of public safety…In my opinion, safe storage requirements, which can be enforced against the individual to whom a firearm is registered, reduce the risk of this type of [domestic violence] incident.

B.5 Other evidence filed by the Clinic

Evidence of Amanda Dale, Executive Director of the Clinic

127The Clinic’s executive director, Ms. Dale, described in her affidavit why the Clinic is seeking the injunction:

An injunction is necessary to ensure that the current gun registry records are not destroyed prior to the Court’s decision in the Application, to allow the continued collection of information regarding non-restricted firearms pending the hearing of the Application, and to protect women and the general public until the decision in the Application. Based on the RCMP's "Bill C-19 Implementation Plan Summary" (Exhibit "A"), I am deeply concerned that the Respondents could act hastily and destroy the existing records found in the Canadian Firearms Registry prior to the Court’s decision in the Application.

I am not aware of any reason other than politics why it would be urgent for the Respondents to delete the existing registry data. I also am not aware of any harm to the Respondents from being required to delay the deletion of the existing registry data until the resolution of the Application.

Evidence of Jane Doe

128In support of its motion for an injunction the Clinic filed an affidavit from Jane Doe, a retired teacher, who, until April, 2011, lived on a farm with her second husband. Her husband’s health had been deteriorating, including early Alzheimer’s, and at the time of an incident last year, which she described in her affidavit, he was mostly confined to a wheelchair, although he was capable of walking.

129Last spring her husband threatened to harm himself with firearms he possessed in their house. Jane Doe had been unaware of their existence, although aware of the existence of a firearm at their farm. After consulting their family physician, Jane Doe called the police who took her husband to the hospital for assessment. The police then searched the house for firearms. They found five certificates for the registration of firearms, but could only locate four firearms. Jane Doe deposed that “at least one of the guns appeared to be a long gun”.

130Jane Doe stated that a few days after her husband returned from the hospital, he “picked up his cane and attempted to strike me with it violently.” She avoided the blow and left the house, never to return. Several days later Jane Doe returned to the house with the police to search for the missing firearm. It was not found.

131Jane Doe now lives apart from her husband, and she has not disclosed her location to her husband:

Since leaving my husband, I have moved into my own apartment. I have been very conscious of keeping my whereabouts secret and secure from John Doe. I moved into a building which appeared to me to be difficult to access by a wheelchair. I have an unlisted phone number and my name does not appear at the front lobby buzzer for my building. The superintendent of my building has a photo of John Doe and is aware of the circumstances. Again, if it were not for the missing gun, which to my knowledge has not been located to this day, I would not have taken such careful measures to protect my safety since leaving my husband.

132As I understand Jane Doe’s evidence, the missing firearm was registered under the Firearms Act. Jane Doe stated that notwithstanding the provisions of that act, she had not received notice of her husband’s application for a licence:

I recently have become aware of and have reviewed the application forms for a licence and to renew a licence under the Firearms Act. I see that the forms require signature from a spouse. I do not recall ever having seen or signing one of these forms.

Unfortunately Jane Doe’s affidavit did not disclose the dates of those application and renewal forms, specifically whether they had preceded or followed the commencement of co-habitation and ultimate marriage between her and her husband.

B.6 Statements in the jurisprudence

133The Clinic submitted that weight should be given to the statement by the Supreme Court of Canada in its 2000 Firearms Reference that:

The registration and licensing portions of the Firearms Act are both tightly linked to Parliament’s goal in promoting safety by reducing the misuse of any and all firearms. Both portions are integral and necessary to the operation of the scheme.⁸⁶

Those statements were made in the course of a division of powers analysis conducted by the Supreme Court into the constitutional validity of the 1995 Firearms Act. In making those statements the Court could not comment on the effectiveness in practice of the registration system for non-restricted firearms – at the time of the reference it was not in full effect. Instead its comments were directed towards considering the inter-relationship of elements of a piece of legislation for the purpose of determining the legislative competence to pass the act.

B.7 Analysis of the evidence

134At issue in this application are three main effects of the Repealing Act: (i) the repeal of the requirement to register non-restricted firearms; (ii) the repeal of the requirement to notify the Registrar on the transfer of a non-restricted firearm; and (iii) the direction to destroy accumulated Registry data concerning long-guns. The Clinic alleges that the Repealing Act will increase the risk of physical violence and homicide to women in situations of domestic violence, increase the ability of perpetrators of domestic violence to confine women forcibly at threat of physical violence with a firearm, and cause state-imposed psychological stress to women resulting from these repeals.

135One cannot predict the future. To a degree the Clinic’s request for mandatory injunctive relief⁸⁷ possesses a quia timet dimension, asking the court to grant relief without actual evidence of the nature of the harm that might be inflicted if the injunction were not granted. Courts adopt a cautious approach in those circumstances, requiring a significant degree of probability that the harm in fact will occur.⁸⁸ One can examine, however, evidence about the past impact of the statutory requirements for the registration of non-restricted firearms on the levels of physical violence, including homicide, against women. If in the past the statutory requirement to register non-restricted firearms caused a reduction in the levels of such violence, then one could argue that the removal of those statutory provisions risked increasing those levels of violence.

136The statistical evidence filed on this motion provides little forensic support for the Clinic’s allegation that a causal relationship existed between the enactment of the long-gun registry and the most serious type of violence against women – homicide - and, therefore, that the repeal of the registry would increase the risk of such violence. From the evidence filed, the situation in 1995 when the Firearms Act was enacted was as follows. Since 1975 there had been a modestly declining trend in the number of victims of domestic homicides involving firearms and, as of 1989/1990, domestic homicides with firearms had exhibited a sharper decline in recent years than homicides in general. Between 1991 and 1995 both the national homicide and firearm homicide rates had declined, but the use of handguns in homicides had increased since 1991, with handguns used in half of all firearm homicides, while rifles and shotguns were used in 37%. As of 1995 the majority of homicide victims were male, but females more commonly were the victims in cases of spousal homicides. About 16% of solved homicide cases involved a victim killed by a spouse or ex-spouse. Male homicide victims were more likely to face a firearm or sharp object, while females were more likely to encounter blunt objects or physical force. The use of firearms in all spousal homicides had declined slightly, from 36% of victims between 1985 and 1994 to 28% by 1995. However, the pattern in the type of firearms used had not changed, with rifles and shotguns remaining the most common type of firearms used by both husbands and wives.

137The Firearms Act was enacted in 1995; the obligation to register non-restricted firearms came fully into effect in 2003. As of 2009 spousal homicides accounted for 16% of all solved homicides, the same proportion as in 1995. Following nearly three decades of general decline, the spousal homicide rate remained stable in 2009 for the third consecutive year. A 2011 Statistics Canada publication stated that some research suggested that more equitable male to female employment ratios, increasing levels of education and higher rates of divorce may have contributed to the long-term decline in spousal homicide rates.

138While spousal homicides using firearms declined from 27 in 1996 to 9 in 2007, from 1996 until 2002, just prior to the full implementation of the non-restricted firearm registration requirements, spousal homicides fell from 27 deaths to 16 deaths; the level then fluctuated between 16 and 23 from 2003 to 2006, before falling to 9 in 2007. No evidence was filed as to how many of the firearms used in those homicides were registered or unregistered.

139The 2011 Statistics Canada report stated that the use of firearms, particularly rifles and shotguns, during the commission of spousal homicides had dropped steadily over the past 30 years. Stabbing remained the most frequent mode of committing spousal homicide, with shooting second.

140In sum, the statistical evidence filed described a 30-year declining trend in the level of the spousal homicide rate, with that rate remaining stable between 2007 and 2009. In other words, the spousal homicide rate began to drop well before the implementation of the registry for non-restricted firearms and, in more recent years, had remained stable notwithstanding the implementation of the registry. The number of spousal homicides using firearms had dropped before the full implementation of the non-restricted firearm registry, and continued to drop, with some fluctuations thereafter. From this evidence I find it difficult to draw a causal relationship between the level of use of firearms in spousal homicides and the implementation of the Registry for non-restricted firearms. I recognize that other data might exist on this point, but I can only decide this motion based on the evidence actually filed before me.

141The Clinic filed evidence from the Association of Chiefs of Police, RCMP reports and from its expert witness, Mr. Carlson, an experienced police officer, recommending the continuation of some form of registry for long-gun data and stating that firearms registration is an important tool for law enforcement and increases accountability for firearms. Those are important expressions of opinion, although the extracts from Hansard revealed that there was not a unanimity of view amongst the police community on the utility of the registry for non-restricted firearms. As I observed at the hearing, a court does not sit as a kind of legislative committee; instead, a court must use its forensic tools to ascertain whether a claimant can establish, on the evidence, that government conduct violates her Charter rights. As the Supreme Court of Canada stated in RJR-MacDonald:

The Charter does not give the courts a licence to evaluate the effectiveness of government action, but only to restrain it where it encroaches upon fundamental rights.⁸⁹

Statements about the wisdom of legislation, such as those offered by the Association of Chiefs of Police, are difficult to translate into judicial assessments of whether legislative action may put at risk the life, liberty or security of a person.

142I appreciate that in her evidence Jane Doe deposed that her awareness that one firearm registered to her husband was missing prompted her to take careful measures to protect her safety since leaving her husband. Again, it is difficult to know what sort of causal conclusion can be drawn from this evidence because information that her husband was a licenced firearms holder would have been available from the Registry.

143As a motions judge I do not make any final determination on the merits of a claim. On the Rule 21 motion I concluded that the Clinic had a difficult legal argument to make to establish its claim, but I did not dismiss its application. As to the merits of the Clinic’s section 7 claim for purposes of the interlocutory injunction, following a review of the evidence filed, I am not prepared to say that its claim is frivolous or vexatious, but the Clinic’s evidence provides a very weak link between the government action impugned – the repeal of the registration requirements for non-restricted firearms – and the physical harm it is alleged women will suffer, particularly women who are victims of domestic violence. I conclude that while a serious question to be tried exists on the section 7 claim, in the sense that it is not frivolous or vexatious, the claim is a weak one.

D. The section 15 Charter claim

144I reach a similar conclusion about the Clinic’s allegation of a breach of section 15(1) of the Charter for three reasons.

145First, on its face the Repealing Act contains no distinction based on an enumerated or analogous ground; the Clinic’s case relies a claim of disparate impact, or indirect discrimination. As the Supreme Court of Canada observed in Symes v. Canada, an adverse effects analysis must not assume that a statutory provision has an effect which is not proved: “We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision.”⁹⁰

146The limited evidence filed on the injunction motion permits some comparison, by gender, of the state of affairs in 1995 as compared to 2009. In 1995 it was reported that when looking at homicide in general the majority of victims were male, with males comprising two-thirds of homicide victims. Male homicide victims were more likely to face a firearm or sharp object, while females were more likely to encounter blunt objects or physical force. Also, in 1995 it was reported that almost one of every six solved homicide cases (16%) involved a victim killed by a spouse or ex-spouse. Most victims of spousal homicide are women.

147In 2011 it was reported that statistics as of 2009 showed that males continued to be the more likely victims of homicide, while females were more likely to be the victims of family-related homicide, particularly spousal homicide. Again, as of 2009 the proportion of solved homicide cases involving a victim killed by a spouse or ex-spouse remained at 16%.

148This was the extent of the statistical evidence filed which differentiated by gender the victims of homicides, including homicides using firearms. It provides weak support for the Clinic’s allegation that the repeal of provisions of the Firearms Act enacted in 1995 would work a disproportionate impact on women.

149Second, I have difficulty distinguishing this case from Ferrel in which the Court of Appeal held that the Charter did not impose a positive duty on legislatures to enact legislation to combat social problems, such as systemic discrimination in employment. The reasoning of the Court of Appeal in Ferrel applies equally to the section 15(1) claim advanced in this case. I would also note that the repealing law at issue in Ferrel contained a direction to destroy data collected under the previous legislative regime:

Every person in possession of information collected and compiled exclusively for the purpose of complying with section 10 of the Employment Equity Act, 1993 shall destroy the information as soon as reasonably possible after this Act comes into force.

The Court of Appeal rejected the argument that the section of the repealing act calling for the destruction of data collected during the life of the earlier act was unconstitutional:

This is a troublesome provision. It is clearly consistent with, and consequent upon, the repeal of the 1993 Act but it also is concerned with information that would be valuable in carrying out voluntary programmes. In any event, I do not think that s. 1(5) is unconstitutional or that it renders the balance of the 1995 Act unconstitutional. Accepting that there was no constitutional obligation to enact s. 10 of the Employment Equity Act, 1993 (the information gathering provision), I do not think that undoing its consequences is unconstitutional.⁹¹

150I adopt the characterization of Morden A.C.J.O. that document destruction clauses in repealing legislation are “troublesome” provisions. But that which is troublesome is not necessarily unconstitutional. The reasoning of the Court of Appeal in Ferrel signals that the claim advanced by the Clinic in this application is a weak one.

151Finally, just as I concluded that the Clinic’s section 7 claim contained problems in respect to the issue of causation, so too with its section 15 claim. The comments made by Code J. in R. v. Nur about causation in section 15(1) claims, made in the context of a claim of racial discrimination, apply equally to the Clinic’s claim founded on gender discrimination in the context of domestic violence:

The fundamental flaw in the s. 15 argument is that the Applicant and the Intervener have not established that the discriminatory effect of over-representation and over-incarceration of blacks, amongst those charged with s. 95 offences, is caused by the law itself. It is not difficult to establish that poverty, unemployment, poor housing and weak family structures contribute to the proliferation of gang culture and gun crime. It is also not difficult to establish that these phenomena will attract heavy police attention and will lead to the laying of large numbers of s. 95 charges. Finally, it is not difficult to establish that anti-black discrimination undoubtedly contributes to many of these underlying societal causes. However, none of this establishes that s. 95 itself violates s. 15 of the Charter. As Iacobucci J. put it in Symes v. Canada, [1993] 4 S.C.R. 695 at para. 134, giving the judgment of seven members of the Court:

If the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effect which is not proved. We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision. ⁹²

E. Summary on “serious question to be tried”

152By way of summary, although I have concluded that the Clinic’s application raises serious questions to be tried in respect of its claims under sections 7 and 15(1) of the Charter, I do so only in the sense that the claims pass over the very low threshold of not constituting frivolous or vexatious claims. My review of the evidence filed in support of the Clinic’s claims leads me to conclude, based on the record before me, that its claims are weak both at law and in fact.

VII. IRREPARABLE HARM

153On motions for interlocutory injunctions the concept of “irreparable harm” refers to the nature of the harm, rather than its magnitude. In Charter proceedings even quantifiable financial loss relied upon by an applicant may be considered irreparable harm so long as it is unclear that such loss could be recovered at the time of a decision on the merits.⁹³

154The Clinic submitted that were an injunction not granted, women who experience domestic violence would suffer two main types of irreparable harm: (i) serious physical and psychological harm, and possibly death; and, (ii) the loss of information in the Registry as a result of the planned destruction of registration data concerning non-restricted firearms and the failure to collect information about non-restricted firearms transferred since the enactment of the Repealing Act.

155Certainly the first type of harm alleged would be in the nature of irreparable harm. However, I reviewed at length above the evidence filed about the increased risk of violence to women, including homicide, as a result of the Repealing Act, comparing the level of risk which prevailed during the time the law required the registration of non-restricted firearms with that for preceding periods. I found that the Clinic’s evidence provided a very weak link between the government action impugned – the repeal of the registration requirements for non-restricted firearms – and the physical harm it is alleged women will suffer, particularly women who are victims of domestic violence. I repeat and rely on that finding for the purposes of the irreparable harm analysis.

156As to the second type of harm alleged, there is no doubt that the plan of the federal government to destroy the accumulated data about the registration of non-restricted firearms will result in the total loss of that data. Mr. MacKinnon’s evidence was quite clear on that point. There will be no back-up tape kept in storage; the data will be gone.⁹⁴ As I stated above, the statutory directive to destroy the data is troublesome. During the course of the injunction hearing I inquired of AGC counsel whether their client would be prepared to maintain the data pending a heavily case-managed application with a March, 2013 hearing date carved in stone. AGC counsel did not have such instructions. What that means is that if the data is destroyed and the Clinic ultimately succeeds at the hearing of its application on the merits, with the court finding the Repealing Act to be unconstitutional, then the federal government will have to expend taxpayers’ money to re-build a registry from scratch. The evidence indicates that if the registry was built once, it could be re-built again to contain current registration data for non-restricted firearms so, in a legal sense, the destruction of the data would not cause irreparable harm, just a financial burden for the taxpayer.

VIII. BALANCE OF CONVENIENCE

157In Charter interlocutory injunction cases, when considering the balance of convenience, or the balance of relative inconvenience as it is sometimes styled, it is open to both parties to rely upon considerations of the public interest which embrace both the concerns of society generally, as well as the particular interests of identifiable groups. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought.⁹⁵

158The Supreme Court of Canada pointed out in the RJR-MacDonald case that when the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect:

It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.⁹⁶

159In his decision in Ferrel refusing a request for an interlocutory injunction to suspend the operation of repealing legislation, MacPherson J. (as he then was) stated in respect of the balance of convenience:

In RJR-MacDonald, Sopinka and Cory JJ. said, at p. 346:

In our view, the concept of inconvenience should be widely construed in Charter cases…The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

This creates a very low hurdle for governments and a high one for applicants seeking an interim injunction to restrain, even briefly, the operation of a law enacted by a democratically elected legislature. In this case, the government clears its low hurdle. The Minister responsible for the legislation has said that the 1993 law was “unnecessary, unfair and ineffective” and that Bill 8 signaled a restoration of the merit principle in the employment context. Good people can certainly disagree with this characterization. However, the point remains that the government is openly proceeding in the public interest, as it sees it. It is entitled to do this.⁹⁷

160In the present case the federal government has openly proceeded in the public interest, as it sees it. At the time Bill C-19 was introduced into the House of Commons the Minister of Public Safety declared that the purpose of the legislation was to promote the public interest:

The fact is, and this is no secret, the Conservative government is committed to keeping our streets and communities safe. We have brought in measures to do just that. Specifically, we have brought in mandatory minimum sentences for gun crimes and targeted those who engage in dangerous criminal activity such as drive-by shootings. We have also funded numerous programs through the national crime prevention strategy that helps stop gun crime before it happens. That is how we keep Canadians safe, through tough and effective laws and smart prevention programs, not through needlessly increasing red tape and targeting law-abiding Canadians.

The bill would also provide for the destruction of records held by the Government of Canada relating to the registration of long guns and it would only make since. If we are getting rid of the registry, we get rid of the registry. The registry is comprised of information. We are getting rid of that registry.

The reason for this is the simple fact that we do not want to assist anyone to set up a back door registry. As we heard from the NDP members during question period, they have clearly indicated that they will reimpose a long gun registry should they ever have the opportunity to enter into a coalition with the Liberals on that fact.

The reason for this being unacceptable is that it focuses on law-abiding Canadians who should not have been targeted. This information should never have been collected in the first place. To maintain the registry and the information is a complete violation of law and the principles of privacy that all of us in the House respect.⁹⁸

In light of that declared purpose of the Repealing Act, I must assume that the legislation will promote the public interest.

161Many of the Clinic’s arguments on the balance of convenience focused on the absence of any harm which the AGC would suffer if the injunction was granted.⁹⁹ As I read RJR-MacDonald, it falls to the Clinic to demonstrate something more – i.e. that the suspension of the legislation would itself provide a public benefit. Whereas in the Québec decisions Blanchard J. so found, his finding was made in the context of another public authority, the Province of Québec, intending to create its own registry for non-restricted firearms and, in the interim, seeking the preservation of existing Québec-related data.

162That is not this case. The Province of Ontario has not intervened in this proceeding to express an interest in establishing a provincial registry, and the Chief Firearms Officer, a provincial employee, took no position on this motion.

163The Clinic also submitted that the balance of convenience favoured granting the injunction because of the serious risk to the personal safety of women now and in the future. I have dealt at length above with the evidence concerning that risk. I found that the Clinic’s evidence provided a very weak link between the government action impugned – the repeal of the registration requirements for non-restricted firearms – and the physical harm it is alleged women will suffer, particularly women who are victims of domestic violence. I repeat and rely on that finding for the purposes of the balance of convenience analysis.

164Finally, the City of Toronto submitted that Canada’s international commitments should inform the balance of convenience analysis. Specifically, the City argued that Canada was bound by record-keeping obligations contained in the United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunitions, the Organization of American States Inter-American Convention Against the Illicit Manufacturing of the Trafficking in Firearms and the United Nations General Assembly’s International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons.

165Canadian courts will not give effect to a treaty unless it has been enacted into law by the appropriate legislative body, although a debate exists about the extent to which a court may interpret domestic legislation by reference to the “values and principles” embodied in un-incorporated treaties.¹⁰⁰ Canada has signed, but not ratified, each of the treaties identified by the City; none of those international instruments has been incorporated into domestic law. I therefore do not consider those treaties to be of assistance in determining the Charter issues at play on this interlocutory motion.

166I conclude that in this case, which calls into issue the public interest, the Clinic has not demonstrated that the balance of convenience favours suspending the Repealing Act by granting the requested injunctions.

IX. CONCLUSION ON MOTION FOR INTERLOCUTORY INJUNCTION

167By way of summary, although the Clinic has demonstrated a serious question to be tried, the Charter claims which it advances are weak. The evidence of irreparable harm is weak. Finally, the balance of convenience does not favour suspending the Repealing Act. For these reasons, I decline to grant the interlocutory injunction requested by the Clinic, and I dismiss its motion.

X. COSTS

168The parties have enjoyed divided success on these motions. In those circumstances I would be inclined to reserve the costs of both motions to the judge who hears the application. However, if any party wishes to seek costs of either motion, it shall serve and file with my office (c/o Judges’ Administration, 361 University Ave.) written cost submissions, together with a Bill of Costs, by Friday, October 5, 2012. Any party who opposes any request for costs made by another party shall serve and file with my office responding written cost submissions by Friday, October 19, 2012.

(original signed by)____

D. M. Brown J.

Footnotes

1. 1S.C. 2012, c. 6.
2. 2Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 1614.
3. 3Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202.
4. 42012 ONSC 4539.
5. 5S.C. 1995, c. 39.
6. 6Criminal Code, s. 2.
7. 7Ibid., s. 84.
8. 8Firearms Act, s. 55.
9. 9Ibid., s. 5.
10. 10Firearm Licenses Regulations, SOR/98-199, ss. 3(1)(d) and (2).
11. 11Pre-amendment Firearms Act, s. 23(1)(c).
12. 12Reference re: Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783.
13. 13Ibid., para. 47.
14. 14Ibid., paras. 56 and 57.
15. 15Rule 25.06(1).
16. 16Rule 38.04(b).
17. 17Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Scarborough: Carswell, 1999), p. 2.
18. 18Reference Re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, para. 62.
19. 19[1999] B.C.J. No. 233, paras. 28 and 29; quoted with approval by the British Columbia Court of Appeal in House of Sga’nisim, Nisibilada v. Canada, 2000 BCCA 260, para. 5.
20. 202011 ONSC 4145, para. 28 (emphasis added).
21. 21Canada Assistance Plan, supra., para. 61.
22. 22Ibid., para. 85.
23. 23Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, para. 105.
24. 24(1998), 1998 CanLII 6274 (ON CA), 42 O.R. (3d) 97 (C.A.), leave to appeal dismissed [1999] S.C.C.A. No. 79.
25. 25Ibid., para. 21.
26. 262012 ONSC 3818, paras. 27 to 30.
27. 272012 ONCA 186, paras. 88 and 89.
28. 28PHS Community Services Society, supra., para. 85.
29. 29Emphasis added.
30. 30Bedford, supra., para. 90.
31. 31R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, para. 96.
32. 32Ibid., paras. 96 and 98.
33. 332005 SCC 35, [2005] 1 S.C.R. 791.
34. 34Ibid., para. 199.
35. 35Ibid., para. 208.
36. 362002 SCC 84, [2002] 4 S.C.R. 429.
37. 37Ibid., paras. 77 to 79. (citations omitted)
38. 38Chaoulli, supra., paras. 208 and 209.
39. 39Bedford, supra., para. 91.
40. 40See the cases referred to in PHS Community Services, supra., para. 93.
41. 41PHS Community Services, supra., para. 91.
42. 42Chaoulli, paras. 129 and 130. In PHS Community Services the Supreme Court stated that when considering whether a law’s application is arbitrary, a court must first identify the law’s objectives and then identify the relationship between the state interest and the impugned law, with a view to ascertaining whether the prohibition is rationally connected to a reasonable apprehension of harm. The Court left unresolved whether arbitrariness involved inquiring into whether a limit was “necessary” to further the state objective, or into whether it bore no relation to the state interest pursued: PHS, paras. 129 to 132.
43. 43Malmo-Levine, supra., paras. 142 and 143; PHS, para. 133.
44. 44Gosselin, supra., para. 81 (emphasis in the original).
45. 452008 ONCA 411, para. 52.
46. 462003 SCC 74, [2003] 3 S.C.R. 571.
47. 47R.S.C. 1985, c. N-1.
48. 48Malmo-Levine, supra., para. 111.
49. 49Ibid., para. 130.
50. 50Ibid., paras.133, 139 and 140.
51. 51Ibid., para. 5.
52. 52Gosselin, supra., paras. 82 and 83.
53. 532011 SCC 12, [2011] 1 S.C.R. 396.
54. 54Ibid., para. 61.
55. 55Ibid., paras. 62 and 63.
56. 56Ibid., para. 64.
57. 57Ibid., para. 65.
58. 58Ibid., para. 66.
59. 59Ibid., para. 67.
60. 60(1998), 1998 CanLII 6274 (ON CA), 42 O.R. (3d) 97 (C.A.)
61. 61Ibid., para. 24.
62. 62Ibid., para. 36.
63. 63Ibid., paras. 44, 66.
64. 64(1997), 1997 CanLII 12286 (ON SC), 35 O.R. (3d) 508 (Gen. Div.).
65. 65SEIU, supra., p. 536.
66. 662010 ONSC 3525, paras. 81 to 84.
67. 672012 QCCS 4204.
68. 681985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, para. 29.
69. 69Chaoulli, supra., para. 131.
70. 70Bedford, supra., paras. 108 and 109.
71. 71Ferrel v. Attorney General of Ontario, unreported decision, December 28-29, 1995, Court File No. RE/6078/95 (Gen. Div.)
72. 72Clinic injunction motion record, Tab 2D.
73. 73Weapons and Violent Crime, Clinic motion record, Tab 2C.
74. 74Clinic Supplementary injunction motion record, Tab 2.
75. 75As explained by Mr. MacKinnon in his affidavit, individuals who were already in possession of a non-restricted firearm were given until January 1, 2003 to register.
76. 76Evaluation, p. 21, Chart 1.
77. 77Ibid., p. 21.
78. 78Ibid., p. 21.
79. 79Ibid., Chart 3, p. 22.
80. 80Clinic motion record, Tab 2E.
81. 81Evaluation, supra., p. 44.
82. 82Ibid., p. 44.
83. 83Ibid., p. 46.
84. 84Ibid., p. 49.
85. 85See the Hansard extracts in the Supplementary Motion Record of the AGC, Tab 2.
86. 86Firearms Reference, supra., para. 47.
87. 87Clinic’s Amended Notice of Motion, paras. 3, 5 and 6.
88. 88Corp. of the Canadian Civil Liberties, supra., para. 86.
89. 89RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, para. 72.
90. 90Symes v. Canada, 1993 CanLII 55 (SCC), [1993] 4 S.C.R. 695, para. 134.
91. 91Ferrel, supra., para. 41.
92. 922011 ONSC 4874, para. 79.
93. 93RJR-MacDonald Inc., supra., para. 79.
94. 94Transcript of the cross-examination of Mr. MacKinnon, Q. 616.
95. 95RJR-MacDonald, supra., paras. 65 and 66.
96. 96Ibid., para. 80.
97. 97Ferrel, Gen. Div., supra., p. 4.
98. 98Compendium of the AGC, Tab 16, Hansard, House of Commons Debates, Vol. 146, No. 37, p. 2534.
99. 99See, Clinic Factum on the injunction, paras. 79 to 86.
100. 100See the different views expressed by L’Heureux-Dube, on the one hand, and Cory and Iacobucci JJ., on the other, in Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, paras. 60 to 71, and 79-80.