ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-0139-AP
DATE: 2013-12-30
B E T W E E N:
The Attorney General of Canada
(Registrar of Firearms),
Andrew Law, for the Crown
Respondent
- and -
John-Bryan Gardiner,
Edward L. Burlew, for the Appellant
Appellant
HEARD: December 10, 2013,
at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Reasons For Judgment On Summary Conviction Appeal
[1] This is an appeal from the decision of the Ontario Court of Justice dated November 1, 2012. In that decision, the learned Justice determined that she did not have jurisdiction to consider the application by John-Byran Gardiner under the Firearms Act, S.C. 1995, c. 39 (the “Act”) concerning an alleged revocation by the Registrar of Firearms (the “Registrar”) of his registration of a Walther G 22 rifle (the “rifle”).
Background
[2] Despite the fact that the Justice dismissed the appeal on a preliminary point of jurisdiction, there were certain background facts before her which were not disputed at that court, were not disputed before me, and which are necessary to recite in order to understand the context of her decision and my decision regarding the appeal.
[3] Mr. Gardiner purchased the rifle in 2009. He was able to legally register the rifle on January 29, 2009. The rifle had a unique design feature known as a “bull pup” stock. The “bull-pup” stock acts to reduce the overall length of a firearm by moving the action to the rear while maintaining a standard length of the barrel.
[4] On November 17, 2011, Mr. Gardiner received a letter from the Registrar of Firearms indicating the stock on the rifle was now considered by the Registrar to be a prohibited device. The letter gave Mr. Gardiner a number of options. They were:
remove the bull-pup stock and surrender it for disposal to your local law enforcement, and keep the firearm registered as a non-restricted firearm;
sell the entire firearm (including the bull-pup stock) to an eligible business; or
surrender the entire firearm (including the bull-pup stock) to local law enforcement for disposal.
[5] Mr. Gardiner decided that the letter constituted a revocation of his registration of the registration of his rifle. He referred the matter to the Ontario Court of Justice for a hearing on the basis of s. 74 of the Firearms Act. The Act contains a scheme for appeals of this nature including an appeal to this Court. In making the referral to the Court, Mr. Gardiner filled out an Ontario Court of Justice form where he ticked off the box “revocation of a registration certificate” as the basis for his reference.
[6] The relevant sections of the Act for the purposes of the hearing both in the Ontario Court and before this court are as follows;
Notice of refusal to issue or revocation
- (1): Subject to subsection (1.1), if a chief firearms officer decides to refuse to issue or to revoke a licence or authorization to transport or the Registrar decides to refuse to issue or to revoke a registration certificate, authorization to export or authorization to import, the chief firearms officer or Registrar shall give notice of the decision in the prescribed form to the applicant for or holder of the licence, registration certificate or authorization.
Reference to judge of refusal to issue or revocation, etc.
- (1): Subject to subsection (2), where
(a) a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import,…
the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides.
Hearing of reference
- (1): On receipt of a reference under section 74, the provincial court judge shall fix a date for the hearing of the reference and direct that notice of the hearing be given to the chief firearms officer, Registrar or provincial minister and to the applicant for or holder of the licence, registration certificate, authorization or approval, in such manner as the provincial court judge may specify.
Evidence
(2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.
Decision by provincial court judge
- On the hearing of a reference, the provincial court judge may, by order,
(a) confirm the decision of the chief firearms officer, Registrar or provincial minister;
(b) direct the chief firearms officer or Registrar to issue a licence, registration certificate or authorization or direct the provincial minister to approve a shooting club or shooting range; or
(c) cancel the revocation of the licence, registration certificate, authorization or approval or the decision of the chief firearms officer under section 67.
Appeal to superior court
- (1) Subject to section 78, where a provincial court judge makes an order under paragraph 76(a), the applicant for or holder of the licence, registration certificate, authorization or approval, as the case may be, may appeal to the superior court against the order.
Application of Part XXVII of the Criminal Code
- Part XXVII of the Criminal Code, except sections 785 to 812, 816 to 819 and 829 to 838, applies in respect of an appeal under this Act, with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
The hearing at issue
[7] A hearing was scheduled for October 31, and November 1, 2012. The manner in which the hearing was conducted is criticized by Mr. Gardiner as being unfair to him. This alleged unfairness is one of the three arguments upon which he relies to have the matter remitted back to the Ontario Court of Justice for a rehearing.
[8] On several occasions during the hearing, counsel for Mr. Gardiner indicated he wished to call at least two witnesses. Mr. Gardiner’s counsel clearly indicated to the Court he wished to call Mr. Gardiner and a gunsmith, as well as some documentary evidence from the manufacturer. He said:
We have evidence by way of letters from the manufacturer in Germany, Walther, together with an examination by a gun smith who is licenced and to show that the stock is not a separate prohibited device and that the gun as maintained and purchased, brought into Canada as a non-restricted, maintained the same characteristics from its importation in 2005 when it was classified as non-restricted, as a whole with the stock attached, that it maintains those same characteristics. (Transcript of Evidence of proceedings October 31, 2012 Page 10 Lines 16 – 26).
[9] At page 60, Line 20 – 26 of the transcript, Mr. Gardiner’s counsel further indicated he wished to call two witnesses.
[10] Also Mr. Gardiner’s counsel expressly objected to having the Court deal first with the issue of jurisdiction (transcript, page 16, Lines 1 – 10) and indicated he did not see how the jurisdiction issue could be addressed without his client being allowed to call evidence (transcript, page 16, Line 28 through page 17, Line 22.)
[11] Despite these requests, Mr. Gardiner’s witnesses were not called before the learned Justice made her ruling on jurisdiction and dismissed the reference.
POSITION OF THE PARTIES
Position of Mr. Gardiner
[12] Mr. Gardiner argues that the learned Justice erred in law in three material ways:
she did not allow Mr. Gardiner to call evidence contrary to s. 75(2);
she made findings of fact without permitting Mr. Gardiner to call evidence;
based on those findings of fact she declined jurisdiction.
[13] Mr. Gardiner submits that it was a denial of natural justice and procedural fairness for him not to have been permitted to call his witnesses and cross-examine those of the Registrar prior to the decision on jurisdiction. Mr. Gardiner points to s. 75 of the Act which mandates, by use of the word “shall”, the Ontario Court of Justice to hear all relevant evidence including the evidence of the holder of the registration.
[14] Mr. Gardiner also submits that the learned Justice committed an error of law in declining jurisdiction. Mr. Gardiner argues that the letter of November 17, 2011 was in fact a revocation of his licence to possess the rifle. This is because in directing him to remove the bull pup stock, the rifle cannot be safely operated, and therefore his legal right to possess the rifle is impaired. Consequently the provisions of s. 74(1) were engaged giving Mr. Gardiner the right to bring the reference before the Ontario Court of Justice.
[15] Mr. Gardiner also argues he was taken by surprise by what he categorized as a “without-notice motion” at the hearing for a preliminary ruling on the issue of jurisdiction prior to the calling of evidence. He expected that the Registrar would have proceeded first on the hearing, with an attendant right of cross-examination of the Registrar’s two witnesses, followed by the right to call his own evidence.
Position of the Registrar
[16] The Registrar takes the position that the learned Justice was correct at first instance in deciding she had no jurisdiction to hear the reference. The letter of November 17, 2011 was not a revocation. Nowhere in the letter are the words “revocation” used. Despite the fact that s. 72(1) directs that the Registrar shall give notice of a decision to revoke in a prescribed form, I am advised by counsel that while there is in fact a prescribed form, it has not been published in the Canada Gazette. This fact buttresses the argument that the letter was not a revocation.
[17] The Registrar submits that its intention to raise the preliminary issue of jurisdiction was made well-known to Mr. Gardiner in advance of the hearing. This was done by the service and filing on or about May 14, 2012, of a 10-page written submission entitled “written representations of the Attorney General of Canada”. At page 4, paragraph 10, the submission, under the heading “points in issue” clearly states “does this Court have jurisdiction over this matter”.
[18] The Registrar argues the jurisdiction of the Ontario Court is limited by the terms of the Act, and even with a fair and liberal reading of the Act, a fairly narrow range of jurisdiction is given to the Court. It is clear, for example, the Court cannot engage in questions of a review of a designation by the Registrar of a device as “prohibited”. The Registrar argues that this is only what the letter of November 17, 2011, indicates, and no more. If Mr. Gardiner wished to challenge this “opinion” and direction given in the letter, he should have commenced an application for judicial review in the Superior Court of Justice, rather than commencing the s. 74 application. The Registrar argues that what truly was before the Court was an attempt by Mr. Gardiner to challenge an administrative decision that was not specified in s. 74 and therefore unavailable for the Justice to determine.
Analysis
[19] This matter arises as the result of a letter received by Mr. Gardiner on November 17, 2011. It seems to me that in deciding if the court had jurisdiction at first instance, or not, the only issue to be decided was whether or not this letter constituted a written confirmation of the decision of the Registrar to revoke the registration of the rifle. However, because of the manner in which the hearing was conducted, the decision to decline jurisdiction was decided with reference to much more information than simply an assessment of whether or not this letter by itself could constitute a notice of the action by the Registrar of revocation of a licence to possess a firearm within the meaning of s. 72(1). Evidence was admitted. Most significantly in my view, evidence of the holder of the licence was not admitted.
[20] In making this determination that the letter was not a revocation, in my view, the learned Justice decided a question of mixed fact and law. I cannot ignore the reality that the learned Justice made certain findings of fact, based on evidence that was filed, but didn’t give the appellant a chance to put his evidence before the Court, before she decided to decline jurisdiction. In my view, an error of law has been committed by way of a breach of the rules of natural justice. It is incorrect and a palpable error for a matter to be decided when only one party has been able to place their evidence before the Court.
[21] This error was compounded by the fact that the Act provides that once a hearing is commenced, it mandates in s. 75(2) that the Court shall hear all relevant evidence from the Registrar and the holder of the licence.
[22] The scheme under the Act creates a summary procedure for firearms owners to challenge administrative decisions. In my view, the requirement in s. 75(2) for a court hearing a reference to hear all relevant evidence, indicates Parliament’s direction that despite the summary nature of these hearings, rights of licence holders and others encompassed by s. 74 are not to be summarily dismissed without those persons being given the opportunity to place all relevant evidence before the Court. In specifying this right to call evidence, it cannot be circumvented without some other express statement in the legislation or in the rules of court to permit an application of this nature to be disposed of without the holder being permitted to call evidence. While questions of jurisdiction are always germane to any proceeding before the Court, where there is a statutory provision using mandatory language such as the language here, this right cannot be so easily dismissed.
[23] This is particularly so because, in my view, the learned Justice did make findings of fact that were influential in her coming to a decision that she did not have the jurisdiction to hear the reference. In that regard, she had only the untested affidavit evidence of the witnesses for the Registrar. She made a number of factual findings as set out in her oral judgment (commencing at page 7, line 1 of the transcript of Proceedings for November 1, 2012):
The Court: John-Bryan Gardiner has brought an application to this court asking the court to make a determination under Section 74(2) of the Firearms Act with respect to a firearm that is in his possession and a letter that he received from the Registrar advising him that the stock of his Walther G22 rifle is a prohibited device. He is asking the court to consider this letter to be a revocation of his registration certificate.
The facts are that on the 17th of November, 2011, the applicant was notified by the Registrar that he was in possession of a prohibited device, specifically the “bull-pup” stock that was attached to his Walther G22 rifle and that he had three legal options to comply with the regulations. The first option was to remove the “bull-pup” stock and surrender it to the police for disposal, the second option was that he could sell the firearm, including the stock to an eligible business or thirdly, he could surrender the whole rifle for disposal.
The “bull-pup” design has been prohibited in Canada for many years. According to an explanatory note attached to the Prohibited Weapons Order effective October 1992 it was because the design increases the concealability of rifles. Thereby increasing the risk these weapons pose for society. The definition of the stock of the type known as the “bull-pup” as a prohibited weapon is the same in the April 2012 Firearms Act as it was in the predecessor legislation the Criminal Code in July 1992.
The RCMP Firearms Reference Table and that’s the FRT (version dated 8 May 2012) sets out that the Walther G22 rifle is non-restricted, but, under the Canadian Law Comments, the reports states that the “bull-pup” stock is subject to the definition of “prohibited device” in Part III, that’s of the Firearms and other weapons being the regulations under the s. 84 of the Criminal Code.
When this this firearm was first imported into Canada, it was designated as non-restricted based on the specifics of a pre-production model viewed by officials of the Firearms Centre at a 2004 trade show.
However, when it was imported into the Canadian market the manufacturer had added the prohibited “bull-pup” stock, a fact that apparently escaped the notice of the firearms authorities, and it entered the Canadian market as non-restricted.
The Walther G22 was marked, and in 2009 the applicant purchased his firearm from a previous purchaser who had bought it from the dealer. Throughout these transactions the firearm continued to be designated as non-restricted.
At the time that the applicant purchased the firearm, he needed a registration certificate for the firearm which was issued by the Registrar of Firearms of the Federal Government. He already had the necessary license issued by the Chief Firearms Officer of the Province. He complied with all the requirements to lawfully purchase and possess the Walther G22 rifle. Subsequently, the Parliament of Canada enacted Bill C-19. The bill had 1st reading in October 2011 and was in force in April 2012. In accordance with the legislation the firearms program administratively deleted the registration records in May 2012 resulting in the expiration of the applicant’s registration certificate. Bill C- 19 dispensed with the requirement that non- registered weapons be registered.
The applicant is requesting that this court hold a hearing under s. 74 of the Firearms Act with respect to what he submits has been a revocation of his registration certificate by the Registrar as demonstrated by the letter from the Registrar dated 17 November 2011.
[24] Mr. Gardiner takes express exceptions to certain findings made by the learned Justice, in particular her finding that the rifle entered Canada in a different configuration than had been originally viewed by officials of the Firearms Centre.
[25] In this case, the timing of the error, in terms of how the hearing proceeded, was important. In my view, having allowed the hearing to commence and then deciding the matter without having the benefit of the evidence of Mr. Gardiner, the subsequent decision cannot stand.
[26] In fashioning a remedy, counsel agree that by virtue of section 81 of the Act, certain procedural provisions of Part XXI of the Criminal Code are available to be considered in proceedings which are commenced under section 74. In particular the ability to order a new trial is provided in s. 686(2)(b).
[27] At the beginning of the hearing of the appeal, I raised a preliminary issue with counsel concerning my jurisdiction to hear this appeal. Counsel was able to respond to the issue and make submissions. I am of the view that the appeal is properly constituted before me for the following reasons.
[28] Section 76 provides for the making of three possible orders once a reference is heard. In this case, no express order was made by the learned Justice as she declined jurisdiction. However, the error of law committed by the learned Justice renders the subsequent finding regarding a lack of jurisdiction to be a nullity. While it may be that an application for judicial review of the decision of the Ontario Court was a possible route to remedy the error, an appeal to this Court is contemplated by s. 77 of the Act where an order is made pursuant to s. 76. It is well-settled that an application for judicial review in the nature of mandamus can only be taken if no alternative remedy is available. The decision to decline jurisdiction in this case was made after a hearing was commenced and the provisions of s. 75(2) were engaged. Having held a “hearing”, albeit an unfair one, the decision had a practical effect of confirming the actions of the Registrar as far as Mr. Gardiner was concerned. When no formal order was made, Mr. Gardiner had no choice but to comply with the direction of the Registrar contained in the letter of November 17, 2011. In my view, this constituted the making of an order under s. 76(a) at least for the purposes of s. 77(1) appeal rights. To permit otherwise would import an undue degree of technicality that the summary procedures provided in the Act do not contemplate as I read them. Therefore in the circumstances of this case, the provisions of s. 77(1) apply giving Mr. Gardiner the right to come to this court on appeal.
[29] The facts in this case are unusual and have now been complicated by the repeal of the long gun registry. Occasionally, the summary procedure that Parliament puts in place to attempt to expedite access to justice cannot contemplate all manner in which matters will be placed before the court. In this case, an alternate procedure of having a preliminary motion, without evidence save and except the letter, may have allowed the Ontario Court to determine the issue of jurisdiction without unfairness to either party. However, when the hearing proceeded in the manner that it did, unfairness arose in the form of an error of law that can only be remedied by a new hearing. I do not wish this judgment to be taken to represent any decision on the merits of the positions of the respective parties on the substantive issues raised by Mr. Gardiner’s reference.
[30] This appeal is allowed. The matter is remitted to the Ontario Court of Justice for a new reference before a different Justice.
[31] I do not think this is an appropriate matter for the awarding of costs.
___”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: December 30, 2013
COURT FILE NO.: CR-12-0139-AP
DATE: 2013-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
John-Bryan Gardiner,
Appellant
REASONS FOR JUDGMENT ON
SUMMARY CONVICTION APPEAL
Fitzpatrick J.
Released: December 30, 2013
/mls