COURT FILE NO.: CR-21-119-00MO
DATE: 20211022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAUREN MCCABE AND SUZANNE EASTON
Applicants
– and –
MARK NICHOL ET AL.
Respondents
M. Ambwani and B. Wong, for the Crown
A. Bouchelev, for the Respondents
HEARD: October 15, 2021
RULING ON AN APPLICATION TO QUASH SUBPOENAS
B.P.O’MARRA J.
[1] This is the matter of Lauren McCabe and Suzanne Easton, applicants, and the respondents, being Michael John Doherty, Philip Alexander McBride, Lindsay David-Jamieson, Mark Roy Nichol, Peter Greg Minuk, Richard William Robert Delve and Ying Wang.
[2] This is a ruling on an application to quash subpoenas related to a reference in the Ontario Court of Justice (OCJ) pursuant to the Firearms Act, which is a federal statute.
OVERVIEW
[3] On May 1, 2020, pursuant to an order-in-council, there was an amendment to regulations that re-classified certain firearms from restricted to prohibited. In conjunction with that, there was an amnesty order that protected persons from criminal liability who, on May 1, 2020, owned or possessed a newly prohibited firearm, and remained in effect until April 30, 2022.
[4] The respondents filed applications in the OCJ in August 2020 for reference hearings pursuant to s. 74 through 76 inclusive of the Firearms Act related to what they assert to be revocations of their registration certificates issued for firearms by the registrar of firearms.
[5] On March 17, 2021, the Attorney General of Canada (AGC) brought a motion before the OCJ, which was presided over by Justice Chaffe, to have the references dismissed for want of jurisdiction. The basis for that motion was that the registrar's notices were not formal revocations of the various registration certificates, but merely information letters. That motion by the AGC was dismissed. However, Justice Chaffe directed that jurisdiction remains a live issue to be argued at the same time as the references themselves.
[6] On June 1, 2021, counsel for the respondents delivered a record on behalf of the respondents to the AGC, as well as to the OCJ, by email. These included affidavits of the various respondents. Further affidavits were delivered on June 11, 2021.
[7] On June 30, 2021, counsel for the AGC delivered affidavit evidence to counsel for the respondents and to the OCJ by email. This consisted of seven affidavits, sworn by Lauren McCabe, in regard to each respondent and an affidavit sworn by Hilda Mozaffar that appended a copy of the bill before the House of Commons that would amend the Firearms Act and may impact persons who have firearms effected by the order-in-council.
[8] On July 6, 2021, counsel for the respondents delivered a reply affidavit affirmed by the respondent, Mr. Doherty, to counsel for the AGC by email.
[9] On July 7, 2021, counsel for the respondents obtained subpoenas requiring Suzanne Easton and Lauren McCabe to appear as witnesses at the reference hearings and to bring relevant documents. Ms. Easton is the RCMP Registrar of Firearms. Ms. McCabe is employed by the RCMP as the section head with the Canadian Firearms Program (CFP). The CFP is responsible for the administration of the Firearms Act, which includes the Canadian Firearms Registry (CFR). The CFR is one part of the Firearms Regulatory Services Directorate.
[10] There is one Registrar of Firearms in Canada, who is Ms. Easton. She is located in Ottawa. She is responsible, pursuant to the Firearms Act, for the day-to-day operation of the CFR. That includes keeping a record of every registration certificate that is issued, refused or revoked.
[11] As part of her role with the CFR, Ms. McCabe has been delegated authority under the Firearms Act in s. 100 to perform all the powers, duties and functions of the registrar. She is responsible for administering the Firearms Act and its regulations in regard to the registration of firearms. She has authority to issue registration certificates, to refuse to issue them and to revoke existing registration certificates. She has charge of the records of the CFR.
[12] The hearing of the references commenced on July 12, 2021. Justice Chaffe directed that he did not want to hear from the two subpoenaed witnesses until any applications to quash the subpoenas had been heard and ruled on in the Superior Court of Justice.
[13] The reference hearings were adjourned to continue September 27 and October 1, 2021. Unfortunately, those two dates had to be adjourned since I had reserved my decision in this matter after submissions were completed on September 27, 2021.
[14] Whether or not I quash the subpoenas, the AGC does not dispute and indeed relies on the fact that Ms. McCabe is available to be cross-examined on her affidavits at the continuation of the reference hearing in the OCJ.
ANALYSIS
[15] Counsel for the respondents has referred to the presumption of regularity for a subpoena regular on its face. In support of that he refers to the well-known case of R. v. Young which is reported at 1999 CanLII 1522 (ON CA), 138 CCC (3d) 184, a judgment of the Ontario Court of Appeal in 1999. I of course agree with that statement, and the further aspect that where the issuance of such a subpoena is challenged, there is a burden on the party seeking to do so to displace the presumption of regularity by the introduction of evidence.
[16] However, it must also be pointed out that the contentious subpoena in the Young case was issued under the provisions of the Criminal Code in the course of a criminal prosecution to a witness who clearly had material evidence.
[17] The statutory authority relied on by the respondents are s. 698 and 699 of the Criminal Code. The latter section sets out who may issue a subpoena. Section 698 provides that where a person is likely to give material evidence “in a proceeding to which this Act applies”, a subpoena may issue requiring that person to attend and give evidence.
[18] A reference proceeding before the OCJ under the Firearms Act does not relate to allegations of contraventions of that Act. The Firearms Act does set out offences that may be prosecuted in s. 106 through 116 inclusive. They include false statements to procure licences, under s. 106. False statements to procure customs confirmations, also s. 106. Tampering with licences, s. 107. Unauthorized possession of ammunition, s. 108. Contravention of the conditions of licences, s. 110. Non-compliance with demand to produce a firearm, s. 113. Failure to deliver up revoked licence, s. 114. The potential penalties for these various offences range and include jail terms of up to five years in prison.
[19] The respondents in the matter before me do not face any allegations of breaches of any statutory provisions. There is no suggestion that they have done anything wrong, let alone illegal. This is not a case where they seek to subpoena someone in the course of defending themselves against any such allegations.
[20] I found the recent decision of the Alberta Queen's Bench in Attorney General of Canada v. Smykot and other named persons very helpful on the issues before me. That decision of Justice G. H. Poelman is reported at 2021 ABQB 457.
[21] I am going to quote now from paras. 1 through 4 inclusive and then paras. 29 through 31 of Smykot. So first, paras. 1 through 4:
The respondents are all firearms owners who sought relief in the Provincial Court of Alberta from consequences of their firearms being reclassified by federal regulations. The Attorney General for Canada argued that the Provincial Court did not have jurisdiction to hear the statutory reference under which the respondents applied.
The learned Provincial Court judge, Fradsham P.C.J., heard a preliminary application by Canada to strike the respondents’ applications for review on jurisdictional grounds. With written reasons, he concluded that he had jurisdiction which is reported at 2020 ABPC 230.
Canada applied in Queen's Bench to quash that decision. The respondents applied to strike Canada's application as being premature; they say Canada’s certiorari application should not be heard before the Provincial Court proceedings are concluded.
Thus, the following decision solely relates to the question of whether Canada’s application in Queen’s Bench may proceed now or must await conclusion of Provincial Court proceedings.
[22] I am now going to go to paras. 29 through 31:
To the extent that characterization of the proceedings is important, this case is not easy to pigeonhole. It has a criminal aspect, because firearms falls within the criminal law head of power and the Firearms Act is valid federal legislation: Re Firearms Act (Can.), 2000 SCC 31. As to procedure, a reference under section 74 is a sui generis process. Is not a pure de novo hearing, but not a pure appeal either: Pogson v Alberta (Chief Firearms Officer), 2005 ABQB 179, paras. 39-40. An appeal to Queen's Bench under section 77 of the Firearms Act is governed (with some exceptions) by Part XXVII of the Criminal Code (dealing with summary convictions).
On the other hand, reference proceedings in a provincial court under the Firearms Act are very different from criminal law in its usual sense of the prosecution and punishment of individuals for crimes. The matters at issue on this application concern definition and authorization to own and use firearms–not the prosecution of firearms offences.
Thus, in my view, the instant proceedings are more akin to administrative, civil proceedings than criminal proceedings.
[23] The strict evidentiary rules that apply in a criminal proceeding do not apply at a reference under the Firearms Act. I refer to the decision of Joshi v. Attorney General of Ontario, reported at 2021 ONSC 2161 at para. 7:
- At the hearing of a reference in the Ontario Court of Justice, the judge is required to hear all relevant evidence, including hearsay evidence presented on behalf of the Chief Firearm’s Officer, Registrar or provincial minister and the citizen.
[24] The Firearms Act contains some references to the Criminal Code. However, that does not mean that a reference under the Firearms Act is a proceeding to which the Criminal Code applies. I find that it does not apply. The subpoenas in this matter were issued pursuant to s. 698 of the Criminal Code. That section does not authorize such a process in the references currently underway in the OCJ.
[25] On that basis, the subpoenas issued to Ms. Easton and Ms. McCabe must be quashed.
[26] This ruling does not unfairly or unduly limit the right of the respondents to litigate their issues before the OCJ.
[27] Ms. McCabe will be made available for cross-examination on the several affidavits she has sworn to. Counsel in cross-examination will be entitled to explore hearsay evidence through her, subject to the overriding authority of the presiding justice to control the process. I will leave to the justice in the OCJ to rule whether there are any limits on questions for Ms. McCabe related to communications she may have received directly or indirectly from Ms. Easton.
[28] In the result, the subpoenas issued to Lauren McCabe and Suzanne Easton are quashed. This is not an appropriate case for the ordering of costs.
[29] I am grateful to all counsel for their helpful materials and submissions.
O’Marra. J
B.P.O’MARRA J.
Released: October 22, 2021
COURT FILE NO.: CR-21-119-00MO
DATE: 20211022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAUREN MCCABE AND SUZANNE EASTON
Applicants
– and –
MARK NICHOL ET AL.
Respondents
Ruling on an application to quash subpoenas
B.P.O’MARRA J.
Released: October 22, 2021