COURT FILE NO.: CR-22-485-MO
DATE: 2022/11/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING (ATTORNEY GENERAL OF CANADA)
Applicant
- and -
M.C., C.H., D.J., B.M., and R.S.
Respondents
Counsel: J. Schneider and J. Stuckey, for the Applicant M. Cipriani, R. Syer, G. Jekic, C. Hewer, Self-Represented
HEARD: October 24, 2022
REASONS FOR JUDGMENT
OVERVIEW
[1] The respondents received, from the Registrar of Firearms, letters dated July 20, 2022 that their firearms registration certificates, due to Federal government regulations amended on May 1, 2020 by an order in council (OIC), were nullified and no longer valid.
[2] The respondents filed applications in the Ontario Court of Justice (OCJ), for reference hearings pursuant to s. 74(1) of the Firearms Act.
[3] The applicant, the Federal Crown, brings an application to dismiss the s. 74 Firearms Act applications on the grounds that the OCJ lacked jurisdiction to hear these s. 74 applications. OCJ Justice Leitch dealt with the applications.
[4] On January 6, 2022, Justice Leitch made a disclosure order relating to the development and use of a computer algorithm utilized to identify the respondents’ firearms affected by the OIC.
[5] The Crown subsequently brings two applications: (1) A certiorari application involving jurisdiction/error of law issues. (2) A s. 37 application involving a specified public interest issue.
ISSUES
[6] 1. Did Justice Leitch have jurisdiction to proceed with a s. 74 Firearms Act Hearing and, accordingly, did Justice Leitch have jurisdiction to order disclosure pursuant to s. 75(2) of the Firearms Act. If not, should certiorari issue?
- Should disclosure of computer scripts, used in the preparation of the Registrar’s letters, be prohibited pursuant to s. 37 of the CEA?
ISSUE #1 – JURISDICTION
THE LAW OF CERTIORARI
[7] Extraordinary remedies such as certiorari provide relief in narrow circumstances: R v. Awashish, 2018 SCC 45, [2018] 3 SCR 87 at para. 10. In a criminal context, the use of certiorari is tightly limited by the Criminal Code and the common law so as to ensure that it is not used to do an “end run” around the rule against interlocutory appeals: Awashish at para. 11.
[8] Certiorari is not available to correct errors of law on the face of the record: Awashish at para. 17. The Supreme Court of Canada has concluded that certiorari in criminal proceedings is available to parties only for a jurisdictional error by a provincial judge. For third parties, certiorari is available to review jurisdictional errors as well as errors on the face of the record relating to a decision of a final and conclusive character vis-a-vis a third party: Awashish at para. 20.
[9] The two cases cited by Crown counsel – R v. Parker, 2011 ONCA 819 and Toronto (Police Service) v. LD, 2018 ONCA 17 – do not change these principles.
[10] I note that a s. 74 firearms reference hearing is not a criminal matter per se, but the policy reasons, outlined in Awashish, regarding restricting certiorari on a narrow basis to prevent interlocutory appeals which would fragment criminal proceedings, apply fully to s. 74 Firearms Act references. Allowing interlocutory appeals, pursuant to certiorari applications, would allow for countless end runs and delays in those proceedings.
[11] Accordingly, I conclude that the Crown’s certiorari application regarding Justice Leitch’s Firearms Act orders should be strictly construed according to the certiorari principles outlined in Awashish.
JURISDICTION OF JUSTICE LEITCH TO CONDUCT A S. 74 REFERENCE HEARING
[12] The Crown argues that Justice Leitch had no jurisdiction to conduct a Section 74 reference hearing. The Crown argues that the letters, sent out by the Registrar to the respondents, advising that the status of their firearms had been changed by amendments pursuant to a government order in council, were informational letters only and not a revocation by the Registrar or Chief Firearms Officer as required by paragraph 74(1)(a) of the Firearms Act. The Crown relies on a number of provincial court decisions. Recent examples include Doherty et. al. v. Attorney General of Canada (Registrar of Firearms) April 19, 2022 (ONCJ) and Allen Peters v. A.G. Canada (B.C. OCJ, 94456-1 PCBC) (April 1, 2021).
[13] As pointed out in Doherty, at para. 47, numerous cases in the lower courts, i.e. B.C., Saskatchewan, Alberta, Quebec, Newfoundland, Manitoba, and Ontario, have supported A.G. Canada’s position that the “informational letters” are not a revocation under the Firearms Act and, accordingly, there is no jurisdiction to conduct a s. 74 Firearms Act hearing.
[14] In R. v. Fritz, 2021 ONCJ 20, Justice Guay also concluded he had no jurisdiction to conduct a S. 74 hearing. However, at para. 15, Justice Guay found that the preponderance of judicial thinking was that the provincial court does not have jurisdiction to entertain a Section 74 (1) reference hearing.
[15] Justice Guay also indicated there was another point of view set out in A.G. Canada v. Stark, 2020 ABPC 230. Justice Fradsham in Stark concluded, after a careful analysis, that the courts did have jurisdiction to conduct S. 74 Firearms Act hearings in the present circumstances.
[16] The question confronting the courts, ultimately, is whether the letters sent out to firearm owners is either (1) informational or (2) a revocation.
[17] Accordingly, it is relevant to examine the exact wording of the letters sent out by the Registrar to the respondents.
[18] The letters in question, sent out on July 20, 2020 to thousands of owners are all basically the same.
[19] An example of the letters is found at Volume 2 of the application record, involving the respondent B.M., at Tab G, page 360. The letter lists the affected firearm or firearms and indicates, “these firearms are now classified as prohibited and the previous registration certificates are automatically nullified and therefore no longer valid but should be retained as a historical registration record”.
[20] The letter concludes as follows:
The Government has publicly announced that it intends to implement a buy-back program for the newly prohibited firearms. More information on the buy-back program will be available at a later date.
Owners of newly prohibited firearms are:
• To keep them securely stored in accordance with their previous classification.
• They cannot be sold or imported.
• They may only be transported under limited circumstances.
• They cannot be legally used for hunting unless allowed through the Amnesty Order.
• They cannot be used for sport shooting, either at a range or elsewhere.
What are your options now?
• Wait for further instructions to participate in the buy-back program.
• Have your firearm deactivated by an approved firearms business and advise the Registrar of Firearms once completed.
• Legally export your firearm in which case you can engage in businesses with the proper firearms license privilege. Once exported, you are requested to advise the Registrar of Firearms.
[21] I note that the letter is signed off by the Registrar of Firearms.
[22] As noted by Justice Fradsham in Stark, there is nothing in the Firearms Act or the relevant orders in council that the respondents’ registration certificates are nullified or invalid: Stark at paras. 64, 66. Justice Fradsham concludes that nullification and invalidity must have come about as a result of an act of the Registrar of Firearms: Stark at para. 65. Justice Fradsham concludes that “nullify” and “revocation” have essentially the same meaning: Stark at paras. 66-69.
[23] Accordingly, the Registrar, by “nullifying” and making registration certificates “no longer valid”, has revoked the registration certificates listed in the July 20, 2020 letters sent to the respondents: Stark at para 70.
[24] The respondents submitted that, in the past, firearm owners were permitted to participate in a grandfathering scheme. As noted in Stark at paragraphs 80-86, the Canada Gazette, in its Regulatory Impact Analysis Statement, refers to a buy-back program and an option for a grandfathering scheme. The letters sent out to the respondents refer to the buy-back program but make no reference to a possible grandfathering scheme. As noted in Stark, in order to take advantage of a grandfathering scheme, the continuous holding of a registration certificate may form part of the requirements outlined in any future grandfathering scheme: Stark at paras 85-86.
[25] In conclusion, I agree with the careful analysis of Justice Fradsham in Stark and adopt it in its entirety. In conclusion, therefore, I hold that Justice Leitch has jurisdiction to entertain a s. 74 Firearms Act reference hearing.
JUSTICE LEITCH’S DISCLOSURE ORDER
[26] S. 75(2) of the Firearms Act authorizes the provincial court judge to hear all relevant evidence brought by the parties. In May v. Ferndale Institute, 2005 SCC 82, the Supreme Court of Canada held that Stinchcombe principles apply to criminal proceedings where the innocence of the accused was at stake. The Supreme Court held that Stinchcombe principles do not apply in the administrative context: May at para. 91.
[27] However, the Supreme Court also held that, in the administrative context, procedural fairness generally requires the decision maker to disclose the information he or she relied upon: May at para. 92.
[28] The respondents in their submissions indicate that in the proceedings before Justice Leitch, counsel for the Attorney General indicated that the letters sent out by the Registrar were generated as a result of a computer program (loosely referred to as an algorithm) and accordingly, the algorithm used was relevant to the s. 74 Firearms Act reference.
[29] It is clear that Justice Leitch had the power to order disclosure and did so regarding the algorithm as he determined them to be relevant to s. 74 of the Firearms Act reference.
[30] In my opinion, whether relying on the Stinchcombe principles or the May principles, Justice Leitch had jurisdiction to order the disclosure requested. Even if an error of law was made, this error would not go to jurisdiction. A disclosure order is not an order of a final and conclusive nature. Accordingly, certiorari is not available: Awashish at paras 10-11, 17, 20.
CONCLUSION
[31] In these circumstances, Justice Leitch had jurisdiction to conduct a Section 74 Firearms Act reference and had jurisdiction to make disclosure orders. Any arguable errors do not go to jurisdiction and do not justify a certiorari remedy.
[32] The Crown’s certiorari application is dismissed.
ISSUE #2 – SECTION 37 PRIVILEGE APPLICATION BROUGHT BY CROWN
[33] The Crown, in a separate application, seeks to stay or vary Justice Leitch’s disclosure order on the ground that such disclosure would violate a specified public interest: s. 37(1) Canada Evidence Act. The Superior Court of Justice has jurisdiction to determine the objection: s. 37(3) Canada Evidence Act (CEA)
BASIC PRINCIPLES OF A SECTION 37 CEA APPLICATION
[34] An application under s. 37 of the Canada Evidence Act is not a judicial review or an appeal of a decision: R v. Basi, 2009 SCC 52 at para. 50, Chad v. Minister of National Revenue, 2018 FC 319 at para. 26.
[35] A s. 37 application is a de novo application where the Court is asked to assess whether the protection of public interest immunity applies to the information at issue. The Court owes no deference to prior rulings and must make its own determination based on the facts and law: Canada (National Inquiry into Missing and Murdered Indigenous Women and Girls) v. Canada (Attorney General), 2019 FC 741 at para. 49 [NIMMIWG].
[36] There is no set procedure dictating a specific process to follow when adjudicating section 37 objections. The court has full discretion to choose its own procedure based on the circumstances before it: Attorney General of Canada v. S. Robert Chad, 2018 FC 319 at para. 10.
[37] In Chad, at para. 12, the following procedure was outlined:
[12] The Court has determined that in the present proceedings the following procedures should be followed:
The Court must determine whether the Crown has established the specified public interest as claimed;
If that determination cannot be made based on the certificate alone, further submissions such as a secret affidavit and un-redacted documents must be filed in support of the privilege claimed, which will be dealt with in an ex parte manner;
The Court must determine whether the Respondent has established an “apparent case” for disclosure of the redacted information (Khan v. R, 1996 CanLII 4032 (FC), [1996] 2 FC 316 at paras 24-25);
Once an apparent case for disclosure has been established, the Court must consider reviewing the redacted information (Khan v. R, 1996 CanLII 4032 (FC), [1996] 2 FC 316 at para 25);
I the Court finds that the disclosure of the redacted information would encroach on the specified public interest, it must conduct a balancing of interests. The interests to be balanced are the public interest in disclosure and the specified public interest advanced by the Applicant. The Court may review the original form of the Redacted Information at this stage (Wang v. Canada (Public Safety and Emergency Preparedness), 2016 FC 493 at paras 36-37);
Determine whether the redacted information should be disclosed.
LEGAL TEST
[38] As indicated in paragraphs 49-50 of the applicant’s written submissions, in Wang v. Canada (Public Safety and Emergency Preparedness), 2016 FC 493, the Federal Court set out the legal test that applies to an application under section 37 of the CEA as follows, at paragraphs 34-38:
Does the disclosure at issue encroach upon a specified public interest; and
If so, does protecting the public interest at stake outweigh the public interest in disclosure. In assessing this factor, the Court is to examine,
i. The nature of the public interest sought to be protected by confidentiality;
ii. The seriousness of the charge or issues involved;
iii. The admissibility of the documentation and the usefulness of it;
iv. Whether the applicants have established that there are no other reasonable ways of obtaining the information; and
v. Whether the disclosures sought amount to general discovery or a fishing expedition.
- If the Court does not order disclosure, the Court will prohibit disclosure of the information at issue under subsection 37(6) of the CEA.
[39] To summarize, if the court does not order disclosure pursuant to subsection 37(4.1) or subsection 37(5), then the court will prohibit disclosure of the information in question, pursuant to subsection 37(6): Wang at para. 38.
LEGAL TEST – QUESTION 1 – Does disclosure encroach upon a specified public interest?
[40] The Crown at Tab 3 of Volume 1 of 2 of its Application Record, has filed a certificate (Certificate) prepared by Kellie Paquette, Director General of the Royal Canadian Mounted Police (RCMP) Canadian Firearms Program (CFP).
[41] At paragraph 4 of the Certificate, Ms. Paquette indicates that the algorithm, referred to in Justice Leitch’s order, in fact refers to scripts of a computer code that was created in light of Order In Council’s (OIC) regulations dated May 1, 2020, that affected the respondents. At paragraph 7, Ms. Paquette indicates there is no single algorithm as indicated in Justice Leitch’s order. Rather, the firearms affected by the OIC were identified by human actors and then several scripts of computer code were developed and executed to implement the OIC. Ms. Paquette objects to disclosing the information in the scripts as it would put public safety at risk.
[42] Ms. Paquette indicates in the Certificate that the specific details of the scripts used to update the Canadian Firearms Information System (CFIS)’s system and databases has no bearing on the action the Registrar has taken. The Registrar was not involved in the development or use of the scripts – that was done by a separate unit in a separate directorate from the Registrar: see paras. 23-24 of the Certificate.
[43] The gist of the Certificate is that the specific details of the scripts i.e. how it was developed, used and its interconnection with other CFP databases, presents a threat to public safety.
[44] Ms. Paquette in the Certificate asserts, at paragraphs 31 to 40, that the disclosure of specific details of the scripts would potentially allow hackers or cyber attackers to access the RCMP information system which would be injurious to the public interest in three ways:
The information on the CFIS could be manipulated by hackers which would make it less reliable when accessed by law enforcement;
Hackers could access and disclose private personal information of millions of firearms owners and hundreds of RCMP employees;
Unauthorized hacking could undermine the public’s confidence in the RCMP’s ability to manage its own system and security.
[45] To establish the encroachment of a specified interest, it is not necessary that disclosure will necessarily endanger the specified interest, only that it might: NIMMIWG, 2019 FC 741 at para. 57, R v. Amer, 2017 ABQB 651 at para. 60.
[46] Upon reviewing the Certificate, I am satisfied that disclosure of the details of the scripts encroach upon a specified public interest.
LEGAL TEST – STEP 2 – Balancing Act between Specified Public Interest versus Disclosure
[47] The position of the respondents’ is relevant to the balancing act required to be undertaken. The respondent, M.C., submitted that the respondents don’t need the specific details of the “algorithm”. M.C. indicated that the disclosure required regarding the scripts is:
Who created it?
When were they created?
Who was involved?
Who was consulted?
What was the involvement of the Registrar?
[48] D.J. submitted that the respondents are not interested in the computer code but are interested in what the Registrar did and who, what, and why were the parties involved in the preparation and sending of the “revocation” letters sent to the respondents. Basically, D.J. indicated the respondents want disclosure regarding who was behind the “algorithm” and how it was decided to use the “algorithm”.
[49] I agree with the Crown’s submission that there are no criminal charges to be dealt with and rights to liberty, life, and security are not at stake. However, the respondents have done nothing wrong and are entitled to disclosure pursuant to section 75(2) of the Firearms Act and fundamental purposes of due process.
ISSUE #2 – CONCLUSION REGARDING CROWN’S S. 37 CEA APPLICATION
[50] Given this background, I believe that the balancing act between protecting the specified public interest, while at the same time giving effect to the respondent’s right to relevant disclosure, can best be achieved by varying Justice Leitch’s order. In the result, I order that paragraph 3 of Justice Leitch’s be deleted and the following two orders be substituted:
The Crown is to provide disclosure relevant to the scripts used to identify the respondents’ firearms which is to include who created the scripts, when they were created, who was involved directly or indirectly in writing the scripts, who was consulted and the involvement of the Registrar in creating the scripts and the involvement of the Registrar in the preparation and dissemination of the July 20, 2020 letters the respondents received from the Registrar.
The disclosure, outlined in paragraph 1 above, does not include the scripts, comprised of computer code, as outlined in paragraph 7 of Kellie Paquette’s Certificate. The specific details of the scripts and computer codes in the scripts are prohibited from disclosure pursuant to s. 37(6) of the Canada Evidence Act (CEA).
ORDER
[51] The Attorney General of Canada’s certiorari application is dismissed.
[52] The Attorney General’s S. 37 application is granted in part. Justice Leitch’s disclosure order dated January 6, 2022 is varied as outlined in paragraph 50 above.
Skarica J.
Released: November 3, 2022
DATE: 2022/11/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King (Attorney General of Canada)
Applicant
- and –
M.C., C.H., G.J., B.M., and R.S.
Respondents
REASONS FOR JUDGMENT
Justice Skarica
Released: November 3, 2022