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| John L. Hill |
On June 21, 2023, Ontario Appeal Court Justice Gary Trotter, writing for a three-judge panel, deals with a situation where three counsel for the Attorney General of Canada faced off against five individuals acting in person, having left their hired guns at home, and had their earlier successful lower court application quashed.
The case is R. v. M.C. 2023 ONCA 448. The five individuals, referred to only by their initials, had been served with letters from the RCMP advising that guns in their possession had been reclassified as “prohibited” by an order-in-council dated May 1, 2020. They were notified there was an amnesty period where possession of illegal firearms would be waived and that the government will “buy back” the weapons now classified as illegal.
“Wait a minute,” the gun owners impliedly screamed out. They acknowledged that s. 70 of the Firearms Act allows the registrar to revoke the registration certificate for any restricted or prohibited firearm for any good and sufficient reason. A notice that their previous registration certificates were no longer valid was, to the gun owners, tantamount to saying their certificates had been revoked. When a revocation order is made, a gun owner retains the right to have the decision reviewed by a provincial court judge.
So, the gun owners marched off to seek judicial review of the notice claiming to revoke their certificates of registration. The attorney general argued that the letters were not notices of revocation; they were merely informational and advising of the changes made by the May order-in-council.
The five individuals who owned the guns were successful insofar as they had the reference judge agree that before the issue was decided, the Crown ought to provide further disclosure of all information concerning the development and use of an algorithm used to identify the firearms set out in the letters even though no identification errors were alleged in the letters the men received.
That procedural step was challenged before a Superior Court justice who agreed that when the letters notified the owners that their registrations were automatically nullified, it was just another way of saying they were revoked. In doing so, the Superior Court relied on Alberta cases: Canada (Attorney General) v. Stark 2020 ABPC 230 and affirmed on certiorari review in Canada (Attorney General) v. Smykot 2022 ABQB 61. The attorney general of Canada appealed.
However, by the time the five owners of the weaponry declared illegal arrived at the Ontario Court of Appeal, the Smykot case had been overturned by the Alberta Court of Appeal (Canada (Attorney General v. Smykot 2023 ABCA 131).
The respondents in the appeal, acting on their own, preparing to do battle with the attorney general of Canada counsel now held no jurisprudential ammunition to take on the attorney general in Ontario. Perhaps if they had brought their hired guns into court, they would have been told that their registrations became invalid by operation of law and not by administrative whim. The statutory change in the classification of firearms was not an individualized decision. Therefore, there was no review necessary under the Firearms Act. For good measure, the Ontario Court of Appeal noted its reasoning was in line with other cases dealing with jurisdiction: J.C. v. Canada (Attorney General) 2021 ONCJ 118 and R. v. Wyville 2020 ONCJ 555.
A single paragraph summed up the entirety of the judgment: “A change in the law nullified the respondents’ registration certificates. The registrar was merely the messenger. The reference judge had no jurisdiction to conduct a hearing under section 74 of the Firearms Act, nor to make any other orders, including the disclosure order.”
The decision of the application judge was set aside; the proceedings before the reference judge were quashed including the issuance of the disclosure order.
Although no costs were ordered against the five respondents, one suspects they regret they had not gone into battle better armed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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