Parker v. Canada (Attorney General)

Parker v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-10-30
Neutral citation
2023 FC 1419
File numbers
T-569-20, T-577-20, T-581-20, T-677-20, T-735-20, T-905-20
Notes
A correction was made on November 6, 2023.
Decision Content
Date: 20231030
Docket: T-569-20
T-577-20
T-581-20
T-677-20
T-735-20
T-905-20
Citation: 2023 FC 1419
Ottawa, Ontario, October 30, 2023
PRESENT: The Honourable Madam Justice Kane
Docket: T-569-20
BETWEEN:
CASSANDRA PARKER AND K.K.S. TACTICAL SUPPLIES LTD.
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Docket: T-577-20
AND BETWEEN:
CANADIAN COALITION FOR FIREARM RIGHTS, RODNEY GILTACA, RYAN STEACY, MACCABEE DEFENSE INC., AND WOLVERINE SUPPLIES LTD.
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Docket: T-581-20
AND BETWEEN:
JOHN PETER HIPWELL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Docket: T-677-20
AND BETWEEN:
MICHAEL JOHN DOHERTY, NILS ROBERT EK, RICHARD WILLIAM ROBERT DELVE, CHRISTIAN RYDICK BRUHN, PHILIP ALEXANDER MCBRIDE, LINDSAY DAVID JAMIESON, DAVID CAMERON MAYHEW MARK ROY NICHOL AND PETER CRAIG MINUK
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Docket: T-735-20
AND BETWEEN:
CHRISTINE GENEROUX, JOHN PEROCCHIO AND VINCENT PEROCCHIO
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Docket: T-905-20
AND BETWEEN:
JENNIFER EICHENBERG, DAVID BOT, LEONARD WALKER, BURLINGTON RIFLE AND REVOLVER CLUB, MONTREAL FIREARMS RECREATION CENTRE, INC., O’DELL ENGINEERING LTD
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ATTORNEY GENERAL OF ALBERTA
Intervener
JUDGMENT AND REASONS
Table of Contents
I. Introduction 4
II. Background and Context 9
A. The Statutory Provisions 9
B. Who is the Governor in Council and how do they make Regulations? 12
C. The Order in Council and Regulations 14
D. The Legislative History 16
E. The Firearms Reference Table 21
F. The Regulatory Impact Analysis Statement 22
III. Overview: The Applicants, the Intervener, and their Positions 27
A. Parker et al v AGC (T-569-20) [Parker Applicants] 27
B. Canadian Coalition for Firearm Rights et al v AGC (T-577-20) [CCFR Applicants] 30
C. Hipwell v AGC (T-581-20) 32
D. Doherty et al v AGC (T-677-20) [The Doherty Applicants] 34
E. Generoux et al v AGC (T-735-20) [The Generoux Applicants] 36
F. Eichenberg et al v AGC (T-905-20) [The Eichenberg Applicants] 38
G. The Attorney General of Alberta (Intervener) 40
H. The Relief Sought by the Applicants 42
IV. Overview: The AGC’s Position 43
V. The Issues 45
VI. The Evidence 47
VII. The Standard of Review 50
A. The Applicants’ Submissions 50
B. The AGC’s Submissions 51
C. The Jurisprudence 52
VIII. Should an adverse inference be drawn from the AGC’s assertion of Cabinet confidence and failure to produce the record before the Governor in Council? 57
A. The Applicants’ Submissions 57
B. The AGC’s Submissions 59
C. No adverse inference should be drawn 60
IX. Are the Order in Council and Regulations ultra vires subsection 117.15(2) of the Criminal Code? Are the Governor in Council’s opinion and decision reasonable? 64
A. The Submissions of the Intervener, Alberta 64
B. The Applicants’ Submissions 65
(1) The Regulations are ultra vires and the opinion and decision of the Governor in Council are not reasonable 65
(2) The now-prohibited firearms are reasonable for use in hunting and sport 72
C. The AGC’s Submissions 75
(1) The Regulations are not ultra vires and the Governor in Council’s decision is reasonable 75
(2) The now-prohibited firearms are not reasonable for hunting and sport 80
D. The Regulations are not ultra vires and the Governor in Council’s opinion and decision are reasonable 81
(1) Judicial Review of Regulations 81
(2) The relevant factual and legal context does not include the manner in which the Government proceeded 85
(3) Parliament has not abdicated its legislative role 86
(4) Consistency with the overall purpose of the legislation and the specific statutory provision 88
(5) The Governor in Council formed the opinion 90
(6) The Governor in Council’s opinion is reasonable 91
X. Is there an unlawful sub-delegation of authority from the Governor in Council to the SFSS to classify firearms as prohibited? 107
A. The Applicants’ Submissions 107
(1) Only the Governor in Council has the authority to prescribe firearms as prohibited 107
(2) The FRT is a de facto regulatory regime 108
(3) The constraints of subsection 117.15(2) should also apply to the SFSS 109
(4) No criteria to determine a “variant” 110
(5) All variants should be named in the Regulations; no unnamed variants 110
(6) Future variants cannot be prescribed as prohibited 111
B. The AGC’s Submissions 111
(1) There is no sub-delegation to the SFSS; the Regulations prohibit variants 111
(2) Both named and unnamed variants are prohibited 113
(3) Updates to the FRT since May 2020 114
(4) Criteria for the classification of firearms 114
(5) Classification is not immune from review 115
C. There is no sub-delegation of the Governor in Council’s authority pursuant to subsection 117.15(2) 115
(1) The statutory provisions 115
(2) The FRT is not a de facto regulatory regime 117
(3) The FRT is a database and administrative resource 118
(4) Courts ultimately determine whether a variant is a prohibited firearm 122
(5) Criteria for classification 124
(6) Quality assurance for classification and listing on the FRT 126
(7) A review process exists 127
(8) Prohibition of “future” variants 127
XI. Was there a breach of the duty of procedural fairness in the decision of the Governor in Council or in the assessments of firearms made by the SFSS? 129
A. The Applicants’ Submissions 129
B. The AGC’s Submissions 130
C. There was no breach of procedural fairness 131
XII. Do the Regulations infringe section 7 of the Charter as vague, overbroad or arbitrary, and if so, is the infringement justified by section 1? 133
A. The Applicants’ Submissions 133
(1) The term “variant” is vague 134
(2) The prohibitions on bore diameter and muzzle energy are vague 136
(3) The Regulations set out an exhaustive list of variants 137
(4) The Regulations are arbitrary and overbroad 138
(5) The infringement is not saved by section 1 138
B. The AGC’s Submissions 139
(1) The right to security of the person is not infringed 139
(2) The right to liberty is engaged, but is in accordance with the principles of fundamental justice 139
(3) The Regulations are not impermissibly vague 140
(4) The Regulations do not set out an exhaustive list of variants 141
(5) Prohibitions on bore diameter and muzzle energy are not vague 142
(6) The Regulations are not arbitrary or overbroad 142
(7) Any infringement of the Charter is justified by section 1 143
C. The Regulations do not infringe the section 7 right to security of the person. To the extent that the Regulations infringe the section 7 liberty interest, they are not vague, overbroad or arbitrary. 145
(1) The section 7 right to security of the person is not engaged 145
(2) The section 7 liberty interest is engaged 146
(3) The Regulations are not impermissibly vague, overbroad or arbitrary 146
(4) Any infringement of section 7 is a reasonable limit pursuant to section 1 162
XIII. Do the Regulations infringe sections 8, 11, 15 or 26 of the Charter, and if so, is any infringement justified by section 1? 176
A. The Applicants’ Submissions 176
(1) Section 8 176
(2) Section 11 177
(3) Section 15 178
(4) Section 26 181
B. The AGC’s Submissions 181
C. The Regulations do not infringe Sections 8, 11, 15 or 26 183
(1) Section 8 is not engaged. 183
(2) Section 11 is not engaged 184
(3) Section 15 is not engaged 184
(4) Section 26 is not engaged 186
XIV. Do the Regulations infringe the Canadian Bill of Rights? 187
A. The Applicants’ Submissions 187
B. The AGC’s Submissions 187
C. The Regulations do not infringe the Canadian Bill of Rights 188
XV. Conclusion 190
I. Introduction
[1] Six Applications for judicial review, most of which involved several applicants and raised several common issues, were case managed and heard together. This Judgment and Reasons applies to all Applications.
[2] The Applications focus on regulations promulgated by the Governor in Council on May 1, 2020 — the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted, or Non-Restricted, SOR/2020-96 [the Regulations]. The Regulations were made pursuant to the authority set out in the Criminal Code, RSC, 1985, c C-46 and have the effect of prohibiting the possession and use of listed firearms, variants or modified versions of the listed firearms, and firearms that have certain physical characteristics.
[3] The Applications raise many issues, several of which are common and some, unique. The common issues include: whether the Regulations are ultra vires the delegated authority set out in subsection 117.15(2) of the Criminal Code; whether the Regulations infringe section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] due to vagueness, arbitrariness or overbreadth; whether the Regulations infringe other Charter rights; and, whether the Regulations violate the Canadian Bill of Rights, SC 1960, c 44. All the issues are set out in detail below.
[4] The Attorney General of Alberta was granted leave to intervene with respect to the issue whether the Regulations are ultra vires and intervened as of right with respect to the constitutional issues raised by the Applicants.
[5] One of the Applicants questioned whether these Applications were really about the need for further regulation of firearms in Canada. This judgment is not an opinion on whether or how firearms should be further regulated in Canada. The debate on whether and how to reduce the risk posed by firearms has raged on for decades and will no doubt continue. The issue before this Court is a legal issue—whether the Governor in Council acted within its authority to make the Regulations and made a reasonable decision to prescribe as prohibited the firearms that, in its opinion, are not reasonable for hunting and sporting purposes.
[6] The Applicants generally take the position that firearms are not the real threat to public safety, rather people who obtain and/or use firearms illegally pose this threat. The Applicants highlight that their use of firearms is already highly regulated and that they take safety extremely seriously and abide by all the existing laws, licensing and registration requirements. A common theme is that no further regulation is necessary, and more particularly, that the Regulations will not further contribute to the protection of public safety.
[7] The Applicants argue that the focus on public safety as the goal of the Regulations is misplaced because the issue is only whether the now prohibited firearms are reasonable for use in hunting and sport.
[8] The Applicants’ position is that the firearms prescribed as prohibited in the Regulations are indeed reasonable for hunting and sport and that the Governor in Council has not respected the constraint on its delegated authority and its opinion is not reasonable. The Applicants point to extensive evidence about the history of use of these firearms for such purposes and submit that these firearms are not “assault-style” or “military-style” as suggested by the Respondent.
[9] The Respondent, the Attorney General of Canada’s [AGC] position is that the Governor in Council acted within its authority in forming the opinion that the firearms are not reasonable for civilian use in hunting and sport because of their various attributes, inherent deadliness, potential to cause serious harm and, more generally, their impact on public safety.
[10] The Applicants and the AGC have all provided a “mountain of evidence” (to adopt the Applicants’ own words) in support of their respective positions. A list of the affiants is attached as ANNEX A. Many of the affiants attached several exhibits. An overview of the evidence of some affiants is attached as ANNEX B.
[11] The Applicants made detailed and extensive arguments. Even on the common issues, some of the arguments differ or are nuanced. The AGC responded to all the arguments. The Court has endeavoured to acknowledge all the issues and arguments and to focus on the determinative issues, the relevant jurisprudence, and as much of the relevant evidence as is reasonably possible, particularly, the evidence highlighted in the parties’ submissions. As is often the case, the Applicants and AGC are critical of each other’s evidence and submit that the Court should attribute little or no weight to this evidence.
[12] The extensive arguments and volumes of evidence lead to a long judgment. The relevant statutory provisions, some history of legislative reforms to address firearms, the Order in Council (Regulations) and other background information is first set out for context. An overview of the six Applications and the issues raised in each is also provided. The more detailed submissions made by the Applicants and AGC are set out on an issue-by-issue basis, followed by the Court’s analysis.
[13] The Court finds, for the reasons that follow, that the Applications are dismissed.
[14] The Order in Council and Regulations are not ultra vires. The Governor in Council did not exceed the statutory grant of authority delegated to it by Parliament pursuant to subsection 117.15(2) of the Criminal Code. The decision of the Governor in Council to promulgate the Regulations is reasonable. The Regulatory Impact Analysis Statement [RIAS], which the jurisprudence establishes is accepted as the reasons for decisions of the Governor in Council to promulgate regulations, explains why the Governor in Council determined that the prescribed firearms are not suitable for civilian use and not reasonable for hunting and sporting purposes due to their inherent deadliness and the serious threat they pose to public safety, including the degree to which they can increase the severity of mass shootings.
[15] The Governor in Council did not sub-delegate its authority to prescribe firearms as prohibited. The prescribed firearms and their variants are prohibited based on the Criminal Code and the Regulations. The role of the Royal Canadian Mounted Police’s [RCMP] Specialized Firearms Support Service in assessing and classifying firearms as non-restricted, restricted or prohibited and posting the classification on the Firearms Reference Table is not an exercise of legal authority, but rather reflects the opinion of the Specialized Firearms Support Service and provides guidance to firearm owners and others. Where a person is charged with the possession of a prohibited firearm or a variant of a prohibited firearm, the Crown must prove that the firearm is prohibited and the Court will make the ultimate determination.
[16] There was no breach of the duty of procedural fairness in the decision of the Governor in Council to promulgate the Regulations. The jurisprudence is clear that the duty of procedural fairness does not apply to the legislative process.
[17] The Regulations do not infringe section 7 of the Charter; the Regulations are not vague, overbroad or arbitrary. Alternatively, if the Court had found that the Regulations infringed section 7 in a manner not in accordance with the principles of fundamental justice, the Court would find that any infringement is justified pursuant to section 1 of the Charter as a reasonable limit. The overriding goal of public safety outweighs any possible infringement on the rights of firearm owners who are now more limited in their choice of firearm for hunting and sporting purposes.
[18] The Regulations do not infringe sections 8, 11, 15 or 26 of the Charter.
[19] The Regulations do not infringe the Canadian Bill of Rights.
II. Background and Context A. The Statutory Provisions [20] Generally, firearms are categorized as non-restricted, restricted, or prohibited.
[21] Subsection 84(1) of the Criminal Code provides definitions that apply to Part III of the Criminal Code (Firearms and Other Weapons), including the following:
non-restricted firearm means
arme à feu sans restriction Arme à feu qui, selon le cas :
(a) a firearm that is neither a prohibited firearm nor a restricted firearm, or
a) n’est ni une arme à feu prohibée ni une arme à feu à autorisation restreinte;
(b) a firearm that is prescribed to be a non-restricted firearm;
b) est désignée comme telle par règlement. (non-restricted firearm)
prescribed means prescribed by the regulations;
Blanc
…
[…]
prohibited firearm means
arme à feu prohibée
(a) a handgun that
a) Arme de poing pourvue d’un canon dont la longueur ne dépasse pas 105 mm ou conçue ou adaptée pour tirer des cartouches de calibre 25 ou 32, sauf celle désignée par règlement pour utilisation dans les compétitions sportives internationales régies par les règles de l’Union internationale de tir;
(i) has a barrel equal to or less than 105 mm in length, or
Blanc
(ii) is designed or adapted to discharge a 25 or 32 calibre cartridge,
Blanc
but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,
Blanc
(b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
b) arme à feu sciée, coupée ou modifiée de façon que la longueur du canon soit inférieure à 457 mm ou de façon que la longueur totale de l’arme soit inférieure à 660 mm;
(i) is less than 660 mm in length, or
Blanc
(ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,
Blanc
(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or
c) arme automatique, qu’elle ait été ou non modifiée pour ne tirer qu’un seul projectile à chaque pression de la détente;
(d) any firearm that is prescribed to be a prohibited firearm;
[Emphasis added]
d) arme à feu désignée comme telle par règlement. (prohibited firearm)
[Je souligne]
restricted firearm means
arme à feu à autorisation restreinte
(a) a handgun that is not a prohibited firearm,
a) Toute arme de poing qui n’est pas une arme à feu prohibée;
(b) a firearm that
b) toute arme à feu — qui n’est pas une arme à feu prohibée — pourvue d’un canon de moins de 470 mm de longueur qui peut tirer des munitions à percussion centrale d’une manière semi-automatique;
(i) is not a prohibited firearm,
Blanc
(ii) has a barrel less than 470 mm in length, and
Blanc
(iii) is capable of discharging centre-fire ammunition in a semi-automatic manner,
Blanc
(c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or
c) toute arme à feu conçue ou adaptée pour tirer lorsqu’elle est réduite à une longueur de moins de 660 mm par repliement, emboîtement ou autrement;
(d) a firearm of any other kind that is prescribed to be a restricted firearm.
[Emphasis added]
d) toute arme à feu désignée comme telle par règlement. (restricted firearm)
[Je souligne]
[22] Section 117.15 of the Criminal Code provides,
117.15 (1) Subject to subsection (2), the Governor in Council may make regulations prescribing anything that by this Part is to be or may be prescribed.
117.15 (1) Sous réserve du paragraphe (2), le gouverneur en conseil peut, par règlement, prendre toute mesure d’ordre réglementaire prévue ou pouvant être prévue par la présente partie.
(2) In making regulations, the Governor in Council may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.
(2) Le gouverneur en conseil ne peut désigner par règlement comme arme à feu prohibée, arme à feu à autorisation restreinte, arme prohibée, arme à autorisation restreinte, dispositif prohibé ou munitions prohibées toute chose qui, à son avis, peut raisonnablement être utilisée au Canada pour la chasse ou le sport.
(3) Despite the definitions prohibited firearm and restricted firearm in subsection 84(1), a firearm that is prescribed to be a non-restricted firearm is deemed not to be a prohibited firearm or a restricted firearm.
(3) Malgré les définitions de arme à feu prohibée et de arme à feu à autorisation restreinte au paragraphe 84(1), une arme à feu désignée par règlement comme étant une arme à feu sans restriction est réputée ne pas être une arme à feu prohibée ni une arme à feu à autorisation restreinte.
(4) Despite the definition prohibited firearm in subsection 84(1), a firearm that is prescribed to be a restricted firearm is deemed not to be a prohibited firearm.
(4) Malgré la définition de arme à feu prohibée au paragraphe 84(1), une arme à feu désignée par règlement comme étant une arme à feu à autorisation restreinte est réputée ne pas être une arme à feu prohibée.
B. Who is the Governor in Council and how do they make Regulations? [23] The AGC’s affiant, Mr. Randall Koops attached the Cabinet Directive on Regulation to his affidavit. The Directive describes the regulatory process and describes the Governor in Council as follows:
Governor General in Council, or Governor in Council, means the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada.
Since December 2003, advice to the Governor General on behalf of the Queen's Privy Council has been provided by the Treasury Board.
Treasury Board ministers consider the regulatory submission and decide whether to recommend that the Governor General make the regulations as presented in their final form.
[24] Treasury Board, in this context, refers to a Cabinet Committee. The Members of the Treasury Board are Cabinet Ministers.
[25] In Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 [Canadian Council for Refugees], the Governor in Council was described in the same way, at para 37:
[37] The Governor in Council is the “Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada”: Interpretation Act, R.S.C. 1985, c. I-21, subsection 35(1), and see also the Constitution Act, 1867, (UK), 30 & 31 Vict., c. 3, s. 91, reprinted in R.S.C. 1985, Appendix II, No. 5, sections 11 and 13. All the Ministers of the Crown, not just the Minister, are active members of the Queen’s Privy Council for Canada. They meet in a body known as Cabinet. Cabinet—sitting at the apex of the executive of the Canadian government—is “to a unique degree the grand co-ordinating body for the divergent provincial, sectional, religious, racial and other interests throughout the nation” and, by convention, it attempts to represent different geographic, linguistic, religious, and ethnic groups: Norman Ward, Dawson’s the Government of Canada, 6th ed., (Toronto: University of Toronto Press, 1987) at pages 203-204; Richard French, “The Privy Council Office: Support for Cabinet Decision Making” in Richard Schultz, Orest M. Kruhlak and John C. Terry, eds., The Canadian Political Process, 3rd ed. (Toronto: Holt Rinehart and Winston of Canada, 1979) at pages 363-394. All the levers of government are present at the Cabinet table.
[26] Contrary to the suggestion by one of the Applicants, the Governor in Council is not a group of selected “appointees” influenced by gun control lobbyists; the Governor in Council is comprised of elected members of Parliament that have formed the Government and have been named as Ministers of the Crown by the Prime Minister.
C. The Order in Council and Regulations
[27] On May 1, 2020, the Prime Minister announced amendments to existing regulations, (made in 1998) to prescribe additional types of firearms and related devices as prohibited. These amendments were the result of the Order in Council (PC 2020-298): Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted, or Non-Restricted: SOR/2020-96 [the Order in Council or the Regulations].
[28] The Regulations were made pursuant to the authority granted to the Governor in Council in subsection 117.15(2) of the Criminal Code. The scope of the authority granted to the Governor in Council and the interpretation of subsection 117.15(2) is a key issue in the Applications.
[29] The Order in Council states:
Whereas the Governor in Council is not of the opinion that any thing prescribed to be a prohibited firearm or a prohibited device, in the Annexed Regulations, is reasonable for use in Canada for hunting or sporting purposes;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to the definitions “non-restricted firearm”, “prohibited device”, “prohibited firearm” and “restricted firearm” in subsection 84(1) of the Criminal Code and to subsection 117.15(1) of that Act, makes the annexed Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted.
[30] The Regulations are lengthy and can be found at https://www.canadagazette.gc.ca/rp-pr/p2/2020/2020-05-01-x3/pdf/g2-154x3.pdf.
[31] In brief, the Regulations prescribe firearms by general “family,” make and model, and any variants or modified versions, and by two physical characteristics.
[32] The nine firearm “families” (see sections 83 and 87-94 of the Regulations) are:
SG-550 rifle, SG-551 carbine (also referred to as the Swiss Arms Classic Green and Four Seasons series);
M16, AR-10, AR-15 rifles and M4 carbine;
Ruger Mini-14 rifle;
US Rifle, M14;
Vz58 rifle;
Robinson Armament XCR rifle;
CZ Scorpion EVO 3 carbine and pistol;
Beretta CX4 Storm carbine; and,
SIG Sauer SIG MCX and SIG Sauer SIG MPX carbines and pistols;
[33] Sections 95 and 96 of the Regulations prohibit firearms based on two physical characteristics—firearms with a bore diameter that is 20mm or greater; and firearms with the capacity to discharge a projectile with a muzzle energy greater than 10,000 joules.
[34] The Regulations list approximately 1,500 firearms that are either variants of the nine families or have the two characteristics noted above. This format is generally consistent with the format of the 1998 regulations and its predecessors; the makes and models of firearms are set out plus “any variants or modified versions of them.”
[35] The Order in Council was not pre-published in the Canada Gazette. The Order in Council came into force immediately upon promulgation on May 1, 2020, and was published in final form along with a Regulatory Impact Analysis Statement [RIAS]. The RIAS sets out the background and objectives, describes the Regulations, notes the regulatory development process and describes several considerations related to the regulatory impact.
[36] A related Order in Council, the Order Declaring an Amnesty Period (2020), SOR/2020-97 [Amnesty Order] was promulgated on the same day.
D. The Legislative History [37] The Applicants note the extensive law reform over the past several decades, which has incrementally limited their access to many types of firearms. The Applicants suggest that the existing regime is sufficient and that the Regulations at issue do not reflect a balance between protecting public safety and permitting the legitimate use of firearms for hunting and sport. The AGC also points to the long history of gun control legislation to improve public safety. Given the submissions, a brief overview of the legislative history follows.
[38] The affidavit of the AGC’s affiant, Professor R. Blake Brown, a legal historian, provides a chronology of gun control legislation in Canada. Professor Brown notes that the current approach to regulating long guns dates back to the late 1960s. He describes the following key legislative reforms, among others.
[39] In 1969, the Criminal Code was amended to set out three classifications of weapons: non-restricted, restricted and prohibited weapons. In addition to the definitions of restricted and prohibited weapons, the legislation granted the Governor in Council the authority to declare a weapon to be a restricted weapon. Similarly, the Governor in Council could declare any weapon to be a prohibited weapon that was “not being a restricted weapon or a shotgun or rifle of any kind not commonly used in Canada for hunting or sporting purposes.”
[40] Professor Brown notes that this wording was relied on by successive governments to restrict many firearms.
[41] In 1977 the Criminal Code was amended to change and expand the definition of restricted and prohibited weapons. This resulted in the restriction of short-barreled semi‑automatic firearms. The Minister of Justice of the day, Ron Basford, noted that there was no proper hunting use for these firearms.
[42] The 1977 amendments changed the definition of a restricted weapon to “a weapon of any kind, not being a prohibited weapon or a shotgun or rifle of a kind that, in the opinion of the Governor in Council, is reasonable for use in Canada for hunting or sporting purposes, that is declared by order of the Governor in Council to be a restricted weapon.”
[43] The prohibited weapon definition was also expanded to include automatic weapons that were not subject to a grandfathering clause and to modify the authority of the Governor in Council to declare firearms to be prohibited weapons; a firearm “of any kind, not being an antique firearm or a firearm of a kind not commonly used in Canada for hunting or sporting purposes, that is declared by order of the Governor in Council to be a prohibited weapon.”
[44] In 1991, Bill C-17 slightly modified the definition of prohibited weapon and also prohibited large-capacity magazines for semi-automatic firearms, automatic firearms that had been converted to avoid the previous prohibitions, and rifles manufactured as semi-automatic based on modified fully automatic designs. The Minister of Justice, Kim Campbell, explained the Government’s intention to limit access to “modern semi-automatic military assault weapons.” Minister Campbell noted that the Government’s reliance on regulations would continue to permit flexibility to protect the public while respecting, to the extent possible, the interests of legitimate firearm owners and users.
[45] Professor Brown notes several Orders in Council that prohibited or prescribed many firearms. The Orders in Council made under the authority of the Criminal Code provisions dating back to 1969 and 1977 list many makes and models of firearms as prohibited and “any variants or modified thereof.” Similarly, Orders in Council listed firearms as restricted and “any variants or modified thereof.”
[46] The 1994 Order in Council prescribed additional firearms as prohibited. The Minister of Justice, Allan Rock, noted that these firearms were “military type weapons” and were not intended for hunting or sport. Many semi-automatic rifles were prescribed as prohibited, rather than as restricted.
[47] In December 1995, Bill C-68 received Royal Assent. Bill C-68 created the Firearms Act, SC 1995, c 39 and moved the regulatory aspects of gun control (licensing, registration, possession, transfer, storage and transportation) from the Criminal Code into the Firearms Act. Bill C-68 also amended the Criminal Code, including to add new offences and stricter penalties. The majority of the Criminal Code provisions were proclaimed into force three years later, in 1998. Among other amendments, the definitions of prohibited and restricted firearms and the power of the Governor in Council to prescribe firearms as prohibited were revised. Bill C-68 enacted the provision now found in section 117.15 which provides that the Governor in Council may not prescribe any thing to be a prohibited firearm “if in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.”
[48] The 1998 Order in Council made pursuant to section 117.15 prescribed certain firearms as either prohibited or restricted. The Order in Council encompassed several former prohibited weapons orders that set out types of firearms, including long lists of specific firearms and included “any variants or modified version thereof.”
[49] In 2012, Bill C-19 (Ending the Long Gun Registry Act) came into force, removing the requirement to register non-restricted firearms.
[50] In 2019, Bill C-71 (An Act to Amend Certain Acts and Regulations in Relation to Firearms) repealed amendments made in 2015 that permitted the Governor in Council to classify firearms to a less restrictive class.
[51] In 2016, Private Members Bill C-230 was introduced. Bill C-230 sought to define the term “variant” as a firearm “with an unmodified frame or receiver of another firearm.” The Bill was not supported by the Government and did not pass. The Government noted that the term “variant” had been used for a long time and the proposed definition was too narrow and would result in the classification of many assault-style rifles as non-restricted.
[52] In 2018 and 2019, the Government engaged in national consultations regarding the civilian ownership and use of handguns and “assault weapons.”
[53] On May 1, 2020, the Governor in Council made the Order in Council and Regulations prescribing approximately 1,500 firearms as prohibited. Professor Brown notes that these firearms are similar in capability to the firearms prohibited in the 1990s. Professor Brown also notes that the types of firearms listed have been used by police or the military, although the military generally use versions that can be fired as automatic firearms.
E. The Firearms Reference Table [54] The purpose and influence of the Firearms Reference Table [FRT], a database maintained by the RCMP, is an issue in the Applications.
[55] The RCMP, as the national police service, is responsible for the Canadian Firearms Program [CFP]. The CFP oversees firearms licensing and registration, maintains national firearm safety training standards, assists law enforcement agencies, and enhances public safety by educating the public regarding safe storage, transport and use of firearms.
[56] The Specialized Firearms Support Service [SFSS] is part of the CFP. The SFSS is composed of firearm technicians who collect and assess technical information to classify firearms for the purposes of firearms registration, import/export control and to assist national and international law enforcement agencies with firearm identification and investigations. According to Mr. Murray Smith, the AGC’s affiant, the SFSS conducts a technical assessment of firearms and forms an opinion whether a firearm is prohibited, restricted or non-restricted. Mr. Smith explained that the SFSS make assessments on an ongoing basis based on the Criminal Code definitions and the types of firearms prescribed in the 1998 Regulations and the 2020 Regulations.
[57] The FRT is an online firearms database maintained by the SFSS. It lists and describes a wide range of firearms, noting whether the firearm is non-restricted, restricted or prohibited based on the assessment of the SFSS. The FRT database currently includes over 200,000 entries.
[58] The FRT includes the firearms set out in the Regulations (referred to as named variants) and other firearms that have been assessed after the promulgation of the Regulations (unnamed variants) and continue to be assessed.
[59] The AGC explains that since the promulgation of the Regulations, the FRT has been updated only to address new firearms in the marketplace and to update two firearms (the 8-gauge Parker shotgun with a bore diameter over 20mm and the Blaser R8 Rifle with a muzzle energy in excess of 10,000 joules). The AGC states that there were 180 unnamed variants as of June 15, 2020.
[60] The Applicants contend that since May 1, 2020, the SFSS has updated the FRT to list up to 340 more firearms as variants of firearms set out in the Regulations.
[61] Access to the FRT was originally limited to law enforcement. The AGC’s affiants explain that the FRT is now publicly available through software available to businesses that provides up-to-date information. It is also available in a downloadable PDF form, which reflects the status as of the date of the PDF. In addition, the CFP operates a call centre to respond to specific questions from firearms businesses, owners and members of the public.
F. The Regulatory Impact Analysis Statement [62] A RIAS accompanies all Regulations. It is not part of the Regulations or the Order in Council. It is a public statement issued at the time the Regulations are pre-published in the Canada Gazette (where required) and at the time of final publication. Generally, a RIAS describes the regulations, the considerations that led to the development of the regulations and the various impacts.
[63] The RIAS for the Regulations appears to follow a standard approach as similar headings appear in other RIAS’s for other regulations. (More specific references to the RIAS are noted in the analysis of the reasonableness of the Regulations.)
[64] The RIAS states that the Regulations amend the previous regulations to prescribe certain firearms as prohibited firearms. The RIAS notes that the Regulations prohibit approximately 1,500 models of assault-style firearms, including current and future variants.
[65] The Background section of the RIAS notes that Canada has experienced mass shootings and that the deadliest mass shootings, in Canada and elsewhere, commonly involve assault-style firearms. The RIAS states:
Given these events, the growing concern for public safety, the increasing public demand for measures to address gun violence and mass shootings and, in particular, the concern resulting from the inherent deadliness of assault-style firearms that are not suitable for civilian use, these firearms must be prohibited in Canada. [Emphasis added.]
[66] The Background section describes the now prohibited firearms as being:
Primarily designed for military or paramilitary purposes with the capability of injuring, immobilizing or killing humans in large numbers within a short period of time given the basic characteristics they possess, such as a tactical or military design and capability of holding a quickly reloadable large-capacity magazine.
[67] The RIAS acknowledges that these firearms have been used in the past, but concludes that the significant risk to public safety posed by these firearms “outweighs any justification for their continued use and availability within Canada given that numerous types of firearms remain available for lawful ownership for hunting or sport shooting purposes.”
[68] The Objective section of the RIAS reiterates the growing public concern about the risk posed by assault-style firearms and states that the intention of the prohibition is to limit their access and reduce the availability of firearms that exceed safe civilian use.
[69] The RIAS explains that the Regulations prescribe “nine principal models and known variants of these principal models.” The RIAS notes that the nine principal models (or families) of firearms were prohibited because they “(1) have sem