|
Criminal - Firearms. Canadian Coalition for Firearm Rights v. Canada (Attorney General)
In Canadian Coalition for Firearm Rights v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed four consolidated appeals, here from dismissals from "six applications for judicial review of 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)".
Here the court canvasses aspects of s.84(1) ['Interpretation'] and s.117.15 ['Regulations'] of CCC Part III ['Firearms and Other Weapons']:[7] Subsection 84(1) of the Code sets out three categories of firearms: non-restricted, restricted, and prohibited. Key to this appeal is section 117.15 of the Code, subsection (1) of which grants authority to the GIC to make regulations to prescribe any firearm to fall into one of these three categories.
[8] However, the GIC’s delegated authority is limited by subsection 117.15(2) of the Code, which provides that in making regulations, the GIC may not prescribe anything if, in its opinion, it is reasonable for use in Canada for hunting and sporting purposes. That subsection reads as follows:"117.15. (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."
"117.15."" (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." [9] This provision was added to the Code in 1995 and came into effect three years later (Firearms Act, S.C. 1995, c. 39 (Firearms Act)). In 1998, for the first time, the GIC prescribed certain firearms as restricted or prohibited (Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted, SOR/98-462 (The 1998 Regulations)). These regulations were amended from time to time, the latest iteration of which are the subject of the current appeals.
[10] The Order in Council whereby the Regulations were brought into force 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.
(PC 2020-298, (2020) C Gaz II, Vol 154, Extra No 3, 1 (“OIC”)) [11] The Regulations added nine general "“families”" of makes and models, and "“any variants or modified versions of them”" to the existing list of prohibited firearms found in the 1998 Regulations (Regulations, s. 3; 1998 Regulations, Schedule, Part I, items 83, 87-94). The Regulations also prohibit firearms based on two physical characteristics, namely a bore diameter of 20 mm or greater and the capacity to discharge a projectile with a muzzle energy greater than 10,000 joules (Regulations, s. 3; 1998 Regulations, items 95 and 96). The Regulations list approximately 1,500 firearms as named variants of the nine families or as having the physical characteristics related to bore diameter and the muzzle energy. Additional variants are also prohibited even if they are not expressly named; they are referred to as "“unnamed variants”".
[12] The RCMP’s Canadian Firearms Program (CFP) oversees firearms licensing and registration, maintains national firearm safety training standards, assists law enforcement agencies, and educates the public regarding safe storage, transport, and use of firearms. As part of that program, firearm technicians employed by the SFSS collect and assess technical information to classify firearms for the purposes of firearms registration, import/export control, and to assist national/international law enforcement agencies with firearm identification and investigations.
[13] This information is maintained in the FRT, which lists, describes, and provides a technical assessment of each firearm known to the RCMP and notes whether the firearm is non-restricted, restricted or prohibited based on the assessment of the SFSS. That database, which was originally only accessible to law enforcement, was later made publicly available. It is updated on an ongoing basis, and includes the firearms set out in the Regulations (named variants) as well as other firearms that were assessed after the promulgation of the Regulations (unnamed variants). According to the respondent, there were 180 unnamed variants identified on the website as of June 15, 2020. The appellants, on the other hand, contend that since May 1, 2020, the FRT was updated to list up to 340 additional unnamed variants of firearms set out in the Regulations.
[14] The Order in Council enacting the Regulations was not pre-published in the Canada Gazette. It came into force immediately upon its promulgation on May 1, 2020, and was published along with a Regulatory Impact Analysis Statement (RIAS), which set out the background and objectives of the Regulations, as well as considerations related to its implementation.
[15] A related Order in Council, the Order Declaring an Amnesty Period (2020), SOR/2020-97 (Amnesty Order) was promulgated on the same day. That Order allowed for temporary possession of the newly prohibited firearms, as well as temporary and limited use to hunt for sustenance and to exercise an Aboriginal right under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (Constitution Act, 1982). The amnesty period was originally scheduled to expire on April 30, 2022, but has since been extended to October 30, 2025. . Thibault and Ramsay v. Attorney General of Ontario
In Thibault and Ramsay v. Attorney General of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this challenging part of an Ontario regulation [Towing and Storage Safety and Enforcement Act, 2021 (TSSEA, 2021), Reg. 167/23] on charter and ultra vires grounds. The regulation provision [Reg. 167/23, s.2(d)(i)] challenged disqualified a person from holding a "tow certificate, tow driver certificate or vehicle storage certificate" if "the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, ... possessing a weapon".
As an aspect of the case, the court reviewed the R v Wiles (SCC, 2005) case, which upheld CCC 109 ['Mandatory prohibition order'] which "provides that, for certain offences, a weapons prohibition shall be imposed":Section 109 of the Criminal Code
[10] The constitutionality of s. 109 of the Criminal Code has been tested and upheld by the Supreme Court of Canada in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895.
[11] Section 109(1) provides that, for certain offences, a weapons prohibition shall be imposed. In addition to any other punishment that may be imposed, the court shall make an order prohibiting the person from possessing any firearm (or other listed weapon) for a period determined in accordance with subsection (2) or (3).
[12] The applicable offences are set out in s. 109(1). The applicants were caught by s. 109(1)(c), which reads as follows:109 (1) Where a person is convicted, or discharged under section 730, of …
(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or ... [13] Because of their convictions under s. 109(1)(c), a mandatory order prohibiting the possession of firearms was made with respect to both applicants.
[14] Subsections 109(2) and (3) then address the duration of the prohibition order. For “any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition” the prohibition is for life. Section 110 allows for discretion in some circumstances that do not arise here.
[15] In R. v. Wiles, the accused challenged the constitutionality of the same provision in s. 109 that was used to impose the lifetime prohibition here — s. 109(1)(c). He had also been convicted under the CDSA for unlawfully producing cannabis, like Mr. Ramsay. Mr. Wiles argued that the lifetime prohibition violated s. 12 of the Canadian Charter of Rights and Freedoms because it was cruel and unusual punishment.
[16] In finding that the lifetime prohibition did not breach s. 12 of the Charter, the Supreme Court agreed with the Nova Scotia Court of Appeal that the prohibition was connected to the CDSA offence at issue (producing cannabis) and the recognized sentencing goal of protecting the public. The Supreme Court found at para. 9, that since Parliament “can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so.”
[17] In the decision below in R. v. Wiles, the Nova Scotia Court of Appeal found that in drug production operations, there was a significant concern about firearms: 2004 NSCA 3, at para. 49. In oral argument in this judicial review application, the applicants’ counsel fairly accepted that there can be a connection between drugs and guns. However, counsel submitted that the connection does not arise with the applicants given their personal histories.
[18] The Supreme Court, at para. 9 of R. v. Wiles, found that it was sufficient that Mr. Wiles fell within “a category of offenders targeted for the risk that they may pose.” The Supreme Court held that the sentencing judge’s “insistence upon specific violence, actual or apprehended, in relation to the particular offence and the individual offender” took “too narrow a view of the rationale underlying the mandatory weapons prohibition orders.”
[19] As discussed below, the s. 109 lifetime prohibition is the underpinning of the applicants’ arguments before this Court because of its role in the new regulatory regime for the towing industry. The applicants agree that there have been very serious problems in that industry, and generally support the new regulatory regime, with the exception of the provision in the Regulation that disqualifies each of them from becoming certified to work as tow truck drivers or operators. . R. v. Bzezi
In R. v. Bzezi (Ont CA, 2024) the Ontario Court of Appeal considers evidence relevant to the determination of a 'firearm', here as it relations to the "7-year mandatory minimum sentence that the appellant received as a result of s. 344(1)(a)(ii)":[37] The appellant raises two grounds of appeal on his sentence appeal. First, he argues that the trial judge erred by finding that the handgun that Mr. Perkins described the appellant using during the robbery, which was never recovered by the police, was a “firearm” within the definition in s. 2 of the Criminal Code. This definition, among other things, requires proof that the gun was capable of being fired. Since the trial judge’s finding that the gun was a firearm triggered the 7-year mandatory minimum sentence that the appellant received as a result of s. 344(1)(a)(ii) of the Code,[1] the appellant argues that if the trial judge erred on this issue, his sentence should be reduced.
[38] It is well-settled that the question of whether a gun is a “firearm”, rather than merely an imitation gun or a real but non-functioning weapon, can be determined circumstantially: see R. v. Richards (2001), 2001 CanLII 21219 (ON CA), 50 W.C.B. (2d) 244 (Ont. C.A.), at para. 4; R. v. Charbonneau (2004), 2004 CanLII 9527 (ON CA), 61 W.C.B. (2d) 301 (Ont. C.A.), at para. 3; R. v. Dillon, 2018 ONCA 1085, at para. 18. In R. v. O.A., 2022 ONCA 565, at para. 10, this court explained:As held in R. v. Villaroman, where a verdict is based on circumstantial evidence, the question on appeal is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. There are other cases in which this court has upheld a finding that an accused used or was in possession of a firearm, even where the firearm was never recovered. In such cases, the court looked at whether the trial judge assessed the totality of the evidence, and whether the trial judge could have been reasonably satisfied that the accused’s guilt was the only reasonable conclusion available on that evidence. [Citations omitted]. [39] In the case at bar, Mr. Perkins’s evidence was that the gun the appellant brandished was loaded with real bullets, which the appellant demonstrated to Mr. Perkins by pulling out the clip, and by racking the slide to eject an unfired bullet and cartridge, which Mr. Perkins later found and gave to the police. The trial judge also noted that the appellant “had clearly had access to firearms prior to this occasion”, because at the time of sentencing he was already serving a sentence for having possessed a loaded firearm in April 2014, which was a little more than a year before he robbed Mr. Perkins in June 2015.
[40] In these circumstances, I am satisfied that the trial judge did not commit any reversible error by drawing the inference that the gun was a real firearm. In this regard, I do not agree that the conclusion the trial judge reached is at odds with the approach taken in the Alberta cases cited by the appellant, R. v. Osiowy, 1997 ABCA 50, 113 C.C.C. (3d) 117, and R. v. Fielder, 2019 ABQB 211. In Osiowy, where the Court of Appeal of Alberta found that the circumstantial evidence fell short of proving that the gun used in a robbery had been operable, the court noted at para. 21 that:The accused did not load the weapon in front of the victim, cock the weapon, or otherwise use the weapon in such a way that its operability could be inferred. In contrast, Mr. Perkins testified that the appellant did some of these very things, in order to demonstrate for him that the gun was real and operational. . R. v. Donawa
In R. v. Donawa (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal of what constitutes a 'firearm' [under CCC s.82(1)]:[1] ... The central issue in the appeal is whether the trial judge was correct in his finding that the handgun in question was not a firearm as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46.
....
[7] The issue raised here is directly addressed in R. v. Watkins (1987), 1987 CanLII 2867 (BC CA), 33 C.C.C. (3d) 465 (B.C.C.A). In that case, the accused was charged with firearms offences for possession of a handgun that was found without a magazine. The issue was whether the fact that the handgun did not have a magazine meant that the handgun was not a firearm under the definition contained in the Criminal Code.[1] McLachlin J.A. rejected that submission. She said, at para. 40:If the gun is complete and capable of firing when loaded, then, in my opinion, it should be considered a firearm under s. 82(1) of the Criminal Code. [8] The respondent urges us not to follow the reasoning in Watkins. No persuasive argument is advanced why we should adopt a different approach than that enunciated by the British Columbia Court of Appeal. The analysis and conclusion in Watkins are sound. Watkins is also consistent with the seriousness that Parliament has indicated should be applied to offences involving the use and possession of handguns. . R. v. Morris
In R. v. Morris (Ont CA, 2023) the Court of Appeal considered firearm technical 'adaptability' when deciding whether an otherwise inoperable firearm met the legal definition [CCC s.2]:[9] The sole issue on the conviction appeal is whether the trial judge erred in law by finding that the appellant’s handgun, which was inoperable and required a new firing pin, fell within the definition of firearm in s. 2 of the Criminal Code:firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; (arme à feu): Criminal Code, R.S.C. 1985, c. C-46. ....
(3) Analysis on the Conviction Appeal
[10] The trial judge identified the issue of whether the appellant’s inoperable handgun could be adapted for use as a firearm. She then analyzed the evidence of Detective Meehan regarding the steps he took to make the gun operable in the context of the caselaw that explains the meaning of “can be adapted” in the definition of firearm in s. 2 of the Criminal Code.
[11] First, in R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725, the Supreme Court explained that where an inoperable gun is used in the commission of an offence, such as robbery, it must be able to be adapted for use in the commission of that offence to come within the definition of “firearm”. Subsequent decisions have held that where the offence is possession of the gun itself, the adaptation period is extended because the gun does not have to be usable on the spot. The evil that is targeted by the section is possession that is dangerous to the public.
[12] The trial judge referred to the following paragraph from R. v. Ferguson (1985), 1985 CanLII 3534 (ON CA), 20 C.C.C. (3d) 256 (Ont. C.A.), at p. 262:Because of the nature of the continuing offence of possession of a prohibited weapon under s. 88(1) [now s. 91(1)], and having regard to the purpose of the subsection, we are all satisfied that the acceptable amount of adaptation and the timespan required to render the gun operable is longer than that required for a s. 83 offence [now s. 85], where the adaptation has to be made on the scene in order to support the charge of using a firearm during the commission or attempted commission of an indictable offence or during the flight thereafter. [13] The trial judge also quoted from the Ontario Superior Court decision in R. v. Grant, 2006 CanLII 6209, where the court conducted a review of the caselaw and summarized the results as follows at para. 24:The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight forward installation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for the purposes of the offence of possession. By contrast, where the effort to make the gun operational requires special expertise, considerable time, or parts that are not readily available, the courts are less disposed to find it to be a firearm for purposes of that offence. ....
[21] On appeal, the appellant submits that the trial judge misapprehended and misapplied the legal test in reaching the above quoted conclusion.
[22] He argues that in arriving at this conclusion, the trial judge overlooked evidence of the need for expertise such as the number of Google searches the detective had to try, and the expertise he would have had to employ to conclude, for example, that he could use YouTube instructions for a different gun that looked like the appellant’s gun in order to disassemble it.
[23] He also argues that the case law requires that the missing part for the inoperable gun must be “easily obtainable” or “readily obtainable”. In R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 S.C.R. 398, where the issue was whether a semi-automatic machine gun was capable of being converted to a fully automatic, Cory J. analogized to the purposive approach to the definition of firearm adopted by the court in Covin. In Hasselwander, the court held, at p. 416, that having “the potential to be readily converted to a fully automatic weapon” meant “in a relatively short time with relative ease”.
[24] The appellant submits that in this case, the needed firing pin was not “readily obtainable” because the detective only found a supplier based on a tip from the owner of a supply company whom he knew, and when he did order it, it took three weeks to arrive. He argues that the trial judge either overlooked this evidence or misapprehended it.
[25] I would not give effect to this argument.
[26] It is clear from the detailed reasons of the trial judge that she was fully conversant with the evidence and the test to be applied. She was aware that the process used by the detective did not result in a seamless and instant delivery of the replacement firing pin. However, given that the process involved the common practice today of using internet searches and YouTube instruction videos, together with some phone calls to locate the part, which was shipped from the U.S., the trial judge was entitled to conclude that the replacement part was readily available and that the time it took was a relatively short period of time: see e.g., R. v. Sebape, 2020 ONCA 475 (although the replacement firing pin was temporarily out of stock, there was sufficient evidence that the gun could be adapted for use as a firearm, within a reasonable time: at para. 5); R. v. Tarapaski, 2022 MBCA 74, 418 C.C.C. (3d) 364, at para. 33.
[27] I would therefore dismiss the conviction appeal.
|
