



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vivares, 2016 ONCA 1

DATE: 20160105

DOCKET: C60254 and M44923

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Responding Party/Respondent

and

Malaquias Vivares

Moving Party/Appellant

Malaquias Vivares, acting in person

Rebecca Huang, appearing as
amicus curiae

Shain Widdifield, for the respondent

Heard: November 20, 2015

On appeal from the judgment of Justice John R. McIsaac of
    the Superior Court of Justice dated, November 24, 2014, affirming the order of
    Justice P. Wright of the Ontario Court of Justice, dated April 20, 2011.

MacPherson J.A.:

A.

Introduction

[1]

The appellant owns two handguns that were registered in the 1980s. After
    the
Firearms Act
, S.C. 1995, c. 39, established a new regulatory
    system, the appellant applied to re-register his handguns in 2007. In 2009, the
    Registrar of Firearms (Registrar) refused to issue registration certificates.
    This decision was upheld by Wright J. of the Ontario Court of Justice in 2011
    and McIsaac J. of the Superior Court of Justice in 2014. The appellant seeks
    leave to appeal from McIsaac J.s decision and, if leave is granted, an order
    directing the Registrar to issue registration certificates for his handguns.

B.

Facts

(1)

The parties and events

[2]

The appellant registered two semi-automatic Smith and Wesson handguns
    under the relevant provisions of the
Criminal Code
, R.S.C. 1985, c. C-46,
in 1980 and 1986.

[3]

In 1995, Parliament enacted the
Firearms Act
[1]
which made significant changes to the firearms regulation system. The new
Act
divided responsibility for the regulation of firearms between the federal and
    provincial governments. The federal Registrar is responsible for issuing
    registration certificates for firearms. The Chief Firearms Officer of a
    province is responsible for licensing individuals to possess firearms. As
    explained by MacDonnell J. in
R. v. Whitmore
, 2008 ONCJ 166, at para.
    3:

A central component of the new regime is the requirement that
    an individual must hold a license to possess the kind of firearm in question
    and a registration certificate for that firearm. Eligibility to hold a license
    and/or a registration certificate is determined by reference to the provisions
    of the
Firearms Act
. Pursuant to the
Act
, the Chief Firearms
    Officer is responsible for issuing licences and the Registrar of Firearms is
    responsible for issuing registration certificates.

[4]

Under the new
Firearms Act
, the appellants handguns were
    designated as what is known as s.12(6) handguns. Section 12(6) of the
Firearms
    Act
provides:

Grandfathered
    individuals  pre-December 1, 1998 handguns

12(6) A particular individual is eligible to hold a licence
    authorizing that particular individual to possess a handgun referred to in
    subsection (6.1) if

(a) on December 1, 1998 the particular individual

(i) held a registration certificate under the former
Act
for that kind of handgun,  and

(b) beginning on December 1, 1998 the particular individual was
    continuously the holder of a registration certificate for that kind of handgun.

[5]

The appellants 1980 and 1986 gun registrations were deemed to be
    registration certificates under s. 127 of the
Firearms Act
.

However,
    this grandfathered protection was not unlimited; s. 127(2) of the
Act
gave grandfathered registrants until December 31, 2002, a period of four
    years, to re-register their handguns. If s. 12(6) handguns were not
    re-registered, their registration certificates would expire and the registrant
    would no longer meet the continuous holder requirement in s. 12(6) of the
Act
.

[6]

The appellant did not re-register his handguns by this date. On January
    1, 2003, his handguns were no longer registered. He was in breach of the
Firearms
    Act
.

[7]

However, the appellant did apply for a firearms licence in Quebec. The
    Chief Firearms Officer of Quebec issued a licence with s. 12(6) privileges in
    November 2003, with an expiry date of January 25, 2009.

[8]

On June 19, 2007  four and a half years after his deemed registrations
    had expired  the appellant applied to the Registrar for registration
    certificates for his two handguns.

[9]

On November 19, 2008, the Chief Firearms Officer of Ontario issued a new
    firearms licence to the appellant. It did not include s. 12(6) privileges.

[10]

On
    January 25, 2009, the appellants Quebec licence, containing s. 12(6)
    privileges, expired.

[11]

On
    June 24, 2009, the Registrar issued a Notice of Refusal to Issue a Registration
    Certificate to the appellant. In the notice, the Registrar said:

The [Smith and Wesson] firearms are prohibited firearms for the
    purpose of the definition prohibited firearm in subsection 84(1) of the
Criminal Code
. Your present [possession
    and acquisition license] does not include the privilege referred to in s.
    12(6) of the
Firearms Act
to
    possess or acquire a prohibited firearm referred to in s. 12(6.1) of the same
Act
.

Pursuant to Section 13 of the
Firearms
    Act
, you are not eligible to hold a registration certificate for a
    firearm unless you hold a licence authorizing you to possess that kind of
    firearm.

[12]

Pursuant
    to s. 74 of the
Firearms Act
, the appellant sought a reference hearing
    before a judge of the Ontario Court of Justice challenging the Registrars
    decision.

(2)

The judicial decisions

(a)

Ontario Court of Justice

[13]

Although
    sympathetic to the appellants situation, the provincial court judge confirmed
    the Registrars decision to refuse to register the two s. 12(6) handguns. He
    stated that the standard of review at the reference hearing was an assessment
    of the reasonableness of the Registrars decision. After a comprehensive
    analysis, the provincial court judge summarized his reasoning and conclusion in
    this fashion:

In this particular case, Mr. Vivares was not continuously
    registered because all of the deemed certificates which related to the 12(6)
    handguns expired December the 31
st
, 2002. The applicant did not
    reapply until June the 19
th
, 2007. The fact that a [possession and
    acquisition] license was subsequently issued or that notice of refusal was not
    provided until June the 24
th
, 2009, does not make the Registrars
    decision in law unreasonable or wrong. I say in law given the eligibility
    requirements and the case law precedents. I cannot say, and I do not say, that
    the Registrar deliberately delayed responding.



The order, therefore, that will go as a result of this review,
    is to confirm the decision of the Registrar in refusing to register the two
    12(6) handguns.

[14]

The
    appellant appealed this decision to the Superior Court of Justice.

(b)

Superior Court of Justice

[15]

In
    brief reasons (two paragraphs), the appeal judge dismissed the appeal, saying
    that the appellant has failed to satisfy me that the decision by Wright,
    P.C.J.  was incorrect.

(c)

Court of Appeal for Ontario

[16]

The
    appellant applied for leave to appeal the appeal judges decision. On a motion
    for directions on February 25, 2015, Strathy C.J.O. ordered that the motion
    for leave to appeal will be heard at the same time as the appeal, if leave is
    granted.

[17]

At
    the hearing on November 20, 2015, the panel granted leave to appeal at the
    start of the hearing and heard the appeal on the merits.

C.

Issues

[18]

The
    appellant raises three issues:

(1)

Did the provincial court judge err in law in admitting Ms. Zhangs
    statements about Mr. Vivares licence and his eligibility for licence?

(2)

Did the provincial court judge err by applying the standard of
    reasonableness to the Registrars Notice of Refusal without testing the
    reasonableness of the Registrars decision with the facts as found by the
    court?

(3)

Did the superior court judge err in confirming the correctness of the
    provincial court judges decision when he erroneously applied the standard of
    reasonableness to the Registrars decision?

D.

Analysis

(1)

Ms. Zhangs statements

[19]

The
    appellant contends that the provincial court judge relied on inadmissible
    evidence from the Registrar. Grace Zhang was a senior analyst at the Canadian
    Firearms Program of the RCMP in Ottawa. Ms. Zhang was in charge of the records
    of the Canadian Firearms Registry. She was responsible for administering the
Firearms
    Act
and
Regulations
with respect to the registration of firearms.
    She had authority under the
Act
to issue, refuse and revoke
    registration certificates for firearms.

[20]

Ms.
    Zhang provided an affidavit that described the regulatory provisions and
    process for firearms registration. She also explained how the relevant
    provisions precluded the appellant from obtaining registration certificates
    after he applied in 2007.

[21]

In
    his reasons, the provincial court judge referred several times to paragraphs
    from Ms. Zhangs affidavit. The appellant contends that this was improper
    because Ms. Zhang was a fact witness and parts of her affidavit tread into
    impermissible legal opinion.

[22]

I
    do not accept this submission. I note that the appellant did not cross-examine
    Ms. Zhang on her affidavit or challenge its admissibility at the reference
    hearing. On a reference hearing, the provincial court judge is required to hear
    all relevant evidence presented by or on behalf of the Registrar:
Firearms
    Act
, s. 75(2).

[23]

Read
    in context, Ms. Zhangs statement is evidence supporting the Registrars
    position that because he could not hold a licence authorizing possession of s.
    12(6) handguns (as he did not continuously hold a registration certificate
    after December 31, 2002), he could no longer hold a registration certificate
    pursuant to s. 13 of the
Firearms Act
.  In my view, this was relevant
    and admissible evidence. In any event, I observe that the trial judge engaged
    in a comprehensive assessment of the relevant sections of the
Act
and
    clearly reached his own legal conclusions based on that assessment.

(2)

The provincial court judges decision

[24]

The
    starting point for the analysis on this issue is recognition that the Registrar
    has specialized expertise in administering a complex firearms registration
    regime. A Registrars decision is entitled to deference and is reviewed on a
    reasonableness standard: see
Henderson v. Canada (Attorney General)
,
    2011 ONCA 696, 108 O.R. (3d) 290, at paras. 37-38.

[25]

On
    review, the provincial court engages in its own fact finding, but under the
    umbrella of deference. As explained by Goudge J.A. in
Henderson
, at
    paras. 34 and 36:

The
Act
obliges
    the provincial court to hear all relevant evidence presented by both the
    applicant and the Registrar. It is clear that the provincial court is to engage
    in its own fact finding process. That is why it is described as a reference and
    not an appeal from the Registrars decision. Nor is it a hearing
de novo
,
    since the Registrar has not held a hearing. Clearly the legislative intent is
    that the provincial court is to find its own facts and need give no deference
    to any facts recited in the reasons of the Registrar.



Thus I think the language of s. 75(3) of the
Act
directs the provincial court to apply
    a deferential standard of review to the Registrars decision itself. The
    provincial court is to test that decision against the facts it has found. It is
    not to determine if it agrees with the decision, but whether it has been
    satisfied by the applicant that the decision is not reasonably defensible. This
    mandates deference.

[26]

The
    provincial court judge was faithful to the
Henderson
analytical
    framework. He reviewed the history of the appellants registrations and
    licences for the two handguns. He then applied the relevant provisions of the
Firearms
    Act
and upheld the Registrars decision, essentially for two reasons.

[27]

First,
    the provincial court judge held that the appellant could not obtain a firearms
    licence because he had not taken advantage of the grandfathering
    re-registration provisions of the
Firearms Act
:

The registration certificates for the two 12(6) handguns
    expired on the 31
st
of December, 2002 under s. 127(2) of the
Act
.
    Consequently, because the Applicant did not continuously hold registration
    certificates between December 31
st
, 2002, and June the 19
th
,
    2007, he was not eligible to hold a license under s. 12(6) and the Registrar
    was required to refuse the Applicants application for the issuance of a
    registration certificate.

[28]

In
    my view, this analysis is correct. The wording of ss. 12(6) and 127(2) of the
Act
,
    set out above, compels this conclusion which, on its own, is determinative of
    the appeal.

[29]

I
    make a final observation on this issue. Unlike the provincial court judge, I do
    not regard this interpretation of the grandfathering provisions of the
Act
as leading to a harsh or even undesirable result.

[30]

In
Manson v. Ontario (Chief Firearms Officer)
(2004), 183 C.C.C. (3d) 169
    (Ont. C.A.), at paras. 32 and 34, Laskin J.A. said:

The
Act
seeks
    principally to ensure public safety. See
Reference re: Firearms Act (Canada)
,
    [2000] 1 S.C.R. 783, 144 C.C.C. (3d) 385. Parliaments gun legislation has
    sought continuously to limit the number of people who can own firearms and to
    impose onerous restrictions on those who do own them.



The overall purpose of the governments gun legislation,
    reflected in the judgments of this court in
Barnes
and of the Supreme
    Court of Canada in
Hasselwander
,
strongly supports an
    interpretation of the grandfathering provisions of the
Act
that would restrict, not expand,
    access to these dangerous weapons.
[Emphasis added.]

[31]

The
    appellant had four years to re-register his handguns. He did not do so, and
    offered no reason for his choice.

[32]

Second,
    the Notice of Refusal issued to the appellant stated, correctly, that
    registration certificates could not be issued because his current Ontario
    firearms licence did not contain s. 12(6) privileges. Nevertheless, the
    provincial court judge acknowledged that, inexplicably, the Chief Firearms
    Officer of Quebec had issued a licence with s. 12(6) privileges to the
    appellant in 2003 (one year after his deemed registrations had expired). This
    Quebec licence was still in force in 2007 when the appellant finally made his
    re-registration applications, but it had lapsed by 2009 when the Registrar made
    the refusal decision.

[33]

The
    provincial court judge explored this puzzling situation (how had Quebec issued
    a licence a year after the deemed registrations expired?) and decided that the
    relevant date for assessing eligibility for registration was June 24, 2009, the
    date of the Registrars decision, not June 19, 2007, the date of the
    appellants application. Thus, the expired Quebec licence was irrelevant.

[34]

Again,
    in my view the provincial court judge was correct. Section 13 of the
Firearms
    Act
provides:

13. A person is not eligible to hold a registration certificate
    for a firearm unless the person
holds
a licence authorizing
    the person to possess that kind of firearm. [Emphasis added.]

[35]

Section
    13 is worded in the present tense. It creates, with s. 12(6), two concurrent
    obligations. First, in order to obtain a registration certificate, a person
    must have a licence for that kind of firearm. Second, to have a licence for a
    s. 12(6) handgun, a person must have continuously held a registration
    certificate from December 1, 1998. If either a registration certificate or a
    licence lapses, a person is no longer eligible to hold the other.

[36]

When
    the appellant made his application in 2007, he did hold a Quebec licence with
    s. 12(6) privileges. But he did not when the Registrar considered his
    application in 2009. Given that s. 13 creates a continuing obligation on the
    appellant to hold a licence with s. 12(6) privileges, he was no longer eligible
    to obtain registration certificates for those handguns.

[37]

Reading
    s. 13 in light of the purpose of the
Firearms
Act
and the
    intention of Parliament also supports the conclusion that the relevant time for
    review is when the Registrar makes a decision. As this court stated in
Manson
,
    Parliament has sought to limit the ability to own firearms through
    comprehensive regulation. The regulation requires both registration and
    licensing. When a person does not hold a registration certificate for a
    prohibited handgun, they cannot be licensed: s. 12(6). When a person is not
    licensed to possess a prohibited handgun, they cannot obtain a registration
    certificate: s. 13. This is how Parliament has chosen to regulate dangerous
    handguns. Parliaments choice must be applied.

[38]

Finally,
    I note that the provincial court judge specifically disclaimed the relevance of
    the two year delay between the appellants application and the Registrars
    decision:

Further, the process delay by the Registrar from June 2007 to
    June 2009 did not cause the continuous registration to lapse because there was
    no registration.



I cannot say, and I do not say, that the Registrar deliberately
    delayed responding.

[39]

Again,
    I agree with this reasoning. I also observe that it hardly lies in the
    appellants mouth to complain about the Registrars delay. The appellant did
    not apply for re-registration during the four year grandfathering period
    (1998-2002). And after his registration expired, he waited another four and a
    half years (2003-2007) before finally applying for a registration certificate.

(3)

The superior court judges decision

[40]

In
    light of my conclusion on the second issue, this issue does not arise. The
    appeal judge affirmed the correctness of the provincial court judges decision.
    So would I.

E.

Disposition

[41]

I
    would dismiss the appeal and confirm the decision of the Registrar refusing
    registration certificates for the appellants two s. 12(6) handguns.

Released: January 5, 2016 (J.M.)

J.C. MacPherson J.A.

I agree. M. Tulloch J.A.

I agree. G. Pardu J.A.





[1]
The bulk of the provisions of the
Act
came into force on December 1, 1998.


