Whitmore v. Canada, 2005 FC 1728

Email this Content

Citations
2005 FC 1728

Case tabs

Text of decision

Date: 20051220

Docket: T-2081-05

Citation: 2005 FC 1728

PROPOSED CLASS ACTION

BETWEEN:

LARRY WHITMORE, MARK W. JEFFREY, RAY OVINGTON, LINDA CATT,

GERALD CATT, BRAD HANSON, MARTIN KIENER, BLAISE ANDERSON, BRIAN DECOUNT, DALLAS HALDORSON, BRUCE MACDONALD, LAIMONIS GAILIS, GREG ILLERBRUN, TONY GEE, STEVEN YOURT, RICK LOWE, ALFRED HOVDESTAD, PATRICK A. WARNER, GREG BILINSKY, SHAWN CUNNINGHAM, RUDY HINTZ, GEORGE MANTHORNE, BILL NASON, LYALL STUBBINGS, SEAN MCCLINTOCK, DON COPEMAN, PAUL A. LISSON, EDWARD BURLEW, RENAUD PARENT, JOSH HILL, PETER ZUPAN, BARRIE GOODWIN, JAMES H. MACKENDRICK, ED COPEMAN, DARREN CONSTABLE, DARRELL DREW, LEO DI GIUSEPPE, PAULETTE LANGLOIS, DEAN KLEIN, TONY WAYNE LESLIE, KEVIN BELTER, DAN JOHNSON, JAMIE MAUNDER, WES WINKEL, DAVID JACOBSEN, RICK INMAN, GARY MACKENZIE, JOHN MARTIN MCCRACKEN, TOM FALLS, TOM KIEFFER, JOHN KELLAWAY, BILL CRABB, HOWARD MUNCY, JERROLD LUNDGARD, BRIAN ARDIEL, WALTHER YVODUSCHUK, DON LIVINGSTON, MARK D. CAMPBELL, MARK PRUDEN, DAVID SCHINDEL, JOHN EVERS, FRANCIS G. LEONG, GENE GARLAND, LAWRENCE A. WEHREN, KENNETH WAYNE JACKSON, PETER DUNSTER, PETER VAN RYN, ALAN NEVULIS, MITCH DEVON, VICTOR PAWLYK, DAN ROXBY, TRACEY WATSON, PATRICK PORTER, ARJEN VAN DER WAL, JAMES SHEPHERD, MIKE BULLINGER, ROBERT CRONKWRIGHT, ROD HASSLER, ZOLTAN ENYEDI, DRAGAN RUZIC, WILLIAM GOODMAN, DAVID WAGNER, BILL LOJEK, WILLIAM R. GILES, PETER PANKO, NEIL GUSHULAK, MARVIN GROSSMAN, DONALD W.L. TARASOFF, ROBERT A. JENSEN, BILL READ, DOUGLAS WADE, DAVID BURKE AND PHIL KRUEGER

Plaintiffs

and

HER MAJESTY THE QUEEN AND REGISTRAR OF FIREARMS, KEN MCCARTHY AND COMMISSIONER OF FIREARMS, WILLIAM V. BAKER AND CHIEF FIREARMS OFFICER FOR ALBERTA AND NORTHWEST TERRITORIES AND CHIEF FIREARMS OFFICER FOR BRITISH COLUMBIA AND CHIEF FIREARMS OFFICER FOR MANITOBA AND CHIEF FIREARMS OFFICER FOR NEW BRUNSWICK AND CHIEF FIREARMS OFFICER FOR NEWFOUNDLAND AND LABRADOR AND CHIEF FIREARMS OFFICER FOR NORTHWEST TERRITORIES AND CHIEF FIREARMS OFFICER FOR NOVA SCOTIA AND CHIEF FIREARMS OFFICER FOR NUNAVUT AND CHIEF FIREARMS OFFICER FOR ONTARIO AND CHIEF FIREARMS OFFICER FOR PRINCE EDWARD ISLAND AND CHIEF FIREARMS OFFICER FOR QUEBEC AND CHIEF FIREARMS OFFICER FOR SASKATCHEWAN AND CHIEF FIREARMS OFFICER FOR YUKON

Defendants

REASONS FOR ORDER

HUGHES J.

[1] The Plaintiff Whitmore and others have brought this action seeking relief against the Defendants, who are those responsible as federal appointees and employees, for the administration of the Firearms Act, R.S.C. 1995, c.39, as amended. The Plaintiffs' claim for relief in the nature of certain declarations and mandatory possession and licensing as to certain types of handguns acquired by them in the period from February 14, 1995 to December 1, 1998.

[2] By way of motions now before the Court the Plaintiffs seek certification of this action as a class action and interlocutory relief so that they may retain lawful possession of these handguns until final disposition of this action. The Defendants oppose these motions and seek to strike out the action in its entirety and other relief.

[3] Due to the fact that the parties require this decision before December 31, 2005, their reasons will be brief.

[4] The history of the Firearms Act including predecessor provisions in Part III of the Criminal Code is complex and, for reasons of brevity will not be repeated here. One starts with the proposition acknowledged by counsel for both groups of parties, that, in Canada, possession of a firearm is a privilege, not a right, and that Parliament has constitutional authority to set terms and conditions for the exercise of that privilege.

[5] The Firearms Act was given first reading in Parliament February 14, 1995 but not proclaimed in force until December 1, 1998. For this reason those who acquired certain types of firearms, such as the handguns at issue here, in between these dates were uncertain as to the status of such guns. They could be prohibited. Persons acquiring such guns in that period were registered under the provisions of the Criminal Code knowing that such registration would expire in December 2002 and that there was uncertainty attached to the continued retention of such handguns.

[6] In December 1998 a General Amnesty was provided, to expire December 31, 2005 (a few days from the date of rendering these reasons) so as to enable owners of such handguns to dispose of them in an orderly fashion. Also, such persons could apply before December 2002 under the Firearms Act for a license to possess such handgun, making the amnesty unnecessary if a license was secured.

[7] Persons such as the Plaintiffs applied for a license before December 2002. Strangely, the Registrar did nothing, no license was given, no license was refused. Also, strangely, none of the Plaintiffs made an application, for instance under section 18 of the Federal Courts Act, to compel some action. Three years went by.

[8] In 2005 some Parliamentary committees met and discussed the predicament of the Plaintiffs. Nothing resulted. A private member's Bill was introduced in Parliament in October 2005 and it died when Parliament was dissolved in November 2005.

[9] The Plaintiffs are left in the predicament that the amnesty expires December 31, 2005, and they have no license, and no refusal. If they had a refusal, sections 74 to 76 of the Firearms Act provide that an application may be made by them to the Provincial Court for relief and during the time it takes to dispose of such application they may lawfully retain the handgun.

[10] As soon as this action was started, the Defendant Registrar started to issue refusals and has stated in paragraph 33 of his affidavit filed with this Court that all persons in the Plaintiffs' category will promptly before the end of this year receive such refusals. Counsel for the Defendants has said that this may be taken as an undertaking with this Court.

[11] Counsel for the Plaintiffs says that the essence of this action is the delay and inaction by the Defendants to issue, or refuse to issue, licenses in respect to applications filed before December 2002, will put the Plaintiffs in peril of criminal prosecution once the amnesty expires or, if the Plaintiffs turn in their handguns, forever loses them the right to remain as a class of person entitled to possess such firearms.

[12] The Plaintiffs, however, have provided no answer as to why they delayed for almost three years, in taking steps to compel action upon their applications for a license.

[13] Given the undertaking of the Defendants to issue notices of refusal (or grant) of license, forthwith, which would provide a remedy to the Plaintiffs to proceed to the appropriate Provincial Court, and, given that once such application is made, possession of the handgun would be lawful, during the pendenacy of that application there exists a more appropriate forum to deal with the matters at issue, namely, the Provincial Courts, and, given the delay of the Plaintiffs in seeking other relief, it is appropriate that this Court should not be hearing this action, rather, it should defer to the other forum. The action will be dismissed. It is unnecessary to deal with the Plaintiffs' motion.

[14] While the Defendants are successful in the result, it appears that the bringing of this action served to prompt the Defendants into action. As a result, no party is entitled to costs.

"Roger T. Hughes"

JUDGE

Toronto, Ontario

December 20, 2005

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-2081-05

STYLE OF CAUSE: LARRY WHITMORE, MARK W. JEFFREY, RAY OVINGTON, LINDA CATT,GERALD CATT, BRAD HANSON, MARTIN KIENER, BLAISE ANDERSON, BRIAN DECOUNT, DALLAS HALDORSON, BRUCE MACDONALD, LAIMONIS GAILIS, GREG ILLERBRUN, TONY GEE, STEVEN YOURT, RICK LOWE, ALFRED HOVDESTAD, PATRICK A. WARNER, GREG BILINSKY, SHAWN CUNNINGHAM, RUDY HINTZ, GEORGE MANTHORNE, BILL NASON, LYALL STUBBINGS, SEAN MCCLINTOCK, DON COPEMAN, PAUL A. LISSON, EDWARD BURLEW, RENAUD PARENT, JOSH HILL, PETER ZUPAN, BARRIE GOODWIN, JAMES H. MACKENDRICK, ED COPEMAN, DARREN CONSTABLE, DARRELL DREW, LEO DI GIUSEPPE, PAULETTE LANGLOIS, DEAN KLEIN, TONY WAYNE LESLIE, KEVIN BELTER, DAN JOHNSON, JAMIE MAUNDER, WES WINKEL, DAVID JACOBSEN, RICK INMAN, GARY MACKENZIE, JOHN MARTIN MCCRACKEN, TOM FALLS, TOM KIEFFER, JOHN KELLAWAY, BILL CRABB, HOWARD MUNCY, JERROLD LUNDGARD, BRIAN ARDIEL, WALTHER YVODUSCHUK, DON LIVINGSTON, MARK D. CAMPBELL, MARK PRUDEN, DAVID SCHINDEL, JOHN EVERS, FRANCIS G. LEONG, GENE GARLAND, LAWRENCE A. WEHREN, KENNETH WAYNE JACKSON, PETER DUNSTER, PETER VAN RYN, ALAN NEVULIS, MITCH DEVON, VICTOR PAWLYK, DAN ROXBY, TRACEY WATSON, PATRICK PORTER, ARJEN VAN DER WAL, JAMES SHEPHERD, MIKE BULLINGER, ROBERT CRONKWRIGHT, ROD HASSLER, ZOLTAN ENYEDI, DRAGAN RUZIC, WILLIAM GOODMAN, DAVID WAGNER, BILL LOJEK, WILLIAM R. GILES, PETER PANKO, NEIL GUSHULAK, MARVIN GROSSMAN, DONALD W.L. TARASOFF, ROBERT A. JENSEN, BILL READ, DOUGLAS WADE, DAVID BURKE AND PHIL KRUEGER

Plaintiffs

and

Defendants

PLACE OF HEARING: TORONO, ONTARIO

DATE OF HEARING: DECEMBER 19, 2005

REASONS FOR ORDER: HUGHES J.

DATED: DECEMBER 20, 2005

APPEARANCES:

Edward Burlew

FOR THE PLAINTIFFS

Dale Yurka

Glynis Evans

Matthew Sullivan

FOR THE DEFENDANTS

SOLICITORS OF RECORD: