Date: 20130925
Docket:
T-1388-13
Citation: 2013 FC 980
Ottawa, Ontario, September 25, 2013
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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SHAWN BEVINS,
CANADA’S NATIONAL FIREARMS ASSOCIATION,
6497870 CANADA INC.
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Applicants
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and
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REGISTRAR OF FIREARMS ,
FIREARMS COMMISSIONER OF CANADA – ROYAL CANADIAN MOUNTED POLICE,
QUÉBEC’S CHIEF FIREARMS OFFICER – ROYAL CANADIAN MOUNTED POLICE,
ATTORNEY GENERAL OF CANADA,
ATTORNEY GENERAL OF QUÉBEC
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
Notwithstanding that Parliament abolished the long-gun
registry last year with respect to non-restricted firearms, and
notwithstanding that Parliament called for the destruction of existing
registration records, the Registry is still in operation vis-à-vis Québec
residents.
[2]
The applicants seek an order from this Court
requiring the respondents to obey the law. In their motion for an interlocutory
injunction, they ask that the Registry records be ordered destroyed and that
transfers of non-restricted firearms not be recorded. They put their case on
the footing of very high principle. No one, and certainly not the police, is
above the law.
[3]
The Registry is still in operation vis-à-vis
Québec residents as the Québec government takes the position that s. 29 of the Ending
the Long-gun Registry Act, 2012 SC ch 6, which calls for the destruction of
the Registry records, is unconstitutional. Québec asserts it infringes upon
provincial jurisdiction.
[4]
S. 29(1) and (2) of the Act provide:
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(1) The Commissioner of Firearms shall
ensure the destruction as soon as feasible of all records in the Canadian
Firearms Registry related to the registration of firearms that are neither
prohibited firearms nor restricted firearms and all copies of those records
under the Commissioner’s control.
(2) Each chief firearms officer shall
ensure the destruction as soon as feasible of all records under their control
related to the registration of firearms that are neither prohibited firearms
nor restricted firearms and all copies of those records under their control.
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(1) Le commissaire aux armes à feu veille
à ce que, dès que possible, tous les registres et fichiers relatifs à
l’enregistrement des armes à feu autres que les armes à feu prohibées ou les
armes à feu à autorisation restreinte qui se trouvent dans le Registre
canadien des armes à feu, ainsi que toute copie de ceux-ci qui relève de lui
soient détruits.
(2) Chaque contrôleur des armes à feu
veille à ce que, dès que possible, tous les registres et fichiers relatifs à
l’enregistrement des armes à feu autres que les armes à feu prohibées ou les
armes à feu à autorisation restreinte qui relèvent de lui, ainsi que toute
copie de ceux-ci qui relève de lui soient détruits.
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[5]
Québec took proceedings in the Québec Superior
Court to have s. 29 declared unconstitutional. It succeeded. However, the
Québec Court of Appeal granted the Attorney General of Canada’s appeal and
refused to stay the operation of its decision. The Attorney General of Québec
has filed an application for leave from the Supreme Court of Canada to appeal
that decision, and to have the effect thereof stayed. That application and
motion are pending at the present time.
[6]
The Commissioner of the Royal Canadian Mounted
Police has written to the applicant, Mr. Bevins, who is the Executive
Vice-President of Canada’s National Firearms Association, to say that the
Government of Canada has agreed to maintain the Québec long-gun registration data
until the Supreme Court has decided on the stay motion.
[7]
Following a very frank and fulsome discussion
with counsel for the applicants, I stated that although I had concerns with
respect to the motion for an interlocutory injunction, the better course was to
stay the proceedings pending the decision of the Supreme Court on the application
for leave and the motion to have the effect of the decision of the Québec Court
of Appeal stayed. I said I would set out my reasons in writing should the
applicants wish to take this matter further.
[8]
First and foremost, the Attorney General of
Québec has the right to seek leave from the Supreme Court to appeal the
decision of the Québec Court of Appeal. It does not fall upon me to opine on
the correctness of the decision from which leave is sought, or to predict what
the Supreme Court will decide. It may or may not grant leave. It may or may not
grant a stay. If leave is granted, the Attorney General of Québec may or may
not succeed on the merits. However, if he succeeds on the merits the decision
would be nugatory and moot if in the meantime I ordered the destruction of the
very records he seeks to preserve.
[9]
The applicants anticipated that concern and
proffered an Amended Notice of Motion which would leave the records in place
for the time being, but which would deny police access thereto. However, new
transfers of non-restricted firearms would not be recorded. The Attorney
General of Canada objected to the amendment on the basis that he would have to
seek instructions as to the implications thereof. On the basis that if Québec
ultimately succeeded, I pointed out that there would be a gaping hole in the
records.
[10]
S. 50(1)(b) of the Federal Courts Act
provides that this Court may, in its discretion, stay proceedings in the
interest of justice.
[11]
As an application for leave and a motion for
stay are currently before the Supreme Court of Canada, it would, in my opinion,
be entirely inappropriate to order the destruction of the documents which are
at the very heart of those proceedings. The destruction of the records at this
moment would effectively deprive the Government of Québec of its day in Court.
I am not prepared to so order. I would in effect be interfering with the
business of the Supreme Court of Canada.
[12]
As the motion for an interlocutory injunction is
simply stayed, and may be revived, I consider it appropriate to express my
concerns with respect thereto.
THE
INTERLOCUTORY INJUNCTION
[13]
I am concerned that the granting of an
interlocutory injunction would almost leave nothing left to be decided on the
application for a permanent injunction. The matter would be decided on a
preliminary basis without giving the parties the opportunity to provide full
records, as contemplated by rule 300 and following of the Federal Courts
Rules, and would require the Court to render a decision without full
benefit of complete submissions from counsel.
[14]
There is also the question of standing. Although
Mr. Bevins has standing to seek the destruction of his own records, there is no
evidence that he speaks for other Québec gun owners, said to be some 500,000.
[15]
Canada’s Firearms
Association would have to establish public interest standing.
[16]
The tripartite test for an interlocutory
injunction, as set out by the Supreme Court of Canada in such cases as RJR-MacDonald
Inc v Canada (Attorney General), [1994] 1 S.C.R. 311, is well-known. The
applicant must raise a serious issue, be irreparably harmed if the injunction is
not granted, and must benefit from the balance of convenience.
[17]
There certainly appears to be a serious issue:
the refusal of the authorities to give effect to an Act of Parliament.
[18]
As to irreparable harm, Mr. Bevins cites privacy
issues. However, he himself in this motion has identified his guns for all the
world to see. There might have to be a class proceeding.
[19]
The numbered company, a well-known Québec gun
dealer carrying on business as “L’Archerot Plus, le
centre d’armes à feu de l’Outaouais” may well lose
business as Québec residents may choose to buy their non-restricted firearms in
other provinces where the transaction will not be recorded. However, a case would
have to be made out that an action in damages would not be a sufficient remedy.
[20]
Any harm may well be short-term.
[21]
Finally, it would have to be established that
the balance of convenience favours the applicants. A strong argument lies that
the balance of convenience favours Québec.
[22]
This decision is rendered simultaneously in both
official languages as required by s. 20 of the Official Languages Act.
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