Dockets: T-577-20
T-677-20
T-735-20
Citation: 2021 FC 130
Ottawa, Ontario, February 9, 2021
PRESENT: The Associate Chief Justice Gagné
| Docket T-577-20
|
| BETWEEN:
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| CANADIAN COALITION FOR FIREARM RIGHTS, RODNEY GILTACA, LAURENCE KNOWLES, RYAN STEACY, MACCABEE DEFENSE INC., and WOLVERINE SUPPLIES LTD.
|
| Applicants
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
| Docket T-677-20
|
| BETWEEN:
|
| MICHAEL JOHN DOHERTY, NILS ROBERT EK,
RICHARD WILLIAM ROBERT DELVE,
CHRISTIAN RYDICH BRUHN, PHILIP ALEXANDER MCBRIDE,
LINDSAY DAVID JAMIESON, DAVID CAMERON MAYHEW, MARK ROY NICHOL and PETER CRAIG MINUK
|
| Applicants
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
| Docket T-735-20
|
| BETWEEN:
|
| CHRISTINE GENEROUX, JOHN PEROCCHIO and VINCENT PEROCCHIO
|
| Applicants
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
ORDER AND REASONS
I.
Overview
[1]
On May 1, 2020, the Governor in Council [GIC], via Order in Council PC 2020-0298 [OIC], promulgated 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 [Regulations].
[2]
The effect of the Regulations is to add a list of previously non-restricted or restricted firearms to the definition of “prohibited device”
, “prohibited firearm”
or “restricted firearm”
as found in subsections 84(1) and 117.15(1) of the Criminal Code, RSC 1985, c C-46. It also prohibits any firearm with a bore diameter of 20 mm or greater and firearms capable of producing a muzzle energy greater than 10,000 joules. The GIC is therefore of the opinion that these firearms are not “reasonable for use in Canada for hunting or sporting purposes”
(Criminal Code, s 117.15(2)).
[3]
A Regulatory Impact Analysis Statement [RIAS] accompanied the Regulations. The RIAS states that nine principal models of firearms are now prohibited: “(1) they have semi-automatic action with sustained rapid fire capability (tactical/military design with large magazine capacity), (2) they are of modern design, and (3) they are present in large volumes in the Canadian market.”
[4]
The Court is seized with six Applications for judicial review – which are jointly case managed – challenging the OIC on several grounds:
That it violates sections 7, 8, 9, and 15 of the Canadian Charter of Rights and Freedoms [Charter], Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982];
That it is ultra vires section 91 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 [Constitution Act, 1867];
That it violates section 35 of the Constitution Act, 1982;
That it violates subsection 117.15(2) of the Criminal Code;
That it violates subsections 1(a) and 2(a) of the Canadian Bill of Rights, SC 1960, c 44; and
That the Regulations were enacted in bad faith.
[5]
In three of these applications (T-577-20, T-677-20 and T-735-20), the Applicants have brought the within Motions for an interlocutory injunction, pursuant to Rule 373 of the Federal Courts Rules, SOR/98-106.
[6]
In the course of these Motions, they have raised a preliminary objection to the expert evidence of Mr. Murray Smith [Smith affidavit] and to the affidavit of documents filed by Ms. Adrienne Deschamps [Deschamps affidavit], on behalf of the Respondent.
[7]
On the merits, the Applicants seek an interlocutory injunction staying the operation of the Regulations and the effect of the Order Declaring an Amnesty Period (2020), SOR/2020-97 [Amnesty Order]. The Amnesty Order temporarily allows owners to possess and store the specified firearms and devices in accordance with legislation, deliver the firearms for destruction or disposal, and, inter alia, deliver the firearms to their owners. It does not allow for the usage of the specified firearm except for hunt in the exercise of a section 35 right under the Constitution Act, 1982, or in order to sustain oneself or one’s family before obtaining a non-prohibited firearm. The amnesty period ends on April 30, 2022.
[8]
They additionally seek injunctions to prohibit the Royal Canadian Mounted Police [RCMP] from designating firearms as restricted or prohibited in the Firearms Reference Table [FRT]. The FRT is a database maintained by the Specialized Firearms Support Services within the Canadian Firearms Program of the RCMP. It provides a technical assessment on whether firearms constitute non-restricted, restricted or prohibited firearms. After the promulgation of the Regulations, the FRT was updated to reflect the classification of firearms listed in the Regulations and those firearms that were variants in the opinion of a technician from the Specialized Firearms Support Services.
[9]
Finally, the Applicants in file T-735-20 (self-represented by Ms. Generoux at the hearing) also seek an injunction prohibiting the Crown from making “unproven defamatory and slanderous public statements about firearm licensees as a group”
.
[10]
Since an injunction staying the effect of the Regulations would have a run-on effect on the Amnesty Order and the FRT, these reasons will focus mainly on the Regulations.
[11]
For the reasons set out below, I conclude that the Applicants do not meet the test for the issuance of an interlocutory injunction, as they have failed to adduce clear and non-speculative evidence that they would suffer irreparable harm if the Regulations remain in effect pending a determination by this Court of their applications on the merits.
II.
Issues
[12]
These Motions raise the following issues:
Whether the Smith affidavit and Deschamps affidavit are admissible evidence; and,
Whether the Applicants have met the tripartite test for an interlocutory injunction (RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 at 334 [RJR-MacDonald], that is:
(1)
Whether there is a serious issue to be tried;
(2)
Whether the Applicants will suffer irreparable harm if the injunction is not granted; and
(3)
Whether the balance of convenience favours the Applicants.
[13]
The RJR-MacDonald test is conjunctive. A failure to meet any one branch of the test is fatal to the Applicants. As stated above, I am of the view that the determinative issue in these Motions is whether the Applicants will suffer irreparable harm without an injunction; as I am of the view that they will not, there is no need for me to address the other two branches of the test.
III.
Analysis
A.
Whether the Smith affidavit and Deschamps affidavit are admissible evidence
[14]
Mr. Murray Smith is a forensic scientist and former RCMP employee; he now works as a consultant for the Canadian Firearms Program within the RCMP.
[15]
Adrienne Deschamps is the legal assistant to Sarah Jiwan, counsel for the Attorney General of Canada.
[16]
The Applicants argue that the Deschamps affidavit contains inadmissible hearsay evidence because she had no input into the articles attached to her affidavit and she has no knowledge of their contents. The Applicants were thus unable to cross-examine her on the contents of the articles attached to her affidavit. Further still, none of the documents were before the GIC when enacting the Regulations.
[17]
As for the Smith affidavit, the Applicants argue that Mr. Smith cannot be considered as an impartial or independent witness. His evidence engages both association bias and professional bias. After all, his entire professional career has been with the RCMP (as an employee or as a consultant), he was involved in the creation of the Regulations, and he was directly involved in the re-designation process for the FRT. In essence, Mr. Smith is motivated to support his professional opinion of the Regulations and FRT. This is bolstered, they say, by Mr. Smith’s willingness to give evidence outside his area of expertise.
[18]
The Respondent submits that the Deschamps affidavit is not being tendered for the truth of its contents, but rather for the fact that the appended articles have been publically accessible at the sites or places referenced.
[19]
As for the Smith affidavit, they contend that it meets the requirements for the admission of expert evidence, as enunciated by the Supreme Court in R v Mohan, [1994] 2 S.C.R. 9. The evidence is relevant, necessary, not caught by an exclusionary rule, and tendered by a properly qualified expert. They add that the benefits of admitting his evidence outweigh any potential risks (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at paras 22-24 [White Burgess]).
[20]
First addressing the Deschamps affidavit, I note that it is uncontested that she has no knowledge of the contents of the exhibits appended to her affidavit. She admitted as much during her cross-examination. However, I agree with the Respondent that the jurisprudence supports that her affidavit can be admitted as evidence that the articles she appended exist at the places or sites referenced.
[21]
Most of the exhibits appended to the Deschamps affidavit would speak to the first branch of the RJR-MacDonald test, as they mostly concern what led the Government to enact the Regulations. For example:
The impact of the firearm legislation reforms in the European Union;
The accessibility of firearms and the risk for suicide and homicide among household members;
The mandate letters to the Minister of Justice, Minister of Public Safety and Emergency Preparedness;
Statement by the Ontario Association of Chiefs of Police regarding the control of firearms;
[22]
As I am willing to admit, for the sake of discussion and without having to take position on the merits, that the Applicants’ applications meet the low threshold for finding that they raise a serious issue to be tried, I will not need to assess the probative value of this evidence.
[23]
However, the following four exhibits rather concern the second branch of the RJR-MacDonald test that I will discuss further below. They are:
Exhibit J: A copy of two posts by Maccabee Defense Inc. on the Maccabee Defense Inc. Twitter page date November 23 and 28, 2017, publicly accessible at https://twitter.com/macdef inc, as displayed on October 4, 2020;
Exhibit U: A copy of the Corporation/Non-Profit Search Results for Maccabee Defense Inc. Ms. Deschamps was informed by Ewa Ferreira, a paralegal in the Department of Justice office in Calgary, Alberta that she conducted the search on September 25, 2020 through the online Corporate Registry System (CORES) at https://cores.reg.gov.ab.ca/cores/cr/cr login.login page;
Exhibit V: A copy of the Company Search Results for Wolverine Supplies Ltd. Ms. Deschamps was informed by Tandra Malm, a legal assistant in the Department of Justice office in Calgary, Alberta that she conducted the search on September 25, 2020 through Companies Online https://companiesonline.gov.mb.ca;
Exhibit W: A copy of the webpage “About Us - Maccabee Defense Inc.” as displayed on October 4, 2020 at www.macdefmc.com/about-us/;
[24]
This evidence comes either from two of the Applicants or else from reliable neutral sources, and therefore I am willing to give it high probative value. Even more so considering the fact that the Applicants directly concerned with these exhibits did not specifically deny the truth of their content.
[25]
I now turn to the Smith affidavit. The parties agree that expert evidence must be independent, impartial and objective, but they disagree about whether Mr. Smith’s evidence meets those criteria. The Applicants have the burden to show that Mr. Smith is unwilling or unable to comply with his duty to be fair, objective and non-partisan (White Burgess at para 48). The Respondents argue that the Applicants have not met their burden. I agree.
[26]
In their arguments, the Applicants rely heavily on the fact that Mr. Smith was an employee of the RCMP and is now a consultant for the RCMP’s Canadian Firearms Program. However, the Supreme Court in White Burgess was clear that a mere employment relationship with a party will not generally be sufficient to render a proposed expert inadmissible:
[49] This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.
[27]
In my view, the Applicants have not identified anything more significant than a mere employment relationship. Mr. Smith did not write the Regulations under review although he did admit to having some input in them. His consulting relationship with the RCMP does not mean he is financially invested in the outcome of these Motions.
[28]
The Applicants argue that Mr. Smith exceeded the boundaries of his expertise during his cross-examination. In my view, the Applicants’ argument is close to admitting that Mr. Smith has expertise that could assist the Court on the issues before it. I do not think that Mr. Smith’s cross-examination reveals that he was unable to give impartial evidence. He acknowledged the limits of the FRT and the fact that both businesses and individual firearm owners may come to a different conclusion on the classification of firearms than that of the RCMP technicians. He acknowledged not having legal expertise and not speaking on behalf of the firearms industry. He explicitly admitted having no expertise in hunting, but rather having expertise in the operational mechanics of firearms.
[29]
As a result, I am of the view that the Applicants’ submissions are not supported by the facts as found in Mr. Smith’s cross-examination. I would finally add that all Applicants relied on portions of Mr. Smith’s evidence during their submission, implicitly acknowledging its relevance.
[30]
This evidence does benefit the Court and as such, it should be admissible.
B.
Whether the Applicants have met the tripartite test for an interlocutory injunction or whether the Applicants will suffer irreparable harm if the injunction is not granted
[31]
A party seeking an interlocutory injunction “must demonstrate with clear and non-speculative evidence that [without the intervention of the Court] it will suffer irreparable harm between now and the time that the underlying application for judicial review is finally disposed of”
(Air Passengers Rights v Canada (Transportation Agency), 2020 FCA 92 at para 28; see also International Longshore and Warehouse Union, Canada v Canada (Attorney General), 2008 FCA 3 at para 22). Irreparable harm generally means harm that cannot be cured through damages (RJR-MacDonald at 341).
[32]
For their arguments on irreparable harm, the Applicants refer to the many affidavits before this Court from individuals speaking to their personal experiences with firearm ownership. Many individual affiants recount the ways in which the Regulations have personally affected them by prohibiting firearms they formerly used. Such impacts include business decline, infringement of Aboriginal Rights, loss of a valued pastime such as sport shooting or hunting, loss of skill-building opportunities, psychological turmoil associated with the perspective of criminal sanction, loss of sustenance hunting, and finally, the loss of a so-called “gun culture”
.
[33]
I will address each category of alleged harm separately.
(1)
Financial Losses
[34]
When determining whether the harm experienced by an applicant is irreparable, a Court must consider its nature rather than its magnitude. Harm is said to be irreparable when it is either unquantifiable in damages, or when the moving party will be practically unable or unlikely to collect damages from the respondent (RJR-MacDonald at 341).
[35]
At the onset of these applications, there were three corporate applicants (in file T-577-20): Maccabee Defense Inc. [Maccabee], Wolverine Supplies Ltd. [Wolverine] and Magnum Machine Ltd. The latter has since filed a Notice of Discontinuation and issued an action seeking compensatory damages for loss of goodwill and inventory – file T-1415-20 before this Court.
[36]
In order to meet this second branch of the test, only harm suffered by the moving party will be considered (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 33 [Glooscap]). The Court will therefore not consider the expert evidence adduced by the Applicants in file T-577-20 regarding the impact of the Regulations on the Canadian economy as a whole, nor will it consider the affidavit evidence of Mr. Rick Timmins, a corporate representative and founder of Magnum Machine Ltd., which, as indicated above, is no longer a moving party.
[37]
Mr. Wyatt Signer testified on behalf of Maccabee, but also to his own investment in time, energy and money in designing Maccabee’s SLR-Multi, a “non-restricted safety-focused firearm to appeal to beginner hunters and sport shooters”
. The entire business is connected to this specific model. Maccabee had to discontinue its sales of the SLR-Multi in the face of the FRT re-designation due to potential criminal liability. Maccabee and Mr. Singer add they have no confidence that any new firearm they design and manufacture from scratch will not suffer the same arbitrary fate as the SLR-Multi.
[38]
Wolverine currently possesses over $477,000 in inventory that is now prohibited by the Regulations and the FRT re-designation. This inventory cannot be sold in Canada and there is no mechanism for Wolverine to dispose of it, whether through export, grand-fathering, or buyback. It filed the expert affidavit evidence of Mr. Jeff Pellarin, a Chartered Professional Accountant and Chartered Business Valuator. Mr. Pellarin opined that: (i) Wolverine’s sales would decline by 21% to 33%, (ii) proforma earnings for each year would decline by 41% to over 100%, and (iii) Wolverine’s earnings would be marginal, delivering returns on invested capital ranging from negative amounts to, at most 8.2%, and averaging 2%. He concluded that, “Wolverine’s sales are significantly impacted, and earnings would be marginal, where return on investment would not be worthwhile.”
[39]
On the question of irreparable harm, Canadian courts have distinguished between the loss of a business, such as the cessation of operations, and the loss of business revenue or profit (RJR-MacDonald at 341). As noted by the Respondent, neither Wolverine nor Maccabee have been forced to cease operations as a result of the Regulations, nor do they expect to do so. In the case of Maccabee, new non-prohibited firearms are already being marketed to their customers and Mr. Singer has expressed his “faith”
in the continuation of the business. Both Maccabee and Wolverine claim losses that are quantifiable in monetary terms; this is perhaps unsurprising because after all, Magnum Machine Ltd. and Mr. Rick Timmins did quantify their losses in a similar situation and are seeking damages against the Crown.
[40]
Both corporate Applicants provided little direct evidence of the actual financial impact of the Regulations since May 1, 2020. In addition, Wolverine’s expert admitted during cross-examination that his opinion assumed any decline could not be avoided by an increase in sales of non-prohibited firearms. He also admitted that if Wolverine was to sell non-prohibited firearms to customers who previously owned now prohibited firearms – and therefore who are impacted by the Regulations – Wolverine’s sales would either not decline or decline significantly less than what he had anticipated.
[41]
The Applicants had the burden to convince the Court that without its intervention, irreparable harm will occur, not only that it would likely occur. I agree with the Respondent that neither Maccabee nor Wolverine have provided evidence at a convincing level of particularity to demonstrate a real probability that unavoidable irreparable harm will occur (Glooscap at para 31).
[42]
The Applicants specifically refer to the RIAS as “a quasi-admission that the impugned legislation will work irreparable harm.”
The Court views it as the opposite since the government announced its intention to create a buy-back program to provide compensation to firearms owners for the impact of the new prohibitions. As a result, while the corporate Applicants may see a short-term decrease in profits because of the Regulations, such loss could be mitigated by the buy-back program, the ability to return prohibited firearms to their manufacturer, and potentially by purchases of new firearms to replace those being prohibited. This renders the claimed losses of the corporate Applicants rather speculative.
(2)
Infringement of Aboriginal Rights
[43]
Mr. Laurence Knowles is a status Indian and a member of the Haida First Nation in British Columbia. He testified to having been hunting and safely using firearms on a nearly daily basis for over 40 years. Sustenance hunting represents a significant portion of the diet of Mr. Knowles and many others in his isolated community. Hunting also serves other cultural purposes to Aboriginal peoples besides sustenance. Hunting is a social and ceremonial activity that connects Aboriginal people to their communities and to their ancient, traditional ways of life. Hunted animals are also used to make traditional clothing and artwork.
[44]
Mr. Knowles owns four firearms that were prohibited by the Regulations. These firearms are particularly suited to the environment on Haida Gwaii and the hunting and trapping practices that Mr. Knowles engages in. He will have to replace these firearms, which will cause him further irreparable financial harm.
[45]
The Applicants state that harm that will result in the infringement of the exercise of Aboriginal rights, just like the loss of the opportunity to be consulted and accommodated, constitutes prima facie irreparable harm.
[46]
However, the Applicants are silent on the exception for Indigenous persons created by the Amnesty Order. Indigenous people can use any of the firearms prohibited under the Regulations in the exercise of a right recognized by section 35 of the Constitution Act, 1982, provided the firearms were classified as non-restricted on April 30, 2020.
[47]
In addition to Mr. Knowles being subject to this exception, non-prohibited firearms continue to be available and are suitable for hunting. There is very little evidence as to whether Mr. Knowles possesses non-prohibited firearms; in his affidavit, he alludes to owning a caliber .22 rifle that is not always effective for hunting. However, the Court cannot address whether other non-prohibited firearms could be as effective for the kind of hunting Mr. Knowles does. The fact that he would have to replace his now prohibited firearms does not amount to irreparable harm, especially considering the upcoming buy-back program announced by the Government.
[48]
Although Mr. Knowles states that he is not personally aware of consultation with First Nations prior to enacting the Regulations, the RIAS indicates the following:
From fall 2018 to spring 2019, the Government held extensive engagement with Indigenous groups, provinces and territories, municipalities, law enforcement agencies, academics, victim groups and other key stakeholders on limiting access to assault-style firearms and handguns. Recognizing that some Indigenous and sustenance hunters could be using previously non-restricted firearms for their hunting and may be unable to replace these firearms immediately, the Amnesty Order includes provisions for the limited use of these firearms for such purposes. Following the publication of the Regulations, the Government will continue to engage with Indigenous groups to assess whether the prohibition of these firearms has a continued impact on the right to hunt affirmed by section 35 of the Constitution.
[49]
I am therefore of the view that the Applicants have failed to provide evidence that any Aboriginal rights guaranteed by the Constitution Act, 1982 will be infringed without an injunction.
(3)
Hunting or Sport Shooting and Gun Culture
[50]
The loss of a specific firearm for hunting or shooting is not irreparable harm either. Other firearms exist and, in fact, Canadians wishing to engage in these activities can choose from a large range of non-restricted firearms that may reasonably be used for that purpose. For example, Mr. Smith explains that the 223 Remington and 308 Winchester, originally designed for military use, can be replaced by several non-restricted traditional hunting rifles that are chambered for 223 Remington and 308 Winchester caliber cartridges. The same can be said for those affiants with medical conditions that influence their preferred firearm. For example, the BCL 102 semi-automatic rifle used by Mr. Richard Delve could apparently be replaced by several “alternative, non-restricted firearms available in the marketplace that are also chambered for a 308 Winchester cartridge that produce the same, or less recoil as the BCL-102 when chambering the same cartridge”
(Smith affidavit at para 76).
[51]
Regarding the Applicants’ argument about the loss of their gun culture as the result of the Regulations, it is unsupported by any specific submissions. For the purposes of these Motions, it is not clear how the Regulations affect gun culture. This is because it is not clear from Ms. Generoux’s submissions what gun culture is comprised of, other than “participating in [the] community and pastimes”
, which include hunting and sport shooting. The Applicants place great emphasis on recreational activities involving firearms. However, as noted above, Canadians wishing to participate in hunting and sport shooting are able to do so by using a large selection of non-restricted firearms. The Applicants have not met their burden of providing compelling and particular evidence in support of irreparable harm.
(4)
Loss of Skill-Building Opportunities
[52]
The Applicants argue that law enforcement officers or members of the Canadian Armed Forces will suffer a decline in their shooting skills without access to the firearms prohibited by the Regulations. They filed the affidavit evidence of Mr. Matthew Overton, President of Dominion of Canada Rifle Association [DCRA] and that of Mr. Ryan Steacy, Technical Director at International Barrels Inc., and a retired Corporal of the Canadian Armed Forces. They testified to the fact that civilian sport shooters develop techniques that they then teach to military personnel during competitions between members of military, police, and civilians, which are organized by DCRA.
[53]
However and as noted by Mr. Murray Smith, also a former member of the military, the only individuals truly affected by the Regulations are the civilians competing with civilian versions of military or law enforcement service weapons. Law enforcement officers and members of the Canadian Armed Forces have prescribed training programs and they have access to ranges where they can train with their service weapons. The Court agrees with the Respondent that participation in civilian shooting competitions is not required for Canadian Armed Forces, or other law enforcement members.
[54]
There is no compelling evidence that the shooting skills of Canadian Armed Forces members or law enforcement officers will decline as a result of the Regulations.
IV.
Conclusion
[55]
Having found that the Applicants have failed to meet the second branch of the RJR-MacDonald test, it follows that their Motions for interlocutory injunction must be dismissed.
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