T-1677-78
Robert Douglas Lawrence (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Toronto, May 29;
Ottawa, June 5, 1978.
Practice — Application to strike statement of claim —
Plaintiff seeking declaration that particular section of
Restricted Weapons Order ultra vires — Defendant contending
that there is no reasonable ground for action — Application
allowed and statement of claim struck out — Federal Court
Rule 419 — Restricted Weapons Order, SOR/78-42, s. 2(e) —
Criminal Code, R.S.C. 1970, c. C-34, s. 82(1).
APPLICATION.
COUNSEL:
K. J. Bialkowski for plaintiff.
G. R. Garton for defendant.
SOLICITORS:
DuVernet, Carruthers, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The defendant moves under Rule
419 to strike out the statement of claim and
dismiss this action with costs on the ground that
the statement of claim discloses no reasonable
cause of action. The plaintiff seeks a declaration
that section 2(e) of the Restricted Weapons
Order' is ultra vires. The material facts are set
forth in paragraphs 1 to 4 of the statement of
claim.
1. The plaintiff, Robert Douglas Lawrence, resides in the
municipality of Metropolitan Toronto, in the Province of
Ontario, and at all material times was the owner of a "Colt
Model AR-15" rifle bearing serial number SP 27410, herein-
after referred to as the plaintiff's rifle.
2. The plaintiff states that the Governor General in Council is
authorized by s. 82(1) of the Criminal Code, R.S.C. 1970, c.
C-34, to declare by Order in Council as a "restricted weapon",
a weapon of any kind, which in his opinion, is not being of a
kind commonly used in Canada for hunting or sporting
purposes.
' SOR/78-42.
3. On or about the 22nd day of December, 1977, the Governor
General in Council by s. 2(e) of Order in Council P.C. 1977-
3667 declared the semi-automatic rifle known as the "Colt
Model AR-15" a restricted weapon, such Order coming into
force on January 1, 1978.
4. The plaintiff states and the fact is that the "Colt AR-15" is
a rifle of a kind commonly used in Canada for hunting and
sporting purposes and as a result, the Governor in Council did
not have the authority to declare the said rifle as a "restricted
weapon", or in the alternative, the opinion of the Governor
General in Council was so unreasonable as to make the Order
in Council ultra vires, or further that he improperly exercised
his discretion.
The Criminal Law Amendment Act, 1977, 2 pro
vides, in part, as follows:
82. (1) For the purposes of this Part,
"prohibited weapon" means
(e) a weapon of any kind, not being an antique firearm or a
firearm of a kind commonly used in Canada for hunting or
sporting purposes, that is declared by order of the Governor
in Council to be a prohibited weapon;
"restricted weapon" means
(d) a weapon of any kind, not being a prohibited weapon or
a shotgun or rifle of a kind that, in the opinion of the
Governor in Council, is reasonable for use in Canada for
hunting or sporting purposes, that is declared by order of the
Governor in Council to be a restricted weapon.
Order in Council P.C. 1977-3667, SOR/78-42,
provides, in part, as follows:
Whereas none of the weapons referred to in the annexed
Order is a prohibited weapon or a shotgun or rifle of a kind
that, in the opinion of the Governor in Council, is reasonable
for use in Canada for hunting or sporting purposes.
Therefore, His Excellency the Governor General in Council,
on the recommendation of the Minister of Justice, pursuant to
paragraph (d) of the definition "restricted weapon" in subsec
tion 82(1) of the Criminal Code, is pleased hereby to make the
annexed Order declaring certain weapons to be restricted weap
ons, effective January 1, 1978.
2. The following weapons are hereby declared to be restrict
ed weapons:
(e) the semi-automatic action rifle known as the "Colt
Model AR-15".
Paragraph 2 of the statement of claim imputes
to the definition of "restricted weapon" language
2 S.C. 1976-77, c. 53, s. 3.
that does not apply to it but rather to the defini
tion of "prohibited weapon". This language is
carried into paragraph 4, which sets out the crux
of the plaintiff's case. As a general rule, the Court
is bound in an application such as this to assume
the truth of the facts alleged in the statement of
claim. That does not pertain when the allegation of
fact is really a proposition of law. It is for the
Court, not the pleader, to say what the law is.
Here, I am bound to accept the plain language of
the statute in preference to what the statement of
claim imputes to it.
By this ploy, the statement of claim seeks to
raise a question of fact which might be justiciable,
namely whether or not the Colt Model AR-15 is
"commonly used in Canada for hunting or sport
ing purposes". However, the Colt Model AR-15
was not declared to be a prohibited weapon and it
is unnecessary to decide whether, in a proper case,
that determination of fact would be subject to
judicial review.
The conditions prescribed by the Act for decla
ration of the Colt Model AR-15 to be a restricted
weapon appear on the face of the Order in Council
to have been met. Accepting as true the allegation
that the Colt Model AR-15 is "a rifle of a kind
commonly used in Canada for hunting and sport
ing purposes", it remains that the formation by the
Governor in Council of the opinion that it is a
weapon not reasonable for such use is a determina
tion that is not subject to judicial review.
ORDER
The statement of claim is struck out as disclos
ing no reasonable cause of action and the action is
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.