1      (PROCEEDINGS JANUARY 24, 2007)

         2      MS. WALSH:             Good morning, Your Honour.

         3          Janice Walsh for the Patrick Ehnes application.

         4      THE COURT:             Thank you, Ms. Walsh.

         5      MS. WALSH:             And I can advise that

         6          Mr. Ehnes is in the court today.

         7      THE COURT:             We are ready to go on this

         8          hearing?

         9      MS. WALSH:             The Crown is prepared to move

        10          forward, yes.

        11      THE COURT:             Mr. Ehnes, would you like to

        12          come forward, then, please, and sit at defence

        13          counsel table here.

        14               Mr. Ehnes, I understand that you are here

        15          because you have brought a reference after being

        16          refused a registration permit for your handgun --

        17      MR. EHNES:             Yes, Your Honour.

        18      THE COURT:             -- that falls under the common

        19          definition of a Saturday Night Special?

        20      MR. EHNES:             Well, I don't refer to them as

        21          that.

        22      THE COURT:             No.  But that is the essence

        23          of the reference?

        24      MR. EHNES:             It's, yeah, the refusal to

        25          issue a registration certificate for the handgun.

        26      THE COURT:             Right.  I have reviewed the

        27          material that has been filed on this case.  And





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         1          maybe, to shorten proceedings somewhat, I can

         2          just go through what I understand to be the

         3          history --

         4      MR. EHNES:             Yes.

         5      THE COURT:             -- and see if we are all

         6          agreed on that.

         7               February 14th, 1995 there was first reading

         8          of the Firearms Act, and certain weapons that had

         9          been restricted weapons were going to become

        10          prohibited weapons as a result of that

        11          legislation, and the type of firearm that you

        12          have that is the subject of this reference fell

        13          into that category.  So prohibited weapons

        14          require the owner to have a license that is

        15          issued by the province and the gun to be

        16          registered, and the gun is registered by the

        17          federal authorities.

        18               February 14th, 1995 was also the grandfather

        19          date for holders of this type of weapon as of

        20          that date.  So people who had that type of weapon

        21          as of February 14th, 1995, there were provisions

        22          for them to be grandfathered, that is, to

        23          continue to hold them if they satisfied certain

        24          other requirements, but it was an important date

        25          in that way.

        26               On July 4th, 1996 you applied to register

        27          the gun that is the subject of this reference,





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         1          and you received a notice telling you that

         2          because of the legislation that was working its

         3          way through Parliament, the type of gun you

         4          wanted to register would become a prohibited

         5          weapon and you may not be able to continue to

         6          have it.

         7               On December 1st, 1998 the Firearms Act then

         8          became law.  On March 14th, 2001 more legislation

         9          was introduced in Parliament.  Bill C-10A

        10          received its first reading, and that legislation

        11          was designed to change the grandfather date from

        12          February 14th, 1995 to December 1st, 1998.  So

        13          that would have taken you out of your present

        14          difficulty.

        15               December 31st, 2002 all the old registration

        16          certificates expired and owners of handguns

        17          needed to re-register.  You, however, could not

        18          re-register because Bill C-10A had not yet

        19          passed.  So you were still stuck with the

        20          February 14th, 1995 grandfather date.  So you

        21          could not re-register by the deadline of December

        22          31st, 2002.  Bill C-10A then became law on May

        23          13th, 2003.  The difficulty, of course, was that

        24          then you had had a break in registration.  I will

        25          come back to that in a moment.

        26               There a couple of other dates that I need to

        27          talk about first.  On October 26th, 2005 there





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         1          was first reading of a Private Member's bill

         2          that, again, would have solved your particular

         3          difficulty and the difficulty of about 1,400

         4          other gun owners.

         5      MR. EHNES:             Yes.

         6      THE COURT:             That Private Member's bill

         7          died on November 29th, 2005 when Parliament was

         8          dissolved.  And then the other date of interest

         9          is December 31st, 2005.  That was the end of the

        10          amnesty period for disposal of everything that

        11          had become a prohibited weapon, and there were

        12          various ways that you could legitimately dispose

        13          of things that had become prohibited weapons.

        14               So then we come to the reason for this

        15          reference.  Of course, you have attempted to

        16          register your handgun, and the Registrar has

        17          refused that application because you have not

        18          been a licensed holder of a registered gun

        19          throughout.  Again, that brings us back to what

        20          happened with Bill C-10A.  Because it was not yet

        21          law when December 31st, 2002 rolled around, there

        22          was a break in your registration and licensing.

        23          So you are caught by that.  You could not

        24          re-register.  Because there has been a break in

        25          your registration, you are disentitled from

        26          having this particular weapon registered.

        27               So I think that is the summary of the





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         1          important dates and processes.  Does that fit

         2          with your understanding --

         3      MS. WALSH:             Absolutely, Your Honour.

         4      THE COURT:             -- Ms. Walsh?

         5      MS. WALSH:             That is a very succinct

         6          outline of the legislation and the reason why we

         7          are here today.

         8      THE COURT:             And I further understand it is

         9          the position of the Crown that I cannot

        10          substitute my own opinion for the Registrar's

        11          actions.  If the Registrar was doing what he was

        12          supposed to do, I cannot do anything about that.

        13          I have to say, "Right.  Your decision was the

        14          right one."

        15      MS. WALSH:             Your Honour, obviously it's

        16          unfortunate for Mr. Ehnes and for the 1,400 other

        17          people who are caught by that break.  However,

        18          there is no parliamentary -- or Parliament has

        19          made its wishes known, and, unfortunately, the

        20          resolution or the bill that could have assisted

        21          Mr. Ehnes and his compatriots died on the floor.

        22          It is unfortunate.  We are left with the fact

        23          that there is no possible way that we can give

        24          Mr. Ehnes the recourse that he is looking for.

        25      THE COURT:             Mr. Ehnes, what submissions do

        26          you want to make?  Since it is your reference, I

        27          think that - now that I have done my summary of





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         1          what I understand to be the issues and the

         2          important dates - I will turn it over to you.

         3          You tell me what you want me to consider.

         4      MR. EHNES:             Well, I agree, Your Honour,

         5          that your summary is correct.  I am not disputing

         6          the break in time.  What I -- what I do have a

         7          problem with is the fact that I did re-register

         8          it before the expiry date of the old one, and

         9          this is a copy of the -- of the form to have it

        10          re-registered after -- before the expiry date of

        11          the ...  So, Your Honour, I acted in good faith

        12          trying to re-register it before the old green

        13          registration --

        14      THE COURT:             Right.

        15      MR. EHNES:             So before that expired, I had

        16          applied to re-register it.  I did receive

        17          correspondence back from the Firearms Centre, and

        18          it says on there that they have started

        19          processing the registration, and they explicitly

        20          instruct me not to contact them and that I have

        21          to take no action at this time.  So I was led to

        22          believe that the new registration was being

        23          reissued because I had done everything within the

        24          time frame set out and that there was no -- there

        25          was no problems indicated on the correspondence

        26          from the Firearms Centre, and, again, I was

        27          explicitly told, "We do not need any other





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         1          information.  You don't have to take any action

         2          at this time," and basically, "Do not contact

         3          us."

         4               So I let things -- I presumed everything --

         5          because all the other firearms that I had

         6          registered had all been registered.  There is one

         7          other one noted on there, which was still a

         8          restricted handgun, and that one did show up, the

         9          registration did show up for that one about a

        10          couple of months later, I believe it was.  So I

        11          presumed that the last one was still forthcoming.

        12          And, like I say, this is the correspondence from

        13          the Firearms Centre, if you would like to see

        14          that.

        15      THE COURT:             What I am going to do is mark

        16          a number of exhibits so that we have a clear

        17          record of this hearing.

        18      MR. EHNES:             Yes, Your Honour.

        19      THE COURT:             I think I should back up for a

        20          moment.  Madam Clerk, I will ask to see the file,

        21          as well, because I think we should make a

        22          complete paper record, as well.

        23      MR. EHNES:             Yes.

        24      THE COURT:             Thank you.  So here is what I

        25          am going to direct:  First of all, Mr. Ehnes, you

        26          sent a letter to Judge Schmaltz, and in a way

        27          it -- it is reproduced later on in the formal





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         1          notice, but for this hearing I am going to direct

         2          that this letter and its attachments become

         3          Exhibit 1.

         4          EXHIBIT 1:  LETTER TO JUDGE SCHMALTZ FROM

         5          PATRICK EHNES AND ATTACHMENTS

         6      THE COURT:             Then this memorandum of law

         7          filed by Ms. Walsh, that will become Exhibit 2.

         8          EXHIBIT 2:  MEMORANDUM OF LAW (ON BEHALF

         9          OF THE REGISTRAR OF FIREARMS)

        10      THE COURT:             I have the affidavit of

        11          Terrance Gregory Myers

        12      MR. EHNES:             Yes, Your Honour.

        13      THE COURT:             That will be Exhibit 3.

        14          EXHIBIT 3:  AFFIDAVIT OF TERRANCE GREGORY

        15          MYERS

        16      THE COURT:             Ms. Walsh, have you seen this

        17          firearm application acknowledgement that

        18          Mr. Ehnes spoke of?

        19      MS. WALSH:             No, I haven't.

        20      THE COURT:             I will just ask you to have a

        21          look at that, and that will become Exhibit 4.

        22      MS. WALSH:             That's fine, Your Honour.

        23          Thank you.

        24      THE COURT:             Thank you.

        25          EXHIBIT 4:  FIREARM APPLICATION

        26          CONFIRMATION

        27      THE COURT:             Have you seen this document,





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         1          Ms. Walsh --

         2      MS. WALSH:             No, I haven't.

         3      THE COURT:             -- the Firearm Information

         4          Acknowledgement?  I will ask you to have a look

         5          at that, and then we will make that Exhibit 5.

         6      MS. WALSH:             Thank you, Your Honour.

         7      THE COURT:             Thank you.  That is Exhibit 5.

         8          EXHIBIT 5:  FIREARM INFORMATION

         9          ACKNOWLEDGEMENT

        10      THE COURT:             Then, Mr. Ehnes, did you in

        11          time receive communication back after that

        12          acknowledgement?

        13      MR. EHNES:             That was the only

        14          communication other than the letter of refusal

        15          that I received about three and a half years

        16          later.

        17      THE COURT:             And in the interim you had

        18          received registration for at least one of the

        19          other --

        20      MR. EHNES:             Yes.  Yes, Your Honour.

        21      THE COURT:             -- guns?

        22      MR. EHNES:             All the other --

        23      THE COURT:             All the other guns.

        24      MR. EHNES:             All the other firearms had

        25          been registered.  I registered my long guns and

        26          shotguns in compliance with the law.

        27      THE COURT:             Right.





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         1      MR. EHNES:             I re-registered my handguns,

         2          and there was no problems.  Like I say, there

         3          was -- they didn't all come at once.  Except that

         4          one, there was still another -- another one that

         5          took -- was delay, as well, but the system at

         6          that time was so backlogged and messed up that it

         7          was, you know, not surprising, because everyone

         8          knew that it was not functioning very well --

         9      THE COURT:             Right.

        10      MR. EHNES:             -- and the time frame for

        11          receiving the registration certificates was in

        12          sometime -- in some cases very lengthy.  So,

        13          again, when I was -- received the last letter

        14          that you just viewed, I took it to mean that

        15          because the old certificate was still valid, that

        16          the new registration was going to be issued, and

        17          if at a later date that Parliament said that,

        18          "We're not going to be grandfathering anyone,"

        19          that at that time I would be sent a notice saying

        20          because this didn't happen and because of the

        21          dates, you know, the time frame, that I would no

        22          longer be able to possess this particular

        23          handgun.  But when the letter came and said, you

        24          know, "We have received it.  Everything -- it is

        25          being processed.  Do not contact us" -- because

        26          you couldn't get through.  It would take hours

        27          and hours, if you did get through on the phone to





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         1          them.  I did phone once later on.  I don't have

         2          the exact date or record of it, but I did call

         3          once more and was told at that time, again, that

         4          it was being processed.  That's all I ...

         5      THE COURT:             Can you give me an approximate

         6          date on that?

         7      MR. EHNES:             It had to be about, I am

         8          guessing, nine months after I received that

         9          letter, something along that line, but I did

        10          phone and talk to a lady there at the Firearms

        11          Centre in Miramichi and was told it was being

        12          processed, and that is all the information that I

        13          was given.

        14               And, like I say, with -- I don't know if it

        15          has anything to -- any bearing on this matter.  I

        16          am -- I consider myself a very responsible

        17          firearms owner.  I was one of the first three

        18          people in the NWT to be certified as a firearms

        19          safety instructor.  I taught the firearm safety

        20          training course.  I have taken all of the safety

        21          training courses.  I am a lifetime member of the

        22          Yellowknife Shooting Club.

        23               And this particular firearm, as you referred

        24          to it, the Saturday Night Special, again, I don't

        25          see it quite like that.  This particular firearm

        26          is nearly 100 years old.  It is a, I think, fine

        27          example of craftsmanship, and it is a tool, it is





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         1          a machine, and it is not some piece of scrap gun

         2          that is, you know, just, you know -- it is a

         3          very -- in my opinion, a very nice example of

         4          nearly 100-year-old craftsmanship.

         5               It is not a danger to society in my hands,

         6          and I am no threat or danger to society.  I have

         7          tried and in good faith dealt with all of the

         8          firearms laws, as confusing as they are, and, you

         9          know, it just -- I feel like I am in a catch-22.

        10          They're saying the reason they're not issuing it

        11          is because there was a lapse.  The reason there

        12          was a lapse is because they didn't issue it.

        13          It's a catch-22.  How can I win?  You know, I

        14          feel that I have been somehow, you know, robbed,

        15          if you will.

        16      THE COURT:             Thank you, Mr. Ehnes.

        17          Ms. Walsh.

        18      MS. WALSH:             Your Honour, again, obviously,

        19          you know, personally nobody is claiming that

        20          Mr. Ehnes is not a responsible gun owner and that

        21          he is a danger to society.  The fact is is that

        22          he is caught by the legislation as it is today.

        23          And, unfortunately, Parliament has made its

        24          wishes abundantly and perfectly clear that with

        25          regards to these kind of weapons they are now

        26          considered prohibited weapons, and the only way

        27          that Mr. Ehnes can keep the firearm was negated





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         1          by the passing and non-passing of various pieces

         2          of legislation.

         3               Mr. Ehnes is perfectly open to doing some

         4          things to the handgun by deactivating it, by

         5          removing the barrel so that he can keep the frame

         6          of this antique weapon for himself.  However, as

         7          it stands as a weapon, legislation has dictated

         8          that it is not -- that its registration has been

         9          imperfect and that he cannot register this gun,

        10          and, therefore, certain things absolutely must be

        11          done as a result of him being caught by the

        12          legislation.

        13               Again, it's unfortunate, and what you and I

        14          might think is fair is something that, you know,

        15          we could speak about.  However, the legislation

        16          dictates that he is no longer allowed to have

        17          this gun as a registered weapon.  And, again, as

        18          I mentioned, there are several things Mr. Ehnes

        19          can do to keep the frame of the gun.  He can

        20          completely deactivate it, and, you know, there

        21          are certain things he can do, Your Honour.

        22      THE COURT:             But while we are talking about

        23          parliamentary intent, is it not quite clear, as

        24          well, that part of the parliamentary intent was

        25          that people in Mr. Ehnes' situation were to be

        26          allowed to be grandfathered as late as December

        27          1st, 1998?





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         1      MS. WALSH:             That is correct, Your Honour.

         2          However, in the way that this process has moved

         3          and in the way that it has gone through the

         4          courts and the way that Parliament has dealt with

         5          the different types of legislation and the fact

         6          that the further grandfathering clause that, as

         7          you mentioned yourself, would have assisted

         8          Mr. Ehnes died on the floor, quite clearly

         9          Parliament, again, made its mind up at that point

        10          in time that this is not what they wanted, it

        11          wasn't what society wanted, and, therefore, it is

        12          unfortunate, but still in front of us, that

        13          Mr. Ehnes is not allowed by legislation to hold

        14          this gun.

        15      THE COURT:             But I see quite a distinction

        16          between the lapse in time for Bill C-10A to

        17          become law and the dying on the order paper of

        18          the Private Member's bill.  The dying of the

        19          Private Member's bill does not really speak to

        20          parliamentary intention.  All of Parliament

        21          dissolved at that point in time.  So that does

        22          not seem to me to speak much to parliamentary

        23          intent.

        24               What about the fact that Bill C-10A took so

        25          long to pass into law that an important deadline

        26          was missed?  That seems to speak to a very clear

        27          intention to allow Mr. Ehnes to grandfather his





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         1          weapon.  He acquired that weapon in July of 1996.

         2          So it would have been clearly captured by

         3          Bill C-10A.  The difficulty came when Bill C-10A

         4          had not passed into law by December 31st, 2002.

         5      MS. WALSH:             That is correct, Your Honour.

         6          Mr. Ehnes was made aware that it was a

         7          possibility that the continued registration of

         8          his firearm was not a given, that there was

         9          current legislation that was being dealt with

        10          that could change the registration -- the

        11          registration, I guess, threshold, and it was not

        12          passed into law, and I believe one of the

        13          documents before the Court today does show that

        14          he was given that information; that although this

        15          was the intent, that it wasn't perfected as of

        16          yet.  It wasn't passed as law.

        17      THE COURT:             He was also notified that he

        18          needed to re-register before December 31st, 2002.

        19          He took steps to do that.

        20      MS. WALSH:             That's correct, Your Honour,

        21          in contemplation of something that, in your

        22          estimation and my estimation, took a fairly long

        23          time to pass.  However, the fact remains is that

        24          it did take a long time for it to pass and

        25          Mr. Ehnes' registration was not perfected because

        26          of the anticipation of a law passing, the

        27          anticipation of this further grandfathering





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         1          clause allowing him to continue registration of

         2          what is now a prohibited weapon.  To bet on a --

         3          on something that hasn't passed yet is

         4          unfortunate, but that is what we are dealing with

         5          today.

         6               Your Honour, we do have a firearms

         7          registration expert, Mr. Terry Myers, and he is

         8          the author, obviously, of the affidavit and is

         9          quite knowledgeable about the different types of

        10          legislation and how it is moved through the

        11          system, if you would prefer to hear from him.

        12      THE COURT:             Well, we have the hookup.  I

        13          would invite you to ask some questions of

        14          Mr. Myers, and Mr. Ehnes will have an opportunity

        15          to cross-examine him.

        16      MR. EHNES:             May I just say something, Your

        17          Honour?

        18      THE COURT:             Yes.

        19      MR. EHNES:             That Bill C-10A was passed and

        20          became law in 2005 and it did change the

        21          grandfathering date --

        22      THE COURT:             Yes.

        23      MR. EHNES:             -- and the only reason is that

        24          they didn't issue the certificate.

        25      MS. WALSH:             Thank you.  If we could speak

        26          with Mr. Myers, Madam Clerk.

        27      TERRANCE GREGORY MYERS, witness: (VIA TELECONFERENCE)





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         1      EXAMINATION-IN-CHIEF BY MS. WALSH:

         2      Q   MS. WALSH:       Mr. Myers, can you hear me?

         3      A   Yes.  Good morning.

         4      Q   Yes.  Good morning.  I'm sorry to have kept you

         5          for so long.  I have a few questions, and

         6          Mr. Ehnes will have a few questions, and likely

         7          the Court will have a few questions.  Firstly,

         8          Mr. Myers, can you explain for the Court what it

         9          is that you do and your area of expertise?

        10      A   Yeah.  I am a refusal and revocation analyst with

        11          the Canada Firearms Centre in Ottawa.  I act on

        12          behalf of the Registrar of Firearms in matters

        13          related to these -- to refusal and revocation of

        14          handguns.

        15      Q   And I take it that you had an opportunity to take

        16          a look at Mr. Ehnes' application.  Can you advise

        17          this Court of what it is that Mr. Ehnes is having

        18          a difficulty with right now?

        19      A   Well, at issue in this particular -- in

        20          Mr. Ehnes' application is a particular small

        21          handgun in a .32 or .25 calibre or a short barrel

        22          below 105 millimetres, which falls -- by

        23          virtue -- which is prohibited in Canada by virtue

        24          of -- of the Criminal Code.  Only those people

        25          who were specifically grandfathered by the Act

        26          are entitled to possess these prohibited

        27          handguns.  No other individuals can legally





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         1          purchase them or acquire them.  Mr. Ehnes -- and

         2          Mr. Ehnes acquired his firearm in -- according to

         3          our records, in 1996.  In order to be -- in order

         4          for a person to be grandfathered for this

         5          particular type of handgun, he would have had to

         6          have owned the firearm prior to February 14th,

         7          1995, and that was prior to Parliament's intent

         8          to reclassify them as prohibited, which

         9          eventually came in on the implementation of the

        10          Firearms Act in 1998.  Until that point they were

        11          restricted.  But only those individuals that

        12          owned those particular firearms prior to February

        13          14th, 1995 were actually grandfathered in that

        14          class.

        15               Now, when the Applicant acquired his hand --

        16          Mr. Ehnes acquired his handgun, he signed a

        17          notice indicating that -- which indicated that

        18          individuals who acquire any such handgun for the

        19          first time after February 14th, 1995 will not

        20          qualify to possess them after passage of the

        21          legislation if it is passed in its present form,

        22          and Mr. Ehnes signed and -- understood the

        23          foregoing and signed that notice.

        24      Q   And, Mr. Myers --

        25      A   And going on with my affidavit --

        26      Q   -- if I might stop you for a moment there.  That

        27          is the notice that you have included in your





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         1          affidavit under tab D; is that correct, sir?

         2      A   That is a notice on tab D; that is, tab delta.

         3      Q   And, sir, the date on that is November 12th,

         4          1996; is that correct, sir?

         5      A   That's correct.

         6      Q   Thank you, Mr. Myers.  I am sorry to have cut you

         7          off.  Please continue.

         8      A   If I can just refer to my affidavit again as we

         9          proceed.   As I indicated, the -- these handguns

        10          continued to be sold as restricted weapons

        11          between February 14th, '95 and December, 1998.

        12          Individuals who first acquired this type of

        13          handgun between February 14th, '95 and December

        14          1st, '98, Mr. Ehnes included, are not

        15          grandfathered to possess them, since they did not

        16          hold a registration certificate prior to February

        17          14th of 1995.  They were, therefore, not entitled

        18          to have the license privilege for prohibited --

        19          for this prohibited handgun on their license.

        20          Mr. Ehnes falls within this group of individuals.

        21               He was -- during -- during this time he was

        22          protected from criminal prosecution for

        23          possession of the prohibited gun by an amnesty

        24          that came into force in December, 1998 and

        25          expired on December 31st, 2005.  The intent was,

        26          by Bill C-10, to grandfather these individuals at

        27          some point.  However, Bill C-10 was passed by





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         1          Parliament and received Royal Assent in May,

         2          2003, and these amendments never came into force

         3          until two thousand -- until April 10th, 2005.

         4               The grandfathering criteria as per section

         5          12 of the Firearms Act requires that an

         6          individual must hold a registration certificate

         7          under the former Act for that type of handgun on

         8          December 1st, 1998 and continuously hold a

         9          registration certificate for one or more

        10          prohibited handguns of this class.  Registration

        11          certificate issued under the former part III of

        12          the Criminal Code expired on December 31st, 2002,

        13          and this -- and, subsequently, the passage of

        14          C-10 did not formally occur until April 10th,

        15          2005.  So we have a gap of three years there

        16          where these certificates had expired and they

        17          were not valid registration certificates, which

        18          brings us to the point once -- once the -- once

        19          the C-10 had passed formal -- its formal passage,

        20          then the Firearms Centre took steps to refuse

        21          these individuals based on the fact that they did

        22          not have a -- continuously possess a registration

        23          certificate for these particular handguns, and,

        24          thus, we are -- that's where we stand at this

        25          point.

        26      Q   You mentioned that there is a break in

        27          registration for Mr. Ehnes and this particular





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         1          gun.  When was Mr. Ehnes last registered

         2          officially for this firearm and what was the

         3          process that he should have done in order to

         4          continue with this registration?

         5      A   I think Mr. Ehnes took all the steps that he

         6          could -- could take to -- to register this

         7          firearm, but he applied to register, I believe,

         8          in 2002, which was within the -- or to

         9          re-register the handgun.  He acquired it in 1996,

        10          signed the notice, applied to re-register it.

        11          The Firearms Centre are waiting for the passage

        12          of C-10, sat on those applications until the --

        13          until C-10 would hopefully pass prior to the end

        14          of 2002, which it did not.  There was an amnesty

        15          in place so that -- allowing these individuals to

        16          hold onto these firearms till this matter was

        17          settled.  Eventually that amnesty ended at the

        18          end of 2005, at which point we took our -- took

        19          steps to refuse all of these individuals based on

        20          the fact that they had never continuously held a

        21          registration certificate for this particular

        22          handgun, because they expired at the end of 2002.

        23      Q   Mr. Myers, is there a legislative purpose that

        24          you are aware of with regards to guns of this

        25          type?  Do you understand or are you made aware of

        26          what the legislative purpose of this is?

        27      A   My understanding is -- I am not familiar with the





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         1          history of why these particular handguns were

         2          targeted for prohibition or to be placed in

         3          prohibitive status.  Probably by the nature of --

         4          or likely by the nature of their small size,

         5          small calibre, small barrel, and they could, you

         6          know -- many of them classified as Saturday Night

         7          Specials.  So that's probably the reason why the

         8          government took steps to restrict this category

         9          of firearm.

        10      Q   And, Mr. Myers, I know that you have mentioned

        11          this, but just for clarification, when was this

        12          type of firearm classified as prohibited?

        13      A   On the implementation of the Firearms Act.  Now,

        14          first reading of the Firearms Act was February

        15          14th, '95, which is the date you heard before.

        16          This -- individuals would have had to own these

        17          guns prior to that.  Now, those guns remained --

        18          even though they were going to be declared

        19          prohibited once the Firearms Act came into place,

        20          they remained restricted firearms until 1998,

        21          which was the reason these individuals acquired

        22          them during that period, between 1995 and '98.

        23          They were not prohibited at that time, because

        24          the Firearms Act had not been implemented, but in

        25          December of 1998 they became prohibited firearms.

        26      Q   So Mr. Ehnes purchased his particular firearm, I

        27          believe you said, in 1996.  So at that point in





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         1          time the firearm --

         2      A   That's right.

         3      Q   -- was considered restricted?

         4      A   Was considered restricted at that time and then

         5          became prohibited in 1998 when the Firearms Act

         6          came into force.

         7      Q   Thank you, Mr. Myers --

         8      A   But in order to be grandfathered -- okay.

         9      Q   Please go ahead.  I'm sorry.

        10      A   Thank you.  But individuals would have -- would

        11          have had -- to be properly grandfathered would

        12          have had to own those firearms prior to February

        13          14th, 1995, and nobody is grandfathered in that

        14          class.  Nobody was grandfathered in that class

        15          that purchased a first firearm in that class

        16          after that period.

        17      Q   So it is impossible under the legislation today

        18          for Mr. Ehnes to be grandfathered; is that

        19          correct?

        20      A   That's correct.

        21      Q   Thank you, Mr. Myers.  I am sure there will be

        22          more questions, so please stay tuned.

        23      A   Thank you.

        24      THE COURT:             Mr. Ehnes, would you like to

        25          ask Mr. Myers some questions?

        26      MR. EHNES:             Yes, Your Honour.

        27      THE COURT:             Go ahead, then.





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         1      CROSS-EXAMINATION BY MR. EHNES:

         2      Q   MR. EHNES:       So, Mr. Myers, the -- from

         3          1998 the firearms in question became prohibited;

         4          is that correct?

         5      A   Yes.  I believe it was December 1st, 1998 when

         6          the Firearms Act first came into force.  Those

         7          guns became prohibited, although it was well

         8          aware -- it was indicated in 1995 that these guns

         9          would be prohibited at that point, but they

        10          remained restricted under the old -- they

        11          remained restricted under the old Criminal Code

        12          before the implementation of the Firearms Act.

        13      Q   So from 1998 till the expiry date on the old

        14          certificate, 2002, in fact, it was at that point

        15          a prohibited weapon; is that correct?

        16      A   At December 1st, 19 -- or December 1st, 1998 it

        17          became a prohibited handgun.

        18      Q   So why was -- why were new certificates not

        19          issued to comply with that saying that they were

        20          prohibited and the new certificates issued to all

        21          owners of the firearms at that point?  So, in

        22          fact, the government was breaking the law letting

        23          people have prohibited firearms with certificates

        24          saying they were only restricted weapons; is that

        25          correct?

        26      A   The Firearm -- the Firearms Act had not been

        27          implemented.  We were still dealing with the old





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         1          Criminal Code -- the old registration system in

         2          which those particular handguns remained as

         3          restricted handguns during that period until 1998

         4          even though -- even though it was clear that they

         5          would become prohibited firearms at that point.

         6      Q   But it was not --

         7      A   The old green slips, what they call, remained in

         8          place, but the requirement after the Firearms Act

         9          came into place was that all of those firearms

        10          would have to be re-registered in a new system as

        11          prohibited 12(6) category handguns.

        12      Q   And the date was changed, was it --

        13      A   That's the purpose of the (inaudible).

        14      Q   Yes, but there was a --

        15      A   I'm sorry.

        16      Q   There was a change in the date from 1995 to 1998

        17          for the -- for the -- for the time frame when you

        18          could have purchased these particular firearms

        19          and kept them?

        20      A   That -- you could purchase and you -- and

        21          individuals were made aware by the notice that

        22          those firearms would become prohibited on the --

        23          once the implementation of the Firearms Act came

        24          into place --

        25      Q   Yes.  And --

        26      A   -- and they were subject to --

        27      Q   Go ahead.





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         1      A   And they would have been subject to -- sorry.  Go

         2          ahead.

         3      Q   Okay.  Regarding the notice, I don't believe that

         4          the notice has much legal legs to stand on.  All

         5          firearms owners who purchased firearms before the

         6          date were forced, under duress -- if you wanted

         7          the green card for your firearm, you were forced

         8          to sign the form.  The other thing is, it says,

         9          "If C -- if Bill C-68 is passed in its present

        10          form."  Well, there were many, many amendments

        11          and changes to C-68 from the time of this notice

        12          till C-68 was passed and became law.  So it was

        13          not passed in that present form.  So this -- this

        14          notice to prospective handgun owners that you

        15          have under tab D is really -- not really worth

        16          the paper it is printed on.

        17      A   You know, it's a notice, and I probably agree

        18          with you as far as its legal sense goes, but it

        19          was a notice to inform those particular

        20          individuals that are -- were acquiring these

        21          handguns that because of the passage of the

        22          legislation and the new Firearms Act that these

        23          firearms could at some point be -- be -- not

        24          allowed to be re-registered.

        25      MR. EHNES:             Yes.  But it does not have any

        26          legal bearing.  Anyone who signed this is not

        27          bound by this piece of paper, because it is





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         1          not -- it has no legal legs to stand on.  That's

         2          all, Your Honour.

         3      THE COURT:             Anything arising from

         4          Mr. Ehnes' questions, Ms. Walsh?

         5      RE-EXAMINATION BY MS. WALSH:

         6      Q   MS. WALSH:       Mr. Myers, just a quick

         7          question.  With regards to sending notices, is

         8          that the general way that the public or gun

         9          owners are advised of changes of legislation in

        10          advance of that legislation changing?

        11      A   In this particular case?  In this particular case

        12          involving these firearms and the passage of C-10?

        13      Q   Yes.

        14      A   Is that what you are getting at?  Yeah, it --

        15          there were notices sent to these individuals at

        16          the end of 2005 advising them that the situation

        17          was that they would not be grandfathered and we

        18          would -- we would subsequently be issuing refusal

        19          notices for all of those handguns, and that was

        20          sent to all of these individuals, and it went to

        21          the address on their particular -- whatever the

        22          address on the license was.  It was sent to that

        23          address.

        24      Q   Mr. Myers, in terms of the notice that was sent

        25          out with regards to prospective handgun

        26          purchasers at tab D of your affidavit, that was

        27          an attempt to advise prospective gun buyers that





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         1          the legislation was changing; is that correct?

         2      A   That's correct.

         3      Q   And that it was almost a buyer beware type of

         4          notice; is that correct?

         5      A   That's correct.

         6      MS. WALSH:             Thank you, Mr. Myers.  Those

         7          are my questions.  Her Honour may have some

         8          questions for you.

         9      THE COURT QUESTIONS THE WITNESS:

        10      Q   THE COURT:       I have one question,

        11          Mr. Myers.

        12      A   Thank you.  Yes, Your Honour.

        13      Q   Just as you were finishing with Ms. Walsh's first

        14          questions, you said that now it was impossible

        15          for Mr. Ehnes to be grandfathered.  Is that by

        16          virtue of the fact that there was a break in his

        17          registration?

        18      A   It's by virtue of the fact that he never -- to be

        19          truly grandfathered, he would have had to acquire

        20          a gun -- one of these handguns prior -- or had

        21          one of these handguns prior to December -- or,

        22          sorry, February 14th, 1995.

        23      Q   Yes, I understand that, but --

        24      A   He acquired it in Nineteen (inaudible) -- he --

        25          he acquired it -- him and 1,400 others acquired

        26          handguns after that point.  The intent of C-10

        27          was to eventually -- I believe the intent of C-10





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         1          was to grandfather these individuals.

         2      Q   Right.

         3      A   However, the legislation took so long, I'll put

         4          it that way, to get through that the original

         5          certificates expired.  So, consequently, we were

         6          unable to grandfather those individuals because

         7          their certifications expired at the end of 2002

         8          and they weren't in continuous possession of a

         9          registration certificate for that particular

        10          handgun.

        11      Q   So it becomes impossible for him to be

        12          grandfathered because of the break in the

        13          registration?

        14      A   That's correct, Your Honour.

        15      THE COURT:             Thank you.  Are there any

        16          questions arising from mine?  Mr. Ehnes?

        17      MR. EHNES:             No.  One thing I would like to

        18          point out, in the -- in the affidavit from

        19          Mr. Myers on page 7 of the very first part,

        20          number 20 --

        21      THE COURT:             I'm sorry?

        22      MR. EHNES:             Page 7 --

        23      THE COURT:             Yes.

        24      MR. EHNES:             -- number 20, it says:

        25               "The Applicant purchased the 12(6.1)

        26               handgun prior to December 1, 1998,

        27               and applied to register them before





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         1               December 1, 1998.  Therefore the

         2               first requirement is met."

         3          There are two requirements.  One is to have

         4          purchased it before that date.  The other one is

         5          to be in -- continually hold a registration for

         6          that particular handgun for the duration, but

         7          because they refused -- or because they didn't

         8          issue it, it's impossible.  Like, it was -- it's

         9          impossible for me to meet the second requirement,

        10          not because of my fault, anything I have done.

        11          It's because of what they have not done.  They

        12          did not re-register the firearm.  And, again,

        13          from '98 to 2002 it was a prohibited weapon, yet

        14          the registration certification says restricted.

        15      THE COURT:             Any questions left for

        16          Mr. Myers from you, Ms. Walsh?

        17      MS. WALSH:             No further questioning.

        18      THE COURT:             Mr. Myers, I think we will

        19          excuse you now.  There is another case here I

        20          want to speak to briefly before we continue with

        21          this hearing, but thank you for being present by

        22          video conference.  We are able to excuse you now.

        23      THE WITNESS:           Thank you.  Thank you, Your

        24          Honour.

        25      MS. WALSH:             Thank you, Mr. Myers.

        26      THE COURT:             So we can do a disconnect with

        27          the video conference now.  Thank you very much.





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         1          I am just going to briefly stand your matter

         2          down, Mr. Ehnes, so that we can --

         3      MR. EHNES:             Yes, Your Honour.

         4      THE COURT:             -- deal with the other matter

         5          that is on the list.

         6      (OTHER MATTERS SPOKEN TO)

         7      THE COURT:             Back to the Ehnes matter.

         8          Mr. Ehnes, Ms. Walsh, we are back dealing with

         9          your firearms reference now, Mr. Ehnes.  I can

        10          tell you that what I plan on doing is deciding in

        11          the next week.  I am coming back to Yellowknife

        12          for Wednesday, Thursday, Friday, next week.  I am

        13          scheduled to be hearing a French trial those

        14          three days.  What I would like to do is schedule

        15          my decision for Friday next week.

        16               I am just telling you this because I am now

        17          going to invite you to make final argument, and

        18          there are a couple of points that I would like to

        19          see you address.  Particularly, Ms. Walsh, I

        20          would like you to address some questions that I

        21          have.  But I will hear everything that you have

        22          to say and then I will prepare my decision for

        23          next Friday.

        24      MR. EHNES:             Yes, Your Honour.

        25      THE COURT:             I hope that fits with both of

        26          your calendars.

        27      MR. EHNES:             What time and what is the





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         1          date?

         2      THE COURT:             I think I better say 9:30.  It

         3          may conflict with a couple of other things, but

         4          it shouldn't take long to deliver the decision.

         5          Will that be an acceptable time for both of you?

         6      MR. EHNES:             Fine.

         7      MS. WALSH:             Yes, Your Honour.  Just to

         8          confirm, it's Friday, February 2nd; is that

         9          correct?

        10      THE COURT:             That's right, yes.

        11      MS. WALSH:             That's fine, yes.

        12      THE COURT:             All right.  So although it is

        13          Mr. Ehnes' application -- and I think I have

        14          quite clearly Mr. Ehnes' position and the reason

        15          for it.  So, Ms. Walsh, I am going to ask you to

        16          talk to me a bit, first of all, about my

        17          jurisdiction, and I would like to hear you a

        18          little bit on what role, if any, you think

        19          officially induced error has in this situation.

        20      MS. WALSH:             Your Honour, if at all

        21          possible and if you are available, I would prefer

        22          to take some time to think about my final

        23          arguments, and I would be willing to be back in

        24          an hour or after lunch, if that would be

        25          preferable.

        26      THE COURT:             That's fine.  It is whatever

        27          you prefer.  Do we have anything scheduled for





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         1          the afternoon docket, Madam Clerk?

         2      THE COURT CLERK:       No.

         3      MS. WALSH:             1:30 would be fine with me, if

         4          that's okay with the Court.

         5      THE COURT:             Is that all right for you,

         6          Mr. Ehnes, to adjourn now and come back at 1:30

         7          to hear final submissions?

         8      MR. EHNES:             Yes, I'm fine with that.

         9      MS. WALSH:             Thank you, Your Honour.

        10      THE COURT:             That's what we will do, then.

        11      MR. EHNES:             Thank you.

        12      (ADJOURNMENT)

        13      THE COURT:             Ms. Walsh, I will call on you

        14          first, please.

        15      MS. WALSH:             Thank you, Your Honour, and

        16          thank you, again, for the adjournment to consider

        17          the Crown's position.  I appreciate the time.

        18          Your Honour, you sent me away prior to the break

        19          to discuss whether or not there could be

        20          consideration of officially induced error, as

        21          well as what the jurisdiction of this Court is.

        22               With regards to the second point, Your

        23          Honour, the jurisdiction of the Court is outlined

        24          in the Firearms Act, and it is generally in

        25          sections 72, 73 and 74, specifically 74:

        26               "the applicant for or holder of the

        27               license ... may refer the matter to





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         1               a provincial court judge in the

         2               territorial division in which the

         3               applicant or holder resides."

         4          And you are before us, and, of course, Mr. Ehnes

         5          has met the limitation period of 30 days after

         6          the refusal was received.

         7               "The Provincial Court Judge,"

         8          or in this case the Territorial Court Judge,

         9               "shall hear all relevant evidence

        10               presented by or on behalf of the

        11               (client)."

        12          And:

        13               "... the burden of proof is on the

        14               applicant ... to satisfy the

        15               provincial court judge that the

        16               refusal to issue or revocation of

        17               the license, registration

        18               certificate or authorization, the

        19               decision or the refusal to approve

        20               ... was not justified."

        21               Clearly, it is within this Court's

        22          jurisdiction, and specifically Your Honour in

        23          this case, to review all the evidence before the

        24          Honourable Court and to decide whether or not the

        25          burden of proof has been met by the Applicant and

        26          to decide whether or not the refusal is, in fact,

        27          justified.





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         1      THE COURT:             And is the burden of proof on

         2          a balance of probabilities?

         3      MS. WALSH:             That is correct, Your Honour

         4          yes.  It is not a criminal beyond a reasonable

         5          doubt.  It is a civil threshold on the balance of

         6          probabilities.

         7               Your Honour, with respect to the officially

         8          induced error of law, the Crown submits

         9          respectfully that, in fact, there is no

        10          officially induced error of law in this case.

        11          What we have here is a pure and simple

        12          application of the law, and the application of

        13          the law is -- that is before the Court is that it

        14          was reasonable and, in fact, in exercise of

        15          proper parliamentary legislation that the

        16          Registrar did not or refused to issue Mr. Ehnes a

        17          certificate of registration for what is now a

        18          prohibited weapon.

        19               Your Honour, simply what we have before us

        20          is -- if we are to look at the officially induced

        21          error of law, I am looking at the case of

        22          R. v. Jorgensen, a copy of which I can provide

        23          for the Court, as well as to Mr. Ehnes.

        24      THE COURT:             Thank you.

        25      MS. WALSH:             You are very welcome.  And in

        26          this case, although the decision did not turn on

        27          the officially induced error of law, the Court





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         1          turned its attention to that and in that respect

         2          said that it is an alive defence in some cases.

         3          However, it needs to be in the clearest of cases

         4          that the officially induced error of law would be

         5          successful to negate the responsibility of the

         6          Applicant, in this case, to do his duty to look

         7          further into what it is that he is seeking.

         8               Now, Mr. Ehnes is before the Court, and he

         9          has testified quite honestly that he depended on

        10          two pieces of paper; one that he received on line

        11          and one that he received through the mail, notice

        12          or the acknowledgement.  And the Crown submits

        13          that those two things cannot be taken by any

        14          Applicant, by any person who is applying to

        15          register a firearm as a promise.  Those two

        16          things are merely receipts, a receipt of

        17          information.  "I have received the information."

        18               And, in fact, during that time the receipt

        19          of the information and the holding off of making

        20          a decision is completely within the power of the

        21          legislators, the Firearms Registration office to

        22          do.  They held onto all of those applications for

        23          registration - they have a right to hold onto

        24          those applications - and then the legislation

        25          came into force.

        26               The legislation came into force and, in a

        27          small number of people, Mr. Ehnes included, it





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         1          was decided or the effect of that legislation was

         2          that he was excluded.  Mr. Ehnes understood, and

         3          his words himself, Your Honour, before this Court

         4          is that he presumed.  He presumed, he assumed

         5          that even though he had received notification

         6          from the Firearms office that under no

         7          circumstances was he to rely on what could be

         8          considered silence, mere silence in this matter,

         9          that it was very likely that upon the enactment

        10          of the legislation that his firearms would no

        11          longer be included.  That is the notification

        12          under tab D, Your Honour, of the affidavit of

        13          Mr. Myers, and I quote:

        14               "Individuals who acquire any such

        15               handguns for the first time after

        16               February 14, 1995 will not qualify

        17               to possess them after passage of the

        18               legislation ... These firearms will

        19               be seized without grandfathering or

        20               compensation."

        21          And, I am sorry, Your Honour:

        22               "... to possess them after passage

        23               of the legislation, if it is passed

        24               in its present form.  These firearms

        25               will be seized without

        26               grandfathering or compensation."

        27               Mr. Ehnes was advised of that particular





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         1          clause, of the potential possibility of the

         2          Legislature enacting what they perceived the --

         3          or what they thought they were going to enact and

         4          that he should take no comfort in the silence of

         5          the Firearms Registry in his application as

         6          absolute in fact that he was going to receive a

         7          registration.

         8               I also turn to tab L in the affidavit where

         9          notice was made available, and in that notice it

        10          says:

        11               "This letter is to inform you that

        12               amendments to the Firearms Act,

        13               which may be considered by

        14               Parliament, could result in your

        15               becoming eligible to re-register

        16               your affected prohibited handguns.

        17               Should Parliament pass these

        18               proposed amendments to the Act, your

        19               handguns would need to be

        20               re-registered ... It is recommended

        21               that you apply immediately to

        22               re-register your prohibited

        23               firearm(s) so that you do not miss

        24               the registration deadline of

        25               December 31, 2002, and to avoid

        26               possible processing days.  Your

        27               application will be held pending the





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         1               outcome of Bill C-15B, at which time

         2               it will be dealt with accordingly.

         3               It will not be possible under the

         4               law for you to apply to re-register

         5               your prohibited firearm(s) after

         6               December 31, 2002."

         7      THE COURT:             That is exactly what Mr. Ehnes

         8          did.  He reacted promptly in response to that

         9          notice, didn't he?

        10      MS. WALSH:             He reacted promptly, but with

        11          no promise.  There is no promise within any of

        12          these things that he as a right would receive

        13          registration for what would now become a

        14          prohibited weapon, a prohibited weapon that the

        15          Legislature has made quite clear is not something

        16          that they would -- they are considering as legal

        17          for people to own, except if you fall under the

        18          original grandfathering clause of 1995, February

        19          14th, 1995.

        20      THE COURT:             But what do you make of the

        21          course of conduct, then?  In particular,

        22          Mr. Myers talked about the Registry, in his

        23          words, "sitting on the applications," awaiting

        24          the passage of Bill C-10A?  Doesn't that seem to

        25          indicate that it was anticipated that people in

        26          Mr. Ehnes' situation would, indeed, be

        27          grandfathered?





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         1      MS. WALSH:             It was made in anticipation,

         2          Your Honour.  Again, it was a lawful carrying out

         3          of their duties to take Mr. Ehnes' information,

         4          to take his application, because whether they

         5          thought the grandfathering -- the new, and I call

         6          it the new grandfathering provision, would come

         7          into enactment or whether or not they anticipated

         8          that or not, it was only proper for them to bring

         9          those pieces of paper in anticipation, a

        10          possibility, a hope.  There was never any

        11          promise.  There was never any promise made, and

        12          Mr. Ehnes was not entitled to rely on any kind of

        13          promise.

        14               All his information is is that his

        15          application for registration had been received

        16          and that any further -- and Mr. Ehnes also

        17          testified to the fact that he did not feel he

        18          needed to make any further look behind into what

        19          was going on and what was happening with the

        20          Legislature.  In order for there to be an

        21          officially induced error of law, he needed to

        22          have relied on some kind of official response.

        23          There was no response.  It was a receipt of his

        24          application, an application --

        25      THE COURT:             Well, in fact, it goes a

        26          little bit further than that.  There was an

        27          acknowledgement of receipt of the application,





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         1          and also in Exhibit 4 he was told not to contact

         2          the Registry.

         3      MS. WALSH:             Not to contact the Registry.

         4          However, there were a number of other ways,

         5          because at that point in time they had all the

         6          information they needed.  They had all the

         7          information they needed in terms of being able to

         8          move forward with the registration if, in fact,

         9          the new grandfathering clause went through or

        10          not, as the case may be, and, as the case may be,

        11          the new grandfathering clause was not enacted.

        12          Therefore, all of those people that are caught

        13          who had only received, I guess, notification of

        14          receipt of information that, "Yes, we have your

        15          information.  If it goes forward, you are first

        16          to get grandfathered," that's great.  The

        17          grandfathering -- the second grandfathering

        18          clause did not go through.

        19      THE COURT:             Well, it did --

        20      MS. WALSH:             Well, it --

        21      THE COURT:             -- but it went through four

        22          and a half months after the deadline for

        23          re-registration --

        24      MS. WALSH:             That is correct, Your Honour.

        25      THE COURT:             -- in which time the Registry

        26          is sitting on all those applications and, in

        27          fact, did not process them in a timely fashion,





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         1          in any event.  Mr. Ehnes told us that his other

         2          guns were eventually re-registered.

         3      MS. WALSH:             Some of his other guns.  I

         4          believe he mentioned that there was one other --

         5      THE COURT:             It is only the one that is

         6          before the Court today that was not, but they did

         7          not all happen at the same time.

         8      MS. WALSH:             No, and there isn't any --

         9          there isn't any -- what is before us to say that

        10          there is a matter of timeliness with regards to

        11          the operation of the law?  This matter was taken

        12          a look at and it was looked at by the Deputy

        13          Minister and Minister of Public Safety and

        14          Emergency Preparedness, Mr. John Maloney, and he

        15          is the Chair of the Standing Committee on Human

        16          Rights, Public Safety and Emergency Preparedness.

        17          And in a memorandum dated September 29th, 2005 in

        18          tab N -- and it said at that point in time the

        19          motion was defeated on a vote in front of that

        20          committee; that these particular people and their

        21          plight, if you call it that, that it was

        22          considered in the Committee and it was defeated

        23          in the Committee, and, in fact, it was advised to

        24          the Legislature that it should not be turned its

        25          attention to, and it states here:

        26               "(The) motion, as noted ... seeks to

        27               make an exception for owners who





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         1               'knew that these weapons would be

         2               prohibited and they were informed of

         3               that when they purchased them ...

         4               It is not an injustice, but we are

         5               granting amnesty to people who put

         6               themselves into an illegal

         7               situation.'  On these grounds, it is

         8               manifestly clear that Parliament

         9               would send entirely the wrong

        10               message in legislating a loophole

        11               for the dangerous firearms in

        12               question."

        13      THE COURT:             While we are talking about

        14          that, what do you say in reply to Mr. Ehnes'

        15          point about the strength of the notice?  As you

        16          recently read it out, too, it talks about the

        17          legislation if it is passed in its present form,

        18          and, quite clearly, there were many changes.  It

        19          was not passed in its present form.  So what do

        20          you say in reply to Mr. Ehnes' point that it

        21          really becomes quite an imperfect notice, given

        22          that situation?

        23      MS. WALSH:             Your Honour, the Crown would

        24          simply submit that it is sufficient notice in

        25          that Mr. Ehnes' particular handgun was in

        26          standing question even at that point in time;

        27          that even as the legislation stood, from the very





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         1          beginning it was in question to be a prohibited

         2          weapon, that there would be further sanctions and

         3          that he may not, in any event, be able to keep

         4          this weapon at any point in time.

         5               Now, because the notice says, "if it is

         6          enacted as is," doesn't disqualify the notice as

         7          being sufficient notice to Mr. Ehnes to be very

         8          careful about what kind of weapons he decided to

         9          purchase.  It gives him notice that there is

        10          legislative intent, that legislation as it stands

        11          as of that date would make his firearm prohibited

        12          and that he would not be able to retain

        13          registration or licensing for that particular

        14          prohibited weapon.

        15               Just because in the notice it states that,

        16          "in its present form," doesn't completely negate

        17          Parliament using its legislative power to change

        18          the legislation as it moves through the process.

        19          It simply is a notification to an interested

        20          party that he stands in jeopardy of losing

        21          something that he has recently acquired because

        22          legislation is in the process of being finalized

        23          and he needed to be made aware, and he was aware

        24          at a very early date that this was a possibility

        25          and, in fact, he made no further inquiries

        26          checking out the website.

        27               He may have been directed not to contact





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         1          them in terms of the registration, because the

         2          registration as it was presented to the Firearms

         3          Office was complete.  They didn't need any other

         4          information.  It didn't mean, "Don't look to find

         5          out," you know, "whether or not I am going to be

         6          able to keep my firearms."  It simply means,

         7          "Thank you very much for your application, your

         8          address, your Visa number and," you know, "we

         9          will let you know if it is good to go or if it's

        10          not good to go," and, in fact, it wasn't.

        11               In terms of looking at the officially

        12          induced error of law, the Crown submits that

        13          Mr. Ehnes was not entitled to depend, without any

        14          further investigation, on the two pieces of

        15          information that he received.  He said himself

        16          that he waited.  He waited for years, in fact,

        17          before he was told that he could not keep his

        18          gun.  He didn't make any further --

        19      THE COURT:             Well, he did.  He called and

        20          was told it was being processed.

        21      MS. WALSH:             In the stasis, in the -- in

        22          that period of time before the legislation was

        23          enacted it was in -- being processed.  But to

        24          rely on it being processed to equal out in the

        25          end that he was going to automatically be

        26          grandfathered, I think, is quite a leap.  There

        27          isn't that kind of --





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         1      THE COURT:             Well, aren't you asking me on

         2          the one side to say that he was given clear

         3          notice of Parliament's intent to convert his

         4          formerly restricted weapon into a prohibited

         5          weapon?  On the other hand, you are saying when

         6          the revised grandfathering legislation was

         7          working its way through, he was not entitled to

         8          rely on that to the same extent he should have

         9          relied on the notice of the legislation

        10          converting the restricted weapon to the

        11          prohibited weapon.  Isn't that what you are

        12          asking me to find?  That he should have been

        13          warned sufficiently when the first legislation

        14          came through, but when the legislation was in the

        15          works to extend the grandfather clause to

        16          December 1st, 1998, he ought not to have been

        17          relying on that?

        18      MS. WALSH:             Quite an interesting

        19          perspective, Your Honour.  However, what we have

        20          here is a properly enacted piece of legislation

        21          that included and excluded a certain number of

        22          people, and whether or not Mr. Ehnes relied on

        23          the possibility of the grandfathering clause to

        24          come into effect and to make an exception for his

        25          group of firearms does not make the decision of

        26          the Registrar unjustified or unreasonable,

        27          because there has been no exception for





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         1          Mr. Ehnes' type of handgun and for his

         2          registration.

         3               Again, what we have here is an appropriate,

         4          although in Mr. Ehnes' case, an unfortunate

         5          application of law.  The possibility of including

         6          Mr. Ehnes in the accepted number of people was

         7          thought of, went through Committee and did not go

         8          to Parliament on recommendation that it would

         9          create additional loopholes and that Mr. Ehnes'

        10          type of handgun was such that Parliament had made

        11          it very clear that it needed to be specifically

        12          legislated for and, in Mr. Ehnes' case, not

        13          accepted as one of the grandfathered types of

        14          firearms.

        15               Again, Mr. Ehnes seems to be -- I'm not sure

        16          if Mr. Ehnes uses the gun in his shooting

        17          practice or whatever, but he seems to say that it

        18          is of, you know, significant workmanship, and, of

        19          course, that is quite understandable, but there

        20          are ways in order for him to keep the workmanship

        21          of his old, antiquated gun and still be able to

        22          meet the requirements.

        23               I do have another recent decision, Your

        24          Honour.  And I apologize to Mr. Ehnes.  It is in

        25          French.  I do have a copy.  I do have a synopsis

        26          of it also.  So I would be able to advise him and

        27          the Court what it is, and I understand Her Honour





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         1          is bilingual --

         2      THE COURT:             Yes.

         3      MS. WALSH:             -- so I took that ...

         4      THE COURT:             Thank you.

         5      MS. WALSH:             You are very welcome.  Your

         6          Honour, in this particular case the Applicant

         7          purchased firearms in April and September of '96

         8          and held permits required under the law at that

         9          time, and he was notified, as was Mr. Ehnes, of

        10          the risk that he may ultimately not be allowed to

        11          keep his weapons before purchasing those weapons,

        12          and, of course, as it goes through the different

        13          process of the legislation, he did not ultimately

        14          discharge his burden by proving that the

        15          Registrar's decision was unjustified.  And the

        16          Court concluded that, to the contrary, in spite

        17          of all the qualities and personal qualifications

        18          of the Applicant, the Director of the Firearms

        19          Registry could not under the law have issued the

        20          requested certificate.

        21               And in this case I can advise, in

        22          furtherance, what is not in this particular short

        23          judgment, Your Honour, is that there was actually

        24          an error made in that case in that a provincial

        25          person issued a certificate to the Applicant and

        26          then the Registrar, realizing the error, went

        27          back and said, "No.  You cannot have that firearm





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         1          under that registration."  And in that case the

         2          Court still found that even though there was an

         3          error that led that Applicant to believe that he

         4          was properly registered for that type of firearm,

         5          that, in fact, it did not override the law, and

         6          the law said that it was not a properly

         7          registered weapon and that he did have to follow

         8          the certain options that are open to him.

         9               You know, this, again, as I am sure I don't

        10          have to say, is a privilege.  It is not a right.

        11          It's a privilege for Mr. Ehnes and anybody to

        12          hold firearms and Parliamentary decision is quite

        13          clear in the end result.  The process, the way it

        14          went through it, may be slightly convoluted.

        15          However, the end result is, Mr. Ehnes does not

        16          have a right to hold this type of firearm under

        17          the law as it is now.  If he made a presumption,

        18          then that, unfortunately, is his mistake, and it

        19          is his mistake.  It is a huge jump from those two

        20          pieces of paper that he received to an automatic

        21          right to have his now prohibited weapon

        22          registered.

        23      THE COURT:             Let me ask you one other

        24          question about the role of the Registrar in this.

        25          Now, I am clear that what I am to be considering

        26          is whether the refusal was not justified, and I

        27          need to be satisfied on a balance of





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         1          probabilities.  I understand from the case law

         2          that I am not to substitute my opinion for that

         3          of the Registrar.  I am simply to analyze whether

         4          or not his decision to refuse was justified or

         5          not.

         6               So what is the role of the Registrar in

         7          this?  Is he essentially a functionary who just

         8          applies the black letter law or does he have some

         9          discretion?

        10      MS. WALSH:             Your Honour, unfortunately,

        11          absolutely no discretion.  It is his duty to

        12          apply the black letter of the law.  He has

        13          absolutely no discretion to go outside of what is

        14          legislated for him.  He cannot use his own

        15          personal beliefs or his understanding of what a

        16          good person Mr. Ehnes might be.  What he has

        17          before him is a set of rules that he must apply

        18          without compassion, without any kind of bias

        19          towards any Applicant.  If Mr. Ehnes, as he does,

        20          falls within a certain group of people that are

        21          not legislated, he - and by "he" I mean the

        22          Registrar - has no discretion to include him just

        23          because he wants to or just because Mr. Ehnes is

        24          a good person.

        25      THE COURT:             No.  But leaving that type of

        26          inappropriate consideration aside, what about the

        27          situation in which Mr. Myers actually found





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         1          himself, knowing that the grandfather clause was

         2          on the books and was due to be passed by

         3          Parliament, the Registry is sitting on all sorts

         4          of applications to re-register waiting for that

         5          law to be passed, because, from where Mr. Myers

         6          sits, he understands that the intention is that

         7          Mr. Ehnes' weapon is going to be grandfathered?

         8          So then we have this four and a half month delay.

         9          Are you telling me that he has no discretion,

        10          given that systemic error, to apply the

        11          grandfathering clause to Mr. Ehnes' situation?

        12      MS. WALSH:             Absolutely not.  The short

        13          answer is absolutely not.  And, of course, the

        14          Crown is submitting that, you know, the systemic

        15          error is something that, you know, could be

        16          further discussed, and we -- I and Her Honour

        17          doesn't have any evidence before Her on what --

        18          how long these type of things should take and,

        19          you know, what exactly the processes are.

        20          However, what we have in front of us is that in

        21          anticipation of the grandfathering clause these

        22          type of things were held onto, as well as in

        23          anticipation of the final passing of the Firearms

        24          Act, Your Honour.

        25               You can look at things both ways.  What it

        26          does, even -- the new grandfathering clause

        27          simply upholds and extends the 1995





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         1          grandfathering clause.  Those people who were

         2          grandfathered under the February 14th, 1995

         3          grandfathering clause was upheld by those -- by

         4          the second grandfathering clause.  It is not

         5          without teeth.  However, those people that were

         6          caught in between, Your Honour, it is the Crown's

         7          submission that it was the legislative intent,

         8          and it is clear through the discourse on the

         9          subject that those particular people would not be

        10          exempt and they would not be caught by the

        11          grandfathering clause.

        12               So it is the Crown's submission that the

        13          second grandfathering clause and the eventual

        14          passing of the Firearms Act does not need to be

        15          looked at in juxtaposition or in opposition.  It

        16          is not something that there were people who

        17          weren't getting benefit and it was just an empty

        18          kind of piece of legislation that was passed.

        19          There are people who received a benefit, and

        20          those are the people that validly under the 1995

        21          grandfathering clause are validly exempted by the

        22          legislation.  Mr. Ehnes does not, having

        23          purchased after 1996, and, therefore, he and his

        24          compatriots who are in the same position do not

        25          have any right to a certificate or a license for

        26          this prohibited weapon.

        27      THE COURT:             Well, what do you say was the





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         1          purpose of changing the grandfathering date,

         2          then?  You are saying to me that the only people

         3          it touched were the people who were originally

         4          grandfathered?

         5      MS. WALSH:             That is -- that is, Your

         6          Honour, in my -- in my understanding, that is who

         7          is gaining the benefit, you know, those people

         8          who from 1995 have had these kind of weapons.

         9      THE COURT:             But you are not suggesting

        10          that that was the intent?  Why change the

        11          grandfathering date if there wasn't an intention

        12          to capture people who acquired these guns after

        13          February 14th, 1995 but before December 1st,

        14          1998?

        15      MS. WALSH:             Your Honour, I think that

        16          perhaps -- I mean, these pieces of legislation

        17          don't travel its way through, you know,

        18          parliamentary discussions in a complete vacuum of

        19          each other.  I am sure, and I am just supposing

        20          here, that they both knew that the other was

        21          coming; that it was the parliamentary intention

        22          to assist some people who fell in the appropriate

        23          categories, which Mr. Ehnes does not.

        24      THE COURT:             What people are you thinking

        25          of, if Mr. Ehnes isn't in the affected category?

        26          He seems to fall squarely in the affected

        27          category, because he purchased this weapon after





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         1          February 14th, 1995 but well in advance of

         2          December 1st, 1998.

         3      MS. WALSH:             Certainly, Your Honour, that

         4          is correct.  I mean, the timing, you know, is

         5          what seems to be at issue here.  However, the

         6          timing is that as a result of legislation coming

         7          through, the grandfathering clause that was

         8          contemplated, that was out there does not take

         9          into account Mr. Ehnes, does not -- and we can't

        10          look behind what the intent was, because it is

        11          quite clear in the further discourse afterwards

        12          that Mr. Ehnes' group of people, the 1,400 people

        13          that are, unfortunately, not assisted by the

        14          second grandfathering clause and did not fall in

        15          the first one, are specifically understood to be

        16          unfortunately caught up in Parliament's clear

        17          view that these type of handguns should not be in

        18          public circulation and they should be

        19          deactivated, they should be any number of the

        20          things that can happen as a result.

        21      THE COURT:             And that has always been

        22          clear, but there have always been the exceptions,

        23          too, the exceptions that are covered by the

        24          grandfathering provisions.  It strikes me that

        25          the legislation started out with a grandfathering

        26          provision for February 14th, 1995 probably

        27          without any realization of how long it was going





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         1          to take for the legislation to come into effect,

         2          and then as time passed and various Committee

         3          representations were made and the legislation was

         4          roundly debated the grandfathering date was

         5          changed.

         6               How does that alter in any meaningful

         7          fashion the parliamentary intent?  Parliamentary

         8          intent is to say certain registered weapons are

         9          from a certain date going to be prohibited

        10          weapons, and the only people who can have those

        11          prohibited weapons must fall into some

        12          exceptional categories, and one of the main

        13          exceptional categories is the grandfathering

        14          provision.  To change the grandfathering date

        15          does not seem to me that it is changing the

        16          overall effect or the intention of the

        17          legislation, is it?

        18      MS. WALSH:             It is not changing the overall

        19          view of that legislation in my submission, Your

        20          Honour.  However, it is not including Mr. Ehnes,

        21          and that is what we are faced with here, is that

        22          there may have been an overall view to the

        23          legislation -- the view of the legislation and

        24          the grandfathering act or grandfathering clause

        25          was to protect certain exempted people, as you

        26          mentioned, but then in further legislation did

        27          not include.





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         1               And we have to understand that if Parliament

         2          wanted to include Mr. Ehnes' category of people,

         3          that it would have been explicitly mentioned,

         4          and, in fact, it wasn't.  It has not been

         5          remedied.  We are here before -- the only way

         6          that this particular thing can be remedied is

         7          Mr. Ehnes' application to his Member of

         8          Parliament or for a parliamentary change in the

         9          legislation.

        10               We just -- we have -- he has no right as of

        11          today's date, as of the date that he was refused

        12          for registration or license of this type of

        13          prohibited weapon, and the grandfathering clause,

        14          enacted as is, may have wanted to include

        15          Mr. Ehnes' type of application, but, in fact,

        16          does not include Mr. Ehnes' type of application

        17          because of the passing of other legislation, Your

        18          Honour, that is -- that clearly dictates that

        19          Mr. Ehnes does not fall within the category of

        20          people that is registered.

        21      THE COURT:             But it strikes me that if you

        22          characterize Mr. Ehnes' situation as you are

        23          inviting me to, it is almost a case where you are

        24          saying to me that Parliament specifically did not

        25          want people like Mr. Ehnes included in the

        26          grandfathering.  As I look at what has gone on

        27          over the passage of time, I have difficulty





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         1          agreeing with that characterization of the

         2          legislation.  It appears to me that it is a

         3          problem more in the systemic delay for the

         4          legislation to be actually passed and some

         5          problems with legislative drafting rather than a

         6          clear intent to exclude people like Mr. Ehnes,

         7          and I rely in part on what I have already

         8          referred to:  Mr. Myers saying that in the

         9          Registry they are sitting on all these

        10          applications for re-registry of people exactly in

        11          Mr. Ehnes' situation, because the Registry

        12          anticipates that that legislation is going to

        13          pass into law and that people like Mr. Ehnes are

        14          going to be entitled to re-register their weapons

        15          and be grandfathered.

        16      MS. WALSH:             The possibility of

        17          re-registration, the possibility of

        18          re-registration.  You cannot take a look at the

        19          grandfathering clause in terms of what Mr. Myers

        20          might have thought while sitting on these types

        21          of applications without taking into account that

        22          at the same time the Firearms Act was moving its

        23          way through legislation, as well.  These things

        24          happened, you know, symbiotically and --

        25      THE COURT:             Well, I mean, I would agree

        26          with you if in the fullness of time Bill C-10A

        27          died on the order paper and it was not enacted.





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         1      MS. WALSH:             M'hmm.

         2      THE COURT:             So, yes, then I think you

         3          would be quite right in characterizing it as a

         4          mere possibility, but that is not what happened.

         5          So eventually it was passed.  Surely that tells

         6          us that it was the intention all along that

         7          people in Mr. Ehnes' situation be grandfathered.

         8      MS. WALSH:             Certainly that -- I mean, that

         9          is open for the Court to review, but, I mean,

        10          what we have here is a timeline of parliamentary

        11          legislation, enactments, and in the timeline it

        12          was anticipated that Mr. Ehnes and any number of

        13          people in his same position could possibly be

        14          grandfathered.

        15               However, as the legislation moves through

        16          and as the Firearms Act, you know, gathers steam

        17          and as society itself changes its mind and its

        18          parliamentary power behind the movement behind

        19          getting rid of small handguns on the street, to

        20          negate the hopefulness of the second grandfather

        21          clause because -- I mean, all we can do is that

        22          it was a hopeful situation for Mr. Ehnes, that it

        23          was -- that at the time they were hoping that it

        24          was possible that these people would be included,

        25          but, in fact, they were not included.  And

        26          Parliament stated in the Firearms Act these are

        27          prohibited weapons, there are only certain





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         1          individuals that can hold these types of

         2          firearms, and the effect of that is that only

         3          people grandfathered by the 1995 provision are

         4          still entitled to carry, register their weapons,

         5          have a license for those weapons under certain

         6          conditions and nobody after that point in time.

         7      THE COURT:             So why introduce Bill C-10A if

         8          you are not adding any other people but the ones

         9          who were already grandfathered as of February

        10          14th, 1995?

        11      MS. WALSH:             Your Honour, my humble

        12          rejoinder would be, why not?  It is one of those

        13          pieces of legislation that was anticipated could

        14          be helpful, that could.  If it was Parliament's

        15          final decision to include Mr. Ehnes' group of

        16          applicants, then they would be -- they would have

        17          whatever the grandfathering process in place, but

        18          it was not their final word on these types of

        19          handguns and Mr. Ehnes' group of people were not

        20          grandfathered.  Whether or not it took some time

        21          for this legislation to move through, that's not

        22          up for me to wonder why people held onto the

        23          applications or what the policy decision behind

        24          that was or whether they were directed by their

        25          Minister not to do anything with them until an

        26          actual pronouncement from Parliament came across.

        27      THE COURT:             Well, what if Royal Assent had





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         1          happened on December 31st, 2002?  I mean, it was

         2          awaiting Royal Assent.  It got Royal Assent on

         3          May 13th, 2003.  What if Royal Assent had

         4          actually been given on December 31st, 2002?

         5      MS. WALSH:             Your Honour, we could be in a

         6          very different position, I mean, but that's not

         7          what we are faced with here today, Your Honour.

         8      THE COURT:             But doesn't that speak to the

         9          parliamentary intent?  I mean, you are not

        10          suggesting to me, are you, that Parliament

        11          deliberately dragged its heels to implement Bill

        12          C-10A so that people like Mr. Ehnes would be

        13          excluded?

        14      MS. WALSH:             Certainly not, but --

        15      THE COURT:             Isn't it quite obvious that

        16          people in Mr. Ehnes' situation were to be

        17          grandfathered?

        18      MS. WALSH:             It is possible that those

        19          people were intended to be grandfathered.  It

        20          seems that what -- and, again, I can't speak to

        21          what the legislative intent was behind these

        22          pieces of legislation.  I can only surmise that

        23          from the Crown's point of view is that that piece

        24          of legislation was enacted in the hopes or the

        25          possibility that Mr. Ehnes' group of people would

        26          be included, and, in fact, they were not.

        27      THE COURT:             But that --





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         1      MS. WALSH:             Therefore --

         2      THE COURT:             That only happened because of

         3          the delay in the proclamation or the Royal Assent

         4          of the Bill.

         5      MS. WALSH:             That is --

         6      THE COURT:             Can you point to anything

         7          else that intervened and made it --

         8      MS. WALSH:             It is the process that it went

         9          through.  Agreed, absolutely, Your Honour, that

        10          it's the process, and it is an unfortunate

        11          process, but, again, we don't know what in the

        12          interim Parliament might have done to correct the

        13          error of the second grandfathering clause.  Like,

        14          we are left with what we are left with, is the

        15          unfortunate process of how legislation is passed

        16          in Canada.  And, again, I point to the movement,

        17          the Private Member's Bill to have these people's

        18          issues looked at, and, in fact, not only was it

        19          looked at, but it was voted down in Committee and

        20          recommended not to go forward from that point in

        21          time, and I quoted you a couple of points in that

        22          particular --

        23      THE COURT:             May I have Exhibit -- it is in

        24          Exhibit 3, is it, or 4?

        25      MS. WALSH:             The affidavit, Your Honour.  I

        26          am sorry.  I don't have the exhibit number.

        27      THE COURT CLERK:       Three.





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         1      THE COURT:             It is 3.  Thank you.

         2      MS. WALSH:             And I am specifically looking

         3          at tab N.

         4      THE COURT:             That is Anne McLellan's

         5          letter?

         6      MS. WALSH:             Yes.  And, again, it says on

         7          the second page about the third paragraph down:

         8               "... 'It is not an injustice, but we

         9               are granting amnesty to people who

        10               put themselves into an illegal

        11               situation.'  On these grounds, it is

        12               manifestly clear that Parliament

        13               would send entirely the wrong

        14               message in legislating a loophole

        15               for the dangerous firearms in

        16               question."

        17               So Mr. Ehnes' group of people have been --

        18          parliamentarians have turned their mind to this

        19          and have decided in their infinite wisdom one way

        20          or the other not to move forward with exempting

        21          or addressing Mr. Ehnes' group of people.  And,

        22          again, it says:

        23               "With respect to the approximately

        24               1,500 individuals in question, I

        25               point out that there are clear and

        26               reasonable options available to them

        27               for lawful disposal of the firearms





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         1               under the terms of the existing

         2               Amnesty Order."

         3          And it just -- I also -- if I might have a

         4          moment, Your Honour.  Okay.  I apologize, Your

         5          Honour, for taking your time.  I am looking at

         6          page 10 --

         7      THE COURT:             That's fine.

         8      MS. WALSH:             -- of the actual discussion by

         9          Mr. Myers in his affidavit.

        10      THE COURT:             In his affidavit.

        11      MS. WALSH:             And at paragraph 30 it goes

        12          through what I just read out to you, and it says

        13          that the Standing Committee did review it and,

        14               "... investigate the situation

        15               created by the fact that Bill C-10A

        16               was not passed by Parliament and

        17               brought into force in time to permit

        18               people such as the Applicant to meet

        19               the continuous registration

        20               requirement.  The motion was

        21               discussed and defeated."

        22      THE COURT:             It was a motion, though, to

        23          investigate the situation.  I read this

        24          attachment of the Committee discussion.

        25      MS. WALSH:             That's correct, Your Honour.

        26          And, again, on November 15th, 2005, the Standing

        27          Committee made a motion that the Committee





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         1          examine the issue and report to the House with

         2          their recommendations, and the motion was

         3          defeated then, also.

         4      THE COURT:             Yes.  The motion was actually,

         5          "to have this serious problem investigated and

         6          addressed by the Standing Committee on Justice,

         7          Human Rights, Public Safety and Emergency

         8          Preparedness."

         9      MS. WALSH:             That is correct, Your Honour,

        10          two motions and both defeated.  There obviously

        11          are competing views as to what should be done.

        12          However, there is no legal recourse at this point

        13          in time for Mr. Ehnes, and Mr. Ehnes not only

        14          cannot be issued a registration, but he is not

        15          entitled hold a license authorizing him to

        16          possess a prohibited handgun under the provisions

        17          of the Act.  He cannot be legally issued a

        18          registration certification for those type of

        19          handguns with the new Firearms Act.  And, I mean,

        20          we are definitely looking at a block in time, the

        21          registration certificate, but even if, he is

        22          still not legally allowed under the Firearms Act

        23          to hold a license for this type of firearm in any

        24          event.

        25               And in terms of what Mr. Myers could do, he

        26          just has no discretion to do anything.  What his

        27          compassion, feeling for people who legitimately





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         1          bought firearms after the first grandfathering

         2          clause went through, unfortunately, there is just

         3          not -- and by unfortunately, I guess I am saying

         4          this because of who Mr. Ehnes is, but it is

         5          Parliament's intention to restrict and prohibit

         6          these type of weapons in any event.  There are

         7          strong views that they pose particular public

         8          safety concerns; not necessarily Mr. Ehnes, but

         9          as a group of firearms.

        10      THE COURT:             Oh, I have no difficulty

        11          understanding the big intention, but it does seem

        12          to me that, again, what we are dealing with here

        13          is systemic delay that thwarted the intention to

        14          grandfather people in Mr. Ehnes' situation so

        15          that they would have been in the accepted

        16          category for possession of the prohibited

        17          weapons.

        18      MS. WALSH:             Your Honour, I mean, that is

        19          an option that is open for you to consider, but

        20          we don't have the evidence, other than the fact

        21          that Mr. Myers stated that they were sitting on

        22          them.  Again, we don't understand what the

        23          legislative intent that they were directed, if

        24          this was a policy reason.  But while those

        25          registrations were being sat upon, for lack of a

        26          better, specific things did fall into place, and

        27          the most important for this particular case is





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         1          the enactment of the Firearms Act, which negates

         2          the possibility for Mr. Ehnes to have a

         3          registration certificate because of him not

         4          having continuity, but also, in terms of the type

         5          of firearms, he can no longer be issued a license

         6          for the prohibited weapon.

         7               The matter has been brought up - we have

         8          evidence of a couple of times - and it has not

         9          moved any further.  There is no political will.

        10          Outside of Mr. Ehnes speaking to his Member of

        11          Parliament and drumming up support for political

        12          change, there is, in fact, no other law than the

        13          one that we are faced with, which is that he is

        14          not a registered -- he cannot be considered a

        15          registered owner of this handgun by act of law of

        16          Parliament, and whether or not for a certain

        17          period of time it was sat upon, in any event,

        18          there is no legal recourse.

        19               And, again, I bring to your attention the

        20          French case that I submitted to you.  In that

        21          decision and in the face of an actual error made

        22          by a provincial firearms person who told that

        23          person that he was actually registered, in fact,

        24          in spite of that, he could not be considered to

        25          be registered.  In fact, the Applicant in that

        26          matter actually had a card that said he was

        27          registered.  However, the Chief Firearms Officer





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         1          said no, he is not registered, and the decision

         2          was, in essence, the law is the law.  And, again,

         3          the notice of receipt, it was not a promise.

         4          Mr. Ehnes did not do anything else but wait, and

         5          the silence cannot be depended on as an assurance

         6          that he was to be given registration, especially

         7          in the face of the several notifications that he

         8          was given.

         9               Respectfully, Your Honour, in the absence of

        10          any further questions, those are the Crown's

        11          submissions.

        12      THE COURT:             Thank you, Ms. Walsh.

        13          Mr. Ehnes, is there anything you want to add to

        14          what you have already said --

        15      MR. EHNES:             Yes, Your Honour.  I would

        16          like to --

        17      THE COURT:             -- to sum up?

        18      MR. EHNES:             I would like to just clarify

        19          one thing.  On page 7 of Mr. Myers' affidavit,

        20          article 19, in regards to Ms. Walsh and her

        21          stating that I did not meet the grandfathering

        22          clause because of the 1995, I read from 19 in the

        23          middle.  It says:

        24               "Gun owners become eligible for a

        25               license with 12(6) privileges

        26               subject to two requirements: the gun

        27               owner acquired a gun and applied to





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         1               register it prior to December 1,

         2               1998; and, the gun owner

         3               continuously held a registration

         4               certificate for that kind of handgun

         5               since December 1, 1998."

         6          He goes on to state:

         7               "The Applicant purchased the 12(6.1)

         8               handgun prior to December 1, 1998,

         9               and applied to register them before

        10               December 1, 1998.  Therefore the

        11               first requirement is met."

        12               So I believe you are correct, Your Honour,

        13          that the intent was to grandfather myself and

        14          people like me, and he -- Mr. Myers acknowledges

        15          that, in fact, I am.

        16               So then it becomes an issue of the delay in

        17          registering -- or issuing a registration

        18          certificate for this particular gun.  I would

        19          like to go back to the old green registration

        20          certificate for the particular handgun.  This

        21          was -- when it was issued, no expiry dates were

        22          ever put on these.  I understand that they were

        23          good for life at the time.  After the legislation

        24          changed, I believe it's 1998 -- or, actually,

        25          probably 1995 - I'm not positive on that date --

        26          these particular handguns went from being a

        27          restricted handgun to a prohibited.





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         1      THE COURT:             That would be December 1st,

         2          1998.

         3      MR. EHNES:             At that point they should have

         4          issued a new certificate to me stating that I was

         5          in possession of a prohibited handgun, not a

         6          restricted handgun.  They refused to do any of

         7          this sort of thing.  They -- I believe it was,

         8          for a better phrase, a lot of bureaucratic -- I

         9          don't know what the proper word is and what would

        10          be acceptable to the Court, but if the

        11          classification for the handgun changed while I

        12          was still legal owner of it, why was a new

        13          registration certificate not immediately issued

        14          to me?

        15               Because, in fact, they left me in a position

        16          that technically I was probably breaking the law.

        17          I was forced into a situation where I was in

        18          possession of a prohibited handgun that was

        19          registered as a restricted.  It was their

        20          responsibility to issue me a certificate for the

        21          proper classification that that handgun fell

        22          under.  They did not.  Had they and the

        23          grandfathering clause, which I have already --

        24          which Mr. Myers already acknowledges that I meet,

        25          they would have simply reissued a new

        26          certificate, or the one that they would have

        27          issued in replacement of this when the firearm





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         1          actually became a prohibited weapon would have

         2          been in effect and I would not be here.

         3      THE COURT:             Well, I think that you would

         4          find that the Registry would say, "Look, you were

         5          on notice that the gun you have was going to

         6          change from a restricted weapon to a prohibited

         7          weapon.  When it became a prohibited weapon, only

         8          certain people can have that prohibited weapon,

         9          and you have to take certain steps in order to

        10          have a registered prohibited weapon."  This is

        11          where we get into the whole debate about the

        12          grandfathering, because the Registry is saying to

        13          you, "You have to approach us to satisfy us that

        14          you are either grandfathered or are otherwise

        15          entitled to have a prohibited weapon."  So that

        16          is why the Registry does not start typing up new

        17          certificates.  They are saying to you, "Look, the

        18          law is changing and we bounce it back to you.  So

        19          you tell us that you either are entitled to be

        20          grandfathered or that you are in some other way

        21          entitled to have a prohibited weapon and that is

        22          when you will get your new certificate."

        23      MR. EHNES:             And, like I say -- and I did

        24          apply to have it registered before the expiry --

        25      THE COURT:             Yes.

        26      MR. EHNES:             -- as well.

        27      THE COURT:             I understand that.





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         1      MR. EHNES:             And in their own admission

         2          they just sat on them.

         3      THE COURT:             Yes.

         4      MR. EHNES:             And is it reasonable that they

         5          can sit on these things for years and years and

         6          not -- and as far as for myself, like, I am not a

         7          lawyer, I am not a person who is well-educated in

         8          what is my responsibilities, rights, whatever,

         9          but it seems to me when I receive a notice -- if

        10          you send a notice to the average person informing

        11          them that, "Your application is being processed

        12          and do not contact us.  We require no other

        13          information from you," are you not led -- I was

        14          led to believe that I had met the requirements

        15          and all of the information that they required was

        16          in their hands.  So, I mean, I don't know what

        17          else I am -- what responsibilities fall on my

        18          shoulders to do over and above that.  I think

        19          that is about all I have --

        20      THE COURT:             Thank you.

        21      MR. EHNES:             -- to say, Your Honour.  Thank

        22          you.

        23      THE COURT:             Thank you both very much.  It

        24          has been very interesting, and I will give you a

        25          decision a week from Friday.  So that is Friday,

        26          February 2nd, 2007 at 9:30.

        27      MR. EHNES:             Thank you.





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         1      THE COURT:             Thank you.

         2      MS. WALSH:             Your Honour, would you know

         3          which courtroom that would be in?  Would that

         4          also be in the J.P. courtroom?

         5      THE COURT:             I don't know.

         6      THE COURT CLERK:       I'm not sure yet.

         7      MS. WALSH:             Okay.  Perhaps if somebody

         8          from the Court Clerk's office could let me know

         9          so I know where to go.

        10      THE COURT:             Yes.  I don't know.  As I told

        11          you, there is a three-day French trial scheduled

        12          next week.  So I am guessing it is probably going

        13          to be here, but I don't know definitely.

        14      MS. WALSH:             Okay.  Thank you.

        15      THE COURT:             It will be in whichever

        16          courtroom that trial is being conducted.

        17      MS. WALSH:             Thank you.

        18      (ADJOURNED TO FEBRUARY 2, 2007 AT 9:30 A.M.)

        19               ................................

        20

        21

        22                             Certified correct to the best
                                       of my skill and ability.
        23

        24
                                       ______________________________
        25
                                       Jill MacDonald, CSR(A), RPR
        26                             Court Reporter

        27





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                                                 S-1-CR-2007000011

                IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



                IN THE MATTER OF:



                  A Reference under section 74(1) of the Firearms Act





                                  PATRICK EHNES

                                                  Applicant



                                      - and -



                              HER MAJESTY THE QUEEN

                                                 Respondent



                _____________________________________________________

                Transcript of Hearing held before the Honourable

                Deputy Judge A.J. Brown, sitting at Yellowknife, in

                the Northwest Territories, on January 24th, A.D.

                2007.

                _____________________________________________________





                APPEARANCES:

                Mr. P. Ehnes:               Applicant

                Ms. J. Walsh:               Counsel for the Respondent