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