suite aux jugement rendu sur la définition de variante en ontario aux sujet du Armi Jaeger AP-80 , supposé variante du ak-47 .22lr selon la grc , le juge avait statué que la décision rendu par la grc étais discriminatoire et non basé sur l'aspet technique de l'arme quil s'agisse d' une percussion annulaire ou centrale ou tout autre model d'arme.
c'ette facon de faire de la grc d'interprété la loi comme bon leur semble n'est pas démocratique et est une violation des droit constitutionel des canadiens .
résultat mr.henderson et le lobby canadien des armes a gagné contre la grc.
la grc fit appel de la décision du juge et hier le 17 fevrié 2010 comparaissait en cours les deux partis.
le résultat , l'avocat de la grc est jeune sans expérience dans les arme a feux , le juge n'était pas tres attentif a leur avocat et avait l'air de le trouvé ennuyeux , quand l'avocat de mr.henderson, un bon vulgarisateur a capté l'attention du juge
lui montrant la différence tecnique et cosmestique entre une carabine de chasse semi-auto et le ap- 80 .22lr. , le juge était tres attentif et n'a pas manqué d'écorché la grc de leur facon cavaliere de traité l'enregistrement de l'arme de mr.henderson qui a prit 7ans et est passé de non-restraint a prohibé .
bref a la fin de la comparution hier l'avocat de mr.henderson et le lobby des armes avait un gros sourire dans le visage et la grc s'emblait se tappé la tete contre un mure.
rappelons qu'un juge n'aime pas reprendre la décision d'un autre juge quand la cause est claire et tre net .
n'oublion pas que sa aura un impact sur toute les types d'arme la décision du juge ,meme les ar-15 et les variante prohibé et restraint .
le juge devrait statué sur sa décision dans les 60 prochain jour .
voici le compte rendu de paul morrison de canadien gun nut qui étais présent en cours hier.
en anglais seulement , désolé
Initial observations:
Mr. Henderson is a very nice guy, and he is the perfect plaintiff. He’s not remotely threatening. He’s the most normal guy in almost any room he could walk into. He was very grateful for your assistance, and he sends his thanks.
I asked his counsel to ensure that none of Mr. Henderson’s retainer (which Mr. Henderson paid) is used, but to notify me of the balance, and I would ask you guys to donate more, if necessary.
The judge had a court reporter in attendance to record a transcript of the oral arguments. This is actually quite unusual at this level of court, and leads me to believe that his intention was to carefully review the factums and oral arguments prior to reaching a decision. This bodes well. I have read the factums, and Mr. Henderson’s factum is very, very good. He obviously, therefore, reserved his judgement.
The crown essentially advanced three arguments:
1) The reviewing justice failed to show deference to the registrar of firearms using a standard of reasonableness.
This sort of sounds like an arcane point of law, but the basic gist of it is, the courts should overturn the decisions of those to whom the power of the Minister of public safety has been delegated. They should only overturn such decisions where there decisions do not fall into a range of reasonable decisions.
The fact is though, that I don’t think that standard is the proper standard. There is no privative clause in the legislation, and in fact, the judicial review provisions are in the statute itself. More to the point, counsel for Mr. Henderson pointed out that the ‘reasonableness’ refers to the reasons for the decision. The ‘reasons’ were so bare that they could not be considered reasonable, and as a result the judge’s review was proper and not in error. He also pointed out that the memo that the crown spent a lot of time in court on, which said that the AP-80 was the same as the AK-22, was not written at the time of the refusal and therefore could not be considered by the court as part of the original reasons. Most of the time in court was spent on this point.
2) The Reviewing Justice misinterpreted the legislation with regard to the definition of ‘variant’.
The crown lead this argument with the position that “guns are for killing”, using s.2’s definition of firearm in the criminal code (which is crap, because it says a firearm is CAPABLE of causing bodily injury, not that it can only be used for that purpose). He then went on to argue the similarity to the ak-22. HE made much of the FRT table, reading the sections for each: “22 calibre, delayed blowback, semi-automatic”, which of course would also describe hundreds of non-restricted rifles.
3) That the Reviewing justice’s definition required FA operation was clearly wrong because the legislation specifically contemplates SA variants, and indeed names some (like the Mitchell AK-22).
Mr. Henderson’s counsel countered this argument with the point that the judge didn’t say that, he merely said that FUNCTIONAL similarity, as opposed to mere cosmetics, was required. It was interesting because the crown argued that minor cosmetic differences cannot turn a variant into a non-variant. This, of course, begs the question of whether minor cosmetic similarities can turn a non-variant into a variant (it appears the RCMP’s position is that it can).
The standard that the crown must meet on all three is that the reviewing judge was ‘clearly wrong’. Obviously, Counsel for Mr. Henderson argued he was not clearly wrong on any of the three grounds.
Other Observations:
1) The crown counsel appeared very young, and quite inexperienced, and displayed little knowledge of firearms or administrative law. He thought his submissions would take 30 minutes, and he took over an hour, and the judge didn’t even ask him a single question which would explain why it took that long.
2) The judge appeared quite uninterested in the crown’s submissions, but noticeably perked up during the respondent’s submissions. He did not ask a single question of the crown counsel, only paid a small amount of interest in following along with the crown’s book of authorities.
3) The crown didn’t mention the 7 year delay. He just sort of glossed it over: “he tried to register the firearm... the registration was rejected...” When Mr. Henderson’s counsel brought this up, the judge became visibly interested. He asked Counsel why a decision was not made sooner, and who had the rifle during that time (he was clearly concerned that Mr. Henderson could have been charged with possession of a prohibited weapon!)
4) Mr. Honickman, who acted as counsel for Mr. Henderson was very polished and professional. He did a great job. You can read his bio here:
http://www.mwpb.com/lawyers.asp?id=545) There was an interesting discussion of the hasselwander decision. Counsel for Mr. Henderson stated that Justice Cooper rightfully found that the intent and purpose of the law was not to prohibit all firearms (quoting from the majority in hasselwander), but only those that are a threat to public safety.
6) Counsel for Mr. Henderson pointed out that the valmets were de-prohibited, despite being a variant, and therefore not all ‘variants’ could be considered a threat to public safety.
7) There was a case discussed named Boyce which was cited that I need to look up and read. It apparently said that “similar” required a functional, and not just cosmetic appearance.
During the ‘variant of a variant’ discussion, which took place in (2), counsel for the respondent pointed out that the galil is listed as a variant of the ak-47, but it is also listed separately, along with naming several variants of it.
This is important because one of the statutory interpretation rules is that you have to give effect to every section of a piece of legislation. As a result, this displays that the legislature could, and has, prohibited variants of variants, but they have not chosen to do so here.
All in all, it was an interesting day, and I think things went pretty well.
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02-18-2010, 01:56 AM #528
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Posts: 240 Thank you very much for the detailed update.
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