FORM 171B — STATEMENT OF DEFENCE RULE 171 Court File No.: T-1415-20 FEDERAL COURT BETWEEN: MAGNUM MACHINE LTD. CARRYING ON BUSINESS AS ALBERTA TACTICAL RIFLE SUPPLY AND RICHARD TIMMINS Plaintiffs and HER MAJESTY THE QUEEN IN RIGHT OF CANADA, F.A. WILLIAM ETTER, MURRAY SMITH, KEN DOBIE, JENNIFER HART-MACDONALD Defendants STATEMENT OF DEFENCE 1. The Attorney General of Canada on behalf of Her Majesty the Queen (the "Crown"), pleading on behalf of all of the defendants, and pleading in response to those of the plaintiffs’ claims that were not struck by Order of this Court dated October 21, 2021, admits the following allegations in the amended statement of claim. a) With respect to paragraphs 2, 17 and 22-25 of the amended statement of claim, the Crown admits that the plaintiff Magnum Machine Limited (“Magnum”) is a corporation carrying on business in Alberta as Alberta Tactical Rifle Supply. The Crown also admits that Magnum holds a business licence under the Firearms Act , S.C. 1995, c. 39 ( Firearms Act ) that allows it, subject to the terms and conditions of the licence, to manufacture and sell firearms classified as “non-restricted” or “restricted” under the Criminal Code , RSC 1985, c. C-46 ( Criminal Code ) and its regulations, but does not allow it to manufacture or sell firearms classified as “prohibited”. The Crown denies that this business licence was issued by the Canadian Firearms Centre and states that the licence was actually issued by the Chief Firearms Officer (“CFO”) of Alberta and Northwest Territories. - 2 - b) With respect to paragraph 3, the Crown admits that the plaintiff Richard Timmins is an individual who is a principal of Magnum. c) With respect to paragraphs 5-6 and 12-13, the Crown admits and states as follows concerning the positions of the individual defendants: (i) The defendant Murray Smith is a forensic scientist who was employed by the Royal Canadian Mounted Police (“RCMP”) from 1977 until retiring in May, 2020. From 2008 until May, 2020, Mr. Smith worked in the position of the Manager, Specialized Firearms Support Services (“SFSS”) within the Canadian Firearms Program of the RCMP. After his retirement, Mr. Smith has been engaged as a Forensic Science Firearms Consultant for the Canadian Firearms Program. (ii) The defendant William Etter was employed by the RCMP from 1998 until he retired in September, 2021. He served as a Canadian Armed Forces Weapons Technician for approximately 32 years prior to this. Mr Etter was one of the four founding members of the Firearms Reference Table Section in 1998, which subsequently became part of SFSS. Mr. Etter served as the Chief Firearms Technologist and a Section Head of SFSS from approximately 2006-2007 until his retirement. (iii)The defendant Jennifer Hartt-MacDonald was at the time of her involvement the CFO of Alberta and Northwest Territories under the Firearms Act The responsibilities of the CFO are as set out in the Firearms Act. (iv) The defendant Ken Dobie has been employed by the RCMP since February 2018. At all material times, Mr. Dobie was a Firearms Officer working with the CFO of Alberta and Northwest Territories under the Firearms Act. The roles, responsibilities and involvement of these defendants pursuant their respective positions are further described below. All of the defendants performed their responsibilities lawfully, and honestly and in good faith, and in accordance with the duties of their respective positions. - 3 - d) With respect to paragraphs 19-20, 27-28 and 50-51, the Crown admits as follows. (i) Provisions of the Criminal Code, together with a long-standing regulation made under the Criminal Code , as amended from time to time, classify firearms according to three defined categories – “prohibited”, “restricted” or “non- restricted – as further elaborated below. (ii) The regulation was most recently amended effective May 1, 2020, for public safety reasons outlined in an accompanying Regulatory Impact Assessment Statement, so as to significantly expand the families of firearms designated as prohibited. (iii) As a result of those amendments, certain of the firearms previously manufactured and sold by Magnum – referred to by Magnum as its “Modern Series” rifles – became “prohibited” as further explained below, and Magnum was therefore no longer permitted under its Firearms Act business licence to manufacture and sell such firearms. e) With respect to paragraph 82, the Crown admits that the Firearms Officer working with the CFO of Alberta and Northwest Territories, pursuant to the responsibilities of the CFO under the Firearms Act , wrote to Magnum on October 30, 2020, as further outlined below, with respect to concerns that Magnum was continuing to manufacture and sell firearms that had become prohibited under the regulation, as amended, contrary to its business licence under the Firearms Act f) With respect to paragraph 126 of the statement of claim, the Crown admits that ongoing possession by the plaintiff Richard Timmins of any Modern Series firearms is subject to an Amnesty Order, as further described below, made in conjunction with the amendment to the regulation as of May 1, 2020. g) The Crown admits as substantially correct the allegations contained in paragraph 12 (except that the Office of the CFO for Alberta and Northwest Territories was in - 4 - Edmonton), the first sentence of paragraph 13, the last sentence of paragraph 19, paragraphs 20-25, paragraphs 27-28, the first sentence of paragraph 45, the first sentence of paragraph 46, paragraph 50, the first two sentences of paragraph 51, paragraph 74, paragraph 76, paragraph 78, the first sentence of paragraph 81, the first and third sentences paragraph 84, the first sentence of paragraph 85, the last sentence of paragraph 127, paragraph 129, the first sentence of paragraph 132, and paragraph 138 of the amended statement of claim. 2. The Crown denies the remaining allegations in the statement of claim, and puts the plaintiffs to strict proof thereof, except as hereinafter expressly stated otherwise. Overview of the Relevant Legal Regime 3. Firearms have been subject to regulation in Canada since the time of Confederation. At present, the legal regime governing firearms includes Part III of the Criminal Code , the Firearms Act , and their regulations. 4. The Criminal Code classifies firearms into three categories – “non-restricted”, “restricted”, and “prohibited” – as defined in s. 84. The definitions of the restricted and prohibited categories set out various different attributes of firearms that bring them within those respective categories. In addition, the definitions of each category expressly include such firearms as are prescribed by regulations to fall within a given category. Section 117.15 of the Criminal Code gives the Governor in Council authority to make regulations prescribing firearms as falling within each category. 5. The Firearms Act incorporates by reference the definitions of the different categories of firearms contained in the Criminal Code and its regulations. The Firearms Act further establishes various licencing, registration, authorization and other requirements for firearms businesses and for the possession and use of firearms of different classifications. The Firearms Act’s requirements are reflected back into the Criminal Code , as the Criminal Code creates certain offences relating to the possession or use of firearms unless such activities are authorized under the Firearms Act - 5 - 6. The regulation made under s. 117.15(1) of the Criminal Code is Regulation SOR/98-462, as amended, entitled: Regulations Prescribing Certain Firearms and other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted (the “Regulation”). The Regulation was first made on September 16, 1998 and came into force on December 1, 1998, but also consolidated various earlier firearms and weapons Orders made over earlier years. The Regulation was most recently amended by SOR/2020-96 made May 1, 2020 (“the Amending Regulation”). 7. The Regulation repeatedly uses a certain standard form of wording to describe what firearms, or design families of firearms, are prescribed as prohibited or restricted. That long-used form of wording begins by referring to “The firearm[s] of the design commonly known as”, then identifies a particular firearm design or designs, and then adds “and any variant or modified version of it [or them]”. In some cases, this formulation is followed by “including” and then a list of specified individual firearm models. 8. Accordingly, the Regulation as enacted, and as amended from time to time, has always required an element of technical firearms design analysis and judgment to assist in its interpretation and application, and particularly to assess whether given firearms (if not expressly listed in the Regulation) are restricted or prohibited because they are of prescribed designs or are variants or modified versions of prescribed designs. 9. Other aspects of the definitions of restricted and prohibited firearms in section 84 of the Criminal Code also require an element of technical assessment of firearms to ascertain whether they fall into those categories. 10. Regulation SOR/2014-198 made under the Firearms Act, which is referred to in various paragraphs of the amended statement of claim, is a regulation with respect to Canadian Firearms Registry under the Firearms Act, and has no bearing on the classification of firearms as prescribed in the Criminal Code and the Regulation, as amended, made under the Criminal Code. - 6 - The Amending Regulation 11. The Amending Regulation made May 1, 2020, significantly expanded upon the firearms and their variants prescribed as “prohibited” under the Criminal Code . The Amending Regulation did so by, among other things, adding prohibitions for nine design families of semi-automatic firearms. Consistent with the long-standing form of the Regulation, the Amending Regulation defined each newly prohibited family as consisting of firearms “of the designs commonly known as” certain named firearm designs “and any variants or modified versions of them”. 12. The newly prohibited design families of semi-automatic firearms included the following design family added as paragraph 87 of Part I of the Schedule to the Regulation (the “Section 87 Family” of firearms) : 87 The firearms of the designs commonly known as the M-16, AR-10 and AR-15 rifles and the M4 carbine, and any variants or modified versions of them – other than one referred to in item 47, 49 or 50 of this Part – including the [...] 87 Les armes à feu des modèles communément appelés fusils M16, AR- 10 et AR-15 et carabine M4, ainsi que les armes à feu des mêmes modèles qui comportent des variantes ou qui ont subi des modifications, à l’exception de celles visées aux articles 47, 49 ou 50 de la présente partie, mais y compris les armes à feu suivantes : [...] 13. Prior to the Section 87 Family of firearms being added as prohibited under the Amending Regulation, the Regulation prescribed a more limited design family of firearms – that referred only to the M-16 and the AR-15 – as “restricted”. This more limited family of restricted firearms was described as: “The firearm of the design commonly known as the M-16 rifle, and any variant or modified version of it, including [...]”. There then followed by a list of rifles falling within that description consisting largely of various AR-15 rifles. 14. Prior to the Amending Regulation, the Regulation made no reference whatsoever to the AR-10 design that was later included in the description of the new Section 87 Family prohibited under the Amending Regulation. - 7 - 15. The plaintiffs previously challenged, but no longer challenge, the lawfulness of the Amending Regulation. Magnum previously joined in bringing an Application for Judicial Review commenced May 25, 2020, challenging the lawfulness of the Amending Regulation. That challenge included complaints that the terms used, particularly including “variant” and “modified version”, impermissibly called for the exercise of too much judgment (or what the Applicants called “discretionary” interpretation) by public official administering the Regulations and by the Courts, and were therefore unlawfully vague. The plaintiffs discontinued their Application for Judicial Review challenging the lawfulness of the Amending Regulation before they commenced this action. The Amnesty Order 16. Concurrent with making the Amending Regulation, the Governor in Council made SOR/2020-97, an “Order Declaring an Amnesty Period (2020)” (the “Amnesty Order”), to protect for a period of two years individuals who were in lawful possession of any of the newly prohibited firearms on the day the new Regulations came into force, and to give such individuals a two year period to come into compliance with the law. The Firearms Reference Table 17. As previously outlined, application of the certain aspects of definitions of the different categories of firearms calls for inspections and certain technical assessments of firearms. The Regulation in particular calls for technical firearms design analysis and judgment to assist in in assessing whether particular firearms models (if not expressly listed in the Regulation) are restricted or prohibited because they are of prescribed designs, or are variants or modified versions of prescribed designs. Accordingly, the RCMP, through its SFSS, has long maintained a Firearms Reference Table (“FRT”) to be available as a resource in this regard. 18. The FRT is essentially a database compiled and maintained by firearms experts at SFSS containing information with respect to inspections and technical assessments of thousands of individual firearms models, including opinions based on those - 8 - inspections and technical assessments with respect to the classification of individual firearms applying the criteria set out in s. 84 of the Criminal Code and in the Regulation. 19. The Crown recognizes that the FRT is not a legally binding instrument, but states that the FRT is a proper and valuable resource and guide with respect to the application of the firearm classification provisions of the Criminal Code and the Regulation, and particularly those aspects of those provisions that call for inspection or technical assessment of firearms. The Crown further states that the creation and maintenance of the FRT has always been and continues to be entirely lawful. 20. The Defendants Murray Smith and William Etter, while employed in their respective positions with SFSS as outlined earlier, each had employment responsibilities with respect to maintaining the FRT, including responsibilities with respect to preparing, or supervising preparation, of assessments of firearms published in the FRT. The Crown states that Mr. Smith and Mr. Etter performed their employment responsibilities lawfully and honestly and in good faith. Events prior to the Amending Regulation made May 1, 2020 21. The Crown admits that, over a period years prior to the Amending Regulation, Magnum approached the SFSS to request that certain firearms it designed (which Magnum refers to as its “Modern Series” of firearms) be inspected and assessed by SFSS under the terms of the Regulation, with a view to having the SFSS’s assessments published in the FRT. As previously explained, the Regulation as it then stood included a restricted family of firearms that consisted of firearms of the design commonly known as the M-16 and variants and modified versions of the design, including AR-15 model rifles. 22. While the Crown does not have direct knowledge of Magnum’s business plans, it does not dispute that Magnum’s objective, as suggested in parts of paragraphs 27 and 29-32 of its claim, was to design firearms that would approach as closely as possible the design of the then restricted design family that included the M-16 and AR-15 - 9 - firearms, but that would incorporate enough different elements and features so as to fall outside that restricted design family, and instead be considered non-restricted. 23. The Crown also acknowledges that the effect of thus avoiding the restricted classification under the Regulation would be that the firearms in question would not be subject to various legal constraints applicable on the ownership and use of restricted firearms. The Crown therefore does not dispute that Magnum and its business stood to benefit, and did benefit as apparently suggested in paragraph 49 of the claim, from publication in the FRT of SFSS assessments that the Modern Series firearms were non- restricted under the Regulation as it then stood. 24. The differing elements and features that Magnum incorporated in its design of the Modern Series firearms so as to avoid the restricted classification largely originated from the firearm design commonly known as the AR-10. The AR-10 historically preceded the M-16 / AR-15 design, and was not referred to at all in the Regulation prior to the Amending Regulation. 25. The first of the Modern Series firearms submitted by Magnum to SFSS for inspection and assessment was a semi-automatic rifle that Magnum called the “Modern Hunter”. The defendant William Etter, working under the supervision of the defendant Murray Smith, participated in the inspection and assessment of the Modern Hunter on behalf of SFSS. The SFSS assessment was completed in 2014 and published in the FRT. It concluded that the Modern Hunter, while having similarities to the restricted AR-15 model rifles, could not be said to be of the restricted design family that included AR-15 rifles, because of the extent to which the Modern Hunter also incorporated elements and features of the AR-10 design, which was not referred to in the Regulation at that time. 26. Magnum subsequently submitted to SFSS two other models of semi-automatic rifles that it called the Modern Varmint, which was inspected and assessed in 2015, and the Modern Sporter, which was inspected and assessed in 2018. These were essentially variations of the Modern Hunter. Accordingly, the SFSS reached the same conclusions with respect to those models as it had with respect to the Modern Hunter. The SFSS’s - 10 - assessments were again published in the FRT, as desired by Magnum. Mr. Etter, working under the supervision of the Mr. Smith, again participated in the assessment of the Modern Varmint and the Modern Sporter on behalf of SFSS. Events after the Amending Regulation made May 1, 2020 27. After the Amending Regulation was enacted, the SFSS was required to re- assess various firearms. The Modern Series firearms were reassessed at this time because of the newly prohibited Section 87 Family, which now included the design commonly known as the AR-10, as well as the design commonly known as the M-16 and variants and modified versions including AR-15 rifles. 28. The SFSS, with Mr. Smith and Mr. Etter working in the capacities outlined above, concluded that the Modern Series firearms were now prohibited by the Amending Regulation. The Crown states that such conclusion was not just reasonable but correct. 29. Under the Regulation as it stood prior to the Amending Regulation, the similarities of the Modern Series firearms to the M-16 / AR-15 design were considered insufficient to make the firearms restricted because of the extent to which the Modern Series also included elements and features taken from the AR-10 design. However, the Amending Regulation created the new Section 87 Family of prohibited firearms, which consisted of firearms of both M-16 / AR-15 design and the AR-10 design, and any variants or modified version of either design. The Modern Series firearms were therefore prohibited by the Amending Regulation. 30. The FRT was updated on or about May 15, 2020 to include, among other assessments necessitated by the Amending Regulation, the SFSS assessments that the three models of Magnum Modern Series semi-automatic firearms were now prohibited under the prescribed Section 87 Family of firearms. The plaintiffs became aware of those updates to the FRT shortly after they were made. - 11 - The Letter dated October 30, 2020 from the Office of the CFO to Magnum 31. In mid-October, 2020, the Office of the CFO of Alberta and Northwest Territories received information that raised concern that Magnum might be continuing to manufacture and sell now prohibited firearms – specifically, Modern Series firearms – contrary to its business licence under the Firearms Act. 32. Under the Firearms Act, CFOs are responsible for issuing firearms business licences and administering the Act’s firearms business licencing provisions within their geographic areas of authority. It therefore fell within the responsibility of the Office of the CFO of Alberta and Northwest Territories to inquire into and address concerns that Magnum was violating the terms of its business licence under the Firearms Act, which did not permit Magnum to manufacture or sell prohibited firearms. 33. On October 20, 2020, a representative of the CFO contacted Magnum and spoke with the plaintiff Richard Timmins. Mr. Timmins advised that Magnum was continuing to take new orders for and to sell Modern Series firearms. 34. After review of information received from SFSS about the Modern Series firearms, as well as other available information, including Magnum’s own promotional materials for the Modern Series firearms that touted their similarities to the AR-10 and AR-15 rifles, a letter dated October 30, 2020 was sent by Ken Dobie, as a Firearms Officer working with the CFO for Alberta and Northwest Territories, to Magnum. The letter referenced the October 20, 2020 discussion with Richard Timmins and Magnum’s promotional materials for its Modern Series firearms. 35. The letter advised that the Office of the CFO was of the view that Magnum was not permitted to continue taking orders for selling of its Modern Series firearms, as its business licence did not allow it to manufacture and sell prohibited firearms. The letter explained why the Modern Series Firearms were prohibited by the Amending Regulation. The letter included the following in that regard: - 12 - The ATRS business licence does not allow for the manufacture or retail sale of prohibited firearms. While the noted firearms were not included by name in the Classification Regulations, they were assessed by firearms technicians at the RCMP's Specialized Firearms Support Services and assessed as variants as per paragraph 87 of the Classification Regulations. • The firearms of the designs commonly known as the M-16, AR-10, AR-15 rifles and the M4 carbine, and any variants or modified versions of them. The Classification Regulations changed to the scope of AR designed firearms by specifically including the AR-10 design in paragraph 87. As of May 1, 2020 any firearm derived from any of the four name designs, the M-16, AR-10, AR-15 and M4 or any combination of them are now variants and prohibited firearms. It is for this reason, the ATRS Modern Hunter, Modern Varmint and Modern Sporter firearms became prohibited on May 1, 2020.” 36. The letter further set out steps that Magnum would need to take in order to be in compliance with its obligations under its business licence and the Firearms Act These included stopping advertising, manufacturing and selling the Modern Series firearms considered prohibited under the Amending Regulation. 37. The Crown states that the defendants Ms. Hartt MacDonald and Mr. Dobie performed their responsibilities in relation to the Office of the CFO of Alberta and Northwest Territories lawfully, as well as honestly and in good faith. 38. Magnum, through its legal counsel, responded by letter dated November 10, 2020 advising that it had now stopped advertising, manufacturing and selling Modern Series firearms. 39. Contrary to the suggestion in paragraphs 103-104 of the statement of claim, the CFO’s letter of October 30, 2020 to Magnum did not object to Magnum completing deliveries after May 1, 2020 of Modern Series firearms already manufactured and sold prior to May 1, 2020. - 13 - The Plaintiffs’ claims regarding the status of the Modern Series firearms under the Regulation 40. The Crown denies that the plaintiffs are entitled to any declarations to the effect that the Modern Series firearms are non-restricted under the Regulation. The Crown states, as explained above, that the Modern Series Firearms are prohibited under the Regulation as amended. The individual defendants’ assessments in that regard were not only reasonable, but correct. Accordingly, the office of the CFO for Alberta reasonably, and indeed correctly, assessed that Magnum’s business licence under the Firearms Act did not permit Magnum to manufacture and sell the Modern Series firearms after the Amending Regulation became law. The Plaintiffs’ claims of Misfeasance in Public Office 41. The Crown expressly denies that any of the individual defendants committed misfeasance in public office. The plaintiffs’ claims, as pleaded, are to the effect that the individual defendants committed misfeasance by not ignoring the Amending Regulation or by not treating the Amending Regulation as being of no legal effect. The Crown states that such claims are untenable. 42. Moreover, as previously noted, the plaintiffs themselves no longer challenge the lawfulness of the Amending Regulation in this proceeding. 43. The Crown repeats that all of the individual defendants acted lawfully in all respects, and moreover acted honestly and in good faith and in accordance with the responsibilities of their respective positions. 44. The Crown denies all damage claims, and puts the plaintiffs to strict proof thereof. Requested Disposition 45. The Crown respectfully requests that this action be dismissed with costs, and that costs of this proceeding with respect to the plaintiffs’ unjustified allegations of - 14 - misfeasance in public office against the individual defendants be awarded on a solicitor client basis. December 10, 2021 __________________________________ ATTORNEY GENERAL OF CANADA Department of Justice Canada Ontario Regional Office National Litigation Sector 120 Adelaide Street West Suite #400 Toronto, ON M5H 1T1 Fax number: (416) 973-0809 Per: John Lucki Telephone number: (647) 256-7528 E-mail address: John.Lucki@justice.gc.ca Solicitor/Counsel for the Defendants TO: Edward L. Burlew Barrister & Solicitor 16 John Street Thornhill, ON L3T 1X8 Tel: 905-882-2422 E-mail: burlewlaw@gmail.com Solicitor / Counsel for the Plaintiffs