Court File Number: 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, F.A. WILLIAM ETTER, MURRAY SMITH KEN DOBIE JENNIFER HART-MACDONALD Defendants REPLY 1. The plaintiffs admit the allegations contained in paragraphs 3, 5, 6, 7, 9, 16, 23, 38 of the statement of defence. 2. The plaintiffs deny the allegations contained in paragraphs 8, 10, 11, 12, 15, 17, 18, 19, 20, 24, 25, 26, 29, 30, 43 of the statement of defence. 3. The plaintifs have no knowledge of the allegations contained in paragraphs 31 of the statement of defence. 4. The plaintiffs deny that the defendants performed their responsibilities lawfully and honestly and in good faith in accordance with the duties of their respective positions. 5. Regulation SOR/2014-198 has a effect on the classification of firearms in that the Registrar of Firearms cannot change the classification of a firearm as entered in its record after that the record has existed for one year. 6. SOR/298-462 did not need to specifically mention the AR-10 models and manufacturer. The AR-10 firearm had been a prohibited and restricted firearm before May 1, 2020 by reason of the Criminal Code of Canada Section 84(1) definitions of “prohibited firearm” and “restricted firearm” along with being stated to be a modified version or variant of the Colt AR-15/M-16 category of firearms in several FRT opinions. 7. In the following FRT entries dated before May 1, 2020, that is before Regulation SOR 2020-96, show the AR-10 as prohibited or restricted. 8. A fact is that the AR-10 in FRT 15464, 16262, 16428, 37804, 107235, 107275 lists it as prohibited because it is an automatic or converted automatic firearm which fits the description of “prohibited firearm” in Section 84(1) of the Criminal Code of Canada, which state “prohibited firearm” means 84 (1)(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger. That being so the AR-10 did not have to be mentioned in SOR/98-462. 9. Those FRT opinions did not change after May 1, 2020. They remained prohibited without mention of the provisions in SOR/2020-96. 10. Additionally both before and after May 1, 2020 the following FRT opinions stated that the AR-10 was restricted by the definition of “restricted firearm” as set out in the Criminal Code of Canada Section 84(1) “restricted firearm” paragraph 84(1)(b) and as variants of the Colt AR-15/M-16 design before May 1, 2020: FRT 33528, 33583, 33585, 33592, 44005, 48386, 117783, 128270, 131409, 143079, 145143, 161652, 162606, 187402. Most importantly each of these FRT opinions state that the AR-10 is a restricted firearm pursuant to Section 84(1) of the Criminal Code. 11. Additionally the following FRT opinions for the AR-10 stated it was restricted under SOR/98-472 before May 1, 2020 as variants of the Colt AR-15/M-16 design: FRT 33528, 33583, 33585, 33582, 44005, 48386, 117783, 128270, 131409, 134997, 145143, 187402. 12. The pre May 1, 2020 Regulation SOR/98-462 did make reference to the AR-10 rifle which had been designated to be both restricted and prohibited by the defendants. The numerous FRT opinions before May 1, 2020 stated it was a “variant or modified version” of the AR-15/M16 firearms. 13. To say the AR-10 was not prohibited or restricted because it was not specifically mentioned in SOR/98-462 ignores that it was both prohibited and restricted under the definition in Section 84(1) of the Criminal Code of Canada without the need to be mentioned specifically in SOR/98-462 and that it was stated to be restricted in FRT opinions as a variant on the Colt AR-15/M-16 design which is stated in the FRT opinions themselves. 14. The pre May 1, 2020 Regulation SOR/98-462 did make reference to the AR-10 rifle which had been designated to be both restricted or prohibited by the defendants. The numerous FRT opinions before May 1, 2020 stated it was a “variant or modified version” of the AR-15/M16 firearms. 15. The pre May 1, 2020 FRT opinions regarding each of the Modern Series firearms and the inspection reports of the defendants clearly stated the Modern Series firearms had no lineage to any particular firearm available. Considering that at the time those pre May 1, 2020 FRT opinions and inspection reports were made the AR-10 was existing and was a restricted or prohibited firearm, it is not correct to state that the Modern Series firearms are variants or modified versions of the AR-10. 16. At the time of this Reply the FRT opinions on the RCMP website were examined. Since May 15, 2020 the defendants have made changes to FRT opinions 149826, 146190 and 162446 regarding the Alberta Tactical Rifles Modern Series Rifles comparing the version valid 2021/12/20 to May 15, 2020. The following words were deleted from FRT opinion 149826 (Alberta Tactical Modern Hunter): Features chart, no markings, images on page 4 through 14 are removed. 17. The following words were deleted from FRT opinion 162446 (Alberta Tactical Rifle Modern Varmint): Features chart, no data. A stylized Maple leaf and the word Canada may be found marked on the right side of the upper receiver to the rear of the ejection opening. Images on pages 5 through 9 are removed. 18. These present FRT opinions do not state that the Modern Hunter Prototype, Modern Hunter or Modern Varmint are variants or modified versions of the AR-15/M16 or AR- 10. 19. The Modern Hunter Prototype, Modern Sporter and Modern Varmint are not variants or modified versions of the AR-15/M16 or AR-10 rifles. 20. The defendants are not experts in firearms. The Specialized Firearms Support Services (hereinafter referred as “SFSS”) personnel are not experts in firearm design. 21. The determination of whether a firearm is prohibited or restricted as defined by the Criminal Code of Canada Section 84(1) does not require technical expertise. 22. The defendants and SFSS personnel do not and have not physically inspected all firearms for which they give an FRT opinion. 23. The FRT opinions of the defendants vary over time and switch back and forth among the various categories of prohibited, restricted, non-restricted, antique and 84(3). 24. The Chief Firearms Officer and Area Firearms Officer duties do not include the categorization of firearms as restricted, prohibited, or non-restricted. 25. The Chief Firearms Officer and Area Firearms Officer did not conduct forensic testing or examination of the Modern Series firearms prior to issuing the letter of October 30, 2020. 26. The Regulation SOR/2020-96 does not specify technical analysis to be performed by any person in respect of “any variant or modified version of them”. 27. The Regulation in its present and previous form has no reference to the words “design families”. Such a description of “design family” is not defined by the Criminal Code, its regulation or the Firearms Act and its regulations. This is a new phrase coined by the defendants. 28. The term coined by the defendants as “design families” is not found in the Criminal Code or its regulations. 29. The Regulation in its present and previous forms makes no reference to the term “restricted family of firearms” which is a term coined by the defendants. 30. The Regulation does not “require” the defendants or the SFSS to “reassess” what is a “variant or modified version” of any firearm. 31. The defendants do not state what the term “shortly after they were made” means. 32. The letter of October 30, 2020 was clear that the sales were to stop. That included any sales made at any time. 33. The October 30, 2020 letter was emphatic that Magnum Machine Ltd. carrying on business as Alberta Tactical Rifle Supply halt sales, production and filling orders for the Modern Hunter, Modern Sporter and Modern Varmint. The letter did not say any pre May 1, 2020 orders could be shipped. There was no distinction between pre May 1, 2020 and post May 1, 2020 orders. 34. The Chief Firearms Officer and Area Firearms Officer did not distinguish among pre May 1, 2020 or post May 1, 2020 orders for firearms in the letter. Recharacterizing the pre May 1st sales was done several months later in January 2021, through emails and then done by council not from them directly. The letter has never been amended. 35. The defendants did not inform the plaintiffs that the amnesty in SOR/2020-97 applied to the Modern Series Rifles which were not specifically listed in SOR/2020-96. 36. The plaintiffs are unaware of the information the defendants plead in paragraph 31 of the defence. 37. The plaintiffs are unaware of the name of position or responsibility of the person named in paragraph 33 of the defence. The plaintiffs are unaware of who commanded or requested this person to conduct an investigation into the plaintiff Magnum Machine Ltd. carrying on business as Alberta Tactical Rifle Supply. 38. The plaintiffs are unaware of the information SFSS provided to the defendants Jennifer Hart-Macdonald and Ken Dobie. 39. The plaintiffs deny the allegations in the defence that Modern Series Rifles are prohibited firearms. 40. The defendants targeted the plaintiff Magnum Machine Ltd. carrying on business as Alberta Tactical Rifle Supply when it was challenging the Regulation SOR/2020-96 in Federal Court. This targeting was expressed in the letter of October 30, 2020 and in events described in paragraphs 31-39 of the defence. 41. The defendants had no confirmation by any court that the Modern Series Rifles were prohibited by SOR/2020-96. 42. The expertise of the persons or individuals in the SFSS who changed the categorization from non-restricted to prohibited after May 15, 2020 is unknown and such person’s expertise is not admitted. 43. The plaintiffs deny the defendants acted lawfully with honesty and good faith. 44. The previous challenge of validity of Regulation SOR/2020-96 by the plaintiffs is not relevant and is not before any court of law. Date: January 6, 2022 _________________ EDWARD L. BURLEW, LL.B. Signature of the Solicitor Barrister & Solicitor 16 John Street Thornhill, Ontario L3T 1X8 Tel: 905-882-2422 Fax: 905-882-2431 LSUC#: 18700C Lawyer for the plaintiffs, Magnum Machine Ltd. carrying on business as Alberta Tactical Rifle Supply and Richard Timmins TO: 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 Attention: John Lucki and John Provart Telephone number: (647) 256-7528/ 647-256-0784 E-mail address: [email protected] & [email protected] Solicitors for the Defendants
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