Typos are not those of the author.
WILLIAM C. BARTLETT
LAW AND GOVERNMENT DIVISION
17 AUGUST 1994
REVISED 29 SEPTEMBER 1994
LIBRARY OF PARLIAMENT
NOT TO BE PUBLISHED
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ARGUMENTS AGAINST FURTHER GUN CONTROL MEASURES AT THIS TIME
The policy development process which led to the most recent round of gun control reform actually began well before the massacre at Ecole Polytechnique in December of 1989, although many people no doubt presume that it began after that tragedy dramatically heightened public concern about firearms. Concern has remained high, and the recent drive-by shooting in Ottawa, the shotgun slaying of a patron during a robbery at a restaurant in Toronto, and other similar shocking events in the past few months, have fueled calls for more changes to the criminal law to increase the controls on the possession and use of firearms.
But the most recent process of gun control changes, known collectively as "Bill C-17," did not end with the enactment of that bill, or even with the addition of the regulatory measures which followed. The process of putting the legal changes into practical effect has only just begun, and unless the new law is successfully implemented, the changes themselves could become little more than a symbolic exercise. Meaningful law-making must go beyond the legislative process, which puts words on the books, to produce positive changes in the real world.
While good policy development and adequate statutory drafting are obviously essential parts of the process, it can be argued that effective implementation and enforcement are the most critical phases in the creation of effective laws. Two themes thus echo throughout this paper:
Two related but separate arguments against the enactment of further gun control measures at this time thus emerge. First, the final and critical process of putting the Bill C- 17 package into practical effect is at an early stage. There has been insufficient time since the measures were enacted to complete this process, and assess the effectiveness of those measures. It is thus too early to consider the addition of another layer of substantial controls which would require equally significant - and in the case of some proposals, such as universal registration of firearms, infinitely greater - time, institutional energy, and financial resources to implement.
Second, it would be difficult to justify the diversion of a greater share of the shrinking resources available for law enforcement in order to implement further gun control measures. There are clearly no surplus public monies available, even for the vital task of protecting public safety through the enforcement of our criminal law. Indeed, all levels of government in Canada are facing a serious fiscal crisis. Their spending capabilities have been shrinking for some years, and the pressure to cut spending will only increase in the coming years. Law enforcement has not been immune to these pressures, and in fact the budgets of many police forces and other law enforcement authorities have been cut significantly in recent years.
Public safety will only be further endangered if law enforcement authorities are forced to spread their resources too thinly in order to enforce new gun control laws and administer new regulatory programs involving firearms, including those which are legally-owned and used for legitimate purposes. Alternatively, if more gun control measures were enacted with much fanfare and controversy, but not adequately enforced, they would simply further erode respect for the gun control regime, particularly among recreational firearms users whose support is critical to an effective regulatory program.
The question is thus not whether a proposed new gun control measure might have some positive benefit for public safety, assuming sufficient resources are available and properly applied to its enforcement and administration. It must be shown to be an urgent priority in regard to the entire field of crime and public safety.
It must be remembered that gun control plays only a small role in our overall criminal justice system. Other parts of the system need fortifying in order to deal with the principal threat of violent crime. This means the diversion of more of the available public money as well as the enacting of changes to the law. The present government has indeed proposed a number of other changes to our criminal laws that would require the further application of police and correctional resources.
There should therefore be strong evidence that any additional gun control measure would be highly likely to result in significantly greater protection for public safety in the immediate future. It should also be clear that devoting the additional resources necessary to implement that measure would be more likely to have a preventive or deterrent effect on violent crime than the application of those resources to other measures which could be employed to deal with this critical problem.
It is no answer to say that we should do everything possible to respond to the threat of crime. Every action we take requires the application of time, political and social energy, and public money. Every new measure we propose to take must compete for these essential and diminishing resources with every other facet of our existing criminal justice system, and with every other approach that we might take to strengthening that system.
Bill C-17 was the second stage of a legislative process that began on 26 June, 1990. On that day then Minister of Justice, Kim Campbell, tabled Bill C-80, the predecessor to Bill C-17, and made a number of related announcements. The bill itself contained a wide range of changes and additions to the gun control provisions of Part III of the Criminal Code; it also included enabling powers that would allow the government to add further controls by regulation.
The Minister in addition announced that existing order-in-council powers would be used to deal with guns deemed to be "military and para-military firearms." They would either be made restricted weapons, and thus subject to registration and other controls, or would be prohibited entirely. The Minister also created an advisory council, and gave it the task of developing the criteria on which these regulatory decisions would be based.
Although the bill was declared to be too weak by gun control advocacy groups and by many press commentators, it was denounced as being unduly restrictive by the representatives of the recreational firearms community and by thousands of individual gun-owners. A number of government Members, particularly from rural and Western ridings, opposed proceeding with the bill, and in November of 1990 the Minister had it referred to a special committee. The committee was given a broad mandate to study the whole subject matter of the bill.
The Special Committee on the Subject Matter of Bill C-80 (Firearms) reported in February of 1991. While most of the report's recommendations dealt with the content of the bill, some of them addressed what the Committee regarded as gaps in the existing gun control regime. The Committee recommended that a different approach be taken in regard to a number of the initiatives in the bill, but on the whole the majority report supported or at least accepted its major elements.
Bill C-80 died when the session was prorogued shortly after the Special Committee reported. When a new bill, Bill C-17, was introduced in May of 1991, it included a few accommodations for the concerns of gun-owners, and some new initiatives that had been recommended by the Special Committee, but was otherwise a reproduction of Bill C-80. The controversy continued unabated, but the new bill eventually received Royal Assent on 5 December 1991.
The changes and additions made by Bill C-17 were brought into force in stages. It was not until 1 January 1993 that the entire statute, with a few minor and one notable exception, was in force. The major exception was the firearms safety education training requirement that will now apply to everyone seeking a firearms acquisition certificate (an "FAC"), which they must have in order to buy or borrow a gun. This new element of the FAC screening system required a great deal of administrative preparation and the development of a training infrastructure. It did not come into force until 1 January 1994 in some provinces, 1 April in most of the rest, 1 September 1994 in Saskatchewan, and is not scheduled to come into force in the Northwest Territories until 1 June 1995.
Bill C-17 itself, however, was only part, although the major part, of the package of measures announced by the Minister of Justice in June of 1990. Much of the substantive content of the package remained to be fleshed out by regulation. These regulations dealt with such matters as safe storage requirements for all firearms, size limits on cartridge magazines, and other rules that will probably have a greater effect on more firearms owners than most of the changes made to the Criminal Code by the bill.
Pursuant to an unusual provision in Bill C- 17, included in the new bill in response to the concerns and recommendations of the Special Committee on the Subject Matter of Bill C-80, these additional regulations had to be laid before Parliament in draft form for review by committees of both Houses. The draft regulations were tabled on 31 March 1992. They were reviewed by the Standing Committee on Justice and the Solicitor General and a substantial report was rendered to the House of Commons in June of that year. Final versions of most of the regulations were in force by 1 January 1993.
The final element of the initiatives announced by the Minister in 1990 was the designation by order-in-council of "military and para-military firearms" as either restricted or prohibited weapons. This involved the development of criteria by the Canadian Advisory Council on Firearms, a lengthy review of all of the firearms available in Canada or elsewhere that might fit the criteria, and a multitude of decisions made on a case-by-case basis. The orders-in-council were made in July of 1992, and the owners of prohibited but grandfathered firearms were given until 1 October 1992 to register them as restricted weapons.
Although Bill C- 17 did not introduce any radical innovations to the existing gun control regime, its provisions made significant changes to all three of the major elements of that regime - screening of access to all firearms through the FAC system; prohibition of some firearms and special rules for those designated as restricted; and criminal penalties for the misuse of firearms, as well as other sanctions such as prohibition orders. As a package, the additions substantially strengthened the overall gun control regime. Because of their wide-ranging nature, they raised a variety of administration and enforcement challenges. It is not yet clear that these challenges are being met.
A. FAC Screening System
Those who seek to become firearms owners or acquire more guns must obtain an FAC. This is the critical screening point at which those who cannot be trusted with a firearm should be weeded out. Applicants must now furnish the names of two persons from a prescribed list of relationships and occupations who can confirm the information submitted in aid of the application. These persons are referred to in the regulations as "references." There is also a mandatory 28-day waiting period before the certificate can be issued. This is intended to act both as a "cooling-off" period for the applicant, and as a minimum period during which the firearms officer can conduct a proper investigation without any pressure.
In appropriate cases the firearms officer may conduct a "community investigation," involving interviews with the applicant's spouse, neighbours, community workers, etc., in order to ascertain whether the person has a history of violent behaviour, particularly domestic violence. In all cases the applicant will face a longer, more complicated and more probing application form, which includes questions about such matters as drug or alcohol abuse, job loss and divorce. If the applicants are honest in answering these questions, the interviews and investigations which will follow, as the officer determines whether such factors should lead to a refusal, will presumably be longer and more complex than they have been in the past.
FAC applicants must now pass a course or test on the safe handling and use of firearms, and the laws relating to them. These courses must be taken from certified instructors at locations where these instructors are available. There is a provision for discretionary certification by a firearms officer without a course or test where the applicant has owned firearms for many years and is known to have used them safely and competently, and presumably is also known to be knowledgeable about the gun control laws.
The certificate itself must now bear the person's photograph, and as a result all certificates are being processed centrally by the office of the Chief Provincial or Territorial Firearms Officer. There are also provisions intended to encourage holders of certificates to renew them before they expire.
Bill C-17 added automatic firearms which have been converted to fire as semi- automatic only to the list of weapons prohibited by statute. Over 30 other semi-automatic "military and para-military" models were added by order-in-council to the Prohibited Weapons Orders. Existing converted automatics were grandfathered to their current owners if they qualified under the new definition as a "genuine gun collector," and registered them as a restricted weapon by a specified cut-off date. Many, but not all, of the firearms prohibited by order-in-council were grandfathered to their current owners, irrespective of whether they were genuine gun collectors, but with the same registration requirement. No compensation was given for the loss of totally prohibited firearms, or for the loss in value of prohibited but grandfathered guns.
In addition, over 200 other semi-automatic versions of military automatic assault rifles were added by order-in-council to the Restricted Weapons Orders. They can still be acquired and used, but only by target-shooters and gun collectors. A definition of "genuine gun collector" was added to the Code, so that for the first time these persons are required to meet specified characteristics. The restricted weapons held by collectors should thus be more closely supervised and safeguarded in the future than they have been in the past. The definition deals with the characteristics of the collection, the owner's knowledge of those characteristics, secure storage and record-keeping requirements, and a consent to the periodic inspection of the premises in which the restricted weapons are kept.
Finally, "large-capacity" cartridge magazines were made prohibited by regulation. The allowed capacities are generally five rounds for long guns and ten rounds for handguns. Provision was also made for conversions of over-capacity magazines, but the prescribed standards were relatively complicated and quite controversial. An exemption for competition shooters who have a legitimate need for larger-capacity magazines was prescribed by the federal Parliament in Bill C-17, but it was dependent on approval of the competitions by provincial Attorneys-General. Their refusal to give any such approvals has rendered the exemption effectively null.
Bill C-17 created some new offences and increased the maximum sentences possible for three of the more serious existing offences. The maximum sentence was increased from five to ten years for the following offences: possession of a prohibited weapon; possession of any firearm while prohibited; and importing, buying or selling a prohibited weapon, No change was made, however, to section 85 of the Criminal Code, which imposes a mandatory minimum jail term of one year for the use of a firearm in the commission of an offence.
The Code also provides for circumstances in which judges can or must impose orders prohibiting persons convicted of violent and other serious criminal offences from possessing firearms or ammunition, The bill extended the terms of mandatory prohibition orders and extended the scope of discretionary orders to drug trafficking offences. It also created a new form of interim discretionary order which can be imposed in bail and peace bond situations.
D. Regulatory Programs
While much of the Bill C- 17 package had to be filled out by regulations, one significant new program was created entirely by regulation. Secure storage requirements and rules regarding display, handling and transportation now apply to all types of firearms. Prior to Bill C- 17, such requirements applied only to gun collections and were virtually negligible in any case. The new rules cover both restricted firearms and non-restricted long guns. With a few small exceptions all firearms owners must now abide by specific storage and handling requirements. Although there is an offence provided for in the Code for the breach of the regulations, their effectiveness will lie primarily in the extent to which firearms owners comply voluntarily with the detailed rules, and the adequacy of those requirements when they are complied with.
The implementation of the significantly expanded FAC system as involved all three levels of government - federal, provincial and municipal. The federal Department of Justice is normally involved only with criminal law policy development, while the provinces are solely responsible for the administration of the criminal justice system. The implementation and ongoing administration of firearms control laws, however, because of their regulatory nature, require much more initial and ongoing federal involvement.
The Department of Justice has a separate unit, called the Firearms Control Task Group, devoted to working with the provinces to implement the gun control laws, and to supporting and monitoring their administration and enforcement. This unit has had much to do since before the announcement of the original package in 1990, and its work is ongoing. The additions to the FAC screening system have alone required an enormous amount of work to put into effect.
The new Criminal Code safety and competency training requirement, for example, provides that the course in each jurisdiction must be approved by the provincial Attorney- General. A set of standards common to all jurisdictions was, however, the most desirable approach. The Task Group, in cooperation with the provinces, therefore produced the "Canadian Firearms Safety Course," and it has so far been adopted by all the provinces and territories except the Northwest Territories. Quebec has also "grandfathered" previously-taken hunter safety courses, becoming the only province to do so.
Voices in the recreational firearms community have criticized the makeup of the Canadian Firearms Safety Course. Federal and provincial authorities are satisfied that the concerns are misplaced, but doubts remain in the minds of many firearms users. These doubts must be put to rest. Much faith has been placed in the benefits of safety and competency training, More firearms deaths are caused each year through accidents and suicides than through criminal misuse. It must be shown that the safety course is adequate, and that at least some of the anticipated benefits are being realized.
It is only just this year that the safety course requirement has been implemented, and it may be some time before there is any significant evidence as to how the course is working in practice. As experience accumulates, changes in the content, materials or manner of teaching the course may be shown to be necessary. Even if no substantive changes are necessary, the effectiveness of the course must be studied and verified. FAC application numbers were down in 1993, but in the past there have been 150,000 to 200,000 applications per year. The administering of the safety course requirement is a massive undertaking, and it must be given the time, attention, and resources it needs. The offices of the Chief Provincial and Territorial Firearms Officers (the "CPFOs") have general responsibility to provide the infrastructure for the application of the course requirement. They have had to train the trainers, and to ensure that there are enough certified trainers available in each area to enable FAC applicants to satisfy the requirement. Although the CPFOs apparently now maintain that there are sufficient courses available in all parts of their jurisdictions, anecdotal evidence from the field suggests that there may still be some gaps.
Central processing of the certificates themselves has required the development of increased administrative capacity in some CPFO offices. It is still at the local level, however, that the applications must be processed and the important decisions made. Although both federal and provincial authorities have directed much of their efforts to ensuring that local firearms officers were educated in the new substantive requirements and the new administrative procedures, anecdotal evidence from the field again indicates that there are backlogs in the process. It may be some time before the system is running smoothly enough to assess the effects of the changes.
One example of the problems being encountered may be reflected in the reports that firearms officers are reluctant to use the discretionary power given to them to certify long- time firearms owners who do not need to take a safety course. Parliament clearly intended that this procedure, although exceptional, would apply in a significant number of cases. The reports that the power is rarely, and in some areas, never invoked, suggest that further efforts need to be made to educate firearms officers as to the intent of the new provisions and how that intent can be realized. Personal liability would appear to be the primary concern, and this concern could be alleviated. Negotiations with the provinces and some municipal authorities would also appear to be necessary, as some provincial Attorneys-General and a number of police forces have instructed firearms officers not to exercise the discretion conferred by Parliament.
The intention that a more extensive investigation should now precede the issuance of an FAC is reflected in the new application form and the requirement that two references verify the information. It is important, however, to ensure that it is reflected in the day-to-day operations of firearms officers across the country. Although the provisions of the Code before they were amended by Bill C-17 might have suggested that a significant investigation was being carried out in each case, too often it consisted merely of a criminal record check and a search of local police files.
The greater attention that firearms officers now appear to be paying to FAC application investigations may to a large extent be attributable to the publicity surrounding the Ecole Polytechnique massacre and Bills C-80 and C- 17, rather than to changes in the law. While the attention and resources devoted to these investigations may always be dictated more by the level of public concern than by statutory provisions, the changes in the law must also be made to work in practice. It is not clear that this was the case after the 1977 gun control amendments. This time both federal and provincial authorities must monitor what goes on in the field to ensure that the screening process is as effective as intended, and as hoped for. It simply cannot be assumed that the latest changes have been automatically translated into practice, and that we can therefore move on to a new round of additional measures.
For example, the addition of the references requirement will only have a major screening effect if those persons who agree to act as references take their role very seriously. The new process involves having the references sign the FAC application to signify that they have reviewed the information submitted by the applicant and can confirm at least a significant portion of it. Firearms officers obviously cannot, and hopefully need not, interview the references each time; but neither should the requirement be reduced to the presence of signatures. The references submitted by applicants must be spot-checked on a regular basis to ensure that they are indeed fulfilling the role expected of them. This will require the devotion of sufficient personnel at the local level, as well as monitoring and perhaps the development of guidelines from above.
The express provision for community investigations in cases where a history of violence, particularly domestic violence, is a possibility, is likewise a measure that has the potential to add significantly to the screening effect of the FAC system, but only if it is used on a regular basis in practice. The majority of murders still occur in domestic situations or involve people who know each other. When firearms are used it is thus ordinary hunting rifles and shotguns, the vast majority of them legally-owned, that are most likely to be the murder weapon. Screening out applicants that have any history of violence, especially domestic violence, could clearly save lives.
Although some firearms owners have expressed a concern that intrusive community investigations would be carried out unnecessarily, it is more likely that shrinking police budgets will mean that they will occur much less often than they should. Clearly it would be too expensive to carry out such extended investigations in more than a fraction of the applications made in a normal year. Federal and provincial authorities should be developing guidelines for determining when such an investigation is called for, and monitoring the application of the guidelines.
Studies have frequently shown that domestic violence is a major problem in Canada. Firearms officers should probably develop an ongoing liaison with social agencies, shelters, and other persons and groups involved in dealing with violence in the home. There are a number of sources of information which firearms officers could tap to determine when domestic violence was a possibility, but it would require a whole new approach to the administration of the FAC system and probably significantly increased resources.
If guidelines were developed to identify those applications which merited extensive community investigations, it would certainly involve a significant number of cases. Local police forces would have to devote substantial personnel time to carry out interviews with neighbours, community workers and spouses, particularly as it would usually mean attending at these persons' homes or businesses. If this is not done, however, the community investigation provision will lie lifeless on the books, while an opportunity to screen out applicants who present a direct threat to public safety will have been lost.
Adequate funding may well, as noted, be the key to the effective implementation of the expanded FAC system. The federal government does transfer money to the provinces to cover the administrative costs of issuing FACs, but these contributions have not in the past covered the costs of investigations. Provincial police forces (including the RCMP where it acts as the provincial force) and local forces will have to find some, or most, or all their own funding for the additional investigative costs. It is unlikely that their budgets will be increased for this purpose, and their overall budgets will likely continue to shrink. The resources will probably have to be diverted from other parts of their budgets.
The old federal-provincial funding agreement for FAC administration expired over a year ago. New agreements are being negotiated, and this is one of the tasks still facing the Firearms Control Task Group of the Department of Justice. The length of the negotiations would appear to suggest that some of the provinces are not satisfied with the federal government's funding offer. One can only imagine what would happen if the provinces were to be faced with implementing an additional scheme such as universal registration of firearms. The costs of such a scheme, particularly during the initial setup phase, would surely dwarf the additional costs of the strengthened FAC system.
Implementing the additional measures relating just to the FAC system, introduced by Bill C- 17 or which have arisen in its wake, in a manner that makes the most of their potential to screen out those who should not be trusted with firearms, would thus require a major application of police resources. Even in an era of shrinking budgets there is, however, a strong argument for devoting these additional resources. The result would be proactive police work which could prevent some cases of firearms violence, rather than simply reacting to these cases after they happen. It is unlikely, however, that the federal, provincial and local authorities who are responsible for the gun control regime will devote the time and resources necessary to produce this result if their attention is diverted to the implementation of labour-intensive, expensive new measures such as universal registration of firearms.
A relatively large number of firearms models and cartridge magazines have been added to the prohibited and restricted classes, either by Bill C- 17 or by order-in-council. In some cases the enforcement of the new law requires difficult judgment calls, as in the case of determining whether an over-capacity cartridge magazine has been converted pursuant to the standards set out in the regulations. As all police officers have to enforce this aspect of the new law, it has presumably required a significant retraining of police officers in general, not just those who act as firearms officers.
Given the number of new restricted weapons, and grandfathered prohibited weapons which have had to be registered, the Firearms Registration and Administration Section of the RCMP ("FRAS") has presumably been very busy since the passage of Bill C-17. Although the Annual Firearms Report for 1992 does show a significant increase over previous years in the number of new registrations, there does not appear to have been the sort of large bulge that one might have expected. This may mean either that there has been a high level of non-compliance, which has obvious enforcement implications, or that the registration system is backed up.
The addition of over 200 models of long guns to the Restricted Weapons Orders should also mean that FRAS will require permanent additional resources (although nothing like the resources required to implement and maintain a universal registration system). Local registrars of firearms should also be busier. The application of the new definition of "genuine gun collector" should also mean that local registrars will also have to devote considerable additional time to the processing of applications for restricted weapons registrations by collectors.
One particular element of the new definition of "genuine gun collector" has added an additional, labour-intensive element to the administration of restricted weapons collections. The definition requires that all would-be collectors consent to the periodic inspection of the premises where the restricted weapons are kept. The purpose of this is to ensure that the secure storage and record-keeping requirements are being complied with. Given the large number and the firepower of the guns that collectors may own, it is especially important that these collections be securely stored and displayed.
Before Bill C- 17 was passed many collectors expressed a concern that the inspection provision would be abused by firearms officers. It is perhaps more likely, given the financial restraints on police forces, that "periodic" inspections will be few and far between. If this new requirement is to be enforced as intended, the offices of the CPFOs will probably have to develop guidelines and monitor their application. The inspections themselves will presumably involve additional personnel, or a further strain on the capacity of the existing police personnel devoted to the restricted weapons system.
As noted earlier, the majority of firearms injuries and deaths involve accidents and suicides, rather than criminal activity. It is thus legally-owned guns that are responsible for most of these injuries and deaths. In addition, firearms stolen from their legal owners constitutes a so far unmeasured, but no doubt significant, source of guns used in criminal activity. The effective enforcement of the new safe storage and handling requirements could thus have a direct inhibiting effect on all kinds of firearms misuse.
The new regulations are not overly complicated, but the testimony heard by the Standing Committee on Justice and the Solicitor General, when it examined the draft regulations, indicates that they contain a number of standards which will require interpretation by firearms owners, police officers and judges. The regulatory requirements must also be applied in a diverse range of circumstances, and it may be some time before matters of interpretation are clarified and the regulations are being consistently enforced.
The Metropolitan Toronto Police Force now apparently sends uniformed officers to check on the storage facilities of FAC applicants, in order to verify that they will be able to comply with the secure storage requirements. Other police forces do not appear to be taking this sort of proactive approach to the enforcement of the regulations, but even more limited compliance strategies, such as the education of police officers and firearms owners, will require the application of time and resources.
The secure storage and handling requirements have the potential to save lives, but only if they are voluntarily complied with by all or almost all firearms owners. The laying of charges in cases where a breach of the regulations is discovered should be the least important aspect of an effective compliance strategy. The development of consistent interpretive guidelines, and the education of firearms owners, should be the focus of enforcing the new regulations. This sort of proactive enforcement approach is more time-consuming and costly than a purely reactive response to evidence of non-compliance, but it is essential if the regulations are to achieve their objective.
The doubling of the maximum sentences possible for some of the more serious firearms offences would not appear to have been a response to a judicial view that the prescribed maximums were too short. It is indeed highly unlikely that the average sentences meted out in the past for these offences has been anything close to the old five-year maximum. Raising the maximum sentence will thus only have an enhancing effect on the sentences given out in the future if the judiciary take to heart the obvious message sounded by Parliament when it made these amendments. This is much more likely to occur if the provincial Attorneys-General devote some special attention to ensuring that Crown Attorneys ask for longer sentences, citing Parliament's action.
Prohibition orders have the potential to remove firearms from the hands of persons who have shown, or where it is reasonable to presume that they have shown, that they cannot be trusted with them. The extension of discretionary prohibition orders to new offences, and especially the creation of discretionary interim prohibition orders applicable to bail and peace bond situations, could thus have a direct effect on the criminal misuse of guns. This result may only be achieved, however, if provincial Attorneys-General ensure that police officers, Crown Attorneys and judges are sufficiently aware of the new applications for such orders. Some monitoring of the use of prohibition orders should be carried out to verify that the new provisions are being used to the maximum extent appropriate.
One of the most important tasks to which the Firearms Control Task Group has been committed is that of educating firearms officers, present and would-be firearms owners, and the general public, about the changes and additions to the gun control regime. Organizations representing firearms owners have complained for some time that the gun control laws are too complicated, and there is certainly no question that the system is complex. It was therefore vital to ensure that the message to firearms owners about the new law was loud, clear and understandable.
The Task Group has produced an enormous amount of very good educational material, including pamphlets, videos and a newsletter. CPFOs and representatives of their offices have been touring their jurisdictions, speaking to gun clubs and meetings of firearms owners. Despite all these efforts, the queries being received by Members of Parliament from their firearms-owning constituents would seem to indicate that many firearms owners still lack a basic understanding of the implications of the new law. In regard to some elements of the new law there is evidence of outright confusion.
Before any new elements are added to the law it is essential that the effectiveness of the education programs be evaluated, and that further efforts be taken where weaknesses are found. Sufficient time has passed that the results of these programs should be available, but the evaluation could take some time. A program like the gun control regime, based largely on regulatory requirements, requires, as has been noted, the cooperation of firearms owners in order to be effective. It will not receive this cooperation if gun owners and would-be owners are inadequately informed and even confused about the requirements of the law, their intent, and the rationale for them.
The recreational firearms community has always expressed deep-seated skepticism about the need for and effectiveness of our gun control regime. This cloud of doubt among those to whom the regime is directed has no doubt by itself limited the effectiveness of the program, and will continue to do so if it is not dissipated, or at least thinned out. Rather than dissipating, the cloud has probably become thicker as a result of the findings set out in the most recent Auditor General's Report.
Much of the recent gun control package consisted of or was completed by regulations. Pursuant to its Regulatory Review mandate, the Auditor General's office conducted a lengthy study of the entire gun control program, and in particular the new measures which came into force in 1991. The Report found that both the data needed to evaluate whether the previous round of amendments in 1977 had been effective, and the evidence needed to justify the need for the Bill C-17 package, was simply not available.
The amendments made in 1977 and put into force in 1978 had been evaluated once, five years after they came into force. The audit team found that the study was of dubious validity, and that the lack of validation undermined the gun control program's claim to legitimacy. The Report noted that Canada's gun control program is "controversial and complex," and that a positive evaluation was therefore "essential to give the Canadian public and members of Parliament the assurance that its objectives are being met."
Moreover, the problem had been compounded because the Bill C-17 package was enacted despite the lack of solid evidence "needed to assess the potential benefits and future effectiveness" of the measures contained in it. The Report's analysis is directed only to the regulatory part of the package, because of the Auditor General's limited mandate, but it could equally well apply to the statutory changes and additions.
The Report thus recommended strongly that the gun control program be evaluated at the earliest opportunity. Although the response of the Department of Justice defended Bill C-17 as being based on "clear public interest considerations... despite the absence of precise data," the Department assured the Auditor General that evaluation plans were already under development and would be expanded, if necessary, to take the Report's findings into account.
The Auditor General's Report also looked at some of the highlights of the Bill C- 17 package. It questioned how the safe storage regulations and the cartridge magazine control regulations would be enforced, and noted that "insufficient enforcement could impair the(ir) effectiveness." It also noted the evidence heard by the Special Committee on the Subject Matter of Bill C-80 concerning a lack of uniformity across the country in the administration of the FAC screening system. It noted that steps had been taken to improve the uniformity of procedures, but recommended that this issue be evaluated in depth, because of its importance to the overall effectiveness of the program.
The Report also noted that successive parliamentary committees studying the gun control issue had recommended that the problem of smuggled firearms be given priority. It noted that "if firearms could be easily smuggled into the country, the objectives of the gun control program would be undermined." It therefore recommended that the government "undertake a comprehensive review to determine the extent" of the problem. The Department undertook to examine the problem in consultation with other concerned government authorities. Such a study would, of course, simply be the first step in a concerted effort to deal with the firearms smuggling problem. It is argued later in the paper that this study and subsequent effective action should be made the priority matter for further gun control measures.
Finally, the Report expressed concern about the status of financial agreements to reimburse the provinces and territories for part of the costs of administering the gun control program. It noted that the old agreements had expired on 31 March 1993, that the Department had completed a framework for new agreements in December 1992, and that Treasury Board approval had been received in August 1993. The Report pointed out that the Department itself had expressed a concern to Treasury Board in July of 1993 that the provincial and territorial cooperation that was essential to the successful implementation of the gun control program "could be in jeopardy unless funding concerns (were) resolved." Over a year later these concerns have not yet been resolved.
The Department's evaluation of the practical effect of the gun control program can hardly be complete at this point. If a further layer of substantive measures is added now, it is difficult to see how the evaluation can be carried out. At the very least, those who should be undertaking the study would be diverted to dealing with the new measures. More importantly, the government would again be acting without clear evidence that the latest round of law-making has been properly implemented and is achieving real results. That implementation might indeed be compromised by proceeding without resolving the issues raised by the Auditor General's Report. In addition, it is difficult to believe that the government can give the smuggling problem the priority and resources it needs, while implementing a new set of internal control measures.
The government at this point has not committed itself to any particular new gun control measures, although it has promised that a gun control bill will be tabled this fall. The Justice Minister, however, has been quoted in the press as promising that two issues will definitely be addressed - increased penalties for the use of a firearm in the commission of a crime; and stricter measures against the smuggling of guns. He has also indicated that two other possible measures are being considered - controls on access to ammunition and registration of all firearms.
A clearer preview of the measures likely to appear in the promised bill can perhaps be gleaned from the Liberal Party policy convention held in May of 1994. One of the resolutions passed called on the government to address all four of the issues discussed by the Minister, plus two others - the private possession of military assault weapons; and the ownership of handguns. It is very likely that the primary substantive issues dealt with in the anticipated bill will be most, if not all, of the six issues set out in the resolution.
The gun control resolution, presented by the National Women's Liberal Commission, is preceded by a preamble that sets out some of the operating assumptions on which it is based. At least three of those are matters of social fact, although it is doubtful that the evidence on which such conclusions should be based is available.
The first assumption is that "many suicides and fatal accidents are the result of easy access to firearms." While it may seem obvious that at least some suicides and accidents are the result of "easy access," the extent of the problem is unclear. The Auditor General's Report specifically found that there was "currently insufficient information on the number of accidents and suicides related to poor storage conditions to allow an assessment of the potential benefits of' the safe storage regulations." Hopefully the necessary information will be produced by the comprehensive evaluation which the Department has promised to do of the regulations. If the problem is shown to be one of significant proportions, however, the answer would seem to be a strengthened effort to enforce the safe storage regulations, rather than unrelated new measures.
The second basis in fact cited as support for the resolution is the assumption that "lost and stolen firearms are a major source of weapons used in the commission of crime." As discussed earlier, there are no data available on the source of firearms used in crime in Canada. If the evidence were assembled, and the major source was found to be lost and stolen firearms, the answer would again seem to be to give priority to enforcement of the secure storage regulations. If, on the other hand, the major source was found to be smuggled firearms, it would point to anti-smuggling measures as the top priority. In any case, both of these matters should surely be priority concerns. As noted earlier, it is difficult to see how they can be accorded the priority they deserve if the attention of the authorities is diverted to the implementation of new measures.
The third assumption is that "an increase in the number of firearms present in a society is directly linked with an increased number of firearm related deaths." This is surely a debatable matter, but if it could be shown to be true it would point to a problem that probably cannot be solved by further criminal law measures.
There are already several million firearms in Canada. It might be instructive to know whether the rate of firearms ownership in Canada has gone down with the imposition of substantial controls on such ownership in 1978, and then recently in 1991. The answer to the misuse of firearms, however, must lie in the strength of our culture and our general social ethic. If those social factors do not create sufficient inhibitions to firearms abuse, a marginal change in numbers is unlikely to have much effect. Unlike the situation in the United States, which is the source of many of the fears concerning firearms in Canada, the culture in Canada does seem to be strong enough to prevent an American-style epidemic of firearms abuse.
While gun control laws which are practically effective, and which reflect our cultural view, also play an important part in preventing firearms injuries and deaths, they can only do so if they have a functional objective and are practically enforceable. We must resist the temptation to pass laws that we can point to as evidence of our attitudes, without sufficient regard for what they can achieve in practice.
The first paragraph of the resolution proposes that "sanctions against the criminal misuse of firearms be increased and strengthened to better reflect the serious nature of such crimes." This is something that witnesses before all of the parliamentary committees that have dealt recently with the gun control issue have demanded, particularly those representing legitimate firearms owners. It is perhaps the primary issue that Bill C-17 neglected. While the bill raised the maximum sentences for certain weapons-specific offences, it did not raise the mandatory minimum sentence in section 85 of the Criminal Code for the use of a firearm in the commission of a criminal offence.
Those witnesses who felt that the emphasis in the last round of gun control changes was misplaced, will be happy to hear that the criminal misuse of a firearm will be a "major focus" of the promised new bill. Putting the emphasis on criminal deterrents this time around now appears to have the support of the Minister of Justice, the Liberal Party policy convention, and representatives from all sides of the gun control debate.
Simply increasing the penalty provision in section 85 will not be enough, however, to toughen the response to the criminal use of guns. Although there is no statistical data available on the enforcement of section 85 charges, anecdotal evidence heard by several parliamentary committees makes it clear that this charge is commonly dropped as part of a plea bargain. If that continues to be the case, an increase in the mandatory minimum penalty will have little impact on those who use firearms in the commission of crime.
The Minister of Justice has recognized the problem of lack of enforcement by writing to the provincial Attorneys-Generals to ask them to urge the Crown Attorneys who act on their behalf to press these charges "with vigour," and to ensure that they are not plea-bargained away. Simply issuing such a call is not likely to change prosecutorial practice. Even if the provincial authorities take up the call, it is unlikely to change anything unless it is backed up with firm guidelines which are monitored to see that the call is heeded. Such an effort would require committing significant resources, probably by both federal and provincial authorities, for monitoring and data generation if it is to be successful.
An effort to toughen up the response to the criminal use of firearms should thus not be seen as something that can be accomplished with a simple legislative change, and as something that would be relatively "cost-free." Even the creation and monitoring of a program of prosecutorial guidelines would bear a substantial cost. If the program was successful it would then result in increased prosecutorial and correctional costs. If this avenue is to be given due emphasis, it must also be given priority in terms of supervisory attention and the commitment of scarce resources.
The resolution next calls for a prohibition on "the private possession and ownership of military assault weapons." There are two matters which require clarification before this issue can he put into context. The first question is what a "military assault weapon" is. When designed for military purposes, these infantry rifles are normally either solely fully- automatic weapons ("machine-guns") or select-fire, that is they are capable of both semi- automatic and fully-automatic fire. Fully-automatic firearms have been prohibited in Canada since 1978. What are being referred to here are the semi-automatic only versions of military assault rifles.
The second question involves the present status of these semi-automatic military-style rifles. The general public must understand that these firearms were dealt with as part of the Bill C-17 package, and are not presently unrestricted. Almost all, if not all, of the semi-automatic versions of the military assault rifles used by the armies of the world have been added by order-in-council to the Restricted Weapons Orders.
This status means that they have to be registered. A person who applies to acquire a restricted weapon must already have an FAC, and may be subject to a second and possibly more stringent screening. Restricted firearms can only be possessed and used for specific purposes, and the places where they may be kept and their transportation to other sites are subject to a strict permit control system.
Although the permitted uses of restricted weapons include four categories, these firearms would be effectively limited to two categories - target-shooters and genuine gun collectors. Even within the category of target-shooting, most of the certificates for these models should be issued to legitimate competitors in military-style rifle competitions. These competitions are engaged in by such old and honoured groups as the Dominion of Canada Rifle Association, usually at military firing ranges, and possession by these persons for this purpose would not represent any danger to public safety.
There is now a definition of "genuine gun collector," this class of ownership should be better supervised in the future than it has been in the past. Even without such supervision in the past, there is no indication that military-style rifles owned by legitimate collectors have ever posed a significant threat to public safety. If events were to show that the class of collectors needed to be better regulated, the answer would be to tighten up the rules relating to this category - perhaps by moving to a permit system - rather than adding further limitations to the kinds of firearms they can possess. Collectors can now possess a range of military-style firearms, including grandfathered fully-automatic weapons, and there is no reason why they should not be trusted with the semi-automatic versions of military assault rifles.
As for the possibility that firearms with military firepower could be stolen, either from target-shooters or collectors, and then used by criminals, the answer would surely be to concentrate on effective enforcement of the secure storage regulations. There are enough prohibited but grandfathered military-style firearms in Canada that the problem of secure storage cannot be avoided by adding more semi-automatic rifle models to the prohibited category. If the storage requirements were found to be insufficient to ensure that legally-owned high firepower guns - whether of military design or designed simply as hunting rifles - are kept out of the hands of criminals, the requirements could be strengthened.
Although the original announcement by the Minister of Justice in June of 1990 put strong emphasis on the proposed order-in-council action on "military and para-military weapons," the action does not seem to have been based on a proven problem of such firearms being used by criminals. There was much evidence led before the parliamentary committees that considered the package concerning the potential danger that such firearms could pose to public safety. There was no evidence, however, given concerning an actual problem in practice. Nor was it suggested that there was a significant problem, but one which could not be quantified because of lack of "precise data."
In the press conference the Minister gave after her announcement, she did refer to the sort of undesirable gun "culture" that military-style firearms might encourage. While that has arguably been a problem for some time in the United States, and while semi-automatic versions of military assault weapons do appear to be a real danger to public safety in that country, there is no evidence that either of these problems has appeared in Canada. The government's action would appear to have been preventive in aim; that is, it seems to have been based on a fear that a manifest trend in the United States will eventually occur here as well.
It could be argued that Canada's gun "culture" is very different from that of the United States, and that a fear that firearms attitudes from that society would inevitably appear here is groundless. In any case, action has been taken, and semi-automatic military-style rifles have been made restricted weapons. There is no evidence to suggest that this action will not be sufficient to accomplish the government's preventive aim, or that public safety can only be protected by making all of these firearms completely prohibited.
The sort of arbitrary action now proposed, in the absence of evidence of a real problem, might actually weaken the overall gun control regime. The point has been made several times that the effectiveness of the total regime depends to a very great extent on the cooperation of the recreational firearms community, and to the respect that individual firearms owners have for these laws. That cooperation has already been endangered, and the level of respect eroded, by the most recent round of additions to the prohibited and restricted classes.
Many firearms owners felt that no one had offered an adequate rationale for these order-in-council designations, and they were indignant that no compensation was offered to those who had acquired these guns legally and in good faith. The government's designations were based on criteria developed by the Canadian Advisory Council on Firearms, a non-governmental body with membership from all of the perspectives in the gun control debate. After much study, a considered decision was then made as to which models had to be prohibited or restricted in the public interest. On this basis the actions were defended as being necessary to protect public safety, although many firearms owners were unconvinced.
Now it is proposed to take those military-style firearms made restricted weapons only two years ago as a result of this process, and move them to the prohibited class without any evidence that the present designation does not adequately protect public safety. Presumably those already in the country will in most cases be grandfathered, particularly considering that those acquired in the last two years are already registered restricted weapons. It may also be presumed that where they are not grandfathered there will be no compensation offered this time either. It is difficult to see how firearms owners could be convinced that such an action was anything but purely arbitrary.
The third paragraph of the resolution proposes that "the sale and ownership of ammunition be more strictly regulated by requiring, among other things, that the buyer be at least 18 years of age and in possession of appropriate documentation." This proposal was made to the Special Committee on the Subject Matter of Bill C-80, but after due consideration the Committee decided that it would be both unfeasible and unnecessary.
Requiring the buyers of ammunition to be at least 18 years old would seem to be reasonable, given that this is now the minimum age at which a person may legally acquire a firearm. There are some exceptions, however, in the form of minor's permits. Such permits enable minors over a certain age to be in possession of firearms where those minors, with the consent of their parents, hunt or trap to provide sustenance for their families. This is not uncommon in remote, and particularly northern, areas of the country.
The regulations made pursuant to the federal Explosives Act presently set an age limit of 16, but make an exception for those with minor's permits. The age limit reflects the fact that these regulations have not yet caught up to the new age limit for FACs set by Bill C-17. The regulations are in the process of revision, however, and the minimum age will be set at 18 when that process is complete. The regulations will no doubt continue to provide an exception for those with minor's permits, but it would seem to be reasonable that those who have such a permit to possess and use firearms, issued with a parent or guardian's consent, should also be able to acquire ammunition for the firearm.
The idea of requiring "appropriate documentation" may appear to be both feasible and reasonable in urban areas, where ammunition is normally sold by firearms dealers who could be expected to administer such a system without undue difficulty. In rural areas, however, ammunition is often sold like milk in the local general store. In these circumstances it may be neither feasible nor reasonable to require, at the risk of the store owners or employees being liable to a criminal penalty, that those who sell ammunition require a certain kind of documentation, make useable records of purchases, and so on.
The Province of Ontario has recently passed a law that would require purchasers to be 18 years of age and to produce photo identification. The law would also require the seller to keep records of all ammunition transactions. When Ontario has accumulated some experience in administering this new law, that experience could be studied to see what difficulties were encountered, and what benefits were realized. The Ontario law does, however, at least have the merit of requiring only "photo" identification, something that almost everyone over the age of 16 would have because drivers' licences in Ontario bear a photo.
The "appropriate documentation" that is referred to in the resolution, however, is understood to be something that would indicate that the buyer was the legal owner of a firearm - an FAC, a hunter's licence, a gun club membership, or something of that nature. The problem is that not every firearm owner has any one of these documents, nor are such owners required to have a document proving that they are legally entitled to possess a firearm. Whatever was required would have to be something that all firearms owners could reasonably be expected to have already. The creation of a separate permit system solely for the purposes of purchasing ammunition would neither be feasible nor justifiable in terms of the cost as compared with the potential benefits.
It is not clear that there is any potential benefit to public safety to be realized by requiring "appropriate documentation" before anyone could legally acquire ammunition. It has been suggested that it would stop gun thieves or those who acquired firearms illegally from using stolen or smuggled firearms. This suggestion would appear to be at least somewhat exaggerated. If firearms themselves can be obtained illegally by criminals, reportedly without undue difficulty, why should they have much difficulty obtaining ammunition illegally?
It may be suggested that unless every firearm owner was required to have a permit to possess a gun, which could be produced to acquire ammunition as well, controls on the sale of ammunition are not likely to have enough potential benefits to justify the difficulties they could produce for both the buyers and sellers, or even the costs of public administration of such a system.
The centrepiece of the resolution is perhaps to be found in the fourth paragraph, where it is proposed that "a national system of registration for all firearms be considered."
Insofar as this recommendations may simply allude to the feasibility and benefits of universal firearms registration being studied, the suggestion may not be a radical one. If it is aimed at such a system actually being adopted in the near future, it is proposing a very substantial undertaking, and one that would bear a commensurate cost. Although the idea of universal registration has a superficial appeal, it is far from clear that it would be worth the priority and resources that would have to be devoted to it.
The concept of registration seems to have been instantly adopted by most editorial writers who have been exposed to it, which may account for the high levels of poll respondents who appear to be in favour of the idea. These writers do not, however, seem to have devoted much time to analyzing why it would have a significant effect on protecting public safety.
The government has not been entertaining the idea of registration long enough to have done the work needed to establish that it would be feasible, and would be worth the money and effort. Although the high level of public support for the idea has been cited numerous times as being reason enough to impose such a system, it is an undertaking that should only be considered after a comprehensive cost-benefit analysis has shown that it would indeed have major benefits for public safety. It may be too costly to establish an effective registration system in any case, given the shrinking resources available for the protection of public safety through the application of criminal law, but it would certainly be too costly to undertake simply because the idea was popular.
The advocates of universal registration are constantly emphasizing that "no one knows how many guns there are in Canada or who has them." This statement is found in a brief by the Coalition for Gun Control which sets out the Coalition's view of the feasibility and desirability of registration. While the statement is clearly true, and while many commentators have lamented that we do not have this information, the brief does not give an adequate explanation of what we would do with the data. At least the rationale set out is not adequate to justify the costs of registration, particularly universal registration, which is what the resolution adopted by the Liberal Party policy convention seems to suggest.
The brief argues that registration is necessary in order to be able to trace back to their owners non-restricted firearms (restricted firearms are already registered) used in the commission of crime. It also suggests that this would encourage more firearms owners to act responsibly, if it were coupled with a requirement to report lost and stolen firearms, because the tracing would reveal violations of the secure storage regulations. While there might be some marginal benefit in terms of enforcing the storage regulations, the registration itself would require the diversion of resources that surely could be applied more directly and more effectively to the enforcement of these rules. It has been suggested earlier that public education and other approaches to producing voluntary compliance by firearms owners is much more likely to be effective than any after-the-fact enforcement measures.
The ability to trace firearms to their original owner, assuming that they had not been smuggled into the country or otherwise illegally acquired in the first place, might be helpful in a limited number of criminal investigations. That it would not be a major benefit, however, is perhaps demonstrated by the fact that the police have no incentive now to trace firearms seized during criminal investigations, even where it might be possible, unless it is necessary in order to determine who committed the crime or to make a case against that person.
If the firearm entered the country illegally, registration will not help to trace it. If it has been stolen from the lawful owner and sold or used by the thief for criminal purposes, registration could be defeated by filing off the serial numbers. Although the technology exists for revealing filed-off serial numbers, it would be too expensive to apply routinely, and would thus be of value only in a few cases where the information was vital to the criminal investigation. Where the firearm is used by the lawful owner to commit a crime, and has been recovered by the police, in most cases the police will surely be able to make the connection without access to a universal registration data base.
The Coalition brief argues that prohibition orders could be more effectively enforced if the police had easily available data on what firearms the subject of an order owned, at least legally. In many cases where a prohibition order is made, however, the police will already have searched the person's premises and seized all the firearms they could find. Knowing the subject of an order had registered firearms that could not be found would be of relatively little value.
Violent domestic disputes are a major source of concern for our society, and the Coalition's brief argues that knowing what legal firearms might be on the premises where such a dispute was taking place would alert the police to the danger and assist them in confiscating the weapons. Police witnesses before the parliamentary committees that looked at the Bill C-17 package, however, testified, when asked about this use of registration data, that they always approach a potentially dangerous situation in the same careful fashion, and would act as if a gun might be present even if a data bank did not disclose any registered firearm. Given that unregistered firearms could always be present, this would seem to be a prudent practice. As to the matter of confiscating firearms in dangerous situations, it is again only those firearms which the police can find that they will be able to remove.
The brief argues finally that registration would allow the police to determine "in real-time if the possessor of a firearm was the lawful owner." Although this might be useful in a limited number of cases, where lawful ownership is clearly in issue the police could in most cases detain the person until the issue was determined.
While registration would certainly give us more data on the sources of guns used in crime, which would be useful in terms of determining the priorities on how to deal with these sources, the cost of collecting the information in this way would not be justified for a policy-making purpose alone. The practical uses set out in the Coalition's brief are not sufficient to justify the overall cost of a universal registration system.
That the cost of universal registration would be substantial is beyond doubt, although the amount of the cost would depend on the approach taken, the phase-in time, and a variety of other factors. Although it is true that we do not know how many guns there are in Canada, all of the estimates run into the multi-millions. Polling done by the Angus Reid Group, in a study funded by the Research Section of the Department of Justice, resulted in estimates of 2,220,000 households owning 2.67 firearms apiece, for a total in the order of 5,925,000. Even this six million firearms estimate is dwarfed by the assertion of the National Firearms Association that there are seven million firearms owners and a total of 21 million firearms in Canada.
Although the Coalition brief notes that the generation of empirical data on the number of guns in Canada, as well as the source of guns used in crime, would address this confusion, its primary conclusion is that "more information is a fundamental requirement for effective control." None of the examples the brief gives of the uses to which this information could be put would seem to justify this assertion. Quite to the contrary, it can be argued that effective enforcement of our existing laws, and the use of further resources only for additional measures of the highest priority, are the "fundamental requirements" for an effective gun control regime.
None of the proposed uses envisaged in the Coalition brief for registration data argue for making the implementation of such a system a matter of the highest priority. The rationale set out in the brief makes a weak claim for such priority, especially when compared with such approaches as programs to ensure that the safe storage rules now in place are adhered to, to enforce criminal deterrents to the use of firearms in crime in a way that makes them effective, and to at least slow down the flood of smuggled firearms into the country.
Smuggled firearms are a direct danger to public safety in Canada that is quite beyond any of the controls which we can apply to legally-acquired firearms, much less the application of the information which would be generated by universal registration. As is argued below, this is the primary practical firearms problem that we face. It is directly connected to criminal misuse, and it is to dealing in whatever way is possible with this threat that any additional resources we can find should be devoted.
That universal registration would use up considerable resources is beyond doubt. Even the Coalition brief acknowledges that "the cost of doing this would not be inconsiderable." It further notes that "a backlog currently exists in processing data regarding firearms" but that this problem can be overcome "with the allocation of appropriate resources." Recognizing, however, that the "appropriate" level of resources may simply not be available, the Coalition stops short of asking for universal registration, and "because of resource considerations and potential opposition" recommends instead that we begin the process "by registering guns as they are purchased."
The Coalition brief envisages a registration system that will accumulate gradually. In addition to newly-purchased guns, it looks to all semi-automatic firearms being made restricted weapons, thus requiring registration. It also hopes for voluntary registration, with owners choosing to register their firearms so that they will be able to recover them in the event of loss or theft.
With massive understatement, the brief acknowledges that "the benefits of partial registration will be less than the benefits of full compulsory registration." The extent of this "partial registration" would be limited indeed, and the benefits would be practically nil. Universal registration through the back door, by gradually widening the class of restricted firearms, would be long in coming and would not be likely to result in an efficient and effective system. If such a system can be made both efficient and effective, it will only be by careful planning and coordinated implementation.
Given the antipathy shown by rifle and shotgun owners to the idea of universal registration in the past, it is unlikely that a voluntary system would draw in many registrations. Newly-acquired firearms would constitute only a small fraction of the guns in Canada for many decades. The concept of universal registration is often compared to the registration system in place for automobiles. Firearms have a much longer life than cars, however, and the existing stock of guns in Canada cannot be expected to rust away within the next ten or twenty years. Such an approach could take up to a century to become effectively comprehensive.
Although any system of universal registration would have to be phased in gradually, any approach that ignores the five million long guns already in private hands would result in a lower cost, but practically useless, system. None of the potential objectives envisaged in the Coalition brief could be achieved to an extent that would make even such a partial system worthwhile in the first place, even assuming that these objectives if fully realized would justify the costs involved in a more comprehensive system. A partial system would not even yield useful data for research purposes for many years.
The Coalition brief justifies this foot in the door approach by noting that it would be consistent with the approach taken in the past which introduced changes to the gun control system, in particular the firearms acquisition certificate process in 1978. The adoption of that process certainly represented a compromise reached after the idea of full ownership licensing was dropped. The comparison with registration of only newly-purchased firearms does not hold, however. Whenever the FAC system results in someone who should not be allowed to own a firearm being screened out, a direct benefit to public safety is realized. Some of those properly screened out will acquire firearms illegally anyway, but not all of them, and in any case the problem of illegal acquisitions cannot be approached through the legal regulatory system.
The registration of only a small percentage of the firearms in existence in Canada, on the other hand, would have little if any benefit for public safety. It is difficult to see the police resorting to such a limited database on a routine basis to trace firearms seized during criminal investigations, or to enforce prohibition orders or deal with violent domestic disputes. It would yield useful information in too limited a number of cases to justify the costs of a routine search program. For at least several decades the benefits to public safety would thus not even be marginal. Such a system would certainly not be justifiable on the basis of a few lost or stolen firearms being traceable to their legal owners when they were recovered.
The Coalition brief ends with the conclusion that "more information is needed to properly evaluate the technical, economic and operational feasibility in a serious and systematic way." Insofar as this is what the Liberal Party policy convention had in mind when it recommended that a national registration system for "all firearms" be "considered," the recommendation may be worth considering. A study of the current restricted weapons system and the implications of possible changes might be worthwhile, so long as it did not divert attention from the more important task of monitoring and evaluating the present overall gun control regime.
Although it has been argued that the Coalition's rationale for a registration system does not justify the adoption of either a universal or partial system, the context in which the Coalition discusses the possible benefits of registration is at least logically consistent. In a written brief to the Minister of Justice dated 18 November 1993 , the Coalition made six recommendations, beginning with "possession permits which are periodically renewed." Although the idea is argued in terms of an extension of the present FAC system, the clear implication is that all firearms owners would be required to have one. These permits would thus constitute a comprehensive licensing system for firearms ownership,
The Coalition's brief to the Minister notes that a possession permit system would "facilitate the development of a registration system and allow controls on the sale of ammunition." Such a system would certainly provide a simple documentation basis for controls on the sale of ammunition, and could be expanded to include registration of the firearms owned by each permit holder.
Indeed, it can be argued that the possession permit would be the linchpin for a system incorporating the other two elements, and the first step in establishing such a system. Curiously enough, the Liberal Party policy convention adopted all of the Coalition's recommendations except that involving possession permits.
Although it is argued that the possession permit would be the logical and necessary first step which should precede possible adoption of registration and controls on ammunition sales, the Coalition's brief does not itself acknowledge this. It appears to place more emphasis on registration of the firearms themselves, without this data necessarily being connected to an ownership permit. The lack of a clear connection is interesting given that the idea of firearms registration is often compared to automobile registration. Surely the screening and licensing of all drivers logically precedes the registration of the cars they drive.
The omission by the Liberal Party policy convention resolution of this logical first step may simply represent a recognition that such a step would be far in the future. Apparently having considered the acquisition of the horse to be unfeasible at this time, it is thus curious that the policy convention went on to recommend that consideration be given to building the cart it might pull.
A possession permit or licensing system is not a new idea. Indeed, Members from all parties on the Special Committee on the Subject Matter of Bill C-80 agreed that we would probably move to a system of licensing all firearms owners at some point in the future. Witnesses on all sides of the debate also supported such an idea. Once established, such a system might allow for a simpler, more enforceable system of supervising firearms owners than the present FAC, restricted weapon registration certificate, and the other elements of the present regulatory regime.
The development of such a system would take some time, however, and it would not make sense to begin even studying the concept until the FAC system as expanded by the Bill C- 17 package was shown to be operating effectively. The magnitude of such an undertaking can be illustrated by noting that in such a comprehensive system the present FAC requirement would become only the initial entry stage.
Much work remains to be done in monitoring and evaluating the changes recently made to the present screening system, and more changes may be necessary in the future before it is made as effective as possible. When that work is complete, much more preparation and analysis would be necessary before the feasibility and necessity of a comprehensive possession permit system could be usefully considered. Unless and until such a system is developed, the universal registration of firearms and requiring "appropriate documentation" to buy ammunition are also unlikely to be either administratively feasible or effective, assuming that such measures could be shown to be justifiable, particularly in terms of being the best use of resources. These are all matters for future consideration.
The fifth paragraph of the Liberal Party policy convention resolution recommends that "the private possession and ownership of handguns be severely restricted." It is not clear what the intent of this recommendation is. Although many members of the public are undoubtedly unaware of the fact, all handguns are now designated as restricted weapons, and have been for some time. This means that they must be registered and can be used only for certain purposes. Practically speaking, the only permitted recreational uses are target-shooting and gun collecting. A strict permit system governs their storage and transportation, and the secure storage regulations are more comprehensive for restricted firearms. What further restrictions could or should be placed on these firearms?
If theft of legally-acquired handguns is a major problem, the answer would, as discussed earlier, appear to be the effective enforcement of the secure storage regulations. If, on the other hand, smuggling is instead the primary source of handguns used in crime, more restrictions on legal handguns will have little effect. The studies presently underway may give us more data on which problem is the more serious, but in any case the most fruitful approaches to them would not involve the adoption of entirely new restrictions.
Effective enforcement of the present laws, particularly those involving restricted weapons acquisition and possession, is the key to dealing with any particular threat posed to public safety by legal handguns. New laws will certainly not help if the police and other authorities simply become over-extended by having to enforce these new measures.
The final paragraph of the resolution demands that "strong action be taken against smuggling and the importation of illegal firearms into Canada." This is perhaps the one issue on which there is universal agreement, at least outside the criminal element. The Special Committee on the Subject Matter of Bill C-80 and the Justice Committee in its examination of the gun control regulations both identified smuggling as a matter of top priority. People on all sides of the gun control debate, including witnesses who appeared before and Members of both these committees, as well as witnesses who testified during the proceedings of the Legislative Committee on Bill C-17, emphasized the urgent and over-riding need to address this problem.
All of the parliamentary committees which have studied our gun control program have been united by their concern that a failure to deal with the threat of smuggled firearms, particularly from the United States, would make our internal regulatory control of firearms largely futile. The Auditor General's Report noted this overwhelming concern, and in particular that the Special Committee had recommended in 1991, that as a first step, a comprehensive review of the extent of the problem should be undertaken. The audit team found that the government had not yet undertaken such a study, and recommended that it heed the calls of successive parliamentary committees. Although this issue lay outside the Auditor General's mandate to study our firearms regulatory program, the Report observed that "if firearms could be easily smuggled into the country, the objectives of the gun control program would be undermined."
The Auditor General's Report noted that there was insufficient data on the sue of the firearms smuggling problem, and the recommendation for a governmental study was based on the view that the study was necessary to determine the issue of priority in the allocation of resources. The audit team discussed the matter with law enforcement authorities, however, and found a serious concern that a major problem exists and "could be increasing."
It can be argued that whatever the size of the problem it is certainly large enough to make it the most significant single problem we face in terms of the criminal use of firearms. Smuggled firearms are by definition illegal, but it is the obvious fact that they are being brought in illegally in order to supply the criminal market that makes them a direct threat to public safety. Armed career criminals who are responsible for much of our violent crime problem, particularly armed robbers and drug gang members and other elements of organized crime, form a hungry and sizable market for smuggled guns. Despite the penalties that smugglers face if caught, this market makes the activity a very profitable one.
As well as being profitable enough to attract both major black market dealers and casual smugglers, the activity is a relatively easy criminal enterprise. One Customs official refers to the "lakes and backroads and rivers and unmanned locations" that can be used to evade Customs screening altogether. Even where Customs control does exist, the amount of traffic between Canada and the United States makes it difficult to stop dealers and their "mules" from sneaking smuggled guns past the routine screening that is all that is possible at most border crossings.
Firearms, particularly handguns, are an easily concealed commodity. We cannot search all or even many of the vehicles entering at busy crossing points. Although a Revenue Canada departmental press release advises that 350 officers have been added to the border patrol, at a cost of $45 million, this additional personnel can only mount temporary posts or patrols at unguarded points, and conduct spot-check blitzes of intense inspections at regular border crossings. Commercial considerations alone would prevent us from interfering too often or too intensely with the traffic crossing our border.
Tackling the smuggling problem will therefore require expensive, labour-intensive and comprehensive enforcement programs. It will require more than border patrols and other direct enforcement activities. One example is the new Provincial Weapons Enforcement Unit that has been established in Ontario. This initiative follows a successful pilot intelligence operation called Project Gun Runner. This operation involved officers from at least five Ontario police forces, and concentrated on collecting information through surveillance and undercover operations that could be passed on to other officers or agencies to deal with.
The new Ontario unit will also involve a number of police forces, will be coordinated by the Ontario Provincial Police, and will work in partnership with "municipal and regional police services, the RCMP and Canada Customs." Its work will be devoted to "gathering intelligence, identifying distribution networks and taking action" in order to "reduce the flow of illegal and dangerous weapons available to criminals."
This sort of intelligence and surveillance operation requires the commitment of a great deal of police officers' time and other resources. It also requires high-tech and thus expensive equipment. Many such operations will have to be mounted as part of a coordinated response. If the flow of smuggled guns to violent criminals is to be even reduced, provincial and federal enforcement authorities will surely have to mount similar operations across the country.
The Minister of Justice has suggested that stricter measures against the smuggling of guns may be part of the promised firearms bill. What is needed is not new laws, however. The law on the books is surely adequate to deal with smuggling activities. The problem can be addressed without any new legislative measures, by the administrative creation of enforcement programs, and the commitment of sufficient resources to the implementation and the ongoing needs of those programs.
While administrative responses can be mounted without resort to the time-consuming legislative process, they do not, however, have the public visibility of that process and the attendant political implications. We must resist the appeal of enacting new criminal laws, when what is required is the more difficult but more important effort to find additional resources to fund enforcement programs.
The programs needed to respond to the smuggling program will therefore require the commitment of substantial public resources, but will be largely invisible to a public concerned about the use of guns in violent crime. The public will have to be prepared to bear the cost, and the authorities will have to bear the burden of juggling spending priorities. Those authorities, both federal and provincial, will have to be prepared to do this without much to show to a concerned public.
In the wake of the Auditor General's Report the federal Department of Justice assembled an inter-departmental committee, with police and provincial representation, to investigate the extent of gun smuggling into Canada. A report is expected by the end of 1994. If, as seems relatively certain, this report finds that the extent of the problem is truly alarming, it is to be hoped that both the federal and provincial levels of government will be prepared to act quickly and effectively to respond to it.
The introduction to this paper emphasized the point that every new control or enforcement measure requires resources to implement and enforce. We simply cannot do it all, however, and arguably do not have the resources to adequately enforce the laws we have in place. Despite shrinking resources, we must attempt to deal with the direct threat of violent crime, and when it comes to firearms the most direct and immediate threat is surely posed by gun smuggling. It is difficult to see how this threat can be significantly countered if attention and resources are diverted to additional regulatory control measures within Canada. It is a problem of limited capacities. It is a matter of priorities.
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