From owner-cdn-firearms@sfn.saskatoon.sk.ca Wed Dec 4 11:31:15 1996 From: "David A. Tomlinson" Subject: Re: CFC Regulations of Nov 1996 IMPORTANT. DOWNLOAD, PRINT, PHOTOCOPY, AND GET THIS TO YOUR MP AND OTHERS: This is not a full analysis, but it is a key area that is little understood. The Liberals are trying -- in C-68 as in several other recent bills -- to take the power to enact new laws out of the hands of Parliament and put it into the hands of a single Minister. Worse, the method chosen is so defective that it also puts that power -- which should belong _only_ to Parliament -- into the hands of a Chief Firearms Officer! In the normal course of legislation like C-68, the legislation may, as C-68 does, create an "independent quasi-judicial one-person licensing tribunal." That is, it creates an office (such as Chief Firearms Officer [CFO]) and vests him or her with the authority to issue permits and licenses, and to impose conditions on the holder of such a permit or license. The proper and legal limits of that power to impose conditions are little understood, but very important. If the CFO imposes a "reasonable condition" on a holder "in the particular circumstances _and_ in the interests of the safety of the holder or any other person" (Firearms Act section [FA s.] 58), then he is acting within the law and within his role as an independent quasi-judicial one-person licensing tribunal. If, however, he imposes the _same_ conditions on every holder, either as the result of a policy set by himself or of a policy imposed upon him by another, he is no longer an independent quasi-judicial one-person licensing tribunal. He has become a legislator, creating and imposing new law that is binding on every person who holds such a permit or license -- regardless of whether or not the new legislation is appropriate "in the particular circumstances" and regardless of whether the intent is "in the interests of the safety of the holder or any person." The intent of such all-inclusive "conditions" may easily be reduced to the personal prejudices of the person who set the new policy. The fundamentals of administrative law are quite clear on this point. It is unlawful for such a tribunal to cross the line between being a tribunal and becoming a legislator. _In_Re_Jackson_and_Beaudry_ is the case the NFA distributes to illustrate the point. Another point that must be considered when looking at this area is that once an independent quasi-judicial one-person licensing tribunal has been appointed, that person is "quasi-judicial;" that is, he or she must _behave_ like a judge and refuse to take orders from anyone else. Therefore, the CFC's Nov 96 Regulations, by trying to _order_ the CFO to impose certain conditions on every permit or license issued, is taking away from him the decision-making power given to him by the Firearms Act, and substituting the decision-making power of the Minister (or the CFC?) -- a decision-making power _not_ authorized by the Act. That requirement system exists partly because the tribunal's administrative position includes a route of appeal from its decisions. If the tribunal did not _make_ the decision, but was forced into a "decision" by the orders of some outsider, then the appeal procedure becomes a meaningless joke and the law falls into disrepute. The tribunal must be _independent_. Once appointed, it must be free from influence exerted by others, and it must be seen to be free from influence exerted by others. The parameters to be considered are set forth in the Supreme Court of Canada case _R._v._Genereux_, in which the SCC is quoting its own earlier cases, available from the NFA. The degree of independence inherent in the CFO's position is ominous when it is combined with the legislative powers entrusted to him by the Nov 96 regulations. In the new regulations, the Candian Firearms Centre crosses that forbidden border between imposing legitimate conditions and legislating repeatedly, relentlessly, and recklessly. It actually _orders_ the CFO to impose _the_same_conditions_ on every permit and every license -- to impose new legislation created by the policy of the Minister, or even possibly by the CFC itself, levering Parliament even farther away from its Constitutional right and power to make our laws. Examples of this reckless transfer of legislative power are found at "INTERPRETATION" page 6 at 14, 10 at 23 (1), (2), (3) and (4); "AUTHORIZATIONS TO TRANSPORT RESTRICTED FIREARMS AND PROHIBITED FIREARMS REGULATIONS" page 1 at 4; "AUTHORIZATIONS TO CARRY RESTRICTED FIREARMS AND CERTAIN HANDGUN REGULATIONS" page 2 at 5; "AUTHORIZATION TO EXPORT OR IMPORT FIREARMS REGULATIONS (BUSINESSES)" page 2 at 4, and 4 at 8. The points to ponder in this defective area are: 1. The Minister (or is it the CFC?) is illegally imposing an outside will upon the will of an independent tribunal. 2. The tribunal is being used to illegally create new legislation -- legislation not authorized by Parliament, and not coming from Parliament. 3. Once the tribunal realizes what it is doing, it seems highly probable that it will impose other conditions on every permit or license that it issues -- conditions created by its own policies and set by itself -- that will impose more and more new legislation of types never contemplated by Parliament. 4. Neither Parliament nor the Minister has any power over the decisions of an independent quasi-judicial one-person licensing tribunal once it has been appointed. Only a court of law can reverse or revise its decisions. 5. The dangers inherent in giving such an independent force the power to legislate are both obvious and highly dangerous. In sum, the CFO should be limited to the powers properly vested in an independent quasi-judicial one-person licensing tribunal. The Nov 96 Regulations are trying -- probably illegally -- to turn his office into a dnagerous hybrid as a method of bypassing Parliament. If Parliament allows this dangerous experiment to proceed, the consequences may well be severe and long-lasting. David A. Tomlinson, NFA