[The following was OCRed and may contain "scanos".]

National Firearms Association

First Superficial Analysis of the ROCK BILL by the NFA


    This is an interesting Bill. It creates a new Firearms Act (FA),
complete with penalties including imprisonment, outside the Criminal
Code.  It makes parts of the Firearms Act the basis for criminal
convictions under the Criminal Code (CC).   It creates licenses to commit
crimes: e.g., in the proposed CC Section (s.) 91, 92, 93, and 95.

   The Firearms Act is enabling legislation. FA s. 11O authorizes the
Minister of Justice (thinly disguised as the Governor in Council) to
control eligibility for licenses ((a)), control revocations ((b)), to
control decisions as to whether or not a person "does or does not need
firearms" to protect life or to use professionally ((c)), to control
"use of firearms" in target shooting ((d)), to control "establishment
and operation" of shooting clubs ((e) (ii)), control the activities
clubs may carry on ((e) (ii)), control possession and use of firearms
at ranges ((e) (iii)), order keeping of membership and other club
records ((e) (iv)), control "establishment... maintenance (and
disposal) of gun collections" ((f)), control the "operation of gun
shows" ((g)), control the "storage, handling, transportation, shipping,
display, advertising, and mail-order sale of firearms: ((h)),
controlling the "possession and use of restricted firearms" ((j)), "the
possession at any place... of firearms ((k)), controlling "keeping...
records in relation to firearms" ((m)), creating offences consisting of
contraventions of the regulations made under paragraphs (d), (e), (f),
(g), (i), (j), (l), (m) or (n) ((o)), prescribing fees that are to be
paid... for licenses, registration certificates, authorizations,
approvals of transfers and importations of firearms, and confirmations
by customs officers ((p)), to order different ways to apply the
firearms control laws to aboriginal peoples ((t)), and "prescribing
anything that by any provision of this act is required to be prescribed
by regulation" ((v)).

TERMINATION OF CIVIL RIGHTS AND PROVINCIAL JURISDICTION:


  The Firearms Act (FA) contains some interesting modifications to the
guarantees in the Canadian Charter of Rights and Freedoms, and to our
Constitutional federal-provincial jurisdiction split.

	      SEARCH AND SEIZURE:

FA s. 99 authorizes any person "designated by the provincial Minister"
(s.  98) to  "enter and inspect any place" where he "believes... there
is a firearm, ... ammunition,... or a record (of) any of those things".

    While inside, he may "open any container...", "examine any firearm
and ... any other thing and take samples (which he may dispose of in
any manner that he considers appropriate)", "conduct any tests or
analyses", and "require any person to produce... any records."

    He may also "use any data processing system at the place to examine
any data... available to the system (say, through the Internet? NFA),
reproduce any record... and remove (it)", and "(copy) any record... or
other document."

   True, s. 101 says he may not enter a dwelling house -- unless he gets
a warrant under s. 99's terms. That means that he must tell a justice
that he "believes... there is a firearm,... ammunition,..  or a record
(of) any of those things" in the private home he wants to ransack, and
that he has some reason to believe that the owner objects to his idea.
Easy enough, no?

   Note that he does NOT have to swear that he knows or even suspects
that any crime is involved. The sections authorize him to get a warrant
and ransack the home of any person in Canada who has or is suspected of
having  a firearm, a cartridge, or a record of either.

   FA S. 100 then provides that "The owner or person in charge of a
place that is inspected (with or without a warrant) and every person
found in the place shall give" the inspecting person (a) "all
reasonable assistance to enable him or her to... exercise any power.
conferred by section 99: and (b)  provide the inspecting person "with
any  information  relevant to the enforcement of this Act or the
regulations (made under s.  110 (a) to (v) inclusive) or Part III of
the Criminal Code that he or she may reasonably require."

   My.  Whatever happened to a Canadian's right to remain silent until
competent legal advice is available?

What happened to our Charter right to freedom from unreasonable search
or seizure?

REMOVAL OF PROVINCIAL JURISDICTION.

   FA s. 109 says,

   Any proceedings in respect of an offence under this Act may be
commenced at the instance of the Government of Canada and conducted by
or on behalf of that Government.  That apparently means that the
federal government will be handling all prosecutions under the Firearms
Act, much as it currently handles all prosecutions under the Narcotics
Act.


  If a province wishes to conserve  its scarce and costly police
resources, it would probably be wise to drop out of the expensive and
ineffective firearms control system entirely. Each province could
recover millions of dollars worth of police equipment, building spaces,
personnel and other assets currently devoted to firearms control--by
letting the federal government do it all.

  It is apparent that Allan Rock's Liberal Party is trying to construct
a huge bureaucracy--which Canada Cannot afford--in order to attract
favorable publicity and praise from those who do not understand that it
is all smoke and mirrors.  Fighting Allan Rock's Liberal government is
rather like fighting an elephant:

  Don't stand in front of it and scream, "No, no, no!" Step deftly to
one side, then kick it in the rump as it thunders by - and watch it go
end over end. The Liberals are trying to sucker the provinces into
doing it, so the provinces should bow out. They should tell the feds to
hire the staff, rent the offices, buy the equipment, and do all the
enforcement themselves.

  They should refuse to spend one thin dime of provincial tax money on
a scheme that so blatantly lacks cost-effectiveness, that will cost
billions to operate, and that will turn the biggest block of voters in
Canada -- the firearms owners -- against any  political Party that helps
Allan Rock's Liberal Party inflict this on Canadians.

  OFFENCES:
     FA s. 105 is worth quoting:

      105. Every person who... contravenes a regulation made (by Order
in Council (OIC)) under paragraph 110 (d), (e), (f), (g), (i), (j),
(l), (m) or (n) the contravention of which has been made an offence
under paragraph 110 (o) (by OIC)

   (a) is guilty of an indictable offence and liable to a term of
   imprisonment not exceeding two years...

    The FA s. 11O (o) "offences" include any violation of a regulation
about target shooting clubs, gun collections, gun shows, anything to do
with handguns or other  "restricted" firearms, keeping of records about
firearms, or keeping business records.

   In order to know what "offences" have been created by s. 110 (o) you
must subscribe to the Canada Gazette and read it faithfully. If you
don't, you may miss one and go to prison for two years.


This is not a Crime Control Issue.  This is a Political Issue

|---------------------------------------------------------------------|
|  One Note of Interest: Once an Order in Council regarding           |
|  Aboriginal Peoples has been made under s 110(t) then s 112(l)      |
|  allows the minister to do virtually anything to the                |
|  aboriginal peoples by an order in Council that can come            |
|  into effect immediately and does not require Parliamentary approval|
|---------------------------------------------------------------------|


STRIPPING PARLIAMENT OF  POWER TO INTERFERE WITH THE MINISTER:


   FA s 111 requires each regulation from the s.  110 list to be "laid
before each House of Parliament... for 30 sitting days."

   FA 112 then says that FA 111 does not have to be complied with:

   (1) if a regulation previously made is being changed, no matter how
severely it is changed, or even if it is reversed:

    (2) if the "Minister is of the opinion that the changes (are)
immaterial or insubstantial), "

    (3) if it is made under s  110 (i), e), (m), (n), (o), (q), (r). or
(s), where the "Minister is of the opinion that (the matter is)
urgent:"

    (5) if it is made under s.  110 (v), where the Minister wants to
change a voiding, eligibility, critical or other date affecting any
provision. This provision allows sudden changes of status for large
numbers of firearms and their confiscation,

   (6) "For greater certainty, a regulation may be made under Part III
of the Criminal Code without being laid before either House of
Parliament. "

   The above exceptions seem to effectively eliminate Parliament's
role, including individual MP scrutlny, and allow the firearms control
system to operate almost as a Ministerial dictatorship.

ADMINISTRATIVE STRUCTURE AND PREDICTABLE COSTS:

    To own any firearm the owner must have both a license and a
registration certificate (CC s. 91(l) and FA s. 22).

   When transferring any firearm to another: The buyer must first get a
license to acquire and possess that kind of firearm. The vendor must
notify the Chief Firearms Officer, and obtain his authorization for the
transfer. A new registration certificate is issued" to the new owner.
The legislation surprisingly does not say how or by whom, that will
apparently be determined --later-- by order in council. That process
does not cover one current severe problem: if the bureaucrats fumble,
the firearm may show up in their records as still being registered to
the vendor, or not; and as being registered to the new owner, or not.
Any error is "masked" there is no way for either the vendor or the
buyer to know that it has happened. The system usually blames the
citizen.

  Because all registrations must go through the single provincial Chief
Firearms  Officer  (replaces  Chief Provincial Firearms Officer)
instead of local police, registration the procedure is slowed and made
more expensive.

  When "notified," the Chief Firearms Officer must (FA s. 26) verify
that the buyer has a license, his eligibility to still hold the
license, and whether that license authorizes him to buy that type of
firearm .

   Where the transfer is of a  14 Feb 95 "prohibited" firearm or is an
importation, he must also verify the purpose the buyer has in
acquiring, determine whether or not the firearm is appropriate for that
purpose, and decide whether or not to approve the transfer. If he
approves, he must notify the Registrar.

  He must also "take the prescribed measures" specified by Order in
Council.

  The Chief Firearms  Officer may approve such a transfer or
importation only if he is satisfied (How?) that the buyer wishes to use
it for protecting life, lawful occupation, target shooting at an
approved club, or for a collection.

  The new registration certificate is said (in handouts) to be an
expensive plastic card with information about owner and firearm
printed, on a magnetic stripe, and on a bar code panel.

  It is unclear whether the firearm is physically transferred before,
when or after the new registration certificate arrives in the hands of
the buyer. It seems probable that the firearm will have to be stored by
the Chief firearms officer until the process is completed, which would
be expensive and annoying.

  The "prescribed conditions" must all be "complied with." Since such
"conditions" are issued by Order in Council, it is highly probable that
every change will cause problems. The National Firearms Manual,
established to keep the system uniform, was revised 226 times between
January 1, 1978 and January 26, 1994, or about once every 26 days for
16 years. That's a lot of paper.

  When transferring to a business, the vendor must see the business
license (FA s. (2) (b) (ii)), and inform the Chief Firearms Officer.
The same potential for masked "errors" exists here.

   When transferring any ammunition to another: The buyer must first
get a license to possess firearms, or some other "prescribed document"
made available under an Order in Council.

BUSINESS PROBLEMS:

   A business needs a license (FA s 54(3)) from the CFO, and pays a
licensing fee (s. 110 (p)) for it.

   To import firearms for stock, it must seek an authorization to
import (s. 42) from the CFO and pay a fee (s. 11O (p)) for it.

   It must then show the authorization to a Customs Officer (s. 46(1)),
who may confirm it (s.  46(2)), charging another fee (s. 110 (p)) for
the confirmation.

   If the Customs Officer refuses to confirm, the Customs Officer may
authorize the export of the goods (s. 46(3)). Goods not exported within
ten days are forfeit to Her Majesty.


   Forfeited goods are "disposed of in the prescribed (s. 110) manner."

   Each import requires separate authorization and confirmation.

   Obviously, with everything channeled through the Chief Firearms
Officer's office, that office will have to have more funds, more
staff, and more space.  There will be 6 (Rock's estimate) to 20
(RFC estimate) times more transactions, and the new procedure is
very labor intensive--and therefore very costly.  It is unclear
how the CFO will "verify" things, but that will be costly.  
 


THE LICENSING PROBLEM:

   Black's Law Dictionary defines that term thus:

   LICENSE. Certificate or the document itself which gives permission.
   The new Firearms Act and Criminal Code proposals actually call some
of the offered documents "licenses."

   Licensing fees are a form of taxation, and that form of taxation is
Constitutionally restricted to provincial jucisdiction. The provisions
for licensing fees in the proposed legislation - whether called
licensing fees; or thinly disguised as fees  for  "registration
certificates"  or "authorizations" or " confirmations" - may well be
ultra vires of Parliament.

  Each existing "licensing" document, under the existing law, is not a
license. It is a specifically-tailored defense to a particular
criminal charge.

  That was the language used by the Supreme Court of Canada (SCC) in the
similar Moraentaler abortion law case. In that case, the SCC pointed
out that the law said, roughly, that it is a criminal offence to have
or do an abortion (commit the crime) -- unless you have a permit.

  In such legislation, the permit cannot be a license, because such a
license would be a document giving permission to commit a crime.
Therefore, the SCC characterized it as "a specifically-tailored defense
to a particular (criminal) charge."

   In  layman's   language,  the SCC said Parliament cannot license the
commission of crimes, but can offer the person who commits the crime a
defense which makes it impossible to convict him.

   The SCC also said that where such a defense is offered in the law,
it has to  be available. It cannot be "illusory, or so difficult to
obtain as to be practically illusory" or the SCC will strike the law
down--as it did the abortion law:

   At what point does the cost of such a defense render it "illusory,
or so difficult to obtain as to be practically illusory' for a poor
aboriginal or white trapper?

   What are the legal, moral  and ethical considerations involved when
Parliament enacts criminal law, imposes a sentence of imprisonment for
violating that law, then issue licenses that allow the holder to sell
the criminal a defense?

   Is it possible to enact a criminal law, impose a sentence of
imprisonment for violating that law.  then sell licenses that allow the
holder to violate that law?

PROVINCIAL ENFORCEMENT AND LIABILITIES:

   As we have seen in the above brief sketch of some of the problems,
the proposed legislation will vastly increase the cost of operating the
firearms control system.

   The federal government intends that the provincial governments will
bear the majority of the costs of operating the system.

   Any federal support for provlncial costs will, on the basis of past
experience, be phased out.  The costs themselves will, on the basis of
past experience with areas controlled by Order in Council, rise
astronomically.

    Reliance upon the principle of "user pay" is very dangerous, both
for a provincial government and for the federal government. The
National Firearms Association is attacking the basic principle of "user
pay" within the Criminal Code, and as it applies to the Criminal Code.
It may well win, and then all collected funds might have to be
returned.  At the very least, funds from that source would be cut off,
leaving the province hooked for continuing costs.

THE PROVINCIAL OPTION:

   It is quite possible that one or more provinces will take advantage
of the new firearms Act. They may  claim  that  it  represents  a
federal government admission that firearms regulatory law is not proper
criminal law at all, and they may well be right.

   Firearms control law is basically regulatory in nature, and lay
within the Criminal Code only because it was a safety issue. That is
the reason that the clause, 'the safety of the applicant or any other
person" appears so frequently within the Code: it is the only way that
the regulatory law can be sustained in that environment.

   By taking the regulatory law out of the Criminal Code, the new
Firearms Act  directly challenges provincial jurisdiction over
regulatory law, which the federal government Constitutionally does not
have, except for things, like aircraft, that were not in existence on
the date of Confederation.

    If a province enacts legislation of similar type to control
firearms by regulatory law within the borders of the province, the
courts would probably rule that the provincial legislation is valid and
the federal Firearms Act is invalid.

    Considerable pressure will probably be brought upon provincial
governments to do just that, by irate firearms owners.


THE POLITICAL ASPECTS:


   There are already two major political movements within the
recreational firearms community (RFC). In one, RFC members are joining
the Liberal Party to take control of whose name will be on the next
federal election ballot, who will be the next Leader of the Party, and
what the next set of Party policies will be.

   In the other, RFC members are joining the Reform Party, reinforcing
it as the only Party currently perceived as sound on issues of firearms
control.

  The movement into the Liberal Party can and may be reworked as an
abrupt mass movement into the Reform Party at any time. It is very
unstable, and thwarting the aims of that group would almost certainly
result in a mass defection into the Reform Party.

    Both  movements  are  well-organized, coherent and probably
longterm in both committment and effects. Once in place, the RFC
members realize the power of their position and remain in place.

  There is no corresponding movement of anti-firearms people within
the political structure.

  On analysis it appears that the "anti-firearms majority" so clearly
identified in the polls is very weak.  Where the question is asked,
large majorities indicate that they know little or nothing about
firearms control law, and have only vague opinions about it. Usually,
they do not believe that firearms control laws will affect the crime
levels, and they do not put firearms control matters high on lists of
urgent-priority items for government to deal with.

   In sum, firearms control issues seem to cause massive political
movements among pro-firearms people, causing thein to switch Party
allegiances, join Parties, work for Parties, and affect Parties.

  There is no indication of similar passion among the "anti-firearms
majority." Regardless of what is happening regarding firearms control,
they continue to support the same Party. For them, firearms control is
not a decisive or even important issue.


    WHY EXTRA PENALTIES FOR GUN USE JUST DO NOT WORK:


  In a study done by the Canadian Centre for Justice Statistics, it was
found that there were some 600,000 convictions in 1991-92, but only
12,287 were convictions for violent crimes.

  In only 52 of those 12,287 cases was the criminal convicted under CC
s. 85. In 100 per cent of those 52 convictions, the sentence was the
minimum allowed by s. 85: one year of imprisonment.

   From those figures, Canada appears to have no serious problems with
criminals armed with firearms. If criminals were armed with  firearms
in only 52 out of the 12,287 violent crimes for which convictions were
obtained, then the problem is clearly minimal.

  However, "Research on the Application of Section 85 of the criminal
code of Cancida WD1994-20e" states (p.26), "Of charges laid under
section 85, approximately two-thirds are typically stayed, withdrawn or
dismissed."

  WD1994-20e also says (Exhibit 111-5) that 24 per cent of the accused
were found guilty or 'pled guilty in 1991, 1002, and 1993. Only 4 to 8
per cent were found not guilty, but 67 to 70 per cent of such charges
were "withdrawn, dismissed or discharged."

    There are apparently three lessons to be drawn from this data:
 
    First, it is quite rare for a s. 85 charge to actually be laid against
 an armed violent criminal.

    Second, where such a charge is actually laid, the chance of the
 charge resulting in conviction is 24 per cent, mainly because the
 charge is usually withdrawn before the judge can consider it.

    Third, the singling out of firearms for special charges is wrong.
 The criminal justice system reacts badly to imposing a mandatory
 penalty that runs consecutively to any other sentence for being armed
 with a firearm during the crime, while no extra penalty is imposed for
 being armed with or threatening, injuring or even killing a victim
 with any other type of weapon.

    Police, prosecutors and judges are loath to lay the charge, eager
 to plea bargain it away, and reluctant to impose the mandatory extra
 sentence--probably because the singling out of one type Of weapon
 without consideration being given to how or whether the weapon was
 actually used seems both unfair and unjust.

    If the word "weapon" had been used instead of the word "firearm"
 in s. 85, those three problems would probably not be so severe, and s.
 85 might be used more effectively. As it is, it is an ineffective
 deterrent - because it is not used in the real world.

   In the proposed legislation, the same blunder is repeated.  Being
armed with a firearm is given special status, even where the firearm is
not used, or is only a harmless imitation of a firearm. At the same
time, a Criminal armed with - or even actually using - an axe, knife,
machete or other deadly weapon is not at risk from the proposed
legislation. No deterrence can be imposed on them by legislation silent
on their armament.

   Clearly, the legislation makes no sense. if the intent is to deter
violent crime and prevent injury or death of victims.

   A little more research into this type of proposal suggests
easily-predictable but quite horrifying results.  WD1994-20e also tells
us (Exhibit 111-6, p. 24) that in over half of all s. 85 cases, the
attached violent crime was armed robbery.

  For the period 1988-91. "Weapons and Violent Crime" (Canadian Centre
for Justice Statistics, 1991, p.12) tells us that 94.6 per cent of
weapons causing injury or death to robbery victims were not firearms.
Only 5.4% of injured or killed victims were injured or killed by
firearms.

   During the same 1988-91 period, 71.2 per cent of total robberies
were non-firearm and 28.8 per cent were firearm robberies. Comparing
the two sets of data clearly indicates that victims are 5 times less
likely to be injured or killed if the robber uses a firearm. That seems
strange, but there is good reason for it.

  In a major study reported in his book "Point Blank: Guns and Violence
in America", Professor Gary Kleck reported that the reason for the
shortage of injuries and deaths in firearms robbery cases was that
firearms can be used to control behaviour at a distance but nearly all
other weapons required the armed robber to be within touching distance
of his victim in order to make the threat seem real.  Where the robber
and victim are in such close proximity the likelihood of the weapon
being used is much higher. Almost anything can trigger the escalation
from threat to violence.

   It makes very little sense to deter robbers from using firearms,
when the predictable result is that if they switch to other weapons,
the injury and death rates will go up instead of down. If the word
"weapon" had been used instead of the word "firearm" throughout the
proposed legislation, it might make some sense. As is, it does not.

   A particular asinine part of the proposed legislation is the
inclusion of "replica" (imitation) firearms. The only possible effect
of such a provision is td drive the Criminal away from harmless
imitation firearms, and towards real deadly weapons.

   Instead of being encumbered with a handful that cannot do any harm,
the legislation proposes to push the criminal toward a real gun, a
knife, or a machete. That is counterproductive.

   We are fully aware that the new legislation, if enacted, will suffer
the same fate as s. 85 -- underrused, underenforced, and a waste of
effort.  We are not impressed, and we reject these amateurish proposals.
Go back to the drawing board, and next time offer Canadian voters
something that makes sense.


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