NATIONAL FIREARMS ASSOCIATION

	CONSTITUTIONALITY OF C-68

C-68 is in two parts, the new Firearms Act section and the criminal
Code amendment section.  They should be examined separately.

THE FIREARMS ACT: This Act is an attempt to impose a regulatory
licensing scheme on law-abiding Canadians under the criminal powers of
the federal Parliament.

When firearms control was first put into the Criminal Code, it was
clearly recognized that the federal Parliament had no power to make
regulatory law, (law dealing with public welfare offences and including
a licensing system) to deal with firearms.

Instead, Parliament defined a series of crimes regarding firearms
matters, and instituted penalties which included imprisonment.  That,
at a later date, made the legislation look toward Charter section 7,
the right to liberty.

Parliament also instituted a system of regulatory law, embedded within
the Criminal Code.  It could only do that by disguising it as a system
of criminal law, defining crimes and establishing penalties for those
crimes.

The format chosen was the same as that chosen for the now-failed
abortion law:  "It is an indictable offence to [do this] unless you
have [this document]." That is a dangerous format, as the striking down
of the abortion law proves.

According to the Supreme Court of Canada in the Morgentaler case, that
format works this way:

1.	The criminal behavior is defined.

2.	The document (therapeutic abortion certificate, carry
	permit, registration certificate, etc.) Is "a
	specifically-tailored defense to a particular [criminal] charge."

3.	If the accused has engaged in the behavior,  the accused
	is guilty of the offence.

4.	If the accused has the "specifically-tailored defense,"
	the accused cannot be convicted of the offence.

That comes perilously close to a regulatory licensing scheme. it avoids
that-trap by incorporating the same wording for the vesting and
limiting of authority regarding each issuer of each of the "documents"
in the firearms control system:  The issuer may refuse to issue, limit
or revoke the document "in the interests of the safety of the
applicant/holder or any other person."

That tied everything solidly to a public safety issue, and made it
lawful for Parliament to enact this pseudo-regulatory system as lawful
criminal law.  It was purely a public safety matter.

The documents were permanent, and issued without charge.

Over the years, Parliament and the Criminal Code have drifted far from
that original concept.  The obviously regulatory nature of the
system--intended to regulate the lawful activities of law abiding
Canadians, rather than control the actions of criminals-led Parliament
into self-deception.  It began to believe that it had authority to
regulate, and the system became more and more regulatory, less and less
proper criminal law.

The catch is that the Firearms Act is an exact parallel to the
Narcotics Act, and has the same force; it is criminal law.  But it is
in no way proper criminal law, although the Minister says it is to be
enacted under the criminal law power.

The Minister has emphasized the regulatory nature of the new Firearms
Act, notably in his 24 Apr 95 testimony before the Justice and Legal
Affairs Committee, where he compared it to a lawful regulatory scheme,
complete with matching inspection scheme, used for gas and electrical
measuring instruments under the federal Parliaments weights and
measures powers.

Parliament is vested, by the Constitution, with the authority to make
regulatory law dealing with weights and measures.  It is not vested
with any power that would allow it to make regulatory law regarding
firearms.  If it wants to regulate firearms  it must do so through the
criminal law powers, and that means any such legislation cannot be
fundamentally regulatory in nature.

Mr. Rock cannot have it both ways. if the Firearms Act is regulatory
law, then it is not criminal law--and vice versa.  If it is regulatory
law, intended primarily to regulate the activities of honest Canadians,
it cannot be enacted under the criminal law power.  If the Firearms Act
is criminal law by nature, it can be enacted, but cannot be, "in pith
and substance," regulatory law dealing with public welfare offences.
It has to be one or the other--it cannot be both.

The idea that Parliament can enact  firearms regulatory law because
firearms are dealt with in the Criminal Code is faulty.  If it were
true, the federal Parliament could enact a federal Motor Vehicles Act,
preempting the provincial Acts,  simply because motor vehicles are
sometimes involved in crimes.  Any such attempt,  of course,  would
fail the "pith and substance" test, because the crime activities are
vastly outweighed by the ordinary activities of Canadians with motor
vehicles.

The same is true of firearms.

Regulatory law regarding firearms is clearly within the exclusive
jurisdiction of the Provincial Legislatures, and is ultra vires of the
federal Parliament.

The division of powers between federal Parliament and provincial
Legislatures is not something that can just be glossed over;  it is
real and substantive.  Certainly, there are conflicts of jurisdiction,
but the test is and has always been, "in pith and substance, does this
legislation fall into the powers of the federal Parliament or the
powers of provincial Legislatures?"

Further, the division clearly and explicitly gives the provincial
Legislature the exclusive power to "raise a revenue" through the
imposition of a " licensing fee."  The language clearly indicates that
licensing businesses is the main intent of the provision.  Even in the
existing legislation, the federal Parliament is imposing a hefty
(several hundred dollars) licensing fee for firearms dealer's permits.
That is an intervention into the tax power of the provincial
Legislature, and it has serious effects.

The recent massive increases in dealer permit fees have eliminated two
thirds of all BC licensed dealers.  That has a severe impact on fees
and taxes that the province and the municipalities would have collected
if the federal Parliament had not imposed this apparently-ultra-vires
tax.

Placing a licensing scheme within the criminal law has other effects.
in effect, Parliament is saying, "This behavior is so heinous or
dangerous to public safety that we characterize it as a crime, and
provide for the imposition of several year's imprisonment to deter
people from engaging in it."

At the same time, it is saying, "You may commit this crime if you
purchase permission to do so from the governments."

To the best of my knowledge, the courts have never been asked, "When
the federal Parliament defines a crime, and establishes a penalty for
committing it, can it also give permission to commit that crime in
exchange for a fee?"

Nor have the courts been asked:  "In the Morgentaler case, it was
established that, where a specifically-tailored defense is offered in
the law, it must be available.  It cannot be illusory or so difficult
to obtain as to be practically illusory--or the Supreme Court of Canada
will strike down that law.  At what point do escalating fees for
licenses or specifically-tailored defenses render the defense illusory
or so difficult to obtain as to be practically illusory because the
accused is poor?"

Under the existing law, the concept that a permit/ certificate/
authorization is a "defense to a particular [criminal] charge" and not
a document which permits the holder to engage in behavior which is
defined as criminal, and which could result in years of imprisonment
without that permission, can be upheld by the use of polite fiction,
that the document is not a permission.

However, when the documents are "grand fathered" by the Firearms Act,
and emerge as being "deemed" to be "licenses," without any major change
in their function or status, that changes things.

Black's Law Dictionary defines a license as a "certificate or the
document itself which gives permission."  The mask is off.

The Firearms Act is clearly regulatory in nature, and the Minister is
clearly on record as saying that he does not expect  criminals to use
its provisions.

In sum, the federal Parliament is encroaching upon both the tax powers
and the legislative powers which belong exclusively to the provincial
Legislatures, as set forth by the Constitution, insofar as the Firearms
Act is concerned.

The use of licenses has another interesting effect.  Both C-68-s
Firearms Act (s. 104) and its Criminal Code (s. 91) provide for the
criminalization of a person as a result of the expiry or non-criminal
loss of his license.  (The license is normally valid for a fixed term
of 5 years.)

In Reference Re: Section 94(2) of the Motor Vehicle Act (1985) 2 SCR
486, the Supreme Court of Canada ruled that a sentence which includes
possible imprisonment cannot be imposed regarding expiry or suspension
of a license, because that is not a criminal act by the accused.  It is
just something that happened, and was not something heinous that the
person did.

The licenses established by the Firearms Act carry over into the
Criminal Code, and sentences of imprisonment are imposed by laws in
both for simple possession of a firearm--unless you also possess a
license which has not expired.

The Firearms Act also suffers from the suggestion by the Minister,
frequently repeated, that certain "offences" could be
"de-criminalized." That, of course, is nonsense.  If the "offence" is
enacted through the criminal law powers of Parliament, it is criminal
law and a violation is a crime which incurs a criminal penalty and a
criminal record.

If the "offence" is not criminal, the legislation which contains it is
regulatory law and therefore ultra vires of Parliament.

The Firearms Act may also be void for vagueness.   For example, the
simple transfer of a firearm from one person to another requires [FA s.
22(a) (ii)] the vendor to "obtain the authorization of the chief
firearms officer for the transfer."

However, the duties of the chief firearms officer when he receives that
request for an authorization [FA s. 26] do not require him to notify
the vendor of what he did.

One wonders if this is a transfer procedure or a game of blind man's
bluff.  The vendor becomes a criminal [under CC s. 91] at the moment
that the Registrar revokes his certificate--unless he has already
delivered the firearm, in which case he became a criminal somewhat
earlier [under CC s. 101.]

There is nothing in the Firearms Act to indicate exactly when or how
the firearm itself is physically transferred--but any error in their
timing can send both vendor and receiver to prison.

With regard to FA s. 98 to 101 plus 107, I have noted a tendency to
refer to the "inspecting" person as a "peace officer" or "police
officer" in some studies on this subject.  It should be noted that the
inspecting person may be "a member of a class of individuals designated
by the provincial minister [s. 98),"  but not be either a "peace
officer" or a genuine "police-officer."

Usually, this person will be a genuine police officer.

The Minister, in his presentation to the Justice and Legal Affairs
Committee, made much of the point that a weights and measures official
can enter to examine gas and electrical meters, which he claimed as a
parallel to FA s. 98 to 101 plus 107.

The differences are also striking.  The weights and measures official
is not a police officer, and therefore is rather unlikely to seize or
arrest as a result of something he noticed that was beyond his reason
for entry.

If charges result from the inspection, the weights and measures
official is working within a structure of regulatory law.   Any offence
is a public welfare offence, and not a criminal offence.

The Firearms Act inspector will usually be a police officer;  he is
authorized to search the place, "take samples", "conduct any tests or
analyses, and "dispose of [the samples] in any manner that he or she
sees fit (FA s. 99)." Any charges that arise from the entry will be
criminal charges, carrying imprisonment as a possible penalty, Given
the language of FA's 99,  they could be narcotics charges as easily as
firearms control law charges.

In sum, there is very good reason to believe that the Firearms Act will
not stand the "pith and substance" test, and that it is ultra vires of
the federal Parliament.

David Tomlinson
National President
National Firearms Association