To:   S/Sgt R. Gidley

From: Dave Tomlinson

13 Jan 94

Dear Sir:

Sorry I missed your call this morning; I was out helping with the
education of a woman gunsmith who wants to become a museum-class
restorer of antique firearms.

With regard to the McDonald matter, I'm afraid the FRAS position
is untenable.  In Abell v. Commissioner (1979) 49 CCC (2d)
P193, the Saskatchewan Court of Appeal ruled that the
Commissioner (FRAS) had no authority to refuse issuance for
reasons other than "the safety of the applicant therefor or any
other person" [s. 112(3)].

FRAS (per: the Commissioner) may be precluded from issuing by a
statutory provision, which is a different matter.  In the letter
to Mr. McDonald, it is stated that the Commissioner is "precluded
from adjudicating this application" by his inability to determine
the status of the firearm in question.  He is, it seems to be
saying, unable to learn whether or not the firearm falls within
the the definition set forth in s. 84(1)(c.1).

As you know, this definition is set forth in s. 84(1) "firearm":

"firearm" means any barrelled weapon from which any
shot, bullet or other projectile can be discharged and that is
capable of causing serious bodily injury or death to a person,
and includes any frame or receiver of such a barrelled
weapon and anything that can be adapted for use as a
firearm.

Within the definition given in s. 84(1) "restricted weapon," the
relevant subparagraph (c.1) says:

["restricted weapon" means]

(c.1) any firearm that is assembled or designed and
manufactured with the capability of firing projectiles in rapid
succession with one pressure of the trigger, to the extent that

(i) the firearm is altered to fire only one such projectile
with one such pressure,

(ii) On Oct 1, 1992 the firearm was registered as a restricted
weapon, or an application for a registration certificate was
made... in respect of the firearm, and the firearm formed part of
a gun collection in Canada of a genuine gun collector, and  

(iii) subsections 109(4.1) and (4.2) were complied with in
respect of that firearm...

In Mr. McDonald's case, there is apparently no question that all
the above conditions have been met, with the possible exception
of s. 109(4.1)(b).  

S. 109(4.2) has been met, and Mr. McDonald is faced with a
constructive refusal to register unless he submits parts, which
he may or may not possess, for the purpose of test firing by the
RCMP.  

I draw to FRAS' attention the fact that the firearm in question is
still a firearm when every part has been stripped away, leaving
nothing but a bare receiver, as the definition of "firearm" says.

I draw to FRAS' attention the fact that the subparagraph (c.1)
definition of "restricted weapon" includes the word "firearm" and
that the word "receiver" is, by definition, one possible meaning
of the word "firearm" in that context.

It therefore follows that FRAS [per: the Commissioner] is
required to be able to distinguish between a naked "receiver"
which is "restricted" and one which is "prohibited."

This is quite a serious matter for many collectors.  It is not at
all unusual for an owner to own a "receiver" which contains none
or only some of the parts required to actually fire the
"firearm."  In many cases, the remaining parts are simply
unavailable.  If an absence of parts, causing complete
inoperability, results in confiscation without compensation, one
can hardly wonder at the current high rate of peaceful civil
disobedience in firearms matters.

In FRAS' view, if I understand the thrust of the FRAS position
correctly, such a "firearm" will be confiscated as "prohibited"
if the owner cannot satisfy an onus invented, apparently, by FRAS
[per: the Commissioner] to supply parts so that the "firearm" is
capable of being test fired.

I can find no justification in law for that position.  I submit that
FRAS may have gone beyond the vested power of the Commissioner as
a statutory decision-maker, and, by inventing conditions for
issuance which are not specified in law, ventured into legislating. 

In my view, there is a distinct difference between decision-
making and legislating.  A decision-maker may make any opinion
judgement decision if and only if his power to make that
particular judgement is specified in the law.  A legislator makes
new conditions, and then requires the public to conform to the
new law.

In my view, neither FRAS nor the Commissioner are legislators,
and the demand that FRAS makes of Mr. McDonald is unlawful.

It may well be that it is impossible to determine whether or not
a particular naked "frame or receiver" falls within s. 84(1)
"restricted weapon" (a), (b), (c), or (c.1)--or even under s.
84(1) "prohibited weapon" (c) or (e).  If that is the case, I
submit that the applicant is entitled, as in all criminal law, to
the benefit of any unresolvable doubt.

I am particularly concerned that the methods suggested by the
letter to Mr. McDonald will mitigate against compliance with the
law.  I am already aware of severe discontent caused by the fact
that many of the firearms submitted to RCMP Crime Detection
Laboratories have been held, without explanation, for many
months, and that a high percentage of them have been confiscated
without payment, or have run into this or other problems.

In several case which have come to my attention, such firearms
have been held to be "prohibited weapons," or, worse, the CDL
report has stated that the firearm can be assembled as either a
full automatic or a semi-automatic firearm, depending upon what
components are used.  While reports of the latter type are quite
correct, the result is confiscation of the collector's property
without compensation, and that is a disincentive to compliance.

The situation is chaotic, and badly needs a clear resolution.  I
submit that it is not possible to determine the status of many
"firearms" under the definitions in s. 84(1), and perhaps we
should all stop trying to pretend that this unworkable set of
definitions can continue to be used.

Nearly any bolt-action .22 rimfire naked "receiver," for example,
can be assembled with parts which bring it within the s. 84(1)
"restricted weapon" definition subparagraph (a), (b)(i), (b)(ii),
or (d)  definitions, or the s. 84(1) "prohibited weapon" (c),
(d), or (e) definitions.

In sum, the situation is impossible.  FRAS [per: the
Commissioner] is expected to be able to distinguish "firearms"
and categorize them correctly; yet, as your letter indicates,
that's impossible when the "firearm" in question is incomplete.

It cannot be that an incomplete "firearm" is in a state of limbo
until the owner supplies parts that satisfy FRAS [per: the
Commissioner].  If the Crown is willing and able to prosecute on
the basis of incomplete "firearms," it must follow that they,
without completion, are the subject of the law.

The definition of "firearm" clearly states that a naked "frame or
receiver" is a "firearm," without adding any parts.

Even if the applicant does supply the RCMP with the demanded
parts, that does not change the fact that substitution of some
other set of parts may change the "firearm" in question, bringing
it into the "restricted" or "prohibited" category.  The demand
for parts, therefore, is rather pointless.

If the applicant supplies parts which satisfy FRAS and the
Commissioner, there is no evidence one way or the other that
those are the only parts that he has; he may well have
alternative parts which will allow him to alter the firearm to
another category as soon as he has legal, unsupervised access to
it.

The same situation obtains with any unrestricted rifle or
shotgun; any such firearm can be converted to "prohibited weapon"
status "in a relatively short period of time and with relative
ease" by taking a hacksaw to the barrel.  Yet no one suggests
that the owner should be required to prove that he has a long
barrel; we rely, instead, upon a prohibition imposed for
possession of a firearm with a hacksawed barrel, and trust the
owner to obey the law.  If he doesn't obey, he'll be punished.

Why does the standard differ in Mr. McDonald's case?

The recent Hasselwander decision has exacerbated the
problem.  In it, the Supreme Court of Canada essentially ruled
that a firearm is a "prohibited weapon" if it can be converted to
"prohibited weapon" status "in a relatively short period of time
and with relative ease."  In my view, that does not solve
anything; it merely sets the stage for the voiding of all current
definitions for vagueness in the next case.

As you know, laws must be set forth clearly enough for an
ordinary person to understand them.  What an ordinary person
cannot understand, he cannot obey, because he cannot know what is
licit and what is prohibited. 

In Mr. McDonald's case, I submit that it is the duty of FRAS
[per: the Commissioner] to decide the status of his "firearm" as
it is, and not to inflict further delays upon him.  If he has
other parts and is reluctant to submit them to the RCMP lest he
lose them as well as the parts already submitted, who can blame
him?  If the matter had been handled with less hamfistedness by
the Minister's staff, we wouldn't have this mess today.

Mr. McDonald has done his best to comply with the law, far more
than many others who have completely given up on compliance.
Imposing conditions that may turn out to have exceeded the lawful
authority of the Commissioner is, I submit, a doubtful tactic if
the objective is public safety; it will reduce compliance.

Yours truly, 




David A. Tomlinson
National President					DAT/KIV