CDN-FIREARMS Digest 247 Topics covered in this issue include: 1) legislative summary 217e [part 2 of 3] by Skeeter Abell-Smith ---------------------------------------------------------------------- Topic No. 1 Date: Fri, 5 May 1995 12:23:00 -0600 From: Skeeter Abell-Smith To: cdn-firearms@skatter.usask.ca Subject: legislative summary 217e [part 2 of 3] Message-ID: <199505051823.MAA02169@arcturus.USask.Ca> Continued from Digest 246... 5. Offences Involving Licences and Registration a. Under the Proposed Firearms Act Clauses 102 to 109 (pages 43 to 45) would set out offence provisions under the proposed Firearms Act. Most would arise from the "process~ elements of the licensing and registration scheme. They would involve: false statements made to procure a licence, registration certificate, or authorization; tampering with any of these documents; contravening a condition of one of these documents; refusing to deliver up a revoked document; failing in the duty to assist police officers engaged in an inspection (clause 100, page 43); and breach of those regulations for which the offence provisions would also be prescribed by regulation (clauses 106, page 44 and 110(o), page 47). Breach of a few regulations, such as those dealing with safe storage of regular and restricted firearms, would come under the Criminal Code. Other regulations would deal with administrative matters, and would not give rise to an offence. Except for the offence of failing to deliver up a revoked licence, which would be summary conviction only, all of these offences could be prosecuted either as indictable or summary conviction matters. The maximum term of imprisonment for failing to assist police officers conducting inspections, and for contravening a condition of a licence, registration certificate or authorization, when prosecuted by indictment, would be two years. The rest of the offences, when prosecuted by indictment, could be punishable by up to five years in prison. The effect would be that the maximum penalties under the new Firearms Act, when prosecuted by indictment (which is rare when the Crown has the option), including for most breaches of the regulations, would be on a par with the basic penalty which would be set out in the Criminal Code--for possession-of-a-firearm-without a licence and a registration certificate. This is presumably on the basis that all of these offences against the regulatory scheme are regarded as being on a par with operating outside the licensing and registration system altogether. b. Under the Amended Criminal Code The basic penalty for possession of any firearm - regular, restricted or prohibited without a licence and registration certificate would be found in section 91 of the amended Part m of the Criminal Code (page 67). This offence would specify no particular requirement for criminal intent, or mens rea, and would thus require only the minimum level of intent. Section 91(2) would similarly require a licence to possess a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or prohibited ammunition. In each case the offence could be prosecuted either as an indictable or a summary conviction matter. When prosecuted by indictment, the penalty would be up to five years in prison. When prosecuted by summary conviction the penalty would be up to six months in jail, or a fine, or both. The Bill would also provide, in section 92, for a more serious offence in cases where a person "knowingly" possessed a firearm, [etc.] without a licence and a registration certificate (for firearms only). The reference to "knowing" would raise the fault or mens rea element to the level of wilful intent. The offence would presumably also be invoked in only the more serious cases of unlawful possession. The offence would be indictable only, that is, on a par with the most serious offences under the Criminal Code, such as murder, robbery and aggravated sexual assault. The penalty for this offence would be up to ten years in prison for a first offence, with a minimum penalty of one year in jail for a second offence, and a minimum penalty of two years less a day for a third or subsequent offence. These offences would not apply to the case of individuals possessing a firearm under the direct supervision of the owner, so long as the firearm or other weapon was being used for a purpose that was lawful for the owner. Nor would they apply when individuals came into possession of an item by operation of law, and within a reasonable period either disposed of it, or obtained the requisite licence and, if it was a firearm, a registration certificate. Section 93 would make it an offence to possess a firearm (all classes) or other prohibited or restricted weapons at a place other than that authorized in a licence or authorization. This offence could be either an indictable or a summary conviction matter, and if prosecuted by indictment could result in a maximum prison term of five years. Section 94 would make it an offence for anyone to be in a motor vehicle where a firearm (all classes) or other prohibited or restricted weapon was present, without someone in the vehicle possessing the requisite licence, authorization or registration certificate. The section would set out a number of circumstances in which the offence would not apply. The offence would be either an indictable or a summary conviction matter, and if prosecuted by indictment could result in a maximum prison term of ten years. Transitional provisions would bring these offences, insofar as they involved a requirement for either a licence or a registration certificate, into effect in stages. Section 98 (page 73) would mean that anyone in lawful possession of a firearm when these offences came into effect, either with or without a current FAC, would be deemed to have a licence until l January 2001, or until such later date as was prescribed. The intent is to cease issuing FACs, and begin issuing licences, on 1 January 1996, but FACs would be deemed to be licences for the full five years of their term if issued after that date (Clause 113(3), page 51). In regard to registration certificates, section 98(3) would provide that anyone in possession of a regular firearm after the coming into force of the offence provisions, and before 1 January 1998, or such later date as was prescribed by regulation, would be deemed to be the holder of a registration certificate until 1 January 2003, or such later date as was prescribed. The intent is to begin issuing registration certificates on 1 January 1998, thus giving owners five years to register their existing regular firearms, that is, rifles and shotguns which are neither prohibited nor restricted. 6. Regulation-Making Powers The regulation-making power under Bill C-68 would be much broader than the current section 116 of the Criminal Code. The primary enabling power would be clause 110 of the proposed Firearms Act (page 45). Many other provisions of the proposed Act would be subject to something being "prescribed." As noted earlier, where this involved forms or the information to be submitted with them, the matter would be determined by the Minister outside the regulation-making power. In all other cases the matter would be dealt with in regulations made pursuant to clause 110(v). Some powers to make regulations, such as safe storage regulations, are already found in section 116 of the Code, and would continue in a modified form (Clause 110(h), page 46). Additional paragraphs would create an array of new powers covering a wide range of matters, including: the issuance and revocation of licences, registration certificates and authorizations, including "purposes" and '~circumstances of eligibility"; the circumstances in which a person would be regarded as needing a firearm (presumably a restricted firearm) to protect life or for use in employment; the use of firearms in target practice and shooting competitions; the establishment and operation of, the activities at, the possession and use of firearms at, and the keeping of records at, shooting clubs and ranges; the establishment and maintenance of gun collections; the operation of gun shows; the possession and use of restricted weapons; storage, handling and transportation controls applicable to police officers and other public officers; records regarding firearms (all classes) and other prohibited and restricted weapons; records of businesses regarding ammunition; the waiving or reducing of fees; the Canadian Firearms Registry; electronic sending of notices and documents; and, the variation of the provisions of the proposed Firearms Act and its regulations insofar as they would affect the aboriginal peoples of Canada. Some of these enabling powers would appear to provide authority to add to the substantive content of the proposed Firearms Act itself, in addition to the creation of subsidiary administrative structures. For example, the power to deal with the issuance of licences, registration certificates and authorizations includes the power to make regulations respecting the "purposes" for which they are issued, and the "circumstances in which persons are or are not eligible to hold licences." Although these regulations could not conflict with the provisions of the Act itself, they seem to have the potential to create additional substantive rules to those set out in the statute. As another example, the power to make regulations respecting the use of firearms for target practice or competitions might be invoked to authorize the establishment of additional limitations on the use of both regular and restricted firearms for that purpose. The power to provide for a different application of the statutory provisions insofar as aboriginal peoples are affected would authorize regulations changing the provisions of the Act itself. This would be a very unusual enabling power. 7. Appeal Provisions for Refusals or Revocations Where a chief firearms officer or the Registrar refuses to issue or revokes a licence or registration certificate, the applicant can apply first to a provincial court judge (clauses 72 to 74, pages 33-34), and then to the superior court, and possibly the court of appeal (clauses 75 to 79, pages 34-36), if unsuccessful. The same process is available in regard to authorizations to transport, which apply only to restricted and prohibited firearms, and to authorizations to export or import. The initial appeal process is similar to the present appeal process available for refusals to issue or revocations of FACs and restricted weapon registration certificates. The onus would be on the applicant to satisfy the judge that the refusal or revocation was not justified. The further appeal which Bill C-68 would allow to the superior court in all matters is now only available in the case of restricted weapon registration certificates. The provisions would also be broadened by the Bill to set out a more complete procedure. A final appeal to the court of appeal could only be made with leave of the court, and would be restricted to questions of law. 8. Businesses Bill C-68 would expand the definition of a business involved with firearms and other weapons, and would add to the controls on these businesses. Clause 9 (page 9) would provide-that every person in a prescribed relationship to the business would require a licence authorizing all of the activities of the business, or a licence to acquire restricted firearms. Employees would also be required to hold a licence authorizing them to acquire restricted firearms. The current requirement for employees involves only an FAC. Carriers would be subject to these provisions only if they operated on an inter-provincial or international basis. Most businesses would~restricted t~dealing in-regular or restricted firearms (clause 11, page 10). Only those businesses who needed them for a prescribed purpose, or licensed carriers, would be allowed to possess prohibited firearms, prohibited weapons, prohibited devices, or prohibited ammunition. These would presumably be the sort of businesses, such as film companies and weapons-testing companies, that are now allowed to possess prohibited firearms. Businesses involved in importing or exporting would also be subject to special rules, described below. All businesses would be subject to record-keeping requirements, primarily prescribed by regulation, and the new statutory inspection powers, also described below. 9. Exportation and Importation The Bill would create new export and import controls. These would link the licensing and registration requirements to controls at the border. Individuals would be subject to different controls (clauses 34 to 41, pages 19-23) from those which would apply to businesses (clauses 42 to 51, pages 23-25). There would also be special provisions for non-residents bringing firearms into the country. Adult non-residents would be allowed to bring in regular and restricted firearms. A prescribed declaration, made by the non-resident and confirmed by a customs officer, would be deemed to be a temporary licence and registration certificate (clause 35, page 20). An authorization to transport would also be required to bring in a restricted firearm. The declaration would be valid for an initial period of 60 days, and could be renewed by a chief firearms officer. When the firearm was removed from the country, the non-resident would have to make a second declaration and produce the original confirmed declaration, and the authorization to transport in the case of a restricted firearm. Export by a resident individual would require the applicable licence, registration certificate, and authorization to transport in the case of a restricted or prohibited firearm. A prescribed declaration would also have to be completed, and confirmed by a customs officer. When the firearm was brought back in, the confirmed declaration would have to be produced. If the individual was bringing in a regular or restricted firearm acquired outside the country, the importation would have to be approved by the chief firearms officer. The individual would have to possess the requisite licence, and the confirmed declaration would serve as a temporary registration certificate for its effective period. Additional provisions apply to detaining, forfeiture, and disposal of firearms which an individual attempted to export or import without complying with all the requirements. Businesses could import or export all classes of firearms, prohibited weapons, restricted weapons, prohibited devices, and prohibited ammunition, including parts designed for use in the manufacture or assembly of automatic firearms, but would require a special authorization for each shipment. The requirements for such an authorization, and the procedure that would have to be followed, would depend on the nature of the firearm or weapon being imported or exported. Each application for an authorization by a business, either to import or export, would be reported to the Minister responsible for the Exports and Import Permits Act, and particular shipments could be subject to additional authorizations or requirements in accordance with that Act. As with individual importations, the authorization to import would be deemed to be a temporary registration certificate for its effective period. Shipments would have to be processed at designated customs offices. 10. Inspection Powers Clauses 98 to 101 (pages 41-43) would create new statutory inspection powers which would apply to ny place other than a dwelling-house, and would further extend to dwelling-houses with the owner's consent or under the authority of a warrant. Under current provisions set out only in regulations, such powers are applicable just to businesses. The extension of these powers is likely to be controversial and may be subject to a challenge under the Canadian Charter of Rights and Freedoms. Similar inspection provisions, particularly regarding businesses, have been upheld under the Charter so long as they were part of a "regulatory or administrative context" rather than a "criminal context." The proposed Firearms Act would contain provisions which were primarily of a regulatory nature, although the Act would be made under the federal Parliament's criminal law head of power. Whether these inspection powers, particularly as they would apply to places other than business premises, would withstand a Charter challenge, would be an open question. Police officers or other officers designated by the province would carry out these inspections for the purpose of ensuring compliance with the proposed Firearms Act and its regulations, and with the amended Part m of the Criminal Code. There is no requirement that the inspecting officers must have any reason to believe that either statute was not being complied with; they must simply have reasonable grounds to believe that any firearm, other regulated weapon, or ammunition, or any record relating to any of these things, was located in "any place. " During the course of an inspection, the officers could open any container, examine any firearm or other thing and take samples, conduct tests, and require that records be produced for examination. They could use or cause to be used dah processing systems on the premises, and reproduce documents either in the form of print-outs or photocopies. That the power would be one of "inspection," rather than "search and seizure" in the criminal context, is supported by clause 99(4) (page 42), which provides that no force could be used. Clause 100 (page 43) would, however, require those on the premises to give the officers all reasonable assistance and provide them with any relevant information. Failing to do so would be an offence under clause 107 (page 44). Clause 101 (page 43) would require the officer to have either the occupant's consent or a warrant to enter a dwelling-house for the purposes of an inspection. A justice could issue a warrant for the same purposes and on the same grounds as would apply to other places under clause 99 (pages 41-42), but only if entry to the dwelling-house had been refused or there were reasonable grounds to believe that entry would be refused. The warrant could be subject to conditions. 11. Shooting Clubs and Ranges Shooting clubs are currently given only a brief reference under the target practice provision of section 109 of the Criminal Code, dealing with restricted weapon registration certificates. It requires only that clubs be approved by the Attorney General of the province. Clause 28 (page 17) and paragraph (e) of the enabling power, Clause 110 (page 45) would significantly expand the requirements that would apply to shooting clubs, and would extend these rules to shooting "ranges". The regulations could set out rules regarding the establishment and operation of the clubs and ranges, the activities that could be carried out there, the possession and use of firearms there, and the keeping of records, including records regarding the members. The provincial minister would still approve the club or range, but only if they complied with the federal regulations, and the approval could be revoked for a breach of the regulations. 12. Genuine Gun Collectors The current provisions define "genuine gun collectors" in section 84 of the Code. The definition makes them subject to certain requirements in regard to the acquisition and possession of restricted firearms. Clause 29 (page 17) of Bill C-68 would reproduce the same criteria with regard to access to restricted firearms, including prohibited but grandfathered handguns, for the purposes of a gun collection, although the term "genuine" gun collector would no longer be used. The regulation-making power regarding collectors would, however, be significantly broader. It would authorize rules respecting the "establishment and maintenance~ of gun collections, and the "acquisition and disposal or disposition" of firearms that form part of a collection. The regulations could deal with the inclusion of regular firearms in collections, and could thus go beyond the present power to prescribe rules only insofar as the collections included restricted firearms. The proposed power would appear to go beyond the current power to prescribe regulations concerning "knowledge, secure storage and the keeping of records,~ and would seem to signal an intent to increase the controls on gun collections. 13. Ammunition Bill C-68 would add the regulation of ammunition sales to the gun control laws. Currently, ammunition is dealt with only under the Explosives Ac~. Section 84 of the Criminal Code now includes only designated prohibited ammunition (body-armour piercing, incendiary and explosive bullets) under the definition of "prohibited weapon. n The proposed Firearms Act would deal separately with "ammunition" and "prohibited ammunition." Clause 24 (page 15) would allow the transfer of non-prohibited ammunition only if the person receiving it held a firearms licence of any class or a prescribed document, and further complied with any prescribed conditions. Clause 104 (page 44) would make it an offence for a business to possess ammunition without a licence. These provisions would both be under the proposed Firearms Act. Clause 133 (pages 59 to 98) would also add ammunition and prohibited ammunition to the relevant offence provisions of Part m of the Criminal Code. 14. Cross-bows The Bill would also impose some controls on cross-bows. They would be subject to the basic screening requirements of the proposed Firearms Act regarding licences (clause 5, page 5). Those seeking a licence to acquire a cross-bow would be exempt, however, from such requirements as the safety course (clause 7((4)(d), page 8). Cross-bows would also not be covered by most of the other regulatory provisions of the proposed Act. A proposed offence provision in Part III of the Criminal Code, section 97 (page 73), would make it an offence to sell, barter or give a cross-bow to anyone unless the person produced a licence which the seller had no reasonable grounds to believe was invalid. The offence would be dealt with as either an indictable or a summary conviction matter, and when prosecuted by indictment would be punishable by up to two years in prison. B. Particular Controls on Prohibited and Restricted Firearms and Other Weapons 1. Definitions of the Classes a. General Effect of the Proposed Changes The Bill would realign the classes of prohibited and restricted weapons, and would in particular add certain handguns to a class of prohibited firearms, but with the exception of replica firearms, regular ammunition, and cross-bows, it would not add any new weapons or accessories to the overall scheme. The new or amended enabling powers would, however, allow for more changes and additions to be made in the future by regulation (called "orders in council" under the current provisions). b. Prohibited Firearms All of the relevant definitions would appear in the re-drafted section 84 of the Criminal Code (clause 133, pages 59-64). "Prohibited firearms would be a distinct class from "prohibited weapons," and would include the following: 1) Short-barrelled handguns (less than 105 mm), and .25 and .32 calibre handguns, except for those exempted by regulation on the basis of being used in competitions sanctioned by the International Shooting Union. 2) Sawn-off rifles or shotguns, where the result was a firearm less than 660 mm in length or a barrel less than 457 mm in length. 3) Automatic firearms, including converted automatics. 4) Firearms prescribed by regulation. All of these guns are currently prohibited weapons, with the exception of the handguns, which are now restricted weapons. The other change to the class would involve the removal of the limitation which presently exists on the power to prohibit firearms by regulation. That power (in paragraph (e) of the definition of "prohibited weapon" in section 84 of the Code) does not now extend to any "firearm of a kind commonly used in Canada for hunting and sporting purposes." This clear exemption for commonly-used firearms would be replaced by a provision identical to the legally ineffective limitation that now applies to the power to restrict firearms by order in council. Thus, the purported protection would extend only to shotguns and rifles ~of a kind that, in the opinion of the Governor in Council, is reasonable for use in Canada for hunting or sporting purposes" (emphasis added) (see section 117.15(2), page 98). c. Restricted Firearms "Restricted firearms" would be a distinct class composed of the following: 1) All handguns not prohibited. 2) Semi-automatic centre-fire rifles and shotguns that have non-adapted barrels less than 470 mm in length. 3) Rifles and shotguns that can be reduced to less than 660 mm in length by folding,telescoping, or otherwise. 4) Firearms prescribed by regulation. All of these guns are now restricted. The classifications of the Bill would, however, remove from the restricted class firearms which had been prohibited but grandfathered. Grandfathered firearms, in the hands of those allowed to retain or acquire them, now form additional elements of the restricted class, and are treated the same as other restricted firearms. Under the reorganized scheme those individuals in the particular grandfathered class would be eligible for a licence to possess them as "prohibited" firearms, but the permissible uses would be reduced. The term "restricted weapons" in the new Bill is to be defined separately and would refer to non-firearms. d. Prohibited Weapons, Restricted Weapons, Prohibited Devices, and Prohibited Ammunition. These definitions would also appear in the re-drafted section 84. "Prohibited weapons" would be switchblades and flick knives, and non-firearms prescribed by regulation. As noted above, "restricted weapons" would be non-firearms prescribed by regulation. ~Prohibited devices" would be: components, parts and accessories of weapons, whether firearms or non-firearms, prescribed by regulation; handgun barrels not greater than 105 mm in length, unless exempted for use in international competitions; silencers; cartridge magazines prescribed by regulation, presumably large-capacity magazines; and, replica firearms. ~Prohibited ammunition~ would be ammunition prescribed by regulation, presumably of the kind now classed as prohibited weapons. Licensed businesses would be able possess these weapons and devices for approved purposes. Only the restricted weapon category might become available for individual possession. It is not clear what these weapons might be, but they apparently might include weapons such as incapacitating sprays which are now prohibited, but could be made available to those persons who demonstrated a special need, such as in certain employment situations. e. Prohibited Firearms Available to Individuals The licensing provisions of the proposed Firearms Act would make individuals eligible to possess prohibited but grandfathered firearms. Each person would only be eligible to possess and acquire a grandfathered firearm within the same class as those they were allowed to retain when the firearms became otherwise prohibited. These are known as "closed classes,~ although the Bill does not use this term, and they would mean that there would be a limited market for each class. Clause 12 (pages 10-12) would establish five closed classes, and the potential for more. The specified classes would include the following: 1) Automatic firearms prohibited in 1978. 2) Converted automatics prohibited in 1992. 3) "Military and para-military" firearms prohibited and grandfathered by order in council in 1992 (Order No. 12). 4) Military and para-military" firearms prohibited and grandfathered by order in council in 1994 (Order No 13). 5) Short-barrelled and .25 and .32 calibre handguns which individuals possessed on February 14, 1995, that would be prohibited by Bill C-68. All of the grandfathered classes would be subject to special rules regarding the holding of, or applications for, registration certificates under the current provisions, on the day the new provisions came into force. The first two classes were created by statutory changes, the second by Bill C-17. The third class was created by order in council as part of the package of measures of which Bill C-17 was a part, at the same time as other "military and paramilitary" firearms were declared restricted by order. The fourth class was created in November of 1994, when all but one of the firearms restricted by order in council in 1992 were moved to the prohibited list. The fifth class would include presently restricted handguns which would be prohibited by this Bill. The grandfathering of these handguns would be limited to those in private hands on 14 February 1995, the date on which the Bill was tabled. No one could thus take advantage of the grandfathering by acquiring one of these handguns before the Bill was enacted and came into force. Aside from the class of handguns that the Bill would prohibit but grandfather, all of these classes of prohibited firearms would have severely restricted uses. The issue of permitted uses is described below. Clause 12(7) (page 12) would also authorize the grandfathering of firearms prohibited by regulation, in circumstances set out in the regulations, after this Bill came into effect. This could, as described above, include firearms now commonly used for hunting or sporting purposes. This could raise a special question concerning permissible uses for these firearms, if prohibited and grandfathered in the future. (see below, p. 32 of this summary). f. Former Relics Firearms which are restricted weapons under the present provisions of section 109 of the Criminal Code may be registered as "relics," rather than as firearms for use in protecting life, employment, target shooting, or gun collecting. Relics are now defined by the regulations as firearms that are of value "as a curiosity or rarity" or as a "memento, remembrance or souvenir." There would be no provision for relics under the proposed Firearms Act or the changes which the Bill would make to the Criminal Code. Those now registered as restricted weapons would, under the proposed scheme, become either restricted firearms, if, for example, they were full-sized handguns, or prohibited firearms in one of the grandfathered classes if, for example, they were short-barrelled handguns or a "military or para-military" gun prohibited by order in council. If the relic became a prohibited but grandfathered firearm it would be treated the same as any other prohibited firearm, except for the purposes of retention and trading among the closed class, unless it was a grandfathered handgun. There would be special rules for these handguns, and for restricted firearms retained as former relics, and these are described below. Continued in Digest 248... ------------------------------ End of CDN-FIREARMS Digest 247 ******************************