The Firearms Act contains many new or expanded regulation-making powers the exercise of which will establish critical elements of the gun control regime. Because of the significance of regulations made pursuant to firearms legislation, and their application to the activities of Canadians, a somewhat unusual process of parliamentary review was added to this legislation by Bill C-17 (S.C. 1991, c. 40).
Although the Standing Joint Committee for the Scrutiny of Regulations is mandated to examine all regulations after they have been made, in the case of any new firearms regulations Parliament was given the authority and responsibility to review the proposed content of the regulations before they can be made. Pursuant to section 118 of the Firearms Act, the Minister of Justice is required to have the proposed regulations laid before each House of Parliament for consideration. The appropriate committee of each House is given a mandate to conduct enquiries and public hearings, and report its findings.
On 27 November 1996, the Minister of Justice tabled 11 sets of draft regulations in Parliament. All would be made pursuant to the enabling powers of section 117 of the Firearms Act. Pursuant to Standing Order 35(2) of the House of Commons, these draft regulations were referred to the Standing Committee on Justice and Legal Affairs for examination. A Sub-Committee was established, pursuant to Standing Order 108(1)(a) and (b) on 19 September 1996, in order to conduct this examination.
Following careful consideration of all of the views and submissions that were received, the recommendations in this report represent the Sub-Committee's conclusions as to the additions and changes to the draft regulations considered necessary to make them as fair and effective as possible.
Without adequate communication programs, there is a risk that many of the requirements in the firearms control legislation will continue to be misunderstood or ignored. Furthermore, adequate communication programs regarding the requirements of the legislation are also essential to reduce inadvertent violations.
These communication programs should not be limited to written materials but should also include the use of video presentations and other effective means of communication in order to ensure that the messages being communicated reach as many people as possible.
While it is important to have general communication programs that inform the public at large of their responsibilities under the legislation, it would also be very beneficial if programs were directed at particular users, for example, museums, target-shooters, outfitters, hunters and businesses supplying firearms to the motion picture and television industry. These programs should set out the requirements that are specific to each such group, to ensure a better understanding of their obligations. These specific programs should also be used to address any misapprehensions that some groups may have in relation to the legislation.
It is also important that communication programs provide information to non-residents with respect to border-crossing requirements and in relation to their general obligations under Canadian firearms legislation. This should be done directly, for example through foreign hunting magazines, and indirectly, through Canadian outfitters and other groups that serve foreign clients.
The Sub-Committee is of the view that the government should also conduct extensive advertising in the media in order to advise firearms owners of the implementation date of the new regulatory regime. In addition, owners should be advised on where they can obtain further information regarding this regime. This should be done well in advance of implementation to allow firearms owners time to prepare accordingly.
Finally, the Department of Justice should prepare comprehensive training materials for those who will be responsible for the administration of the legislation. This will help to ensure a more uniform application of the legislation across the country. The Sub-Committee also believes that the training materials should place emphasis on the issue of spousal abuse.
The Sub-Committee recommends that communication programs be established setting out the requirements of the legislation. These programs should be directed to the general public and should involve a variety of effective communications methods.
Recommendation 2
The Sub-Committee recommends that communication programs be directed at specific groups within the Canadian firearms community, as well as non-residents. These programs should set out the requirements that are specific to each particular group, so as to ensure a better understanding of their obligations.
Recommendation 3
The Sub-Committee recommends that extensive advertising be conducted in order to advise firearms owners of the implementation date of the new regulatory regime and on where they can obtain additional information regarding this regime.
Recommendation 4
The Sub-Committee recommends that the Department of Justice prepare training materials for those who will be responsible for the administration of the legislation, with some emphasis on the issue of spousal abuse.
In addition to materials setting the requirements in plain language, the Department of Justice should prepare an office consolidation of the regulations which would contain a table of contents and an index for ease of use. This would make the regulations more user friendly in cases where it is necessary to review the precise legal text of the regulations. These office consolidations should be made readily available to members of the general public.
The Sub-Committee recommends that the Department of Justice prepare interpretation guides and similar materials that set out in plain language the requirements of the legislation and that these guides be made available as part of the communication programs.
Recommendation 6
The Sub-Committee recommends that the Department of Justice prepare an office consolidation of the regulations which would contain a table of contents and an index for ease of use.
The first involves the participation in "parades and pageants". These terms are of a general nature and would be intended to cover military and semi-military parades and other similar legitimate events. The Sub-Committee leaves it to the Department of Justice to find more specific terms if this is deemed necessary.
The second deals with the borrowing of a non-restricted firearm for use in motion picture, television, video or theatrical productions or publishing activities. This would allow non-residents to borrow non-restricted firearms for use in a production in Canada.
The Sub-Committee recommends that Clause 10 of the regulations be amended to add two new purposes for which a non-resident would be eligible to hold a non-resident sixty-day possession licence to borrow non-restricted firearms. The first would allow use while participating in a parade, pageant or other similar events, and the second would allow the use of firearms for movie, television, video or theatrical productions or publishing activities.
The Sub-Committee notes that this same requirement is not found in the clauses dealing with an application for an acquisition licence for cross-bows. It is our belief that the spousal notification requirement should also be included as part of the process to obtain an acquisition licence for cross-bows.
The Sub-Committee recommends that the requirement for spousal notification be expanded to cover an application for an acquisition licence for cross-bows.
Witnesses were concerned that not all of their business activities were covered under Clause 21. For example, one of the witnesses wondered whether the proposed prescribed purposes covered their activities dealing with training ammunition and training weapons. Another witness was concerned that the manufacture of prohibited items without an export permit, as required by paragraph 21(k) of the draft regulations, was also not covered by the prescribed purposes.
The Sub-Committee does not have the expertise to determine what are appropriate prescribed purposes with respect to Clause 21. It is extremely important, however, that all business activities for which a business legitimately needs to be in possession of a prohibited item be covered by one of the prescribed purposes in these regulations.
The Sub-Committee recommends that the prescribed purposes be reviewed by the Department of Justice to ensure that all business activities for which a business legitimately needs to be in possession of a prohibited item are covered by the prescribed purposes in the regulations.
The first concern raised was with respect to the condition at paragraph 23(1)(a) of the draft regulations which provides that a business is not to depict or promote violence in an advertisement of a firearm or other weapon. Some of the businesses that are involved in supplying firearms to the motion picture and television industry were concerned that this condition might apply to them and that it was impossible for them to ensure that a firearm would not depict or promote violence. The Sub-Committee agrees that this paragraph should be clarified in order that it is understood that it is not directed at advertisements such as those for movies or other forms of entertainment in which firearms are only indirectly involved.
The second area of concern dealt with paragraphs 23(1)(c) and (d) which requires that businesses keep records of transactions entered into, in relation to firearms, and requires them to keep an inventory of specified items which are present at the location of the business. While the Sub-Committee recognizes that these conditions are appropriate for most businesses, it believes that they should not apply to carriers, since they are not conducting the same kinds of activities as other businesses and their possession of firearms is generally for short periods of time.
Finally, there was some concern that paragraph 23(1)(d), requiring businesses to keep an inventory of specified items present at the location of the business, would necessitate maintaining a running inventory. The Sub-Committee believes that paragraph 23(1)(d) should be clarified to make clear that an inventory by all businesses would only be conducted, and the information remitted to the chief firearms officer, once a year pursuant to this paragraph. The legislation would authorize the chief firearms officer to require more frequent monitoring, in individual cases, if it is appropriate.
The Sub-Committee recommends that paragraph 23(1)(a), which provides that a business is not to depict or promote violence in an advertisement of a firearm or other weapon, be clarified to make clear that it is not directed at advertisements such as those for movies or other forms of entertainment in which firearms are only indirectly involved.
Recommendation 11
The Sub-Committee recommends that paragraphs 23(1)(c) and (d), requiring businesses to keep records of transactions entered into, in relation to firearms, and requiring them to keep an inventory of specified items which are present at the location of the business, be amended to exclude carriers.
Recommendation 12
The Sub-Committee recommends that paragraph 23(1)(d) be clarified to indicate that an inventory must be conducted, and the information remitted to the chief firearms officer, only once a year pursuant to this paragraph.
Therefore, Canadian firearms owners who have not obtained a licence before1 January 2001, (during the transitional period) will need a prescribed document in lieu of a licence. Non-residents, meanwhile, will either obtain a non-resident sixty-day possession licence to borrow a firearm or will import their own firearms and would have a deemed licence pursuant to section 36 of the Act. In such cases, they would not need any other document and they could receive or purchase ammunition while in Canada.
The important point is that everyone on a range will be required to have a licence to possess the firearms they are using, except for present Canadian firearms owners during the transitional period. Once these facts are established, nothing more would be needed to transfer ammunition between competitors.
The Sub-Committee would like to point out that this is a perfect example of the type of misunderstanding that should be clarified in the communication programs that we recommend in Chapter 2 of this report.
The Sub-Committee recommends that "parades and pageants" be exempted from the application of specified clauses of the regulations pursuant to subclause 2(3).
The Sub-Committee recommends that Clauses 3, 4 and 5 be amended to make it clear that ammunition must either be kept apart from a firearm or locked up, but that it need not be in a separate locked container or receptacle or a separate vault, safe or room.
Because of the other requirements of the regulations and the limited number of such firearms, the Sub-Committee does not feel that public safety would be compromised by such a measure.
The Sub-Committee recommends that the requirement to remove the bolt or bolt-carrier of a prohibited automatic firearm for the purposes of storage, display and transportation, apply only if the piece is removable "with reasonable facility".
The Sub-Committee believes that some limited provision should be made to allow firearms to be left unattended in vehicles that are not lockable. Because of the concerns for public safety, it is suggested that this be allowed only in remote wilderness areas. The specifics regarding the requirements in relation to the transportation is left to be determined by the Department of Justice.
The Sub-Committee recommends that the regulations be amended to allow firearms to be left unattended, in a vehicule that is not lockable, but only in remote wilderness areas.
The Sub-Committee is sympathetic to the concerns of museums but believes that the alternative standard provision sufficiently addresses their concerns about the appropriate display of firearms in museum settings. However, the Sub-Committee does recommend adequate flexibility in the administration of this alternative standard. The chief firearms officers should be urged to apply this alternative standard as liberally as possible. This would ensure that firearms will be displayed in museums in a manner which is faithful to their setting.
The Sub-Committee recommends that there be adequate flexibility in the administration of the alternative standard for museums in relation to the display of firearms.
The Authorization to Export or Import Firearms Regulations (Businesses), meanwhile, provide that a condition is to be attached to the authorization to export and the authorization to import that requires a business that is exporting or importing goods described in section 43 of the Firearms Act to identify such goods by marking certain specified information in a machine-readable form (bar codings) on the outer package of the goods. Some of the witnesses were concerned that by fulfilling this requirement, they would contravene the requirements stated in the Storage, Display and Transportation of Firearms and Other Weapons by Businesses Regulations. This was not the intent of the provisions in the export and import regulations since they required only a machine-readable marking which would not conflict with the prohibition in the general transportation requirements. Clearly the drafting needs to be amended so that the intended result becomes apparent.
The Sub-Committee recommends that the regulations be amended to make clear that containers can have markings, despite the prohibition on markings that indicate that a firearm or other weapon is inside, so long as they are in accordance with the Authorization to Export or Import Firearms Regulations (Businesses).
Some businesses involved in this industry expressed concern that the term location was not adequately defined. They stated that locations can be temporary and that there can be multiple locations in one day. As an example, they were not sure whether moving from one city block to another would be considered a new location and, therefore, require them to report this fact to the chief firearms officer.
The Sub-Committee agrees with their concerns and feels that it must be clearly stated when the reporting requirement applies. The Sub-Committee suggests that the requirement to report a new location to the chief firearms officer should apply only if the items are moved to a new municipality. Therefore, notification would not be necessary if the new location is within the same municipal area.
The Sub-Committee recommends that the reporting requirements for businesses involved in motion pictures, videos, television or theatrical productions be amended to apply only when specified items are moved to another municipality.
Some of the witnesses representing businesses that possessed such items, which include replicas and large-capacity magazines, were concerned that these two requirements could be unduly burdensome in cases where they intended to transport their own goods. For example, businesses involved in the motion picture and theatrical industry were of the view that the transportation provisions would be excessive, if applied to replica firearms, which are classified as prohibited devices.
The Sub-Committee shares these concerns and suggests that this clause be amended to make clear that the requirements provided in paragraphs 12(1)(c) and (d) of the regulations apply only to carriers and not to other businesses that are eligible to possess such items.
The Sub-Committee recommends that the requirements at paragraphs 12(1)(c) and (d) of these regulations respecting transportation of specified prohibited items apply only to carriers.
This subclause has occasioned target-shooters much concern because it was thought to be too restrictive in respect of transportation to specific events. The Sub-Committee suggests that it be deleted from the draft regulations. However, pursuant to the Firearms Act and subclause 3(1) of the regulations, all authorizations to transport will still have a term.
The Sub-Committee recommends that subclause 3(2) of the regulations be deleted.
It is the Sub-Committee's understanding that this condition was not intended to require transportation by specified routes. Because of the many concerns raised in relation to this matter, the Sub-Committee believes that Clause 4 should be amended to make clear that individuals need only transport by a route that "in all of the circumstances, was reasonably direct". The Sub-Committee expects that this condition will be administered with flexibility and common sense.
The Sub-Committee recommends that the direct route requirement in relation to authorizations to transport be amended to make clear that the transport need only be by a route that "in all of the circumstances, was reasonably direct".
A second concern dealt with the requirement to indicate whether the goods being exported would be imported back into Canada, pursuant to paragraph 3(1)(k) of these regulations. Witnesses stated that it was often impossible for them to predict, at the time the application was made, whether or not these goods might return to Canada at some future date. The Sub-Committee, therefore, suggests that this requirement be amended to make clear that the requirement to advise the Registrar whether exported goods would be re-imported at a later date applies only if this is known or planned when the authorization to import or export is applied for.
A third concern involved the requirement to advise the Registrar whether there would be any stopovers when goods were imported, pursuant to paragraph 7(1)(d). Witnesses stated that it was impossible for them to predict all such stopovers. The Sub-Committee, therefore, suggests amendments to make clear that the requirement to advise the Registrar of the name and address of any place in Canada in which the goods will stopover applies only if this is known or planned when the authorization to import is applied for.
The Sub-Committee recommends that businesses be permitted to supply the name of the carrier at a later time before the crossing of the border, if this information is not known at the time the application is made.
Recommendation 24
The Sub-Committee recommends amendments to specify that any requirement to advise the Registrar whether exported goods are to be re-imported at a later date applies only if this is known or planned at the time the application is made.
Recommendation 25
The Sub-Committee recommends that the regulations specify that any requirement to advise the Registrar of the name and address of any place in Canada in which the goods stopover applies only if this is known or planned at the time the application is made.
To ensure that there is adequate privacy protection for information gathered under the Firearms Act, the Sub-Committee believes that it is important that negotiations be undertaken with the provinces and territory to establish Memoranda of Understanding to set out with certainty the applicability of federal and provincial privacy legislation.
The Sub-Committee recommends that Memoranda of Understanding be negotiated with each province and territory outlining that the Firearms Act is a federal statute, and as such, is subject to the federal Privacy Act in cases where no provincial law exists, and that in those cases where provincial privacy legislation exists that the federal application of the Privacy Act will apply based on the rules of application to be negotiated with those provinces and territories, to ensure complete and adequate privacy protection.
The Sub-Committee is not convinced that the legislation contains sufficient powers to create such a process. We also believe that the costs would be prohibitive. The Sub-Committee does suggest, however, that mechanisms to facilitate mediation of matters involving information and privacy be established on an administrative basis.
Section 72 of the Firearms Act requires that reasons must be included with a notice of refusal or revocation of a licence, disclosing the nature of the information relied on in making the decision. This could form the basis of a mediation mechanism which could be made available before matters end up before the courts. If the applicant is able to convince the chief firearms officer that the decision was based on inaccurate or false information, this should remove the need to refer the matter to a provincial court judge and thus reduce the chances of the information becoming public.
The Sub-Committee recommends that mediation mechanisms be established, on an administrative basis, to allow applicants the opportunity to challenge allegedly false or inaccurate information without resort to court action.
In summary, the position of the Assembly of First Nations with respect to the licensing, registration and related requirements for rifles and shotgun issues remains the same. We believe that they are unconstitutional because they unjustifiably infringe upon the constitutionally protected aboriginal and treaty rights for First Nations.Aboriginal witnesses advanced a number of arguments concerning the application of the legislation to their communities. Several took the position that there had not been proper consultations with aboriginal groups, and that the legislation therefore failed to meet the test laid out in the Supreme Court of Canada decision in Sparrow. Many also asserted that Aboriginal people should not have to pay fees for licences and registration certificates. They also maintained that the Aboriginal Peoples of Canada Adaptations Regulations (Firearms) did not go far enough, and that Aboriginal communities should be given the power to administer the regulatory system. Some groups asserted that they have the power to enact their own firearms legislation which would supersede this legislation.
The Sub-Committee would like to make it clear that constitutional questions are entirely beyond the scope of this study. The concerns expressed raise serious and very complex legal issues which cannot be dealt with adequately in this report. However, recommendations have been included in this report, which the Sub-Committee hopes will help in finding acceptable solutions to aboriginal concerns.
Clearly, the issues will not be easily resolved. What is apparent to us is that it is crucial that the lines of communication remain open and that discussions be vigorously pursued. This would help ensure that aboriginal and treaty rights are respected and, with co-operation, that the legislation can be implemented in aboriginal communities.
The Sub-Committee recommends that further discussions be held with aboriginal groups in order to explore potential solutions to their concerns.
The Sub-Committee also believes that it is essential that administrative steps be taken to help in the implementation of the legislation in aboriginal communities.
The Sub-Committee recommends that the implementation of the legislation in aboriginal communities involve community administration.
The regulations set out the fee to be paid for a confirmation under subsection 35(1) of the Firearms Act. The draft regulations would set this fee at $50 and, as stated, this declaration would be valid for 60 days. The regulations would provide for one free renewal if this was done in accordance with the legislation.
Many witnesses, particularly witnesses representing outfitters, were concerned that the $50 fee would discourage non-residents from coming to Canada. They were worried about the implications this would have on commercial hunting and other related industries. The major concern appeared to be that this fee would have to be paid more than once a year if the non-resident returns later in the year.
The Sub-Committee is very concerned about non-resident fees and does not want the implementation of this fee to impede legitimate hunting businesses and other related industries. Thus, the Sub-Committee strongly urges that this fee be made payable only once a year, in order to address the concerns that the witnesses expressed. In support of the argument that the fee should be waived for future confirmations in the same year, the Sub-Committee notes that the costs for processing subsequent declarations in the same year would be substantially lower since most of the processing would have been done during the first declaration.
A last point the Sub-Committee would like to make is with respect to the number of firearms that a non-resident will be able to import with a confirmation. Many of the witnesses were concerned that the fee to be paid would cover only one firearm. This is not the case. The Sub-Committee believes that future regulations dealing with importation by individuals should clarify that a confirmation could cover more than one firearm.
The Sub-Committee strongly urges that the fee to be paid for a confirmation made under subsection 35(1) of the Firearms Act be payable only once every calendar year.
Recommendation 31
The Sub-Committee recommends that future regulations dealing with importation by individuals clarify that the declaration pursuant to subsection 35(1) of the Firearms Act will cover more than one firearm.
The business licence fees include the fees payable for supplying firearms to the motion picture, video or television industry. There would only be one fee to cover all of the different businesses which could be involved in this industry. The prohibited items for which a business licence would be required range from replica firearms to what have been referred to as `weapons of mass destruction'. Some businesses will possess all or most of the prohibited items; others will limit their activities to only one or two types of prohibited items, such as replica firearms and short-barrelled handguns. Because entertainment businesses will vary widely in the items they possess, the Sub-Committee agrees that it is appropriate to set out different classes of fees. This would lower the costs of operating such a licensed business.
The Sub-Committee recommends that the business licence fee set out at Business Activity 6(b) in Schedule II be substantially reduced.
Recommendation 33
The Sub-Committee recommends that different classes of fees be added to cover businesses in the motion picture industry that limit their activities to only some classes of prohibited items.
The Sub-Committee recommends that Clause 15 be amended so that the replacement fee would be the lesser of the applicable fee for this document, at the time the replacement document is requested, or $25.
The Sub-Committee is very concerned about the potential impact and suggests that a bulk rate or a yearly maximum for authorizations to export or import should be available that would limit the impact on major exporters and importers.
The Sub-Committee recommends that a bulk rate or a yearly maximum be set for authorizations to export and import.
A witness representing re-enactors expressed the view that this classification could put an end to re-enactments in Canada and all of the monetary benefits that flow from these events. The Sub-Committee believes strongly that since these reproductions do not pose more of a safety concern than the original antique, they should be provided the same exemption under the legislation. Therefore, the Sub-Committee suggests that the government utilize its power pursuant to paragraph 84(1)(b) to prescribe reproductions of antiques, such as flint-locks, match-locks and wheel-locks. It was acknowledged by the witness that in nearly all cases, this would cover the reproductions used by re-enactors.
The Sub-Committee recommends that reproductions of antiques, such as flint-locks, match-locks and wheel-locks, be presented to be antique firearms, by prescribing such firearms as antiques under paragraph 84(1)(b) of the Criminal Code.
Subject to certain exceptions, only licensed businesses will be allowed to possess prohibited firearms, prohibited weapons, prohibited devices or prohibited ammunition, for a prescribed purpose. One of the prescribed purposes involves use in respect of motion picture, television, video or theatrical productions or in publishing activities.
Because of the risks attached to the use of prohibited items, the legislation requires that licensed businesses supervise their use at all times. This could significantly increase the costs of certain productions and have a negative impact on the entertainment industry. The Sub-Committee suggests that a solution be sought to allow the use of some of these items in a production without the need for supervision, particularly with respect to replica firearms. We would like to see this issue covered in future regulations.
The Sub-Committee recommends that greater accommodation be made for the use of replicas in the motion picture industry in future regulations.
The Sub-Committee believes that every individual and business who is involved in moving goods regulated under this legislation in and out of the country should have access to a system that is streamlined, simple and easy to use. Therefore, we believe that this process should be developed to ensure that it will be as user friendly as possible.
The Sub-Committee recommends that the border process to be implemented by this legislation be developed to ensure that it is as efficient as possible.
The Sub-Committee notes that section 97 of the Firearms Act provides that a provincial minister may exempt employees from the application in that province of any provision of the Act or the regulations or Part III of the Criminal Code, for a period not exceeding one year in respect of anything done by them in the course of the employment.
The Sub-Committee urges a broad application of this exemption to ensure its use in appropriate cases where there is no concern for public safety. The Sub-Committee will provide some examples that were brought to its attention but this should not be considered as comprehensive. The Sub-Committee is convinced that expansive use of this exemption will go a long way in satisfying the concerns of many of the witnesses who appeared before the Sub-Committee.
One example where this exemption might be applied concerns legion employees who would only handle firearms and other specified items as a secondary aspect to their employment. For example, if a legion employee handles a firearm for the purpose of setting up a display but otherwise does not handle firearms in the course of his or her employment, an exemption would appear to be appropriate. This would not alleviate the need for at least one licensed person to be responsible for the firearms.
It should be noted that the Sub-Committee also believes that this exemption should be liberally applied in relation to commercial businesses. In cases where the employees primary duties do not include the handling of such items, or where it is evident that the handling of such items by the employee does not raise safety concerns because of the security measures put in place by the business, the employee should be considered for an exemption.
The Sub-Committee realizes that the power to exempt is left in the hands of the provincial minister and would urge them to utilize this exemption in all of the appropriate cases.
The Sub-Committee recommends that discussions be held with provincial ministers and industry representatives to establish guidelines for exemptions for employees under section 97 of the Firearms Act.