Bill C-68, which received Royal Assent in December 1995, contained the most recent set of major amendments, setting out new firearms provisions for the Criminal Code and hiving off a separate statute to govern the firearms registration system, the Firearms Act.
Bill C-68, which received Royal Assent in December 1995, contained the most recent set of major amendments, setting out new firearms provisions for the Criminal Code and hiving off a separate statute to govern the firearms registration system, the Firearms Act. Bill C-68 engendered considerable controversy. Its provisions enhancing police search and seizure powers and establishing a universal registration system were the most contentious; aboriginal communities also expressed fears that the new legislation and its implementation would impair traditional and treaty rights.
While no thoroughgoing constitutional challenge to the legislation has yet been mounted, it appears to be authorized under Parliament's power to legislate respecting either criminal law or peace, order and good government. Some provisions will doubtless face scrutiny under the CANADIAN CHARTER OF RIGHTS AND FREEDOMS. The Firearms Act, expressly, is not to diminish aboriginal rights guaranteed by the Charter, and its implementation is to be adapted to aboriginal contexts.
Gun control legislation serves 6 main purposes: 1) deterring firearms use in criminal offences; 2) ensuring that firearms are not acquired by unqualified or dangerous persons; 3) permitting authorities to confiscate firearms from dangerous persons; 4) permitting authorities to withdraw dangerous firearms from private ownership; 5) permitting the regulation of commerce in, and the use, storage, transportation of firearms; and 6) assisting the police in investigating and preventing firearms crime. The legislation is part of a wider framework of weapons control. Weapons such as cross-bows, ammunition, and switchblade knives, and accessories such as silencers are also regulated.
The gun control legislation employs a variety of devices to achieve its purposes: criminal offences, a licensing and registration system, provisions authorizing state officials, in restricted circumstances, to seize or confiscate firearms, and regulations governing firearms users and businesses.
The Criminal Code establishes offences for pointing a firearm, possession of a firearm for dangerous purposes, and possession of a concealed weapon. Using a firearm in the commission of certain indictable offences is itself an offence, and attracts an additional, consecutive mandatory minimum sentence. A mandatory minimum sentence of 4 years' imprisonment is imposed for using a firearm in the commission of serious violent offences such as manslaughter, attempted murder or robbery.
The Criminal Code provides for "prohibition orders" of varying terms and conditions. These orders prohibit persons from possessing firearms or certain other weapons for specified terms, and may require the surrender and forfeiture of firearms. Prohibition orders are mandatory upon conviction for certain serious offences, such as violent offences with maximum sentences of 10 years or more, stalking or drug trafficking; and discretionary, upon conviction for less serious violent offences or offences involving firearms use. Specified officials may apply for prohibition orders against persons whose possession of a firearm is unsafe to anyone, or for orders against their associates, to restrict access to associates' firearms. Prohibition orders may be granted as conditions of bail or recognizances to keep the peace ("peace bonds"). In appropriate circumstances, exemptions are granted to permit subsistence hunting or trapping or to permit continued employment.
The centrepiece of the gun control legislation is the licensing and registration system. Three types of firearm are distinguished: prohibited firearms, restricted firearms and "long guns." "Prohibited firearms" are either listed in the Criminal Code (eg, sawed-off shotguns) or designated by regulations known as Prohibited Weapons Orders (eg, combat shotguns). Private persons are not allowed to acquire prohibited firearms. If legitimately acquired before prohibition, their possession is usually "grandfathered"; ie, they are treated as restricted and their owners may maintain possession, although disposition is usually constrained or forbidden, so that they must be eventually surrendered. "Restricted firearms" are either listed in the Criminal Code (eg, handguns other than prohibited handguns) or designated by Restricted Weapons Orders (eg, some military-style rifles). "Long guns" is the popular description for nonprohibited, nonrestricted firearms. This group includes most sporting rifles and shotguns. A firearm is not to be prescribed as prohibited or restricted if, in the opinion of the Governor in Council, the firearm is reasonable for use in Canada for hunting or sporting purposes.
Very generally, to purchase a long gun, an individual must apply to a chief firearms officer or his or her designee for a licence after having successfully completed the Canadian Firearms Safety Course or its equivalent. An individual is ineligible to hold a licence if that individual's possession of a firearm would be unsafe to anyone. Factors tending to show ineligibility include, within the previous 5 years, convictions for violent offences, stalking or certain drug offences; treatment for mental illness associated with violence; and a history of violent behaviour. Investigations may be conducted to determine eligibility.
An individual is ineligible if subject to a prohibition order. To acquire a restricted weapon, a separate licence application must be made, on conditions similar to those for long guns, save that a restricted firearms safety course must also have been successfully completed. An individual may acquire a restricted weapon only for protection, a profession or occupation, target practice or competition shooting, or a gun collection, if the individual is a "gun collector" (as defined). A restricted firearm owner must also apply for an authorization to transport (eg, for target practice) or an authorization to carry the firearm (eg, in the course of an occupation). The refusal to issue a license or authorization may be appealed.
A license expires, generally, 5 years after the holder's birthday next following the issuance date. The Firearms Act also specifies expiration dates for authorizations. If firearm possession is ongoing, licences and authorizations must be renewed. Renewal is granted in the circumstances in which a license is issued.
Upon obtaining a licence, an individual may purchase a firearm. The sale must be authorized by the chief firearms officer or designee, and the purchaser must comply with statutory and prescribed conditions, including obtaining a registration certificate for the firearm.
Firearm Registration Requirements
All firearms - not merely restricted weapons - must be registered. An application for registration must be made to the Registrar or his or her designee. A description of the firearm and its serial number (if any) are recorded. A registration certificate for the firearm is issued to its owner. Registration, unlike a license, need not be renewed. Registration terminates upon the certificate holder ceasing to be the owner of the firearm.
A Canadian Firearms Registry is established, maintaining records of every licence, registration certificate, and authorization issued. The records may assist the police to track stolen firearms and to determine the numbers and types of firearms owned by persons, the identity of firearms owners, whether owners have adhered to storage and other regulations, whether firearms have been illegally imported or sold and whether firearms are illegally possessed. Policy-makers may be assisted by the compilation of information.
The licensing and registration requirements are supported by offences. Of particular note are 3 different offences for possession of a firearm without a licence and registration certificate, of escalating penal severity.
The Firearms Act contains a variety of special provisions respecting minors who hunt or trap as a way of life, nonresident importation and exportation, and firearms businesses (including export/import, retail, and carrier businesses), as well as transitional provisions respecting firearms possessed prior to the coming-into-force of the Bill C-68 legislation. The business provisions are supported by Criminal Code offences, aimed at firearms traffickers and smugglers, which prohibit unauthorized transfers or importing/exporting.
Search and Seizure Provisions
Officials are given search and seizure powers. The Criminal Code authorizes peace officers to search for and seize firearms under warrant, and authorizes 3 types of warrantless search and seizure: where exigent circumstances obtain, and the place searched is not a dwelling house; where a person is found in possession of a firearm, but fails to produce a licence and registration certificate; or where grounds exist for issuing a warrant, but by reason of danger to any person, obtaining a warrant would not be practicable.
The Firearms Act also permits warrantless search and seizure in certain cases: An "inspector" (as defined) may at any reasonable time enter and inspect any place where the inspector believes on reasonable grounds are located a firearms business or record, a gun collection or record, a prohibited firearm, or more than 10 firearms. The inspector is entitled to require the production and copying of relevant records, and to use any data processing system at the place to examine available data and to obtain printouts. If the place is a dwelling house, the inspector cannot enter unless (generally) reasonable notice has been given and either the occupant has consented or a warrant has been obtained. Failure by an owner of and any person in an inspected place to provide reasonable assistance to an inspector is an offence.
Many implementation details are addressed in regulations. The Firearms Act, for example, authorizes regulations respecting the establishment and operation of shooting clubs and ranges; the operation of gun shows; the storage, handling, and transportation of firearms; and the keeping of firearms records. Provision is made for laying certain proposed Firearms Act regulations before both Houses of Parliament and for their reference to appropriate committees, which may conduct inquiries or public hearings.
Provincial legislation contains additional rules concerning firearms use in hunting and the acquisition of hunting licences and permits.