Date: 19980929

Docket: 9603-0497-AC

IN THE COURT OF APPEAL OF ALBERTA

THE COURT:

THE HONOURABLE CHIEF JUSTICE FRASER

THE HONOURABLE MADAM JUSTICE HETHERINGTON

THE HONOURABLE MR. JUSTICE IRVING

THE HONOURABLE MR. JUSTICE BERGER

IN THE MATTER OF SECTION 27(1) OF THE JUDICATURE

ACT, R.S.A. 1980, CHAPTER J-1

AND IN THE MATTER OF A REFERENCE BY THE

LIEUTENANT GOVERNOR IN COUNCIL TO THE COURT OF

APPEAL OF ALBERTA FOR HEARING AND CONSIDERATION

OF THE QUESTIONS SET OUT IN ORDER IN COUNCIL 461/96

RESPECTING THE FIREARMS ACT, S.C. 1995, CHAPTER 39

RESERVED REASONS

COUNSEL:

R. A. McLennan, Q.C.

B. R. Burrows, Q.C.

T. W. R. Ross

P. W. L. Martin, Q.C.

S. L. Martin, Q.C.

J. N. Shaw (Not present)

B. A. Crane, Q.C.

P. Shaw

D. P. Jones, Q.C.

D. J. Miller, Q.C.

A. D. Pringle, Q.C.

J. Ross

C. C. Ruby

J. Copeland

E. Maksimowski

R. E. Charney

G. Mitchell

E. Stewart

H. L. Kushner

M. Sherry (Not Present)

REASONS OF THE HONOURABLE CHIEF JUSTICE FRASER

I. INTRODUCTION

[1] Guns preserve lives; guns employ people; guns are used for legitimate recreational pursuits; and guns are the tools of some trades. At the same time, guns intimidate; guns maim; and guns kill. It is precisely because of this paradox – that guns are used for good as well as evil – that controversy surrounds government efforts at gun control.

[2] Whether a government should strengthen its gun control laws is a policy-laden question. Self-defence, self-actualization, community safety, property rights, freedom of choice, equality guarantees, Aboriginal rights and community values are just some of the issues relevant to gun control. Depending on how a government emphasizes or minimizes certain of these, a government can justify more liberal or strict gun laws. One need only contrast the relatively permissive gun laws in parts of the United States with the stringent gun laws in Great Britain to see that no one approach is universally accepted.

[3] In this Reference, this Court is not required to address all the issues connected with gun control in Canada, many of which continue to spark intense public debate. Nor do we need to weigh the competing merits of international approaches to gun control. We are concerned only with the Canadian approach to gun control. And in that context, we are further limited to answering specific Reference questions. These relate to whether Parliament has the constitutional authority to enact those provisions in the Firearms Act, S.C. 1995, c. 39 [sometimes referred to as the Act] requiring licensing and registration of "ordinary firearms" and the related enforcement provisions of the Criminal Code (Canada), as enacted by section 139 of the Act.

[4] Thus, this case is not about whether gun control is good or bad. Nor is it about whether Parliament could or should do more to achieve a cooperative solution with the Provinces or Aboriginal peoples on this issue. Nor is it even concerned about the wisdom of the approach Parliament has selected. In the end, the question comes down to this. Is this firearms law one which the federal government has the power to enact under the Canadian Constitution? In my view, for reasons that follow, the answer to this question is yes.

[5] I propose to proceed in the following manner. I begin with a review of the judicial history (Part II) and explain the scope of the issues before the Court. Then I address a number of aspects relating to division of powers analysis and highlight the constitutional issues raised by the Reference questions (Part III). Next, I canvass relevant background information, including an overview of the history of gun control legislation in Canada, before outlining the legislative scheme under attack (Part IV). This contextual information opens the way to an analysis of various constitutional issues. I start with the pith and substance of the impugned provisions (Part V). Then, I address the federal criminal law power (Part VI). At this stage, I consider the import of the entire legislative scheme and the relationship of the impugned provisions to it (Part VII). This is followed by my answers to the Reference questions (Part VIII).

II. JUDICIAL HISTORY

A. JURISDICTION, PARTIES AND INTERVENERS

[6] This is a Reference which was initiated by Her Majesty the Queen in Right of Alberta [Alberta] on September 26, 1996 by Order in Council 461/96. As such, this Court sits as the court of first instance and must answer the specific Reference questions posed by the Lieutenant Governor in Council: Judicature Act, R.S.A. 1980, c. J-1, s. 27(1). The Attorney General of Canada [Canada] appears in this matter pursuant to an Order under s. 27(5) of the Judicature Act, supra. In addition, the following ten governments or groups were recognized as interveners by Court Orders:

B. REFERENCE QUESTIONS

[7] The Lieutenant Governor in Council referred four specific questions to this Court:

[8] Only Canada, the Women’s Shelters and the Coalition argue that the Firearms Act and related provisions under the Criminal Code are, in their entirety, within the constitutional power of Parliament. All of the other interveners, with the exception of Ontario, support Alberta’s position that the licensing and registration provisions infringe on the province’s jurisdiction in relation to "property and civil rights" [under s. 92(13) of the Constitution Act, 1867] to the extent that they relate to "ordinary firearms". They argue that the impugned licensing and regulation provisions are, in their essence, about regulation of property simpliciter and not about public safety or crime prevention.

[9] In the result, Alberta, Manitoba, Saskatchewan, NWT, Yukon, the Game Association, the Shooting Federation and the Chiefs assert that the answer to all Reference questions is "yes". Ontario, which challenges the registration provisions, but not the licensing provisions, says that the answer is "yes" but only with respect to questions 3(1) and 3(2). [While only some of the provinces have challenged the subject legislation, for convenience, I sometimes refer to Alberta and its supporting interveners as the Provinces.] Canada, the Women’s Shelters and the Coalition disagree, maintaining that Parliament has the constitutional authority to enact the impugned licensing and registration provisions under both its criminal law power [under s. 91(27) of the Constitution Act, 1867] and its peace, order and good government power [under s. 91 of the Constitution Act]. Therefore, Canada and the Women’s Shelters urge this Court to answer "no" to questions 2(2) and 3(2) and to decline to answer questions 2(1) and 3(1) on the basis that it is unnecessary to do so. The Coalition argues that the Court should answer "no" to all questions.

[10] It must be understood that the Reference questions do not invite or permit consideration of any Charter issues. The Chiefs, who represent 133 First Nations in Ontario, sought to expand this Court’s judicial review of the challenged legislation by arguing that the legislation should be found unconstitutional on another basis, namely that it was inconsistent with Aboriginal rights under s. 35 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. However, the questions posed in the Reference are directed towards one issue only: is the subject legislation within the s. 91 lawmaking authority of the federal government? This being so, and the interveners having been granted status to intervene based on the nature and scope of the questions as framed by Alberta, it is not open to the Chiefs to expand the scope of the Reference to include judicial review for the purpose of assessing consistency with the Charter: Reference Re GST [1992] 2 S.C.R. 445 at 486-487; Reference re Agricultural Products Marketing Act [1978] 2 S.C.R. 1198 at 1290.

[11] Nor is it appropriate to consider another issue that arose in the course of oral argument and on which the Court invited further written argument. That concerned the question of whether the administrative discretion to prosecute a breach of the Firearms Act as a regulatory offence under the Firearms Act as opposed to a Criminal Code offence affected the division of powers issue before the Court. This issue, arguably classified as one of vagueness, also potentially engages the Charter: see Canada v. Pharmaceutical Society (Nova Scotia) [1992] 2 S.C.R. 606. As such, it awaits consideration another day since Charter issues are not properly before this Court. Similarly, concerns about the alleged disproportionate nature of the penalties imposed under the impugned legislation may be relevant to a breach of s. 7 of the Charter, but they are immaterial to the division of powers issue.

[12] In addition, other provisions of the Firearms Act mentioned in argument, such as those involving the regulation of gun clubs and shooting ranges, the operation of gun shows and the regulation of gun collections are also not the proper subject of judicial review in this case although they may well be scrutinized on federal grounds at some future date.

[13] Thus, this judgment deals only with the vires of the Firearms Act (and related enforcement provisions in the Criminal Code) with respect to the division of powers between the federal government and the provincial governments – and even then only with the licensing and registration provisions (as those terms are defined in the Reference) and only as they relate to "ordinary firearms". This being so, it must also be noted that the regulation-making authority conferred by ss. 117-119 of the Firearms Act is within the scope of this Reference only to the extent that it relates to the impugned licensing and registration provisions.

[14] For ease of reference, the challenged licensing and registration provisions as defined and expressly listed in the Reference are attached to this judgment as an Appendix (Part IX), except for the "related enforcement provisions of the Criminal Code" referred to in the Reference and also under attack. Since the challenged laws include not only parts of the Firearms Act but also prohibitions and penalties under the Criminal Code, the impugned laws here are really a part of a legislative scheme, as opposed to the entire scheme or a single statute or part thereof: see P.W. Hogg, Constitutional Law of Canada, vol. 1, loose-leaf ed. (Scarborough: Carswell, 1992) at 15-6, n. 14.

III. THE CONSTITUTIONAL CONTEXT

A. GENERAL PRINCIPLES AFFECTING DIVISION OF POWERS

[15] The Reference questions cannot be answered without first defining and then addressing the constitutional issues which they raise. Before proceeding further, a comment about the use of the word "infringement" in Reference questions 2(1) and 3(1) is warranted. The difficulty with the word "infringement" is that it implies an unauthorized intrusion into provincial legislative authority. Of course, if a law is within the power of the federal government, the mere fact that it happens to "affect" an area within the power of the provinces is irrelevant: R. v. Hydro-Québec [1997] 3 S.C.R. 213 at 297-298; RJR-MacDonald Inc. v. Canada (A.G.) [1995] 3 S.C.R. 199 at 254-255. And vice versa. In neither event does the legislation lose its constitutional legitimacy. This does serve to highlight, however, the importance of precision in identifying the constitutional issues arising from the Reference questions.

[16] To assist in this task, I first find it convenient to clarify the methodological approach to be followed in a division of powers dispute. I start here because of the considerable disagreement during oral argument on how this Court should proceed with judicial review of the challenged provisions. Canada questioned what it perceived to be Alberta’s singular focus on the impugned provisions, insisting that "narrowly framed" Reference questions do not relieve the Court from its obligation to consider the fundamental purpose of the whole legislative scheme. This would include, of course, not only the challenged provisions themselves, but the entire Firearms Act and Part III of the Criminal Code.

[17] Alberta, in turn, focussed primarily on the impugned provisions as they related to "ordinary firearms", emphasizing that they were, in and of themselves, a colourable intrusion into provincial jurisdiction in relation to property and civil rights. Nor in its view can the sweeping regulation of all aspects of ordinary firearms be saved simply because the enabling legislation has been wrapped in a larger package which is essentially nothing more than a re-enactment of previously existing legislation. This artful packaging may camouflage, but it does not eliminate, the smaller one. Thus the federal government cannot escape constitutional scrutiny by attempting to bury a significant new legislative initiative in what amounts to a recodification of an existing law originally designed to serve a different legislative purpose. Moreover, Alberta maintains that the impugned provisions are not sufficiently linked to any valid federal power on the basis of any constitutional test one might use and therefore cannot survive on this basis either.

[18] Judicial review of a challenged law on division of powers grounds (or, as it is often called, federal grounds) is, at its core, an interpretive exercise. The object is to characterize (that is classify) an impugned law for purposes of allocating it to the power of either the federal or provincial governments under ss. 91 or 92 respectively of the Constitution Act, 1867. The starting point in any analysis is in understanding that characterization is not a precise science. While much depends on the criteria selected for evaluative purposes, it remains a contextual analysis heavily influenced by policy and value judgments. [For an excellent discussion of this subject, see W.R. Lederman, "Classification of Laws and the British North America Act", in W.R. Lederman, Continuing Canadian Constitutional Dilemmas (Toronto: Butterworths, 1981) 229 at 241.] Put another way, classes of law are notoriously susceptible to manipulation. Therefore, one must have a clear understanding of the factors which properly enter the division of powers equation – and those which do not – and how to go about applying the relevant ones.

[19] In this interpretive exercise, which aspects of a law should be given preference for classification purposes? The accepted approach in division of powers cases has been to characterize a law by its most important feature, traditionally referred to as its "pith and substance".

[20] The quest for the pith and substance of legislation then leads to the next question. What drives the decision as to what is the most dominant feature of a law? Certainly, it is clear that the search properly extends beyond the text itself. Thus, it is appropriate to consider not only the wording and the legal effect of the law but the total context – including, where appropriate, historical, legislative, social, economic and judicial contexts – in which the legislation has been enacted. This contextual analysis includes, therefore, relevant extrinsic evidence such as Parliamentary debates, legislative history and evidence of the remedial purposes to which the statute or scheme is directed: see La Forest, J. in RJR-MacDonald, supra, at 242; Reference re Upper Churchill Water Rights Reversion Act [1984] 1 S.C.R. 297 at 318; R. Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at 131; and Hogg, supra, at 15-12, 15-14.

[21] All this helps situate the challenged law in its correct place in history and brings to the analysis a contemporary assessment of the relative importance of the law’s various federal/provincial features. It also places the focus where it belongs, on the substance of the law and not on its form. In the context of this case, what it means is that it is not enough to say that the challenged laws are about licensing and registration of property, namely guns, and thus they must fall within provincial power. Or that these laws are about prohibited conduct, and thus, they fall within federal power. This superficial approach fails to address all of the components in a proper pith and substance analysis. I say more about the required process later (see Part V. B).

[22] What happens when the search for pith and substance leads to the realization that a law could fall under both s. 91 and s. 92? While the absence of bright line divisions of powers between the federal and provincial governments leaves considerable constitutional flexibility, it also means that overlap is inevitable in the Canadian constitutional world. Laws enacted by one level of government often have a number of features or aspects by which they may be classified. One aspect may point to a federal category of power and another aspect of the same law to a provincial category. This is not at all unusual particularly in cases where, as here, the two opposing legislative forces are the federal criminal power and the provincial property and civil rights power.

[23] In resolving competing constitutional claims of the federal and provincial governments, the courts have devised different ways to deal with these inevitably overlapping categories. Starting from the federal principle, namely that both levels of government are "equal and coordinate", the courts have adopted two basic interpretive rules: mutual modification and concurrency. The latter, of particular interest in this Reference, has been explained by David Beatty in Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995) at 41-42:

[24] Three doctrines which the courts have developed in applying the concurrency rule are of possible relevance in this case. First, if challenged legislation is found to be in pith and substance within the enacting government’s power, the mere fact that it affects the power of the other level of government is constitutionally irrelevant: see Lederman in Lederman (ed.), The Courts and the Canadian Constitution (1964) 188-189, 195-197; and Hogg, supra, at 15-8 to 15-9 and the extensive list of cases cited at fn. 26.

[25] Second, even if the challenged legislation is not, by itself, in pith and substance within the authority of the enacting government, it will still survive constitutional scrutiny if it is sufficiently integrated into an otherwise valid act or scheme. This doctrine, variously called the "rational connection" or "necessarily incidental " or "ancillary" doctrine, accepts that legislation enacted by one level of government which spills over and impacts on the jurisdiction of the other level of government will, providing the required degree of connection is met, be treated in its totality as falling within the enacting government’s power: see General Motors v. City National Leasing [1989] 1 S.C.R. 641 at 670-671 and see Hogg, supra, at 15-39 to 15-40. [Although the required degree of integration between the whole act or scheme and the challenged legislation remains unsettled, and therefore, not unexpectedly, so too does the doctrine’s descriptive label, for convenience, I refer to it as the "sufficiently integrated" doctrine.]

[26] Third, the double aspect doctrine recognizes that in some cases and for some purposes, both levels of government may have the power to enact legislation in respect of the same subject matter: Hodge v. The Queen (1883-84) 9 A.C. 117 at 130 (P.C.). Or to put this another way, legislation in a certain field may have a double aspect to it when the federal and provincial dimensions are adjudged to be roughly equivalent in importance: Rio Hotel v. N.B. [1987] 2 S.C.R. 59 at 65; Multiple Access v. McCutcheon [1982] 2 S.C.R. 161 at 181-182. [Peter Hogg makes the helpful point that "it would perhaps be clearer if it had become known as the "double matter" doctrine, because it acknowledges that some kinds of laws have both a federal and a provincial "matter" and are therefore competent to both the Dominion and the provinces." Hogg, supra, at 15-11.]

[27] The operation of the double aspect concept has been explained as follows:

[28] Finding that a subject matter may have a double aspect to it is neither unexpected nor uncommon especially where laws relating to it have not been assigned exclusively to either level of government. Environment is an example of this: see Hydro-Québec, supra; Friends of the Oldman River Society v. Canada (Min. of Transp.) [1992] 1 S.C.R. 3. So too is public safety: RJR-MacDonald, supra, at 254-255. And so too is firearms. Neither level of government has been given exclusive authority under the Constitution Act, 1867 to legislate with respect to firearms. Since the framers of Canada’s Constitution did not choose to assign firearms or, for that matter, public safety exclusively to either level of government, the regulation of firearms is a subject matter in respect of which there is substantial concurrent jurisdiction of both levels of government.

[29] This does not mean however that there will be a double aspect to regulation of firearms, or public safety, in all cases. Instead, a court must look at what facets are being controlled and for what purposes to determine whether the power to do so resides in the enacting level of government. One level of government can regulate those dimensions of a subject or activity related to that government’s jurisdiction. But jurisdiction over one dimension of a subject or activity does not necessarily or automatically give the government the authority to regulate all dimensions. Accordingly, in the context of gun control, both the federal and provincial governments may have a right to control firearms – but they must each do so for a purpose which falls within the scope of their own constitutional power. Parliament cannot appropriate a power which belongs to the Provinces or vice versa.

[30] It will be evident that these various doctrines – pith and substance; sufficiently integrated; and double aspect – may all be viewed as variations on the same theme. Together, they ensure that the federal principle does not condemn either level of government to legislative half-measures on the basis that passing the whole measure would affect the jurisdiction of the other level of government. A contrary approach would mean perfect jurisdictional divisions between the two levels of government at the expense of the federal principle, effective law-making and the Canadian public.

[31] Where there is overlap and disagreement on the relative importance of the federal versus the provincial aspects of the impugned legislation, how does one resolve the conflict? The point has been made that logic is not really of any assistance in what is essentially a balancing and weighing exercise. It has been suggested that the question in the end is essentially a policy one: which level of government should be enacting the challenged legislation? "In other words is the feature of the challenged law which falls within the federal class more important to the well-being of the country than that which falls within the provincial class of laws?" [Lederman, supra, at 241.]

[32] Professor Peter Hogg puts it this way:

[33] This takes one to the next question: what values should influence the inevitable policy choice? The search for a principled, doctrinal basis on which to base this choice continues to be a work in progress. Even so, some features which may enter the picture, depending on the circumstances, are clear: the preservation of the balance of power between the federal and provincial governments; accommodation of regional differences in values, choices and priorities; the relative advantage of central versus provincial control; efficiency and which government level is better able to achieve this having regard to costs, resources and levels of bureaucracy; and democracy and the consequences of alternative federal and provincial arrangements on public participation, responsiveness, liberty and equality. [See the insightful discussions of various dimensions of this issue in Hogg, supra, at 15-19 to 15-20; R.E. Simeon, "Criteria for Choice in Federal Systems" (1983) 8 Queen’s L.J. 131; P.J. Monahan, "At Doctrine’s Twilight: The Structure of Canadian Federalism" (1984) 34 U.T.L.J. 47; K.E. Swinton, The Supreme Court and Canadian Federalism (Toronto: Carswell, 1990) at 132-217.]

[34] Part of this picture therefore includes respecting the integrity and right of provincial governments to legislate in accordance with local needs and priorities where the matter falls under their jurisdiction and recognizing the very real benefits which flow from regional diversity. Canada is a diverse country and what is appropriate for downtown Toronto may not necessarily be appropriate for the high Arctic.

[35] I also see another part to this picture which is far from inconsequential in this case: the importance of interpreting the Constitution Act, 1867 and the challenged legislation in a way which is consistent with constitutionally guaranteed equality rights. One of the most noteworthy features of the Charter has been the pollinating effect that it has had, particularly with respect to gender equality, on the common law, statutory interpretation and the development of rights and remedies: see M.(A.) v. Ryan [1997] 1 S.C.R. 157 at 171-172; R. v. Lavallee [1990] 1 S.C.R. 852 at 872-873; and Norberg v. Wynrib [1992] 2 S.C.R. 226 at 291. There is no reason to exclude the Charter, a part of the Canadian Constitution -- the supreme law of the land -- from an interpretation of the division of powers provision in the Constitution Act, 1867. Of course, Charter provisions do not trump other provisions of the Constitution Act. However, where possible, these provisions should be harmoniously applied and interpreted: see to this effect Reference re Secession of Quebec (1998) 161 D.L.R. (4^th) 385 (S.C.C.).

[36] In the context of gun control, therefore, while a peaceful and safe society affects all Canadians, there is a gender dimension to this picture – one that stands out in poignant relief – that should not be rendered invisible. It is not all of the picture. But it most assuredly is part of it and that dimension is violence against women.

[37] Professor David Beatty has presented a compelling case for the proposition that for a law to be found constitutional on division of powers, a court should be satisfied that it passes two tests: rationality (necessity); and proportionality (balance): Beatty, supra, at 21-60; and see D.M. Beatty, "Polluting the Law to Protect the Environment" (1998) 9 Const. Forum 55.

[38] I regard these two tests as encapsulating, in a structured and valuable template, virtually all of the potential diverse policy considerations influencing a division of powers analysis. Included within rationality, and of considerable relevance in this Reference, is the extent to which provincial inability, or perhaps even unwillingness, to legislate in an area might adversely affect other provinces or the country given the magnitude of the problem to be solved.

[39] With this in mind, I now turn to this question: how does the fact that the challenged laws here are part of a larger legislative scheme affect the approach to be taken? Does one focus first on the impugned provisions and then move up to a consideration of the legislative scheme of which they are a part? That larger scheme, based on Parliament’s integrated and comprehensive approach to gun control, involves a combination of regulatory and criminal offences under the Firearms Act and the Criminal Code. Or does one start with the whole scheme, characterize it for constitutional purposes and then move downward to the impugned provisions?

[40] In General Motors, supra, Dickson, C.J.C. adopted the former approach: see also Reference re G.S.T., supra, at 470. My understanding of the steps to take is as follows. The challenged provisions should be assessed in terms of whether they intrude into provincial powers at all. If they do not, the inquiry is at an end (unless the whole act or scheme were challenged). If they do, the next question is whether they are nevertheless in pith and substance federal law. If they are, then they are constitutionally unimpeachable, providing that the scheme of which it is a part is also validly enacted. If, however, the challenged provisions are found to encroach on provincial power and are not in pith and substance within federal authority, then the court should consider the extent of the encroachment. Next, the court should look at the whole act to see whether it is constitutionally valid. If so, the court must assess whether the impugned provisions are sufficiently integrated into the whole scheme that they can be upheld by virtue of the relationship.

[41] On other occasions, courts have elected to look first at the overall act or scheme before working backwards to the challenged portion: see La Forest, J. in Hydro-Québec, supra, at 301.

[42] Arguably, both approaches have limitations. The difficulty with trying to focus first on the impugned provisions only and assess their pith and substance is that one cannot really do this without considering the whole legislative scheme of which they are a part. In other words, the impugned provisions do not stand alone. They derive their meaning in part from the larger context. This is simply another example of how classification can be influenced by the criteria one uses. Determining what is the appropriate unit for analysis – the challenged portion alone or the whole of which it forms a part – can have a significant impact on result.

[43] Moreover, there is a further problem with trying to classify the pith and substance of impugned provisions by themselves. Since it is accepted that pith and substance analysis involves looking beyond the actual wording of the legislation, and considering its context, the obvious question that arises is how far one should go in considering that larger context. Where does contextual analysis of the impugned provisions stop and contextual analysis of the whole statute or scheme begin?

[44] On the other hand, starting from the total picture and asking what the pith and substance is of the whole act or scheme potentially compromises the analysis of the challenged provisions. It is easy to understand why. When viewed as part of a whole, any adverse impact which the impugned provisions might have on the opposing government’s legislative power is not as visible. The focus is necessarily on the whole, rather than the impugned parts. Thus, the extent to which challenged provisions encroach, for example, on provincial power is more understated, less transparent than it would otherwise be. All this tends therefore to weight the analysis in favour of the enacting level of government. In addition, the imprimatur of a finding of constitutional legitimacy of the whole, once made, militates in favour of a similar characterization of the part.

[45] Despite these constraints, however, I do not view the two approaches as representing an intractable interpretive problem. Each constitutes a suitable analytical framework for classification purposes. Indeed, it is evident that how a court approaches this task will be affected by the way the issues are shaped and the argument proceeds. Thus, for example, if there is no real suggestion that impugned provisions can survive constitutional scrutiny without being securely tethered to a larger valid scheme or act then, understandably, the focus will first be on the whole scheme or act. This provides the contextual framework against which the court can then evaluate the constitutionality of the challenged laws. Accordingly, whether a court reasons forwards from impugned provisions or backwards from the whole act or scheme is not important in the end. What is important is that, in reaching the final result, the court consider and weigh all the relevant factors and steps in the division of powers analysis, with due regard to any limitations in the selected approach. As long as the court follows these precautions, that will do.

[46] I have spent some time reviewing the constitutional context because it explains the analytical framework I propose to follow and my reasons for defining the constitutional issues as I do. But quite apart from this, the sufficiently integrated test and the double aspect doctrine help demonstrate just how far the Provinces must go in order to succeed in establishing the unconstitutionality of the licensing and registration provisions. It is not enough for the Provinces to demonstrate that they have an interest in the regulation of ordinary firearms which is relatively equivalent to that of the federal government – or even that their interest would permit them to enact comparable controls over the licensing and registration of ordinary firearms. This would simply be an example of the double aspect doctrine in operation.

[47] Instead, to succeed in their objective, the Provinces must prove that the federal government could not enact this legislation at all. Because of the presumption of constitutionality, the burden falls on them to establish that the impugned provisions are unconstitutional: see Nova Scotia Bd. of Censors v. McNeil [1978] 2 S.C.R. 662; and J.E. Magnet, "The Presumption of Constitutionality" (1980) 18 Osgoode Hall L.J. 87 at 120-121. In practical terms, therefore, this means proving:

[48] To put this another way, the Provinces must establish that the provincial interests in the subject firearms licensing, registration and prohibition provisions outweigh the federal interests. If so, then the impugned provisions are in pith and substance within provincial authority – whether under s. 92(13) property and civil rights, or otherwise – and thus the provinces and only the provinces enjoy the exclusive jurisdiction to pass laws comparable to the challenged licensing and registration provisions if and when they see fit.

[49] All this also explains why the Provinces do not seek to make a case for the application of the double aspect doctrine. After all, if it applies, the impugned provisions have been validly enacted. Instead, the Provinces concentrate all of their constitutional firepower on the property and civil rights target. The Provinces know that unless they hit that target, they lose in their objective to have the impugned provisions declared unconstitutional.

B. DEFINITION OF CONSTITUTIONAL ISSUES

[50] Given these considerations, I would frame the constitutional issues raised by the Reference as follows. Of course, depending on the answer to some, it will be unnecessary to consider others.

IV. FACTS, FIREARMS AND FIREARMS CONTROLS IN CANADA

[51] Given the well-established role which context plays in statutory and constitutional interpretation, I find it convenient at this stage to review the following: background information relating to the current legislative scheme (Part A); a brief history on the control of firearms in Canada at the federal level (Part B); a description of the structure and contents of the Firearms Act (Part C); a summary of provincial efforts to control firearms (Part D); and finally a review of firearms usage in Canada (Part E). As part of the discussion of the Firearms Act, I will also address its legal effect, a key element in any pith and substance analysis.

A. BACKGROUND INFORMATION

[52] Firearms come in all shapes and sizes. Although it is not necessary to distinguish between exact makes and models of firearms for purposes of this Reference, it is critical to understand how firearms have been classified for legal purposes in Canada for the past 30 years. Essentially, firearms have been divided into three categories: prohibited firearms, restricted firearms and all other firearms not in either the prohibited or restricted category. The most stringent controls have applied to prohibited firearms; the least stringent to those that are neither prohibited nor restricted, what the Reference refers to as "ordinary firearms". Controls were first introduced at the licensing level for ordinary firearms in 1979 – almost 20 years ago.

[53] The Firearms Act amends the Criminal Code to define a firearm as follows (Criminal Code, R.S.C. 1985, c. C-46, s. 2 as am. by s. 138(2) of the Firearms Act):

[54] Within this global class of firearms therefore are all ordinary firearms. Although "ordinary firearms" is not a defined term under either the Criminal Code or the Firearms Act, it is defined in the appendix of the Order in Council establishing this Reference as follows:

[55] Ordinary firearms therefore includes the class of firearms usually called "long guns", that is rifles and shotguns. Within this category are, for example, all single-shot, repeating or semi-automatic rimfire rifles (e.g. 22 calibre); all single-shot repeat-fire and semi-automatic shotguns; and all single-shot, repeat-fire and semi-automatic centrefire rifles.

[56] A "restricted" firearm means (Criminal Code, s. 84, as added by the Firearms Act, s. 139):

Most handguns are restricted firearms.

[57] A "prohibited" firearm means (Criminal Code, s. 84, as added by the Firearms Act, s. 139):

[58] Prohibited firearms include, for example, assault pistols, short-barreled handguns, combat shotguns and military or paramilitary firearms.

[59] The definition of "ordinary firearms" in the Reference does two things. First, by defining ordinary firearms as all firearms not in either the "prohibited" or "restricted" category under the Criminal Code, it provides a useful classification label for this residual group of firearms. Second, the term demonstrates the power of language. The adjective "ordinary" connotes something commonplace, acceptable, everyday and thus benign about the guns in this category. And yet there is, in this sense, nothing "ordinary" about "ordinary firearms". All guns retain their inherently dangerous characteristics no matter what label is attached to them: Felawka, supra, at 211.

B. HISTORY OF FIREARMS CONTROL IN CANADA

[60] All firearms have been considered weapons at common law since before Confederation. Prior to the first codification of the Criminal Code in Canada in 1892, a series of enactments gradually transferred the control of firearms from common law to statute law. See An Act to Prevent the Unlawful Training of Persons to the Use of Arms, and the Practise of Military Evolutions; and to Authorize Justices of the Peace to Seize and Detain Arms Collected or Kept for Purposes Dangerous to the Public Peace, 31 Vict. (S.C. 1867) c. 15; An Act Respecting the Application of the Criminal Law of England to the Provinces of Ontario and British Columbia, S.C. 1886, c. 144; An Act Respecting Riots, Unlawful Assemblies and Breaches of the Peace, S.C. 1886, c. 147; An Act Respecting the Improper Use of Fire-arms and Other Weapons, S.C. 1886, c. 148; An Act Respecting the Seizure of Arms Kept for Dangerous Purposes, S.C. 1886, c. 149; An Act Respecting the Preservation of Peace in the Vicinity of Public Works, S.C. 1886, c. 151; An Act Respecting the Preservation of Peace at Public Meetings, S.C. 1886, c. 152.

[61] Since 1892, controls on firearms have always been part of the Criminal Code. Historically, all firearms have been treated as a type of lethal weapon, a fact reflected in the present definitions of "firearm" and "weapon" in the Criminal Code. Part III of the Criminal Code (both as currently in force and as amended by the Firearms Act) specifically deals with firearms as weapons. Section 2 of the Code currently defines "weapon" to include firearms:

[62] Section 138(1) of the Firearms Act makes only a minor amendment to s. 2 of the Code by changing the final line of the definition to read: "...without restricting the generality of the foregoing, includes a firearm."

[63] Both the possession and use of all firearms are presently subject to extensive controls under the criminal law. It is currently a criminal offence to: use a firearm in the commission of another offence (s. 85); point a firearm at another person (s. 86); possess a weapon dangerous to the public peace for the purpose of committing an offence (s. 87); possess a weapon while attending a public meeting (s. 88); carry a concealed weapon (s. 89); transfer a firearm to a person under the age of 18 who is not the holder of a permit (s. 93); and import, make or wrongfully deliver certain firearms (ss. 94-97).

[64] Additionally, the Code already makes it a criminal offence to possess certain firearms, even without any act or omission on the part of the user which constitutes misuse or negligent use. For example, ss. 90 and 91 of the Code already treat the mere possession of prohibited firearms or unregistered restricted firearms as criminal offences. To lay the framework for such offence as it relates to restricted firearms, s. 109 of the Code currently requires the registration of all restricted handguns.

[65] Parliament first initiated handgun registration requirements more than 60 years ago in 1934: see An Act to Amend the Criminal Code, S.C. 1934, c. 47, s. 3. The 1934 amendments required the RCMP Commissioner to register all "revolvers and pistols" and created an offence for possession of such unregistered guns. The registration requirements included taking the name and address of the owner, a full description of the handgun, and the reason the owner had the gun. Later, Parliament made it an offence to alter, deface or remove a serial number from any revolver, pistol or concealable firearm: see An Act to Amend the Criminal Code, S.C. 1938, c. 44, s. 4. More specific registration requirements were added for handguns in 1951: see An Act to Amend the Criminal Code, S.C. 1951, c. 47, s. 7.

[66] Parliament continued down the road towards stricter gun controls in 1968. It was then that Parliament created the categories of "firearm", "prohibited weapon" and "restricted weapon": Criminal Law Amendment Act, S.C. 1968-69, c. 38, s. 6 (amending s. 82 of the Code). The new provisions included the power to designate weapons as either restricted or prohibited by Order-in-Council. In addition, all weapons falling within the "restricted weapons" category were made subject to registration requirements. Up to then, only pistols, revolvers and automatic firearms had been required to be registered. Possession of a prohibited weapon was made an offence for anyone not falling within certain exempted classes such as military personnel or peace officers. Significant proactive preventative measures were added to address concerns regarding the safe handling of firearms. For example, persons having lawful possession of a firearm or ammunition could be prohibited from possessing them, even if no offence had been committed, if a judge determined that it was "in the interests of the safety of that person or of other persons" to do so: Criminal Law Amendment Act, S.C. 1968-69, c. 38, s. 6 (amending s. 98G of the Code).

[67] Apart from a limited period during WWII, it was in 1977 that the first general restriction on access to what the Reference defines as "ordinary firearms" was added to the Criminal Code. The Criminal Law Amendment Act, 1977, S.C. 1977, c. 53, s. 95 instituted the Firearms Acquisition Certificate program [FAC program]. The FAC program came into force in 1979. The FAC program effectively required everyone who wished to acquire any firearm, including those in the "ordinary firearm" category, to obtain a licence. More extensive and restrictive controls were added to the FAC program in 1991. These included requiring a photograph of the owner to be appended to the FAC form, raising the minimum age of applicants for a FAC to 18 years, imposing a 28-day delay period between application and issuance of a FAC, and increasing the powers of police and firearms officers to conduct background checks on applicants: see An Act to Amend the Criminal Code and Customs Tariff in Consequence Thereof, S.C. 1991, c. 40, s. 106.

[68] Until the Firearms Act is proclaimed in force, the existing FAC program remains in effect under s. 106 of the Criminal Code. It is designed to screen firearms owners to ensure that only those who meet certain criteria receive a licence entitling them to acquire a firearm (including therefore those falling within the category of "ordinary firearms"). In this sense therefore, the FAC program and possession offences currently in the Code are both preventative in nature. The FAC program has been designed to deny certain individuals access to firearms if they are considered to present unacceptable risks to safety. And the possession offences are designed to reduce the probability that certain types of firearms will be misused by removing them from general circulation.

C. THE FIREARMS ACT (Bill C-68)

[69] Bill C-68 (the full name of which is An Act Respecting Firearms and Other Weapons) received Royal Assent on December 5th, 1995. This Bill has three main components. First, it creates a new statute called the Firearms Act. Second, it amends Part III of the Criminal Code respecting firearms and other weapons. Third, it authorizes the making of regulations for the purpose of administering the Act. The Bill also provides for consequential amendments to other parts of the Criminal Code and to related statutes (e.g. Corrections and Conditional Release Act, Criminal Records Act, Export and Import Permits Act, Interpretation Act, National Defence Act, Young Offenders Act, Explosives Act, Export and Import Permits Act, and the Customs Tariff Act).

[70] Sections 136, 137 and 174 of the Firearms Act came into force when the Act received Royal Assent on December 5, 1995. Sections 141-150 of the Act and the new s. 85 of the Criminal Code (use of a firearm or imitation while committing an indictable offence) were proclaimed in force January 1, 1996. Section 95 of the Act came into force on December 18, 1997. Sections 1, 2 and 117 of the Act came into force on February 25, 1998. The rest of the Act and its remaining amendments to the Criminal Code are to come into force on the dates fixed by order of the Governor in Council. It is anticipated that the unproclaimed portions of the Act will be phased into force beginning on December 1, 1998.

[71] Before dealing with the specific changes made by Bill C-68, a comment about the general overall effect of the impugned provisions is warranted. Essentially, they expand on existing gun control restrictions in two key respects. First, they build upon the existing FAC licensing system (which requires anyone who acquires a firearm, including an ordinary firearm, to secure a licence for its acquisition) by requiring a licence for ongoing possession as well as acquisition. Second, the impugned provisions extend the gun registration requirement to all firearms and not simply to restricted and prohibited firearms. In short, Bill C-68 requires universal licensing and registration of all firearms.

[72] Serious firearms and weapons offences remain in Part III of the amended Criminal Code. This Part (which now contains more detailed definitions of a number of terms, such as ammunition, import, licence, export, handgun, transfer, etc.) has been reorganized to make it consistent with the scheme in the Firearms Act. The Firearms Act also expands existing criminal firearms offences to cover more types of weapons. For example, s. 86 of the amended Code (careless storage) now includes restricted and prohibited weapons, prohibited devices, ammunition and ordinary firearms. Maximum penalties for several weapons offences have also been increased by the Act’s amendments to the Code. For example, mandatory minimum penalties have been increased to four years incarceration if a firearm is used in committing one of the following serious offences: criminal negligence causing death (s. 220); manslaughter (s. 236); attempted murder (s. 239); intentionally causing bodily harm with a firearm (s. 244); sexual assault with a weapon (s. 272); aggravated sexual assault (s. 273); hostage-taking (s. 279.1); kidnapping (s. 279); or extortion (s. 346). Sections 109 to 117.011 of the amended Criminal Code now result in mandatory firearms prohibition orders for more criminal offences, and for lifetime prohibitions for repeat offenders.

[73] Additionally, and most significantly for purposes of this Reference, s. 139 of the Firearms Act creates several new Criminal Code offences relating to firearms:

2. LICENSING AND REGISTRATION

[74] The combined effect of the impugned provisions under the Firearms Act and the Criminal Code is to require any individual who wishes to use any type of firearm to secure a licence to possess firearms and to register each firearm individually (subject to certain exceptions for peace officers and employees of the Crown). A person cannot register a firearm without having a valid licence. The legislation applies to all firearms (including prohibited, restricted and ordinary firearms). Licences apply to people. Registration certificates apply to firearms. If the licensing and registration requirements are not met, possession is unauthorized and the individual will be subject to prosecution under the Criminal Code or the Firearms Act itself. The licensing and registration system will operate under the direction of the "Chief firearms officer", an official who will be designated by the provincial or territorial Minister of Justice and failing that by the federal Minister of Justice (s. 2(1) of the Act).

[75] Under the current law, a person must have an FAC to acquire a firearm. However, all Canadians who had firearms in their possession prior to implementation of the FAC program were exempt from securing an FAC. Now under the Act, everyone must have a licence to possess or acquire any firearm. Thus, those previously exempt from the FAC requirement will now be obliged to secure a licence.

[76] The criteria for issuing a licence to possess or acquire a firearm are similar to the current criteria for issuing an FAC. They relate to the applicant’s criminal record, mental health, propensity to violence, and the successful completion of a firearm safety course (ss. 5, 7). The last requirement only applies under the current FAC system in provinces which have proclaimed the provision in force. However, upon proclamation of the Act, a firearms safety course will be a requirement in all provinces and territories, except for those persons securing a possession-only licence as discussed below. Additionally, under the new system, notice must be given to each current spouse, former spouse or common-law partner of the person applying for a possession and acquisition licence (s. 25 of the Regulations).

[77] Previously, as was noted, there was no requirement for registration of "ordinary firearms", only those in the "restricted" or "prohibited" category, excluding, of course, any prohibited weapons which had to be turned in or destroyed. This changes under the impugned laws. Everyone must register all their firearms, both those owned at the time the Act comes into full force and those acquired at any time thereafter.

[78] The challenged laws also include provisions under which licences and registrations may be revoked for public safety reasons. A licence may be revoked "for any good and sufficient reason". This includes cases where the holder is no longer (or never was) eligible to hold a licence, has contravened any condition attached to the licence or has been found guilty of certain criminal offences (s. 70). The Registrar may also revoke a registration certificate for any "good and sufficient reason", including instances where the firearm held by an individual is not being used for the purpose for which it was acquired, or for the purpose the individual specified in the licence application (s. 71). It is important to understand, and I return to the significance of this point later, that if a licence or registration is refused or revoked, the individual may appeal those decisions to a court of law (s. 74). A further appeal lies to a superior court judge (s. 77) and, by leave, on a question of law, to the Court of Appeal (s. 80).

[79] These new controls are more comprehensive than the current ones, though similar in approach. Under the current s. 106 of the Criminal Code, if a firearms officer determines that an FAC should not be issued to an applicant, that decision can be referred to a provincial court judge. The judge’s decision can be appealed to an "appeal court", which the Code defines as s. 96 trial level courts. Although FAC’s are not expressly revokable under s. 106, firearms may be seized under s. 103 if a peace officer makes a successful application to a justice, showing that there are reasonable grounds for believing that it is not in the interests of safety for the licensee to have the firearm. In addition, under s. 109 of the Code, restricted weapon registration certificates can be revoked if the licensee converts the restricted weapon to an automatic firearm.

[80] Two types of licences will be available when firearms licensing begins under the Act. "Possession-only" licences will be available for those persons who already have firearms and do not plan to acquire any more firearms. Persons applying for this type of licence must do so before January 1, 2001. Otherwise, they must apply for a second type of licence – a "possession and acquisition licence". Possession-only licences must be renewed every five years. Persons with a possession-only licence do not have to complete a firearms safety course. Though called a possession-only licence, these licences entitle those holding them not only to possess, but to use the registered firearms in their possession.

[81] The second type of licence – a possession and acquisition licence – allows people to buy firearms, trade firearms, or inherit firearms, regardless of whether they presently own firearms. Possession and acquisition licences must be renewed every five years. In most situations, people will have to complete the Canadian Firearms Safety Course to receive a possession and acquisition licence.

[82] Licences will specify what class or classes of firearms a person is eligible to own. For example, a person might be licensed to own only ordinary firearms (e.g. rifles and shotguns) or may be eligible to own both ordinary firearms and restricted firearms (e.g. handguns).

[83] As noted, the Act requires people to register all of their firearms, including ordinary firearms, no matter when acquired. There are two requirements for obtaining a registration certificate. First, a person must have a valid licence to possess a firearm of the type to be registered. Alternatively, during what is essentially a transition period, a valid FAC will be accepted instead of a valid licence until the FAC expires or becomes invalid on January 1, 2001. Second, the firearm to be registered must be identifiable by serial number or by other means set out in the regulations (ss. 13-14 of the Act). A registration certificate will be issued for each firearm a person owns and a certificate may be issued to one person only.

[84] Registration certificates are valid as long as a person owns a firearm (s. 66). If an owner lends his or her firearm to another person who will use or possess the firearm outside the owner’s immediate supervision, the owner must also lend the registration certificate. There are restrictions limiting the persons to whom a firearm may be lent, including a requirement that the lender have reasonable grounds to believe that the borrower holds a licence authorizing the borrower to possess that kind of firearm (ss. 22, 33). When someone receives a gun by gift, sale or barter, ownership must be properly transferred to the new owner. Obligations are imposed on both the old and new owners (s. 23). A transfer authorization number will be issued to the old and new owners at the time of transfer. This number serves as a receipt for both the old owner and the new owner (until the latter receives his or her registration certificate in the mail).

[85] As will be evident from reviewing the appended challenged provisions, the Act creates several new offences not found in the Criminal Code. These new offences in the Act fall into two categories: (1) summary conviction offences; and (2) hybrid offences (which may be prosecuted by summary conviction or indictment). It is unnecessary for me to definitively decide to what extent these new offences are "true crimes" or "regulatory offences": see R. v. Wholesale Travel Group [1991] 2 S.C.R. 154. Both may fall under Parliament’s criminal law power: see Hydro-Québec, supra, at 291; see also La Forest J. in Wholesale Travel Group, supra, at 210 (stating that gun control involves "criminal offences having a significant regulatory base"). As I describe in Part VI below, it is not the label, but the substantive nature of the offences, which counts in deciding which level of government has legislative authority.

[86] The following is a synopsis of the offences in the Act. Alberta challenges only s. 112 directly. Nevertheless, it will be evident that the practical scope of the balance of the listed sections would necessarily be adversely affected by any finding that the licensing and registration provisions are ultra vires Parliament.

[87] A transition period applies to both licensing and registration requirements. Current unlicensed ordinary firearms owners will have until January 1, 2001 to obtain a licence (s. 120). These same owners will then have until January 1, 2003 to obtain a registration certificate for each ordinary firearm (s. 127). Owners of restricted and prohibited firearms are already required to have both a licence and registration certificate and this basic requirement will continue, with modifications, under the Firearms Act.

[88] In the result, the impugned provisions under the Firearms Act and Criminal Code require the licensing of all firearms owners by January 1, 2001 and the universal registration of all firearms by January 1, 2003.

3. REGULATIONS

[89] The Act authorizes the creation of regulations for the purpose of administering the Act: see ss. 117-119 of the Firearms Act. In November 1996, proposed regulations were tabled for this purpose. In October 1997, the Minister of Justice tabled a second set of proposed regulations that responded to previously unaddressed matters of firearms control. Some additional amendments were made to the regulations proposed in November 1996. As an aside, the Firearms Regulations [the Regulations] were finally passed by Parliament on March 24, 1998 and are set to come into force on December 1, 1998.

[90] Although the Regulations are not directly at issue in this Reference except to the extent they relate to the impugned licensing and registration provisions, it is instructive to understand what types of things could be, and have been, addressed by regulation. The regulation-making authority fleshes out the parameters of the subject legislative scheme. In particular, the scope of the Regulations demonstrates the extent to which efforts will be made to track information relating to guns in Canada.

[91] For example, the Regulations respecting registration specify the information that should be included on the application form for each firearm being registered. The required information includes: make; model; barrel length; calibre; action; type; manufacturer; year of manufacture; number of shots; and serial number of the firearm. Once a firearm has been properly identified and classified (as prohibited, restricted or ordinary), the Registrar of the Canadian Firearms Registry will issue a registration certificate for the firearm. On the certificate will appear a "firearm identification number" [FIN]. The Registrar may require that the owner put the FIN on the firearm by affixing a sticker or by engraving the number on the firearm.

[92] The Regulations address a wide range of other topics such as: the approval and operation of shooting clubs and shooting ranges; the import and export of firearms; transferring firearms between public agencies; disposing of firearms; storing firearms; the business licensing of gun shows; the manufacture of replica firearms; transporting prohibited firearms; and numerous other topics.

D. PROVINCIAL LEGISLATION RESPECTING FIREARMS

[93] The provinces also have a constitutionally grounded interest in the regulation of firearms which has led to extensive restrictions on firearm use at the provincial level. Appreciating the extent to which the provinces have been involved in controlling the use of firearms assists in evaluating the effect of the challenged federal legislation.

[94] Provincial governments have generally regulated firearms in the contexts of wildlife conservation, hunter safety training and municipal regulation. Numerous provincial statutes deal with firearms as part of their wildlife or hunting statutes. In many instances, the legislation is supported by provincial offences for the careless handling of firearms and ammunition.

[95] In Alberta, for example, the Wildlife Act, S.A. 1984, c. W-9.1 regulates firearms as they relate to hunting. Firearms use is also restricted under the Wildlife Act insofar as that Act prohibits: hunting in a dangerous manner (s. 29); hunting at night (s. 30, as amended by S.A. 1996, c. 33, s. 20); hunting in a manner that harms livestock (s. 31, as amended by S.A. 1990, c. L-22.7, s. 37(4)); hunting while intoxicated (s. 32); discharging a firearm from a vehicle, boat or aircraft (s. 35, as amended by S.A. 1996, c. 33, s. 23); discharging a firearm across a public road (s. 50, as amended by S.A. 1996, c. 33, s. 36); and discharging a firearm near public buildings (s. 52, as amended by S.A. 1996, c. 33, s. 38). The regulations enacted pursuant to the Wildlife Act further require that an applicant for a hunting licence must have passed a firearms safety course. See General Wildlife (Ministerial) Regulations, Alta. Reg. 143/97.

[96] All other provinces and territories in Canada have similar legislation and/or regulations: see generally Wildlife Act, R.S.B.C. 1996, c. 488; Firearm and Hunting Licensing, B.C. Reg. 336/82; The Wildlife Act, S.S. 1997, c. W-13.11; The Firearms Safety Hunter Education Regulations, Sask. Reg. 27/84, as amended by Sask. Reg. 92/86; The Wildlife Act, R.S.M. 1997, c. W 130; General Hunting Regulations, Man. Reg. 351/87R; Game and Fish Act, R.S.O. 1990, c. G.1; Hunting Licenses, Ont. Reg. 300/93, as amended by Ont. Reg. 463/93; An Act Respecting the Conservation and Development of Wildlife, R.S.Q., c. C-61.1(1); Fish and Wildlife Act, S.N.B. 1980, c. F-14.1; An Act to Provide for the Protection Management and Conservation of Wildlife and Wildlife Habitats, R.S.N.S. 1989, c. 504; Hunter Education, Safety and Training Regulations, N.S. Reg. 208/87; Fish and Game Protection Act, R.S.P.E.I. 1988, c. F-12; Firearm Safety Training Regulation, P.E.I. Reg. EC718/83, as amended by 429/92; An Act Relating to Wildlife, R.S. Nfld. 1990, c. W-8; Wildlife Act, R.S.N.W.T. 1988, c. W-4; Wildlife Act, R.S.Y. 1986, c. 178.

[97] Most provinces also have legislation prohibiting the discharge of firearms within municipal boundaries: see Municipal Government Act, S.A. 1996, c. M-26.1, s. 74; Urban Municipalities Act, S.S. 1984, c. U-11; The Municipal Act, S.M. 1996, c. 58; Municipal Act, R.S.O. 1990, c. M.45; Municipal Code, R.S.Q., c. C-27.1; Municipalities Act, R.S.P.E.I. 1988, c. M-13. Additionally, Ontario has regulated the purchase and sale of ammunition generally: see An Act to Regulate the Purchase, Sale and Provision of Ammunition, S.O. 1994, c. 20.

E. FIREARMS IN CANADA

[98] To place the constitutional issues in their larger social context, it is helpful to review some of the evidence presented to the Court. This evidence assists in two ways: it shows the potential effect of the challenged legislation on otherwise law-abiding citizens and it compellingly demonstrates the magnitude of the dangers posed by firearms. That danger is, of course, of key concern for constitutional purposes since it represents the "mischief" which Parliament has sought to address through the impugned licensing and registration provisions.

[99] The nature of firearms and their role as offensive weapons has changed significantly since Confederation. Population densities have increased with the urbanization of Canadian society. At the same time, firearms, including "ordinary" firearms, have become more powerful and hazardous since the turn of the century. This is not to say that ordinary firearms were not dangerous at that time. Repeat firing rifles were common by the 1880s. Nevertheless, the use of better propellants, better materials and better production techniques have made ordinary firearms more accurate, compact and reliable. In other words, the firepower and accuracy of modern rifles and shotguns make them more dangerous than ever before.

[100] It is unclear exactly how many firearms or firearms owners there are in Canada. Accurate statistics are difficult to obtain because individuals often under-report the number of guns in their home. This Court heard evidence that between 6 and 20 million firearms exist in Canada.

[101] A 1991 Angus Reid poll estimates that 5.925 million firearms exist in Canada, and 2.22 million people own firearms (23% of the Canadian population): Angus Reid Group, "Firearms Ownership in Canada" (Department of Justice Canada, March 1991). The same poll estimates that there are 919,000 firearms in Alberta, and 335,000 Albertans own firearms (39% of the Alberta population). This poll further estimates that in Canadian households containing one or more guns, 71% of those households (or approximately 1.5 million households) have a rifle; 64% a shotgun; 12% a handgun; and 5% other types of firearms including air pistols. Of Alberta gun owners, the poll estimates that 85% own rifles; 58% own shotguns; and 11% own handguns.

[102] It is undeniable, therefore, that the licensing and registration provisions will have a significant impact on a considerable number of Canadians in every province and territory. It is also undeniable that "ordinary" firearms represent a large number of the guns in circulation in Canada. The accepted assumption is that there are at least 5 or 6 rifles and shotguns circulating in the general population for every handgun: K. Hung, "Firearm Statistics" (Department of Justice Canada, August 1996), at appendix (summarizing the 1991 Angus Reid poll "Firearm Ownership in Canada").

[103] Regional differences and differences between urban and rural communities account for varying patterns of gun ownership across Canada. A 1995 study by Professors Gary Mauser and Taylor Buckner found that 28.5% of all Canadian households and 44% of rural Canadian households possess firearms. H.T. Buckner & G.A. Mauser, "Canadian Attitudes Toward Gun Control: The Real Story" (The Mackenzie Institute, January 1997) at 45. The majority of Canadian households (70%) list hunting as the reason for gun ownership. The NWT presented evidence that 68% of households in the NWT own firearms, that 89% of Aboriginal households involved in wildlife harvesting own rifles and that many Northern residents rely upon firearms for sustenance and protection from predators.

[104] Not unexpectedly, where there are more guns, there are often more deaths and injuries from guns: Affidavit of A.H. Chapdelaine at 6, citing A.L. Kellermann et al., "Suicide in the Home in Relation to Gun Ownership" (1992) 327 New England J. of Med. 467; A.L. Kellermann et al., "Gun Ownership as a Risk Factor for Homicide in the Home" (1993) 329 New England J. of Med. 1084; G.J. Wintermute, "When Children Shoot Children: 88 Unintended Deaths in California" (1987) 257 J.A.M.A. 3107; but see G. Kleck and E.B. Patterson, "The Impact of Gun Control and Gun Ownership Levels on Violence Rates" (1993) 9:3 J. of Quantitative Criminology 249 at 266-272. The reason is a simple one. Firearms deaths rates tend to parallel firearms ownership rates. Thus, provinces with higher rates of gun ownership tend to have gun death and injury rates above the national average. However, because the data is presented in absolute numbers, it does not reflect whether, given the larger number of guns in the provinces with the higher rates, there is a disproportionate death and injury rate in those provinces.

[105] Nevertheless, the data does expose the dark side of guns in terms of loss of life, health and cost to society from the misuse of firearms. For example, for the period 1989 to 1994, the total firearms death rate in Canada was 4.7 per 100,000. By contrast, in Alberta, it was 6.4 per 100,000; in Saskatchewan, 6.2; in Manitoba, 5.2; and in the territories, it was 12.6 in the Yukon and 20.6 in the NWT: Hung, supra, at supplementary tables.

[106] Translated into numbers to which one can relate, in 1994, in Canada, there were 1209 deaths due to firearms-related suicides, homicides and accidents. This was greater than the number of deaths due to accidental poisoning (668) and approached the number of deaths due to HIV/AIDS (1628): Affidavit of David McKeown at 3.

[107] Research has indicated that in countries where guns are more readily available, homicide rates tend to be higher. One of the explanations is that the greater the availability of guns in a society, the more likely it is that violent conflicts will lead to lethal outcomes and the more often there will be multiple victims: Affidavit of R. Gartner at 3, citing M. Killias, "International Correlations Between Gun Ownership and Rates of Homicide and Suicide" (1993) 148 Can. Med. Assoc. J. 1721.

[108] Particularly striking in demonstrating the link between accessibility to guns and death and injury are the studies comparing homes with guns to those without. The mere presence of a firearm in a home made the risk of suicide five times more likely, homicide three times more likely, and significantly increased the risks of related accidents: Affidavit of A.H. Chapdelaine at 6, citing A.L. Kellermann et al., "Suicide in the Home in Relation to Gun Ownership" (1992) 327 New England J. of Med. 467; A.L. Kellermann et al., "Gun Ownership as a Risk Factor for Homicide in the Home" (1993) 329 New England J. of Med. 1084; G.J. Wintermute, "When Children Shoot Children: 88 Unintended Deaths in California" (1987) 257 J.A.M.A. 3107.

[109] Studies have suggested that a 1% increase or decrease in the percentage of households in Canada with guns would be associated with a 5.8% increase (or decrease) in the gunshot death rate: Affidavit of T.R. Miller at 5.

[110] As for what type of guns are used in Canada – or more to the point misused – it is evident that "ordinary" firearms constitute one of the commonly-used weapons of choice. For example, in 1995, of homicides using firearms, 35% were committed with a rifle or shotgun: Hung, supra, at table 9. With respect to suicides involving firearms, shotguns and rifles – ordinary firearms – are used approximately 80% of the time: Affidavit of T.R. Miller at 6, citing Firearms Smuggling Work Group, "The Illegal Movement of Firearms in Canada" (Department of Justice Canada, May 1995) at table 5.

[111] In addition, the costs associated with injuries caused by ordinary firearms are higher than for other categories because of the numbers and because of the more powerful ammunition: Affidavit of A.H. Chapdelaine at 5, citing A.H. Chapdelaine, "Firearms injury prevention and gun control in Canada" (1996) 155:9 Can. Med. Assoc. J. 1285 at 1286; "Canadian Firearms Safety Course Student Handbook" (Department of Justice Canada, January 1994) at charts 9-10.

[112] Moreover, modern hunting rifles are extremely accurate and may even be more powerful than some restricted firearms. A commonly available bolt-action hunting rifle firing a 308 Winchester cartridge with a 150-grain bullet will produce a muzzle velocity of 2820 feet/second and a muzzle energy of 2650 foot-pounds. At a 500 yard distance, the bullet from that cartridge will travel at a speed of 1560 feet/second and will impart 810 foot-pounds of energy to a person, animal or target. By comparison, a 38 special cartridge fired from a currently restricted revolver (commonly used by police officers until recent years) will produce a muzzle velocity of 890 feet/second and 280 foot-pounds of energy. At close range, the Winchester 308 cartridge fired from an "ordinary firearm" would produce almost 10 times more killing power than a 38 special cartridge fired from a "restricted" revolver.

[113] Of critical significance in this case is the fact that ordinary firearms are a popular source of supply for the production of prohibited weapons. Rifles and shotguns are often "sawed off" by removing portions of the stock and barrel to reduce their size, thereby allowing them to be concealed. What is striking is that an ordinary firearm can be converted in this way to a prohibited firearm in as little as 10 minutes: Affidavit of M. Smith at 11-12.

[114] The use of guns in cases of domestic violence continues to raise public concerns. And with good reason. When the then Minister of Justice, the Honourable Allan Rock, introduced Bill C-68, he highlighted the need to combat domestic violence as a rationale for Bill C-68. Research shows that guns are the most frequently used weapon to kill women. As one might expect, the presence of a firearm in an explosive domestic dispute is a dangerous and all too frequently, deadly combination. The majority of firearms used in domestic homicides happen to be "ordinary" firearms: Affidavit of R. Gartner at 9, citing Dansys Consulting Inc., "Domestic Homicides Involving the Use of Firearms" table 7. Between 1980 and 1989, 72% of all female victims of shooting homicides were killed by ordinary firearms: Affidavit of T. Dittenhoffer, AB. 27, Ex.A., at 25; and Canadian Advisory Council on the Status of Women, Cease-Fire: A Brief to the Legislative Committee Studying Bill C-17 on Gun Control, October 1991, p. 4 and Appendix 3.

[115] Nor does the danger from firearms only manifest itself in the shape of death. In addition to being used to kill, evidence was introduced to substantiate the proposition that firearms are a common means by which to intimidate, threaten and terrorize women and children: Affidavit of R. Gartner at 10; Affidavit of A.M. Barrette at 9; Affidavit of V. Hawkins at 2-3; Affidavit of B. Sewell at 2; Affidavit of V.G. McGill at 2-3; Affidavit of N.L. Peters at 2-3.

[116] Alberta objects to this affidavit evidence on the basis that it is anecdotal, non-empirical and based on hearsay. The Women’s Shelters contend that the evidence is admissible on the basis that it falls within the statutorily prescribed business records exception to the hearsay rule. The evidence summarizes entries made in files and records reasonably contemporaneously with the events or the narration of the events described therein by employees under a duty to make such entries and such information was recorded by the various shelter agencies in the ordinary course of business. Thus, in the absence of any credible evidence challenging this hearsay evidence, the Women’s Shelters assert that the evidence is admissible: Canada Evidence Act, R.S.C. 1985, c. C-5, s. 30.

[117] Questions concerning the admissibility and weight to be given to this evidence engage several issues. The proposition that the evidence should be rejected on the basis that it is "anecdotal" only is troubling. Perhaps part of the problem is with the failure to clearly define the term "anecdotal". I take this to mean autobiographical. Evidence in this category is, in my view, potentially clearly admissible. It may not have the sweep and punch of elaborate studies and compilations of data from many sources. But there is no requirement that evidence meet any such standard as a condition precedent to admissibility. The reality is that the entire history of the common law is case specific and incremental, having been built on the individual facts of individual cases. Thus, to condemn evidence simply on the basis that it is anecdotal, as in autobiographical, runs contrary to one of the foundations of the common law.

[118] However, on the hearsay issue generally, key issues were not addressed in either written or oral argument, including this Court’s ability to rely on what amounts to double hearsay. [For authority on this point, see R. v. Boles (1984) 57 A.R. 232 (C.A.), leave to appeal to S.C.C. dism’d, (1985) 61 A.R. 159 n. (admitting double hearsay evidence under s. 30 of the Canada Evidence Act); and R. v. Martin [1997] 6 W.W.R. 62 (Sask. C.A.).] In any event, I do not find it necessary to address this and other related issues. Assuming for the sake of argument that the challenged affidavit evidence is inadmissible or alternatively, should be given no weight, there is ample other unchallenged evidence to the same effect before this Court and, for that matter, in judicial precedent.

[119] It seems to me undeniable that guns have been used – and continue to be – to threaten, intimidate and hurt women and children. This fact was adverted to by Wilson J. for the majority in Lavallee, supra, at 882:

[120] Moreover, the Alberta Law Reform Institute Report on Domestic Abuse is essentially to the same effect as the challenged affidavit evidence, confirming that "[a] number of the victims interviewed said that their partners owned firearms or other weapons that were actually used or were used to threaten during incidents of domestic abuse." Alberta Law Reform Institute, Domestic Abuse: Toward an Effective Legal Response, Report for Discussion No. 15 (June 1995) at 136; see also Alberta Law Reform Institute, Protection Against Domestic Abuse, Report No. 74 (February, 1997) at 30-31, 43, 59-73, and 136-139.

[121] On top of everything else, firearms have a very long shelf life. And they are not consumed by use. If stored properly, a firearm can be kept indefinitely and even with heavy use, it will remain serviceable for years: Affidavit of M. Smith at 9. Translated into practical terms, some rifles have the capability of firing 10,000 rounds before they are inoperative.

[122] Against this background, I now turn to the constitutional issues raised by this Reference.

V. PITH AND SUBSTANCE OF THE LICENSING AND

REGISTRATION PROVISIONS

A. INTRODUCTION

[123] As noted earlier, in order to identify the "matter" of a challenged law, a court must determine its "dominant purpose" or "true character", that is its pith and substance: R. v. Morgentaler [1993] 3 S.C.R. 463 at 481-482; Hydro-Québec, supra, at 286. Various other terms have also been used to describe what a court is looking for: "the true meaning of the challenged law"; "what in fact does the law do and why"; the law’s "leading feature"; or its "true nature and character", all as discussed in Hogg, supra, at 15-7. For my part, I regard these synonymous terms for pith and substance as variations on this theme: what is the challenged law really all about? [See to similar effect Beatty, supra, at 45-46; and Abel, supra, as reprinted in Whyte, supra, at 4-10.]

[124] Identifying the "matter" of the challenged law, that is its pith and substance, is the first step in judicial review. The second is to allocate that matter to one of the enumerated classes of subjects. Although the analytical process is divided into two steps, it is fair to say that there is a unity between the two steps – classification and allocation – which makes separation for analytical purposes problematic. It is difficult to classify something unless one understands the context in which that classification is to occur. In a division of powers case, the court is attempting to identify the federal and provincial features which would permit allocation to a particular head of legislative power. The process is an evaluative one in which possible classifications are continually assessed in an effort to parse out those features or dimensions of the challenged law which may have a connection to various heads of power. The point is that it is those heads of power, and not other potential bases for classifications, which drive the classification of the "matter". Accordingly, the emphasis is on those features of the subject legislation which give shape and content to a division of powers analysis as opposed to, for example, a cost/benefit analysis: see Hogg, supra, at 15-6 and his reference to B. Laskin, "Tests for the Validity of Legislation: What’s the ‘Matter’" (1955) 11 U.T.L.J. 114 at 127.

[125] There is another factor militating against razor sharp divisions between the two steps. This is best explained by a feature of this case. The first step in judicial review, the pith and substance analysis, involves consideration of the purpose of the subject legislation and its effects. In addition, where the legislation is challenged on the basis that it is colourable, that too is an integral component of the analysis. And yet, the colourability assessment, while certainly relevant in the first step, may also carry over into the allocation step, particularly where, as here, the Provinces dispute any connection between the impugned legislation and the federal criminal law power. For that reason, while I address the colourability argument in detail in this part, I have more to say about it during step two, the allocation of the "matter" to one or more classes of subjects.

B. COLOURABILITY, PURPOSE AND EFFECT

[126] The Provinces’ attack on the licensing and registration provisions cuts across several fronts, merging purpose, effect, and colourability. But there is one unifying theme to all their arguments. It is this. In the Provinces’ view, this legislation constitutes a "brazen, naked and colourable" interference with provincial rights. "The ‘colourability’ doctrine is invoked when a statute bears the formal trappings of a matter within jurisdiction, but in reality is addressed to a matter outside jurisdiction." Hogg, supra, at 15-16. Ordinarily, that would mean that the legislation, while supposedly directed towards one purpose, is really designed to accomplish another and that other would fall outside the authority of the enacting government.

[127] However, this is not a case where Parliament is trying to cloak the pith and substance of its legislation as something which it is not. The Provinces are not alleging any ulterior motive on Parliament’s part. Instead, they claim that the purpose of the impugned legislation as set forth in the Firearms Act itself is disarmingly transparent and simple: to regulate property, that is ordinary firearms. Since no one may acquire or retain any right of property in a firearm without federal permission, this amounts, in the Provinces’ view, to Parliament’s assuming absolute control over property rights in all firearms by all persons, for all purposes. And what makes this colourable is that there is no inherent evil in the non-registration of guns or in not obtaining a licence. Nor does the mere fact that the encroachment has been done openly render it any less constitutionally objectionable. Canada, on the other hand, argues that it was impossible for Parliament to have acted colourably because there is no evidence of any ulterior motive for the legislation.

[128] I agree with the Provinces that an ulterior motive is not a prerequisite to a finding of colourability. It is true that in some cases, Parliament might try to invade an area of provincial jurisdiction by disguising the true nature of its legislation in something appearing to fall under a federal head of power. Certainly, where an ulterior motive is present, it is arguably easier to see how Parliament acted colourably because there is an aspect of deceptiveness to the legislative action. But in other cases, Parliament may not hide its intentions and may forthrightly, but incorrectly, claim a matter falling within provincial powers as its own. When Parliament does so by overshooting its legislative bounds, there is no less an invasion of provincial jurisdiction. In either scenario, Parliament lacks the constitutional competence to enact the legislation.

[129] When used in this way, the term "colourability" is not being employed in a pejorative sense but rather as a convenient label to describe when the federal government is invalidly entering into the provincial government domain. And vice versa. In other words, colourability includes overbreadth of legislation: see Hogg, supra, at 15-18.

[130] Seen from this perspective, the colourability doctrine merges with pith and substance analysis since the inquiry moves away from discovering an ulterior motive to simply ascertaining the true character, the "matter", of the legislation. The majority judgment in Hydro-Québec, supra, supports this view. That case involved no discussion of an ulterior motive yet as La Forest J. asserted at p. 292 "[i]n short, in a case like the present, all one is concerned with is colourability."

[131] In the Provinces’ view, the extent of the intrusion into provincial powers here is great. None of the disputed all-encompassing "cradle to grave" regulatory provisions is expressly connected with the criminal use of firearms. Instead, the target is regulation of all aspects of firearms possession. For example, licences will be required to carry out what are non-criminal activities, merely possessing and using ordinary firearms. Registration will be mandatory for all ordinary firearms, even though they have not been used to commit any crime. The infringement on provincial powers is not limited to possession of ordinary firearms for any specific purpose, criminal or otherwise; nor even to possession by those not fit to be entrusted with firearms. Nor is the infringement restricted to possession of any specific type of firearm. Thus, in the Provinces’ view, the federal government cannot succeed in linking the licensing and registration provisions to Parliament’s criminal law power when the effects of the legislation belie any such connection.

[132] And worse yet, the Provinces are convinced that the legislation is flawed since there is no compelling evidence that requiring law-abiding members of the community to register their guns will have any meaningful impact on crime. Instead, what the federal government is doing is controlling firearms and law-abiding citizens because it cannot control crime and criminals. However, only provincial governments have the power to require a person to obtain government permission before acquiring a property interest in a firearm. Parliament has no right to insist on federal permission for the exercise of a provincially-regulated right. In support, the Provinces point to the following comments by Professor Peter Hogg:

[133] For all these reasons, in the Provinces’ estimation, the impugned legislation represents a colourable intrusion into their exclusive power under s. 92(13) of the Constitution Act, 1867 in relation to all matters falling within "property and civil rights".

[134] Let me begin by acknowledging that it cannot be denied that the impugned provisions do affect provincial control over the regulation of ordinary firearms as property. Indeed, I agree that the impact is substantial. However, whether this intrusion into the provincial domain is improper, that is colourable, is another issue. What the Provinces effectively invite this Court to do is to place the efficacy of the impugned legislation on the division of powers scale. Therefore, the starting point for this analysis must be a consideration of the relationship between effect and colourability.

[135] While the legal effect of challenged legislation is always relevant, practical effect is ordinarily not the best barometer to use in determining its pith and substance: see comments by Sopinka J. in Morgentaler, supra, at 485-487. As a corollary, merely because Parliament could have chosen a more effective way to accomplish its purpose does not make challenged legislation colourable: see RJR-MacDonald, supra, at 258. In order for the practical effects of legislation to raise colourability concerns, they must reach the threshold explained by Wilson, J. in R. v. Big M Drug Mart [1985] 1 S.C.R. 295 at 358:

[136] What this means is that practical effect – efficacy – is not relevant to prove that Parliament did not do a good enough job. But it is relevant to prove that the job was one that the provinces, and only the provinces, had the authority to do. Consequently, the focus should not be on whether the licensing and registration provisions will be effective in achieving their purpose. Instead, it should be on (a) whether the ascertained purpose allows the legislation to fall within a federal head of power (explaining why colourability also plays out in the second step of judicial review); and (b) whether the effects reveal a demonstrable connection between the ascertained purpose of the impugned provisions and the means chosen to implement it. The connection does not have to be the best possible fit as long as the fit is not so poor as to reveal a colourable attempt to invade a provincial area of authority.

[137] Therefore, to determine whether the challenged legislation is a colourable attempt to invade an area of exclusively provincial legislative competence, the search must begin with the beginning – and that is Parliament’s purpose in enacting the impugned legislation: see Hydro-Québec, supra.

[138] That purpose, say the Provinces, may be found in s. 4 of the Firearms Act. The Provinces point to this as a candid expression of legislative purpose from which Parliament should not be allowed to resile. The relevant portion of this section follows:

[139] The Provinces allege that the plain unvarnished meaning of this section discloses that the challenged law is directed to one thing and one thing only – licensing and registration as goals in themselves. Although the section is crafted so as to explain the purpose in terms of providing exemptions from what would otherwise be criminal offences, the Provinces emphasize that this statement of purpose contains no reference to intrinsically evil conduct, the criminal use of firearms. Indeed, the only "criminal" aspect in their view is the severity of the sanctions imposed for failing to comply with the licensing and registration requirements. Therefore, as the Provinces see it, the purpose is precisely as stated in the Act: to establish a national regulatory system covering the licensing and registration of ordinary firearms.

[140] However, the "purpose" of legislation as stated in an enabling act will not necessarily be determinative. I appreciate that there is authority which supports the view that the courts should require "cogent grounds" before attributing to the enacting body an object other than that indicated in the legislation: see Abitibi Power and Paper Co. v. Montreal Trust Co. [1943] A.C. 536 at 548 (P.C.). But other authority supports the view that the identified purpose will not necessarily be comprehensive or exhaustive: see Re Anti-Inflation Act [1976] 2 S.C.R. 373 at 422, 438.

[141] A court should be circumspect about relying only, or even principally, on stated purpose given that the object of pith and substance analysis is to find the legislation’s true character. While a legislative statement of purpose may provide a useful clue to help in that quest, the inquiry does not end there. To reach the purpose goal requires a much more rigorous and discriminating analysis. Were this otherwise, all either level of government would need to do to shield contentious laws from judicial review would be to adopt a prophylactic statement of purpose.

[142] In any event, the stated purpose in s. 4, whether taken by itself or in the context of the impugned provisions, does not support the narrow interpretation which the Provinces urge. While s. 4 mentions licensing and registration, it is clear that it is not licensing and registration purely for the sake of licensing and registration, but for the purpose of delineating and restricting what would otherwise be criminal offences under the Criminal Code.

[143] In addition, one must understand that licensing and registration are not within the exclusive power of either level of government. There seems to be an assumption, an incorrect one, that all aspects of licensing and regulation automatically fall within provincial authority. They do not necessarily do so: see R. v. Northcott [1980] 5 W.W.R. 38 (B.C. Prov. Ct.) (upholding the FAC provisions) and Re Motiuk and the Queen (1981) 60 C.C.C. (2d) 161 (B.C.S.C.). Neither licensing nor registration is an exclusive subject matter assigned to either Parliament or the provinces. These are merely forms of laws and form does not dictate the character of a law. Purpose usually does.

[144] That is why, as the Women’s Shelters point out, provincial efforts to licence or regulate property, where they have been found to be for criminal purposes, have been struck down as unconstitutional: see Switzman v. Elbling [1957] S.C.R. 285 (holding invalid the Quebec "Padlock Act" which provided for the closing of a house used to propagate Communism); Johnson v. Alberta (A.G.) [1954] S.C.R. 127 (holding invalid the Alberta Slot Machine Act, which provided that no slot machine should be capable of ownership nor be the subject of property rights within the province); and Morgentaler v. N.B. (A.G.) (1994) 117 D.L.R. (4^th) 753 (N.B.Q.B.); aff’d 121 D.L.R. (4^th) 431 (N.B.C.A.); leave to appeal refused 124 D.L.R. (4^th) vi (S.C.C.) (holding invalid amendments to the New Brunswick Medical Act which provided that the performance of abortions outside hospitals constituted medical misconduct).

[145] Therefore, it is not enough to simply say, these laws are about licensing and registration of property; hence, they fall within the provinces’ powers. The question is, to what end is this being done? The answer to this question takes one back to the core issue: what is the purpose of the challenged laws?

[146] Canada and its supporters assert that the real objective of the impugned legislation is not, as the Provinces claim, regulation of firearms but the protection of public safety from the misuse of firearms, whether in firearm-related crimes or otherwise. Included within the public safety umbrella is public peace and security, which I treat as part of public safety.

[147] The Provinces take aim at this preservation of public safety rationale, using a scattergun approach. First, the Provinces contend that there is nothing to suggest that the Firearms Act was a reaction to either any change in the incidence of firearm ownership or crime rates or to any new appreciation of these matters by Parliament. Hence, it follows in their view that the purpose of the impugned provisions cannot be public safety. Their reasoning proceeds along these lines. Canada concedes that the Firearms Act makes "no change in the fundamental nature or purpose of the legislation" from that reflected in the current gun control legislation. However, since Parliament believes that it must expand gun controls to include more firearms and more people, Parliament must agree that what it has done thus far has been a "dismal failure". Since the prior controls have been a failure, and the new provisions are being enacted with the same purpose in mind, public safety cannot be the purpose of the new provisions, the theory presumably being that they will be no more effective in controlling crime than the old. And because the new licensing and registration provisions will not promote public safety, Parliament’s real purpose in implementing them is to take over complete control of the regulation of firearms.

[148] Alternatively, the Provinces take the position that even if there were a public safety purpose to the Act generally, it does not extend to the regulation of ordinary firearms. The Provinces reason that because rifles and shotguns are regularly used for lawful purposes (such as hunting and target shooting), they do not raise the same public safety concerns as restricted or prohibited weapons, which are generally used for self-defence, military and paramilitary applications. Thus, the federal government ought not impute the characteristics of prohibited and restricted firearms to ordinary firearms.

[149] Layered on top of this argument is the oft-repeated assertion that it is the person, not the gun, that presents the risk to public safety. Consequently, as long as penalties exist for misuse of firearms, and licensing and registration procedures exist for prohibited and restricted weapons, the law has gone far enough. Any further would unconstitutionally trench on a provincial matter of jurisdiction – the regulation of ordinary firearms as property that can be used for the lawful purposes of harvesting of game, as well as hunting and sport shooting within the province.

[150] To further undermine the public safety rationale for the challenged gun control measures as they relate to ordinary firearms, the Provinces assert that criminals will not register their guns anyway. Thus, to impose licensing and registration requirements will only punish law-abiding citizens. Or as the Chiefs put it, the scheme will criminalize people who are remiss in their paperwork; who fail to fill out forms; who fail to pay fees; and who fail to take training courses. The disproportionate adverse effect which the disputed laws would have on law-abiding citizens cannot be justified in the interest of public safety.

[151] There are several reasons why I have concluded that these arguments cannot be sustained and that the purpose of the impugned provisions is the protection of public safety from the misuse of firearms, whether in firearms-related crimes, suicides or accidents. First, I do not see any persuasive basis upon which it might be argued that Parliament is competent to regulate all aspects of prohibited and restricted firearms, but not ordinary firearms. The Provinces attempt to justify the distinction on the basis that ordinary firearms are generally used for legitimate purposes. By comparison, the others are not. The Provinces also argue that it makes no sense to give the federal government criminal jurisdiction over ordinary firearms simply because they might be put to criminal use. On this theory, ownership and possession of all property that could be misused in some way could fall within federal jurisdiction.

[152] However, this reasoning ignores the critical fact that all property is not a dangerous weapon. But all guns are. To repeat a point made earlier, all firearms are dangerous weapons which retain their violent power at all times. The potential for harm is always present. The fact that this power can be channelled for lawful purposes does not remove that violent power from the weapon.

[153] Unlike other tools or objects in our society which can, if misused, cause death, firearms almost universally have as their purpose the function of killing, maiming or intimidating other living creatures. [I accept that there are exceptions, such as target pistols.] Virtually anyone of nearly any age who has the minimal ability to load and fire a gun is capable of unleashing lethal force, whether intentionally or unintentionally. Unlike cars, which are designed to transport people, and unlike knives, which are rarely designed to kill though admittedly they can be used for this purpose, firearms are designed for essentially violent uses. Also, by comparison, a lesser number of people can use a knife or other weapon with such deadly force. Firearms also let criminals injure, intimidate or kill from a distance, which is often not possible with other weapons.

[154] The unique status of firearms was recognized by Cory, J. in Felawka, supra, at 211:

[155] Moreover, a rifle or shotgun is just as capable of causing serious injury or death as other firearms. Often, in fact, rifles and shotguns have greater killing power than restricted handguns because they fire more powerful ammunition. Once a firearm, any firearm, is turned against a human being, it becomes a deadly weapon. One need only recall Marc Lepine's massacre of 14 young women at the École Polytechnique in Montreal in 1989 to understand the dangerousness of an "ordinary firearm". [Lepine’s weapon, the Mini-Ruger 14, is classified as an "ordinary" firearm, but the multi-shell magazine he used in the Montreal killings was subsequently prohibited.]

[156] It follows from what I have said that I do not agree that an ordinary firearm is a tool like other tools. The proposition that an ordinary firearm is an "inert" or "harmless" tool or chattel unless used by a criminal is, in my opinion, an oversimplification. The public safety nexus between an ordinary firearm used to kill game, on the one hand, and human beings, on the other hand, is much closer than the nexus between automobiles or knives and their lawful and deadly uses.

[157] Danger to society is a function of potential risk and resulting harm. Low risk coupled with great harm if the risk is realized may well justify a conclusion of unacceptable danger: R. v. Brady (1998) 121 C.C.C. (3d) 504 at 526 (Alta. C.A.) In this regard, the potential gravity of harm (violent injury or death) is higher for a firearm than it is for other tools. So even if the probability of harm arising from use of an ordinary firearm may be relatively low given their numbers, the overall danger may be viewed as unacceptably high so as to warrant further preventative measures. And this assessment may be made irrespective of the redeeming social utility in the use of ordinary firearms for legitimate purposes.

[158] Second, any exemption for ordinary firearms from the licensing and registration requirements increases the likelihood that ordinary firearms will be used for criminal purposes. Any gun control system is only as secure as its weakest link. Where one category of guns, ordinary firearms, is left relatively unrestricted and unregulated, the potential for displacement from one class of guns to ordinary firearms is obvious. It would not be unexpected that a would-be criminal faced with the choice of trying to quickly acquire a restricted firearm or an unregistered ordinary firearm would take the path of least resistance and choose a more readily available rifle or shotgun. This would be particularly so where the shotgun could be easily converted into a more useful weapon for criminal purposes by sawing off the barrel and stock. Just as pollution finds its way into the environment through the path of lowest environmental regulation, firearms are also most likely to be abused for criminal purposes where gun controls are the weakest. In Canada, gun controls are weakest with respect to ordinary firearms.

[159] Third, the Provinces’ attempt to distinguish between ordinary firearms and restricted firearms on the basis that ordinary firearms have more social utility disregards the fact that if restricted guns were treated as ordinary firearms today, most of them might well be used for legal, socially acceptable purposes. Firearms have, according to the evidence before the Court, assisted many women to protect themselves from abusive partners: see Rebuttal Affidavit of G. Kleck at 15, citing C. Gillespie’s book, Justifiable Homicide. In other countries, such as the United States, handguns are regarded as legitimate weapons for self-defence purposes. I mention this not to endorse this approach but rather to explain that the differences between the treatment of ordinary firearms, on the one hand, and restricted and prohibited ones, on the other, lie more in legislative history and value choices than in intrinsic differences amongst the guns themselves. The potential for danger does not diminish because one gun is a restricted weapon and the other an ordinary firearm. Both share similar characteristics of dangerousness.

[160] Fourth, the fact that the current gun control restrictions did not succeed in ending firearms-related crimes in Canada is irrelevant. When either level of government in pursuit of legitimate objectives within its constitutional power falls short of the mark, it cannot be prevented from doing more on the basis that it first did less than what it took to solve the problem. Undershooting the legislative mark is not a constitutional infraction in Canada which prevents the subsequent passage of more comprehensive legislation. Thus, whether Parliament will be successful in its quest to further reduce the harm caused by the misuse of firearms remains to be seen. However, the fact that it cannot prove in advance that it will be successful is no reason to conclude that the legislation is constitutionally unsound. There are millions of ordinary firearms in this country. The federal government is not required to wait for yet more victims before it takes additional steps in the interests of public safety to further control the risks associated with ordinary firearms.

[161] Fifth, despite the Provinces’ attempt to evaluate the legislation only in terms of its potential efficacy in controlling crime, the purpose of the subject legislation is broader than simply crime prevention. It is directed to the protection of public safety from the misuse of firearms, not just in the commission of crimes, but also to the extent they are implicated in suicides, accidents and domestic disputes.

[162] Sixth, the Provinces’ argument on the crime front rests in part on the proposition that crime involving guns is not going up. Since the problem is not increasing, they reason that the purpose of the legislation cannot be public safety. But the point is not whether the problems from the criminal misuse of guns are getting worse. It is whether, as bad as they are, they could be made better. If the concern is public safety, then as long as the problem exists, the continuing threat to public safety remains.

[163] Seventh, much was made of the fact that this legislation will primarily affect law-abiding citizens, the expectation being that criminals will ignore the law anyway. The Court was invited to infer that since only law-abiding citizens will be complying with the law, the legislation will be ineffective in stemming the problems flowing from the misuse of guns. Unfortunately, however, criminal acts are sometimes committed by previously "law-abiding" citizens. They appear daily in courthouses across this country. Canadians need no reminding of this. They are regrettably all too familiar with the cases of violence involving the use of an ordinary firearm in which the perpetrator was a seemingly "normal person" with no recorded history of violence. Not everyone who misuses guns is part of a criminal underclass.

[164] Eighth, and this encapsulates all of the other points, times change; and attitudes change. Therefore, Parliament’s idea of what is an acceptable level of risk and danger to society may well change over time. Something can come to be viewed as a legitimate public concern warranting preventative measures not only because of an increased risk of harm, but also because of increased insight by society into the harms done if the risk is realized or indeed even because of a change in public tolerance for the perceived risks. It was in 1934 that Parliament decided that it was appropriate to place handguns on the restricted list, despite their use for self-defence purposes. The option of owning handguns for self-defence purposes was removed because of a policy decision that Canadians did not want to live in a country where people needed to be armed to feel safe. In my view, the impugned legislation marks a similar sea change in Parliament’s attitude towards the concept of lesser controls on ordinary firearms. The reality is that a contemporary reassessment of the risk/benefit analysis vis-à-vis ordinary firearms has led to a different conclusion today relating to ordinary firearms, just as it did in 1934 with respect to handguns.

[165] Whether that assessment is right or wrong is not for the courts to say. What is clear is that in passing Bill C-68, Parliament has determined that there is no legitimate use of an unlicensed and unregistered firearm of any kind. Or to put it another way, to allow individuals in Canada unrestricted access to ordinary firearms without these controls involves an unnecessary risk of harm to public safety which Parliament is no longer prepared to tolerate. Indeed, one might reasonably question why ordinary firearms should be afforded preferential treatment compared to other guns used for self-defence purposes. If the latter can be constrained, so too can the former.

[166] Much was made of the costs of administering a firearms licensing and registration system and whether this could be justified given the anticipated benefits. This is an interesting question on which reasonable people may reasonably disagree. However, neither level of government is required to satisfy any cost/benefit analysis as a condition precedent to the implementation of new legislation, and certainly not one undertaken by the courts. Charter considerations apart, Parliament and the Provincial Legislatures are the ones to make the value judgements on how best to spend public monies.

[167] The Provinces attempt to buttress their colourability argument by pointing out that the legislation is similar in operation to the licensing and registration of all manner of property, including motor vehicles, pets and other personal property. They also rely on the following comments by the Honourable Allan Rock, the former Minister of Justice, as evidence that he too equates gun registration with registration of other property – all of which would be accomplished through provincial, and not federal, legislation.

[168] It is true that the Minister justified the policy requiring registration of guns by pointing out that property registration obligations apply to other more innocuous aspects of life in Canada. But that is only a part of what he said. The real question is what is the purpose behind Parliament’s desire to achieve the level of order and control vis-à-vis ordinary firearms reflected in the impugned legislation?

[169] The answer to this question can be found in a review of the Minister’s comments made on the second reading of Bill C-68 before the House of Commons. Because his remarks shed considerable light on the government’s motivation in introducing the impugned legislation, an extensive quote of his address follows:

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[170] As is apparent, the Minister identified a number of public safety concerns triggered by all types of firearms as the rationale for the licensing and registration requirements. Specifically, he explained why the adoption of these requirements would lead to an anticipated reduction in gun-related crimes, suicides and accidents. He focussed special attention on the harmful effects of the misuse of guns on young children, the link between domestic violence and guns, and the need to assist police officers in carrying out their duties. His comments underscore and reinforce the nature and extent of the problems in Canada caused by the misuse of firearms as well as the government’s commitment to move towards stricter gun controls in an effort to combat them. [See Part IV. E above for a discussion of the problems caused by the misuse of firearms.] More important, they also reaffirm the public safety rationale first mentioned by the Minister as the justification for enhanced gun control measures.

[171] The Honourable Warren Allmand, Chair of the House Justice Committee, reaffirmed the public safety theme underlying Bill C-68 during its third reading in the House of Commons:

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[172] To appreciate why public safety will be enhanced through the implementation of the challenged licensing and registration provisions, it is necessary to have some understanding of the pivotal importance of licensing and registration – and the strong connection between them – in meeting public safety concerns arising out of the use of ordinary firearms.

C. LICENSING

[173] In my view, the link between public safety and licensing of those who wish to use guns is logical and demonstrable. The licensing requirements are directed at ensuring that only those who are fit to receive a licence to possess a gun, in the sense of not representing an unacceptable danger to society, will be entitled to do so. Not only do they include typical markers of potentially unacceptable risk, such as mental illness or a prior criminal record, they also include a requirement that an applicant’s spouse or former spouse be notified of the application. This approach is entirely consistent with government efforts to curb domestic violence. After all, those who know a person best are the person’s family, not the neighbours and certainly not the government. The licensing prerequisites are also designed to ensure that safety risks are minimized by requiring everyone who wants a licence to take a Firearms Safety Course as a condition of receiving one.

[174] From a broader policy perspective, the licensing requirements are directed towards ensuring that guns do not fall into the wrong hands. Wrong hands in this context means those individuals who represent an unnecessary risk to public safety. Therefore, licensing is designed to serve two ends: to screen out those who represent an unacceptable danger to public safety; and to ensure that those who are considered qualified from this perspective take a safety course to further reduce the danger from their use of firearms. In other words, a gun applicant must meet two risk thresholds: a behavioural one and a training one.

[175] There is another dimension to this issue which warrants comment. It must be appreciated that a successful attack on the licensing provisions would more than likely mean a successful attack on the current FAC program which has been in effect for almost 20 years. I see no conceptual difference between the philosophy and public safety concerns underlying the FAC program licensing requirements and those motivating the new licensing provisions. Indeed, those parties opposing the new licensing provisions made no attempt to identify any difference.

[176] What they did argue, however, was that the passage of time does not make an unconstitutional act constitutional, the clear implication being that if the FAC program were also found to be unconstitutional, then so be it. I accept that constitutional cases ought not to be resolved on the basis of whether a footrace to the courts took place on a timely basis. Thus, I agree with the Game Association that a history of tiny unchallenged steps – historical incrementalism – does not make an eventual encroachment less invasive or more palatable: see Proprietary Articles Trade Association v. Canada (A.G.) (P.A.T.A.) [1931] A.C. 310 at 317 (P.C.).

[177] However, I mention the similarity between the two licensing schemes, not to validate the new licensing provisions on the basis that the old ones have never been challenged on a division of powers basis, but instead to highlight what is at stake, even if not under immediate attack. The goal in this case is to strike down the licensing and registration provisions under the Act and the related enforcement provisions under the Criminal Code. However, were this to occur, the ultimate result would be an undermining of the existing FAC licensing system for ordinary firearms in Canada. Of course, it goes without saying that the courts should not be reluctant to take this step if federal firearms licensing requirements did unacceptably infringe on provincial powers.

[178] But equally, in evaluating whether the new licensing provisions do contravene the division of powers, it is essential to understand that they are in their key elements a duplication of the licensing system which has been in effect in Canada for almost 20 years. Why is this important? Because one need not spend too much time considering the implications of the erosion of licensing prerequisites which have been in effect in Canada almost 20 years to realize the adverse effects that this would have on public safety. Anyone could potentially obtain an ordinary firearm without screening for violent behaviour, mental disorder or the minimum age requirement and without having to wait the mandatory minimum 28 day period imposed by the present legislation.

[179] The nexus between public safety and ensuring that only those fit to have licenses to have guns in their possession secure guns is beyond dispute. The public policy concern underlying this type of licensing legislation was referred to by McIntyre, J. for a majority of the Supreme Court of Canada in R. v. Schwartz [1988] 2 S.C.R. 443 at 487:

[180] Much was made of the fact that the challenged licensing provisions are unduly intrusive because they require everyone to comply with them, regardless of whether the person represents a risk of causing harm. The implication was that licensing requirements should be mandated only for those who fall into the potential harm category. However, this argument disregards the obvious: without any screening system in place, how would the government or anyone else for that matter have any way of knowing in advance who is going to present an unacceptable risk of harm to society? And how would one control gun sales to those unidentified persons? And most importantly, why should the government – and the public – be required to wait until the damage is done before remedial steps are taken?

[181] It is pointless to provide that a person cannot use a gun if the individual is at risk of causing harm. Expecting a person in this high risk category to self-enforce and not acquire a gun makes no sense. Instead, Parliament has decided that to minimize danger to public safety, while still allowing use of guns for legitimate purposes, pre-screening is required of everyone who wants to acquire a gun. In summary, the licensing provisions are targeted to determine whether possession of a firearm would endanger the safety of the licence-holder or any other person.

[182] For all these reasons, I have concluded that the licensing provisions are a carefully tailored and measured response designed to maximize the likelihood that those who are unacceptable risks to public safety will be screened out in advance – and not after they have been left unchecked and free to inflict what harm they will on the Canadian public.

D. REGISTRATION

[183] I now turn to registration, its rationale and the linkage between it and licensing. The justification for registration and its anticipated effects are properly placed on the scale in evaluating Parliament’s purpose in passing the impugned registration provisions. Taken together, they reinforce Canada’s position and that of its supporters that the purpose of the challenged laws is protection of public safety.

[184] First, and its importance to the integrity of the gun control system cannot be overstated, registration will facilitate tracking of guns throughout Canada. One of the linchpins in any effective gun control system is choking off illegal trafficking in guns. To accomplish this requires tracking of guns; and to track guns requires registration of all guns, not just restricted and prohibited guns. Without registration, tracking of guns (whether into Canada or interprovincially) is not possible.

[185] By extending the registration requirements to ordinary firearms, registration will allow tracking of all classes of imported firearms, thereby permitting these and others produced in Canada to be distinguished from those imported illegally. In addition, ordinary firearms imported legally are finding their way into the illegal market – and not just through theft and smuggling. Firearms misused in Canada come from four main sources. Theft and smuggling are two pathways to crime. The other two require the direct involvement or complicity of otherwise presumably law-abiding citizens. One is through abuse of guns by lawful owners. The other, and this is important from the perspective of preventative measures, is the illegal sale of guns by those in otherwise lawful possession to those not entitled to possess firearms. The result is that unlicensed individuals are ending up with ordinary firearms. The purpose of the registration provisions is to identify firearms and allow them to be tracked from one owner to the next in order to ensure that they are not transferred to unlicensed recipients. It is anticipated that registration coupled with tracking of subsequent transactions through an integrated and comprehensive national registration system will assist in achieving this objective by helping to cut off the trafficking in guns at three levels: smuggling; theft and illegal sales.

[186] The Minister of Justice, the Honourable Allan Rock, had occasion to address the proposition that registration was somehow an expendable part of the federal government’s integrated gun control strategy. He disagreed, stating:

[187] I am well aware of the point made by the Provinces, namely that many of the handguns recovered in crime are unregistered and of these, many have been smuggled into Canada. The suggestion is that a registration system for ordinary firearms will prove equally ineffective for the same reasons. However, just because the system as devised will not be 100% successful is no reason to abandon efforts to control the problem. The history of the criminal law has been to try to reinforce community values and modify anti-social conduct. To the extent Canada still has criminals, some might contend it has not worked. But this is a specious argument. There will always be those who believe that the laws are for everyone else. The fact that they and others continue to choose to disobey laws is hardly a reason to jettison the laws themselves.

[188] Second, and this is tied to the first point, registration will enhance the ability to establish who is responsible when a gun ends up in the hand of an unlicensed person. As the Coalition points out, licensing requirements only permit effective enforcement against the person found in possession of a gun without a license. Enforcing the law against those disposing of guns illegally is far more problematic. Proving where a gun came from is in most cases practically impossible. It would be comparable to trying to track other items found in many Canadian homes. Without cooperation, how would one establish where the gun came from? Nor need I say anything more about the likelihood of securing cooperation in enforcing the law from those busy breaking it. Registration will intensify compliance with the requirement that firearms not be sold to anyone who is not properly licensed. Simply put, registration enhances the possibility of detection – and the certainty of detection is the best deterrent.

[189] Third, registration, with the corresponding ability to trace firearms to their lawful owners, will increase the likelihood of compliance with safe storage requirements. In turn, this will help reduce the likelihood of gun theft as well as injuries, deaths, accidents and suicides particularly amongst children and youths. How would the registration requirement accomplish this? Again, this ties back into detection and deterrence. If gun owners know that a gun can be easily traced back to them, it is not unreasonable to expect that they are more likely to store it correctly and to be careful about the person to whom they lend it.

[190] Without registration, existing safe storage laws cannot be effectively enforced, again because there is no way to trace recovered firearms back to their owners: Affidavit of A.H. Chapdelaine at 8; Affidavit of D.A. Cassels at 5. Nor is it possible to effectively enforce the reporting requirement for lost and stolen firearms without a way to trace guns, once found, back to the owner. Police suggest that, as a result of the registration requirement currently in place for handguns, owners know that they will be held accountable and are more likely to report lost and stolen firearms: Affidavit of D.A. Cassels at 5.

[191] To provide one tiny snapshot into the tragedy of suicide, in 1993, there were 3803 suicides in Canada. Of these, 27.7% involved firearms: Hung, supra, at table 15. I realize that attempted suicide is not illegal. But the fact that society has chosen not to criminalize attempted suicide does not mean that society is prevented from doing what it can to minimize its risk. Nor does it follow that preventing suicide one way will inevitably lead to the person’s killing themselves in another way. If firearms are not available, then according to the evidence of Dr. Isaac Sakinofsky, Head of Suicide Studies at Clarke Institute of Psychiatry at 3-11, individuals are not likely to substitute other methods, especially in impulsive suicides. One striking statistic is the fact that in suicides using firearms, ordinary firearms, that is shotguns and rifles, are used approximately 80% of the time. Equally disturbing, firearms suicide is the 3^rd leading cause of death amongst young people 15 to 24: Affidavit of Dr. David McKeown, Medical Officer of Health, City of Toronto at 4, citing K.A. Leonard, "Firearms Deaths in Canadian Adolescents and Young Adults" (1994) 85:2 Cdn. J. of Pub. H. 128-131.

[192] On the accident front, unsafe storage of firearms is one of the factors contributing to the fact that Canada’s gun death rate for children under the age of 14 was 5^th highest in a recent survey of 26 industrialized countries: Dr. David McKeown, Medical Officer of Health, City of Toronto at 4, citing Centres for Disease Control, "Rates of Homicide, Suicide and Firearm-Related Death Among Children – 26 Industrialized Countries" (1997) 46:5 Morbidity and Mortality Weekly Rep. 101 at 104.

[193] Fourth, registration of ordinary firearms will assist police in taking preventative measures through enforcement of prohibition orders, bail and probation terms. Currently, approximately 17,000 prohibition orders are issued by courts in Canada each year. A number of these are the fallout from domestic disputes. Of course, not knowing whether a person bound by a prohibition order owns or possesses any firearms makes effective enforcement most unlikely, not to mention completely impractical. With registration, there will be a paper trail record of the guns owned by a person. Police will have more information about the firearms that they should seize in cases where a risk has been identified and an order issued. In addition, registration will permit police to seize guns preventatively in domestic situations. The expectation is that this will in turn reduce the risk of domestic homicides.

[194] Fifth, registration of rifles and shotguns will assist in police investigations. Currently, when police recover a rifle or shotgun, it cannot be easily traced back to the owner unless the owner has reported it missing. With registration, the police will have a greater likelihood of contacting someone who is familiar with a particular firearm used in crime through the data available in the firearms registry: Affidavit of D.A. Cassels at 4-5. This will therefore increase the ability to trace the gun from the last registered owner through to the end user – and perpetrator – of the crime in question.

[195] Sixth, registration of firearms also has benefits for the safety of police officers, by itself a legitimate societal concern. The more information that police have about the potential presence of firearms and the type and number that they might encounter in any given situation, the more prepared the police can be to take appropriate action. This is particularly important given the recognized risks of intervening, for example, in domestic disputes: Affidavit of D.A. Cassels at 4. No one would dispute that the best protection in every case is extreme caution and police should not be lulled into a false sense of security because the firearms registry does not disclose that there is a gun in the home to which the police are called. However, that said, I am not aware of any case where less information is better than more information.

[196] Seventh, it is anticipated that registration and licensing will discourage possession of unused and unneeded firearms. Though not one of the stated purposes, this may be a beneficial result of the new system. The expectation is that many gun owners will decide that retaining their unused and unneeded guns is not worth the bother of complying with the new licensing and registration provisions. In this regard, it is noteworthy that half the firearms in Canadian households had not been used in the previous year. Removing them will reduce risk and thereby enhance public safety: Affidavit of A.H. Chapdelaine at 11, citing the 1991 Angus Reid poll, supra.

[197] For all these reasons, therefore, I agree with Canada that the licensing and registration provisions are inextricably intertwined and comprehensively connected with meeting legitimate public safety concerns associated with all firearms, including ordinary firearms. The registration provisions are intended to allow effective tracking of individual firearms, thereby ensuring that those who do not meet licensing requirements cannot acquire and register a firearm; that those who are licensed for non-restricted firearms only cannot register restricted ones; and that those who have firearms cannot transfer them to ineligible recipients. Registration means more information. And more information means more control and more effective management of risk. Together, the licensing and registration provisions are mutually interdependent and jointly necessary in achieving the fundamental purpose of the legislation.

E. OTHER FACTORS AFFECTING CLASSIFICATION OF THE "MATTER"

[198] Other factors, besides the purpose of the challenged laws, reinforce the conclusion that the "matter" here – what the challenged laws are all about – is the protection of public safety from the misuse of ordinary firearms.

[199] Foremost amongst these additional factors is the national dimension to the effective control of firearms which transcends provincial interests in this issue. The potential danger inherent in all firearms coupled with the federal nature of Canada both militate in favour of a national system of licensing and registration of all guns, including ordinary firearms. Canada has no internal or inter-provincial customs controls and no border checks and its geography would, in any event, make effective controls on the taking or shipment of firearms from one province to another difficult. Hence, the obvious challenge that would arise in controlling the flow of guns from a province with no gun controls into one with controls. By itself, this consideration alone weighs heavily in favour of a national system of licensing and registration of ordinary firearms rather than a patchwork quilt of differing measures from province to province and territory to territory.

[200] Because of their highly transportable and concealable nature, moving guns surreptitiously between provinces is much easier than moving, for example, motor vehicles. Rifles and shotguns are easily hidden when someone travels across provincial borders. No customs officers search provincial borders in Canada as they do Canada’s border with the United States. Firearms travelling across provincial borders send no observable signals to police officers that a potential criminal may be taking a stolen or unregistered ordinary firearm into a province with stricter registration and licensing controls. Or worse yet that a lawful owner may be doing so for illegal sale in another province.

[201] The Act uses a registration and licensing system for all firearms, including ordinary firearms, as the basis for controlling the import, export, transfer, possession and use of firearms in Canada. Uniform registration requirements, like the licensing requirements, are essential to fulfilling Parliament’s public safety and crime prevention strategies. The effectiveness of the licensing and registration provisions would be substantially defeated by the failure of any single province to act. Were licensing and registration of ordinary firearms within the exclusive purview of the individual provinces, provinces with no licensing or registration requirements, or less rigorous standards, would likely become a source of unregistered firearms for unlicensed owners across the country, thereby compromising the safety of residents of other provinces. Taken together, all of these considerations tip the rationality scale significantly in favour of a national system of licensing and registration of all firearms.

[202] In addition, the conclusion that the "matter" is protection of public safety from the misuse of guns is entirely consistent with the historical evolution of gun controls in Canada. The provinces do not enjoy any plenary jurisdiction over firearms. While they have been involved in regulating the use of guns in their respective provinces, that has generally been in connection with hunting or the use of guns in municipalities. By contrast, as detailed earlier (Part IV. B), there has been an unbroken chain of gun control by the federal government through the criminal law since Confederation. Though the recent legislative changes mark the first time that Parliament has required registration of "ordinary firearms", this is not the first time that ordinary firearms have been the subject of federal legislation under the criminal law power. As noted, licensing of those wishing to acquire ordinary firearms began with the implementation of the FAC program in 1979.

[203] Therefore, the licensing and registration provisions for ordinary firearms represent a logical next step in Parliament’s efforts to strengthen and tighten Canada’s gun control laws through the years. And to what end are these new controls being enacted? The answer is that Parliament is using enhanced gun controls to more effectively control the risks inherent in the possession, ownership and use of firearms in the interests of public safety. In fact, recognition of the importance of public safety runs through all the cases which have upheld other federal efforts at regulation of firearms in the past, including those in which licensing provisions have been challenged unsuccessfully: see Martinoff v. Dawson (1990) 57 C.C.C. (3d) 482 (B.C.C.A.); see also Felawka, supra, at 214-215; Schwartz, supra.

[204] Since ordinary firearms can be used for legitimate as well as illegitimate purposes, Parliament has chosen not to use blanket prohibitions. Instead, what it is doing is attempting to manage risk in the interests of public safety. The new provisions accommodate the interests of legitimate users of ordinary firearms and by doing so go a long way in satisfying the proportionality test. They do not completely ban ownership of ordinary firearms but they do require that those in possession of them be licensed and that the firearms be registered and controlled.

[205] Further, Parliament’s increased efforts to strengthen and tighten gun control laws also happen to be consistent with Canada’s international human rights commitments. For example, the United Nations "Expert Group Meeting on Gathering Information on and Analysis of Firearm Regulation" recommended to the U.N. Commission on Crime Prevention and Criminal Justice that member states, including Canada, consider

[206] Although the Expert Group’s recommendations are not binding on Canada domestically, they reflect some of the same concerns that motivated Parliament to enact the challenged laws. As such, they reinforce the public safety purpose of the laws and their connection with "crime prevention and criminal justice".

[207] Finally, increased firearms controls are also consistent with the philosophy underlying the Declaration on the Elimination of Violence Against Women, UN GARes 48/104 (23 February 1994), 33 I.L.M. 1049. I am well aware that the Declaration has not been expressly incorporated into domestic law. However, where legislation is open to two interpretations, one of which is more consistent with international human rights norms, then that interpretation is to be preferred: see Salomon v. Commissioners of Customs and Excise [1966] 3 All E.R. 871 at 875 (C.A.); and see also in the Charter context R. v. Keegstra [1990] 3 S.C.R. 697 at 750. Parliament’s efforts with Bill C-68 were motivated, in part, by the desire to reduce the incidence of firearms-related domestic violence. This being so, one should not ignore the international human rights context.

F. CONCLUSION

[208] I do not disagree with the Provinces that one of the effects of requiring licensing and registration of all ordinary firearms is to regulate their possession, independent of any proven criminal wrongdoing, or proven threat of criminal wrongdoing, by their respective owners. But on a deeper level, I regard the pith and substance of the licensing and registration provisions as being to protect public safety from the misuse of ordinary firearms, whether in crime or otherwise. In fact, it seems to me that effective gun control is doomed to failure without some proactive, preventative means of licensing and registering all firearms. Only upon knowing who has what guns will it be possible to reduce the likelihood that guns will be misused, whether criminally or otherwise.

[209] As for the argument that guns do not kill, people do, in my view this supports, rather than undermines, the rationale behind the federal government’s initiatives. Guns work equally well in the hands of criminals as in the hands of law-abiding citizens. Therein lies the problem. It is precisely because a gun cannot tell whether the person holding it will be using it for good or bad that the federal government has elected to try at the front end to ensure that guns do not fall into the wrong hands.

[210] Since one cannot, absent screening, distinguish between those who would use guns properly and those who would not, there is a valid public safety interest in the federal government’s putting in place controls that attempt to minimize the risks associated with the use of guns in Canada. Since all firearms are dangerous and some people who use them are too, this is a potentially deadly combination and the way to contain the risk is to control the people who are allowed to use guns in two ways: through licensing of the person and registration of their guns.

[211] In any event, in the end, one cannot expect a perfect correlation between licensing, registration and public safety. The inherently dangerous but simultaneously productive characteristics of ordinary firearms makes such a correlation impossible. In the final analysis, government cannot remove the potential danger inherent in all firearms which always poses a threat to public safety. But government can manage risk. The chosen option and maybe the only one that can reasonably be expected to enhance containment and reduce risk is one that controls all firearms and not simply those in the prohibited or restricted category. The leakage between the different classes of guns – and between provinces – and between Canada and the United States – makes effective control impractical, if not impossible, without preventative controls at a national level directed to containment of guns of all kinds. Looking beyond the individual rights of gun owners to the rights of the community at large, it is surely a valid public safety concern to choke off the supply of ordinary firearms to those who should not have them. Universal licensing and registration requirements serve this end.

[212] In summary, with these latest measures, Parliament has sought to balance public safety concerns against the legitimate use of ordinary firearms for safety and sustenance concerns as well as hunting. In my view, the licensing and registration requirements, as exemptions to prohibitions, are not ends in themselves but merely a means to an end. The end is the protection of public safety from the misuse of ordinary firearms in crime, accidents and suicides. The means which Parliament has chosen to achieve this purpose is through the licensing and registration of all ordinary firearms. This is not regulation for regulation’s sake but regulation for safety’s sake and the federal government is not controlling ordinary firearms as property but as dangerous weapons.

[213] Thus, in my view, the impugned licensing and registration provisions are in pith and substance about the protection of public safety from the misuse of ordinary firearms. This is to be accomplished through a simple but compelling concept – individual responsibility and accountability for one’s ordinary firearms. This is a small price for Canadians to pay for the privilege of being allowed to possess and use a dangerous weapon.

[214] I now turn to the second stage of judicial review – assignment of the "matter" to one of the legislative heads of power under ss. 91 or 92.

VI. THE CRIMINAL LAW POWER

A. INTRODUCTION

[215] Oftentimes, characterization of the "matter" renders allocation to a class of subjects under ss. 91 or 92 a foregone conclusion. Not so here. Since neither public safety nor firearms is an enumerated head of power, but rather subject matters of divided jurisdiction, identifying the "matter" of the challenged laws does not effectively settle its allocation to either level of government.

[216] This therefore takes me to this issue: does the protection of public safety from the misuse of ordinary firearms in crime or otherwise come within the federal government’s criminal law power under s. 91(27) of the Constitution Act, 1867? At the risk of over-simplification, but to provide some context for the analysis which follows, I briefly set forth the competing positions of Canada and the Provinces. I next discuss the federal criminal law power. This paves the way for a detailed examination of the Provinces’ arguments that the challenged legislation cannot be sustained under the criminal law power.

[217] In brief, the Provinces’ submission is that the challenged legislation is too far removed from the criminal misuse of ordinary firearms to constitute a valid exercise of Parliament’s criminal law power. As they see it, the question is not whether Parliament can create crimes relating to ordinary firearms but to what extent Parliament can establish a comprehensive regulatory scheme outside of the Criminal Code under the rubric of legislating for crime prevention or public safety. Whatever Parliament might be able to do, say the Provinces, it does not extend to the challenged laws.

[218] Canada’s position is straightforward. The protection of public safety from the misuse of firearms, in firearms-related crime, suicides, and accidents brings this legislation squarely within Parliament’s criminal law power.

B. SCOPE OF THE CRIMINAL LAW POWER

[219] I do not propose to canvass in detail the scope of the federal criminal law power under s. 91(27) of the Constitution Act, 1867. That has been exhaustively and definitively reviewed in two recent decisions of the Supreme Court of Canada: RJR-MacDonald, supra; and Hydro-Québec, supra. I do, however, want to emphasize certain aspects of the criminal law power engaged in this Reference.

[220] In RJR-MacDonald, the Court found that provisions of the Tobacco Products Control Act, S.C. 1988, c. 20, prohibiting tobacco advertising and requiring mandatory labelling could be upheld under the federal criminal law power. [The provisions were struck down on the basis that they violated the Charter.] The majority rejected the assertion that the legislation was directed to economic regulation, finding instead that the legislation was in pith and substance concerned with public health. Given the recognized harms caused by smoking, it was a short step from there to concluding that the "matter" of the legislation – protecting public health – fell within one of the historical objectives of the criminal law. As La Forest J. explained for the majority at 246:

[221] La Forest J. also reaffirmed the broad scope of the criminal law power at 240-241:

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[222] The majority also confirmed two other important points. First, simply because Parliament chose not to prohibit the underlying "evil", tobacco consumption, that did not preclude its taking a more circuitous route and prohibiting activities ancillary to the underlying evil. Parliament was free to choose the method it thought most advisable to address tobacco’s harmful effects and these could be criminalized even if tobacco consumption itself were not.

[223] Second, the majority was not concerned that there were exemptions for publications and broadcasts from outside of Canada, nor that these meant that a significant part of the Canadian magazine market would still include tobacco advertisements despite the prohibitions here in Canada. Reaffirming the principle that a law does not lose its status as criminal law because it contains exemptions, the majority emphasized that Parliament was entitled to define the scope of the offence through the use of exemptions: see also Lords Day Alliance of Canada v. Attorney General of British Columbia [1959] S.C.R. 497; Morgentaler v. The Queen [1976] 1 S.C.R. 616; and R. v. Furtney [1991] 3 S.C.R. 89.

[224] In support of the majority’s view in RJR-MacDonald, La Forest, J. referred with approval to the following comment by Laskin, C.J.C., dissenting in the result but not on this issue, in Morgentaler, supra, at 627:

[225] The dissenting minority in RJR-MacDonald disagreed with the majority on three key points. In their view, it was not enough to look for some legitimate public purpose to justify criminalizing the prohibited activity. More was required. The activity to be suppressed must "pose a significant, grave and serious risk of harm to public health, morality, safety or security before it can fall within the purview of the criminal law power" [at 358].

[226] The minority also disagreed with the proposition that Parliament could prohibit tobacco advertising if it had declined to criminalize the underlying activity of tobacco use. In their view, the cases that the majority relied on concerned matters traditionally subject to criminal sanctions. Tobacco advertising on the other hand was not itself "sufficiently dangerous or harmful to justify criminal sanctions" [at 362].

[227] Nor did the dissenting judges accept that it was a valid exercise of the criminal law power to provide for exemptions which effectively eroded the criminal characteristic of the prohibited conduct. As Major, J. stated at 364:

[228] In my view, RJR-MacDonald supports the proposition that a federal regulatory scheme may well fall within the federal criminal law power. And the mere fact that the scheme includes exemptions does not necessarily run afoul of an allocation under Parliament’s criminal law power. This same point was made earlier by Stevenson, J. in Furtney, supra, at 106:

[229] Academic authority is to the same effect. In commenting on the effect of RJR-MacDonald, A. Hutchinson and D. Schneiderman, "Smoking Guns: The Federal Government Confronts the Tobacco and Gun Lobbies", (1995) 7:1 Constitutional Forum 16 at 19, said this about the federal criminal law power:

[230] M. Jackman made the same point in "The Constitutional Basis for Federal Regulation of Health" (1996) Vol. 5:2 Health Law Institute 3 at 5:

[231] If there were any doubt that Parliament could use its criminal law power to create preventative regulatory offences outside the Criminal Code, this has been put to rest by Hydro-Québec, supra. In that case, the Supreme Court upheld environmental regulations and statutory provisions of the Canadian Environmental Protection Act (CEPA), R.S.C., 1985 c. 16 (4th Supp.) under Parliament’s criminal law power. These provisions empower federal Ministers to determine which substances are toxic and to prohibit their release into the environment. A majority of the Court did not regard the extensive regulatory provisions as precluding the characterization of the environmental legislation as criminal law. As La Forest J. stated in Hydro-Québec, supra, at 290-291:

[232] The dissenting minority in Hydro-Québec focussed on the absence of an express prohibition in CEPA as a fatal flaw that took the impugned legislation out of the criminal law domain. In their view, the legislation was "more an attempt to regulate environmental pollution than to prohibit or proscribe it." Hydro-Québec, supra, at 246. The competition, as they saw it, was between an essentially regulatory scheme and a criminal one. They did concede that a criminal law does not have to consist of blanket prohibitions, citing LaForest, J. in RJR-MacDonald, supra, at 263-264 that the criminal law may "validly contain exemptions for certain conduct without losing its status as criminal law". However, they concluded that the scheme in Hydro-Québec was essentially regulatory as opposed to criminal, because it failed to meet the traditional formulation of a criminal law: a prohibition, accompanied by a penalty, for a typically criminal purpose. "In order to have an ‘exemption’, there must first be a prohibition in the legislation from which that exemption is derived." Hydro-Québec, supra, at 250. Because there was no general prohibition in CEPA itself, the extensive regulations could not be ancillary to existing prohibitions or even to exemptions to such prohibitions.

[233] The dissenting minority was also troubled by the fact that there was no offence until an administrative agency intervened and declared, in effect, that an offence had been committed because a substance was toxic. In their view, these factors combined to rebut any suggestion that the legislation in Hydro-Québec fell within the federal criminal law power. In support of their conclusion, they referred to the following comments by Professor Peter Hogg:

[234] The majority took a much different view of the effect of the subject legislation. Clearly, it considered the prohibitions enacted pursuant to the regulations made under CEPA to be adequate to meet the "prohibition" requirement of the criminal law power. Even though the prohibited acts were proscribed in regulations made under the enabling legislation, rather than in the enabling legislation itself, LaForest, J., for the majority, noted that this approach was consistent with other statutes containing detailed and extensive exemptions at 311:

[235] I have highlighted the dissenting minority’s view in Hydro-Québec in some detail because their principal concern, the absence of express prohibitions in the enabling legislation, does not, in my view, apply in this Reference. [I discuss this point below.] For that reason, therefore, I do not find it necessary to examine at length the divisions between the majority and the dissenting minority on the criminal law vs. regulatory scheme debate.

[236] RJR-MacDonald and Hydro-Québec along with earlier cases provide considerable shape to the contours of the federal criminal law power. In short, to fall within Parliament’s criminal law power, challenged legislation must meet three requirements: it must include a prohibition; it must be backed by a penalty; and it must be directed at a "legitimate public purpose" such as public peace, order, security or health. Any of these will provide the necessary foundation for the exercise of the federal criminal law power since Parliament may use the criminal law power to safeguard any legitimate public interest which is threatened: Scowby v. Glendinning [1986] 2 S.C.R. 226 at 237; see also RJR-MacDonald, supra, at 246. However, as noted, colourable attempts to invade or take over areas of provincial jurisdiction under the guise of the federal criminal law power will be ultra vires Parliament.

[237] At this stage, I find it convenient to address four other considerations which have affected the courts’ definition of the scope of the criminal law power. First, the Provinces argue with considerable merit that the criminal law power must be kept within tolerable limits. In effect, they submit that it is one thing to batten down the gun control hatches; it is another thing entirely to drown the provinces’ legitimate interests in the process. To preserve the principle of federalism, the courts must be vigilant in placing some reasonable limits on the criminal law power. Otherwise, given the modern regulatory state, and the wide variety of public interests which can be drawn on to justify federal intervention and controls, the criminal law power can be used to significantly erode property and civil rights in the provinces. [See, for example, the comments of A.S. Abel who described the criminal law power as a "floodplain clause which has enabled the Dominion parliament to engulf whatever it will": Whyte, supra, at 4-21.]

[238] The Provinces also point out, correctly, that they have the clear authority under s. 92(15) of the Constitution Act, 1867 to impose penalties on those who fail to comply with provincial laws without running afoul of the criminal law jurisdiction of the federal government: O’Grady v. Sparling [1960] S.C.R. 804 at 810. Indeed, as has been observed, there is a substantial degree of concurrence between the federal and provincial governments where the criminal law is concerned: Swinton, supra, at 188. Therefore, finding that the challenged legislation cannot be enacted by the federal government does not mean that it cannot be enacted at all. Accordingly, the presence of sanctions within the impugned legislation cannot be relied on as a basis for classifying the registration and licensing of ordinary firearms as a matter belonging to a federal class of subjects.

[239] Second, it bears repeating that the federal government’s jurisdiction over matters "in relation to criminal law" does not mean that impugned legislation must be in the Criminal Code itself. I mention this point because of the emphasis placed on the fact that the challenged laws here are found largely outside of the Criminal Code in the Firearms Act. Referring to the Minister of Justice’s following comments about why he was removing certain sections from the Code and placing them in a separate act, the Provinces suggest that these reveal that the Minister did not consider the Firearms Act to be within Parliament’s criminal law power:

[240] However, the law is clear that federal legislation prescribing penalties for violation of its provisions may be legislation in relation to the criminal law even though not included in the Criminal Code itself: see Lamer, C.J.C. in R. v. Wetmore [1983] 2 S.C.R. 284 at 287.

[241] Third, the criminal law is not closed and not static. It is, and must be, dynamic, evolutionary and responsive. Times change; insights change; tolerance levels change; expectations change; and as a result, values change. Increased public recognition of the harms caused by the misuse of guns have led to a different conclusion today in terms of the relative advantages and costs to society of unrestricted access to ordinary firearms. That is why one must be wary of relying too heavily on obiter comments from a different era for guidance on the outside parameters of the criminal law domain.

[242] For example, the Provinces refer to a comment made by Lord Watson in Ontario (A.G.) v. Canada (A.G.) (Local Prohibition case) [1896] App. Cas. 348 at 361 (P.C.) as support for the proposition that the regulation of ownership and the safe use of firearms have long been recognized as provincial matters.

[243] Interestingly, when these comments were made, the federal government was already legislating to control the possession of guns in Canada. The Criminal Code then in effect required individuals to have a basic permit, known as a "certificate of exemption" to carry a pistol on one’s person unless the owner had cause to fear assault or injury: Criminal Code 1892, c. 29, s. 105. In addition, vendors who sold pistols or airguns were required to keep a record of the purchaser’s name, the date of the sale and information that could identify the gun: Criminal Code 1892, c. 29, s. 106(2).

[244] Whether the Privy Council was alive to these federal gun control initiatives, given the fact that the case was about liquor prohibitions, is not clear. What is clear is that Parliament’s criminal law power will be allowed to respond to contemporary assessments of social concerns. "[C]hanged economic and social conditions and a different moral climate will give to present or proposed laws new features of meaning by which they may be classified and may also alter judgments on the relative importance of their several classifiable features." [Lederman, supra, at 243.] Therefore, precedents, while always helpful, must be read in the context of the times in which they were passed and with due regard to the effect of changing social, cultural and criminal realities.

[245] Fourth, there is no doubt that the criminal law power is proactive as well as reactive; preventative as well as punitive. In other words, under the criminal law power, Parliament is entitled to pass measures designed to prevent crime as well as to control it. This is of key significance in this Reference given the preventative aspects of the licensing and registration provisions. The Supreme Court of Canada endorsed this preventative dimension of the criminal law power in Goodyear Tire & Rubber Co. v. The Queen [1956] S.C.R. 303 at 308:

[See also Hogg, supra, at 18-19 to 18-20.]

[246] Preventing crime is as important to the community and the safety of its citizens as punishing crime once it occurs. The aphorism, an ounce of prevention is worth a pound of cure, underscores the legitimate public interest in crime prevention. This preventative role of the criminal law was noted by the Alberta Court of Appeal in Canada (A.G.) v. Pattison (1981) 123 D.L.R. (3d) 111 (Alta. C.A.). Pattison involved the constitutionality of then s. 101 of the Criminal Code (now s. 103 – application by peace officer for a warrant to seize firearms not desirable in the safety of that person, or any other person). In upholding the constitutionality of the provision under the criminal law power, McGillivray C.J.A. said this at pp. 115-116:

[247] The Provinces attempt to distinguish Pattison on the basis that the impugned law there was only upheld because a peace officer was first required to present "reasonable grounds" that it was not desirable in the interests of public safety for somebody to possess a firearm. While this was so in that case, I do not accept the proposition that Parliament is precluded from legislating under the preventative branch of the criminal law unless there is some reason to believe that an individual harbours criminal intentions or poses a specific threat to public safety. The problem is that the concern is not simply with an individual. It is with an individual who wants to be in possession of a gun. To put the matter another way, the potential danger inherent in any guns falling into the wrong hands attracts the federal government’s preventative criminal law jurisdiction here.

[248] Therefore, although the challenged licensing and registration provisions have universal application, and are more broadly preventative in nature than those at issue in Pattison, it seems to me that they are still sufficiently connected to a valid criminal purpose – the protection of the safety and security of Canadians. In the end, the licensing and registration provisions ultimately make it more difficult for ordinary firearms to be misused, whether in crime or otherwise. That falls squarely within the federal criminal law power.

C. PROVINCES’ SUBMISSIONS

[249] The Provinces’ attack on the allocation front is three-fold. First, this legislation does not meet the traditional test for a criminal law because at its core, it does not prohibit conduct, but regulates it. The "prohibitions", such as they are, are little more than sanctions for failing to comply with the regulations. Second, even if the legislation satisfies the prohibition requirement, it still fails as a legitimate exercise of Parliament’s criminal law power because of the absence of any link between the prohibition and intrinsically "evil" or "harmful" conduct. Finally, the highly intrusive regulatory nature of the legislation dovetails with the Provinces’ third, and overarching argument, namely that the federal government has crossed the legislative divide by imposing a discretionary regulatory scheme under the guise of the criminal law power. In other words, it is a colourable attempt to completely take over the entire field of the regulation of ordinary firearms. Not surprisingly, there is considerable overlap amongst all arguments, making untangling them for analytical purposes somewhat impractical. Therefore, while I attempt to identify the separate strands of each, overlap is unavoidable.

[250] The starting point for the argument that the challenged legislation effectively regulates, rather than prohibits conduct, is the fact that Parliament did not choose to prohibit ordinary firearms outright. In the Provinces’ view, if exemptions and dispensations are the main focus of a law, and a prohibition is simply ancillary to the enforcement of the prescribed standards, then the law is regulatory in nature, not prohibitory. Hence, it does not fall within the criminal law domain.

[251] That, the Provinces say, is precisely the situation here. The prohibitions are purely ancillary to the regulatory scheme. That is because the main thrust of the impugned legislation is not to prohibit the possession of ordinary firearms, but to regulate all aspects of them. Unlike the situation in Hydro-Québec, supra, where the target of the federal legislation, PCB’s, was narrow in scope, involving one of thousands of products, this legislation leaves no guns untouched, covering all firearms and all owners for all purposes. The degree and extent of the regulation, in terms of the numbers of exemptions, conditions and limitations, makes the regulations ancillary to the prohibitions. As a result, the offence provisions – the prohibitions and related penalties – are not the most important part of the provisions. They are purely ancillary to the regulatory scheme, designed to ensure compliance with it.

[252] Moreover, in the Provinces’ view, prevention of crime through a regulatory scheme belongs to the provinces particularly where, as here, the scheme is administered by administrative officials and the selected criteria are unrelated to criminal conduct. For example, they point to the fact that the Chief firearms officer has the discretion whether to grant licences. In the end, the Provinces frame the issue this way: is this primarily a scheme of prohibitions with some exemptions; or is it primarily a discretionary regulatory scheme with offence provisions included to ensure compliance? In their view, it is the latter.

[253] I am unable to accept the Provinces’ position on what they characterize as a prohibition vs. regulation debate. Or for that matter, as a criminal law vs. regulation debate. Expressing the opposing interests in these ways implies, wrongly in my view, that if the impugned legislation has any regulatory components to it or is part of a regulatory scheme, it cannot fall within the criminal law power. This is not so: see RJR-MacDonald, supra and Hydro-Québec, supra. The issue as I see it is not whether the challenged legislation is prohibitory or regulatory; it is whether in substance and in form, it can be classified as a prohibition, irrespective of its regulatory features.

[254] Equally troubling is the Provinces’ fixation on the extent of regulation, focussing as it does on the complex scope and numbers of the regulatory provisions. But this is far too simplistic an analysis of the interrelationship amongst prohibitions, regulations and the criminal law. It is not enough for one side to simply say that this is a regulatory scheme with prohibitions ancillary to it and therefore outside the criminal law power and the other side to say that this is a prohibition with regulatory exemptions and thus within the criminal law power. Indeed, I am bound to say that this constitutional equivalent of the chicken and egg argument demonstrates, yet again, the importance of characterization and how it can affect result.

[255] As noted, a law does not lose its criminal characteristics simply because it contains exemptions or dispensations. If an act is prohibited and there are one or two exemptions, is it still a prohibited act? What if there are 100? Does it lose its characterization as a prohibition? Asking these questions demonstrates that the central issue is this: when does a prohibition cease to be a prohibition? To answer this question involves more than counting numbers of exemptions and conditions and more than looking at labels.

[256] Much will depend on what the topic matter itself is. That very point was made by La Forest J. in Hydro-Québec, supra, at 301 when he emphasized that, because of its broad nature, environmental protection legislation precluded an exhaustive codification of prohibitions. The same point was made by the dissenting minority who conceded that subject matter might well influence the content and extent of the exemptions from prohibitions:

[257] Therefore, even under the approach taken by the dissenting minority in Hydro-Québec, I am satisfied that the legislation here falls on the criminal law side of the prohibition vs. "regulation" divide. It cannot be denied that there are prohibitions in both the Firearms Act and the Criminal Code. The general rule is that acquiring, possessing or transferring ordinary firearms without a licence is prohibited. So too is failing to register an ordinary firearm. Thus, the scheme, if I may use that term to describe the impugned licensing and registration provisions, is essentially a prohibitory one. The licensing requirements distinguish between those who should not have access to guns and those who may and the registration requirements ensure that those who are not licensed to have firearms of any kind or of a certain class do not gain access to them.

[258] Looking at this from another perspective, it cannot be persuasively argued that the prohibitions here are toothless and merely ancillary to the regulatory requirements. Far from it. They are serious offences with potentially significant penal consequences for those who breach the prohibitions. For example, under the Criminal Code, having a firearm in one’s possession knowingly without a licence and without a registration certificate is an indictable offence punishable with imprisonment for a term not exceeding ten years for a first offence. A second and third offence attracts minimum mandatory sentences of imprisonment, provisions which it is self-evident one would not ordinarily see in a purely regulatory statute. Even the breach of the Firearms Act itself at the other end of the scale is not without consequences. At the lowest level of culpability, those offences punishable on summary conviction, individuals can be fined up to $2,000 or imprisoned for up to six months or both (Criminal Code, s. 787). While I would agree that Parliament cannot, by imposing severe sanctions, make something constitutional which is not, these sanctions do reflect the degree of seriousness which Parliament attaches to the offences.

[259] It should also be noted that the prohibitions here are more direct than that in RJR-MacDonald, supra. There the Supreme Court made it clear that Parliament did not need to prohibit the underlying evil, tobacco consumption. It could choose instead to prohibit tobacco advertising, as it did. Contrast that with this case. The underlying evils, owning and possessing ordinary firearms without being properly licensed and registered, are both prohibited. So too is exporting, importing, manufacturing, owning and transferring possession and ownership without complying with the prescribed exemptions. Thus, unlike RJR-MacDonald, in which the Supreme Court would have upheld prohibitions on tobacco advertising under Parliament’s criminal law power, here there is an even closer link between the evil and the steps Parliament has taken to combat it.

[260] Moreover, there are precise and limited exemptions from the general prohibitions, both in substance and time. The exemptions are carefully designed so as not to undercut the seriousness, scope and effect of the prohibitions. The exemptions permit possession and use only if the individual is licensed and his or her ordinary firearm registered. One must fall squarely and fully within the limited exemptions from the prohibitions – and remain there.

[261] There are two exceptions to the general overall requirements that warrant mention. One is for hunters from other countries. The licensing and registration requirements do not apply to them. However, there are still limits imposed. A person in this situation cannot remain in the country with his guns for more than 60 days (s. 36 of the Act). Also, obviously, the guns brought in by the hunter will be subject to customs checks to ensure that those brought in are taken out when the hunter leaves the country.

[262] The second exception relates to those Canadians who now own ordinary firearms. As indicated earlier, the combined effect of a number of different provisions is to "grandfather" those individuals who secure a possession-only licence (rather than a possession and acquisition license) and relieve them of the requirement to take the firearms safety course prescribed by the federal government (s. 7(4)(c)). It must be emphasized however that this is the only safety provision from which those in this position are relieved from complying. Licensing and registration remain mandatory for them as with all other persons in possession of firearms. Hence, it can be seen that this is itself a measured response to the fact that those in current possession of ordinary firearms are presumed to have sufficient safety training so as not to warrant further intrusion into this area.

[263] Perhaps most importantly, the extensive description of the exemptions and conditions relating to ordinary firearms is required given the dichotomy between their lawful/unlawful uses. The lengthy regulatory provisions are a function of the number of legitimate uses for firearms. In other words, the federal government is trying to accommodate those uses, despite the fact that it could, as conceded by several provinces (and on which I make no comment) enact absolute prohibitions. In addition, the regulatory requirements are also designed to ensure that the general prohibitions can be, and will be, effectively enforced. Prohibitions with unduly broad exemptions and no clearly defined limits to them open up the impugned provisions to attack on the basis of vagueness.

[264] I concede that because of the complexity, there is an expansive layer of administrative processes involved here. It cannot be otherwise. What is important however, is that in those cases where as a result of the application of the regulatory provisions an individual is denied the right to secure or keep a licence or registration certificate, all such decisions are, as I have previously noted, subject to judicial review. More significantly, Parliament has clearly defined the scope and content of the offences here. No administrative officer has been delegated this responsibility.

[265] It also follows from the view that I have taken that I do not see any objections to Parliament’s being able to further refine and define specified exemptions and when and how they will apply through the regulation-making authority under the Firearms Act. In my view, Parliament’s ability to tailor or define offences extends to the use of detailed regulations.

[266] In the result, I am satisfied that the regulatory components here do not undercut the characterization of the prohibitions as such. In my view, the impugned provisions may be classified as criminal offences with a significant regulatory base (as La Forest, J. concluded in reference to then existing gun controls in Wholesale Travel, supra), or, given the increased regulatory content of the impugned provisions, as regulatory with a significant criminal base. However, even if the impugned provisions were, as the Provinces assert, part of a regulatory licensing and registration scheme, one still starts with defined prohibitions; exemptions are created and the offences are anything but ancillary.

[267] In the end, no licence and no registration means no legal use of an ordinary firearm. In other words, the purpose of the sanctions is to provide a way of enforcing the prohibitions, and not simply the failure to meet the exemptions set forth in the legislative scheme. Correspondingly, the regulatory provisions here, namely the exemptions from the prohibitions, though detailed and comprehensive, are ancillary to the prohibitions.

[268] The Provinces argue that it is not enough that the legislation be enacted in the interests of public safety or security. Something more is required to validate the exercise of Parliament’s criminal law power and that something more is a link to conduct which has an intrinsic "evil" or harmful quality. The acts prohibited here, possession of a firearm without licensing and registration, do not meet the required degree of evil or harmful quality. They are, at worst, neutral.

[269] In the Provinces’ view, the general public would not regard breach of the licensing and registration provisions as justifying sanctions under Parliament’s criminal law power. The effect of the legislation will be to intrusively regulate the possession of firearms by law-abiding members of the general population, a matter not connected in any respect with the criminal law. This does not address any matter of public peace, order, security, health, morality, or some other matter of similar nature sufficient to bring it within the criminal law power.

[270] What this means therefore is that the Provinces equate a valid criminal public purpose only with some act or potential act of criminal misuse of firearms. Were the laws focussed only on this target, they concede that the laws would fall within the federal criminal law power. Otherwise, regulation of the possession of ordinary firearms by ordinary Canadians is not within federal authority because it lacks any nexus with criminal law concerns.

[271] In support of this position, the Provinces point out that the criminal law concern with ordinary firearms has traditionally been related to their use, e.g. carrying a concealed firearm, possession with intent to injure, possession for an unlawful purpose, being armed at a public meeting, pointing a firearm without a lawful excuse, etc. They contend that the law has never related to simple possession or ownership. But this is not so. The current FAC program does limit possession by requiring a licence as a condition precedent to acquisition of ordinary firearms, and thus possession. What these new controls do is to move the battle against the misuse of all firearms into the next stage of prevention.

[272] The Provinces also point to R. v. Swain [1991] 1 S.C.R. 933, and comments in it that link the validity of preventative criminal law to the fact that an offender had already been brought within the nexus of the criminal law. However, again, this argument ignores the potential danger inherent in all ordinary firearms. It also ignores the fact that possession of ordinary firearms is the gateway to use. Rather than focussing on the risks associated with improper use, Parliament has chosen, given the fact that all guns are weapons, to back up one step and proscribe anyone’s having an ordinary firearm in his or her possession without a licence and without the firearm being registered. This is a perfect example of the preventative dimension of the criminal law in operation.

[273] Further, the Provinces’ argument rests on the proposition that there is no inherent evil in not registering a firearm or in not obtaining a licence other than the failure to comply with the regulatory scheme. Much is made of the fact that this amounts to criminalization of conduct which many would not view in any way as criminal. I have two fundamental problems with this assertion.

[274] First, the view that the criminal law power only applies to acts which carry some moral taint or are criminal or evil by nature was rejected by the Privy Council in P.A.T.A., supra, at 323-23 and in subsequent decisions of the Supreme Court of Canada: see Margarine Reference [1949] S.C.R. 1 at 49, aff’d [1951] A.C. 179 (P.C.); R. v. Zelensky [1978] 2 S.C.R. 940 at 950-951; and RJR-MacDonald, supra, at 259-260. Moreover, one must remember that certain offences under the impugned licensing and registration provisions would not attract the same degree of disapprobation or stigma as other offences included in the impugned legislation which fall into the "true crimes" category. And yet, they all come within the scope of the criminal law power.

[275] Second, the reason that firearms regulations falls within the criminal law power lies in the philosophical and policy underpinnings of the criminal law. I am well aware of the strong feelings of some that the challenged laws will make criminals out of law-abiding citizens who are guilty of nothing more than sloppy paperwork. And on top of everything else, the real criminals will not comply with the law anyway. While I understand these concerns, this argument overlooks a critical factor.

[276] It assumes, incorrectly in my view, that the only person who does something wrong which should attract a penal sanction is someone who deliberately sets out to harm and hurt somebody. I concede that this notion of subjective fault – intentional volition – runs through the more serious Criminal Code offences. However, this is not the only basis for attracting criminal culpability. Indeed, there is much force to the argument that it is not the most appropriate basis. It tends to focus on what the perpetrator deliberately did as opposed to recognizing the harm caused by the perpetrator: see I. Grant & C. Boyle, "Equality, Harm and Vulnerability: Homicide and Sexual Assault Post-Creighton" (1993) 23 C.R. (4^th) 252; J. McInnes & C. Boyle, "Judging Sexual Assault Laws Against a Standard of Equality" (1995) 29 U.B.C. L. Rev. 341 at 358-359; and R. Cairns Way "Developments in Criminal Law: The 1995-1996 Term" (1997) 8(2d) S. Ct. L. Rev. 181 at 214-215. By doing so, it distracts the attention from the victim and the harm done to the victim by the perpetrator, whether or not the perpetrator intended that consequence.

[277] Today, it is recognized, appropriately in my view, that a harm-based approach to criminal law is not inconsistent with notions of criminal culpability. This being so, it is most certainly not inconsistent with notions of culpability where the legislative scheme is classified as criminal with a regulatory base or vice versa. And this is particularly so where the scheme is regulatory only. In other words, it is enough if the actions of a person cause harm, even though the person does not set out to achieve that harm (subject of course to the constitutionally mandated minimum fault requirement: see R. v. Finlay [1993] 3 S.C.R. 103).

[278] I accept that not every harm or risk to society will necessarily be sufficiently grave to warrant the invocation of the criminal law power: see Knox Contracting Ltd. v. Canada [1990] 2 S.C.R. 338 at 347; and see comments by Major, J. in dissent in RJR-MacDonald, supra, at 358-359. But as has been pointed out by A. Hutchinson and D. Schneiderman in "Smoking Guns: The Federal Government Confronts the Tobacco and Gun Lobbies (1995) 7:1 Constitutional Forum 16 at 20, and with which I agree:

[279] Certainly the linkage between licensing and prevention of criminal use is an obvious one. It has been commented on in several cases dealing with different aspects of Parliament’s gun control legislation through the years. [See Martinoff, supra, in which licensing requirements were upheld on the basis they fulfilled a typically criminal purpose in advancing such goals as public peace, order and security by maintaining strict controls on who may possess and use firearms.]

[280] There cannot be any serious disagreement about the serious harms caused to public health, safety and security from the misuse of guns. Nor can there be any dispute about the potential for serious harm from the misuse of guns. In evaluating whether the risk of harm or the actual harm is, on the test suggested by Major, J., sufficiently grave to warrant the use of the criminal law power, one might approach this from both a qualitative and quantitative assessment. On the qualitative side, the questions to ask could include these. What is the scope of the potential and actual harm? Do they have a national dimension to them? What is the level of public tolerance for the target activity? What is the effect of failing to curb the subject activity? Does the activity have a spillover effect into other areas of public concern, such as public health, mental health, accidents and suicides? Guns fall short on all counts. On the quantitative side, this requires an assessment of risk of occurrence and actual occurrences compared to actual usage.

[281] Further, this is not a case like RJR-MacDonald Inc., supra, at 361 where the dissenting minority observed that the law required the regulation of a product that was otherwise legal and licensed for sale. This is certainly not the case with guns. There are already extensive restrictions in place. No one can acquire an ordinary firearm today without meeting the FAC program requirements in effect. Unlike the case with tobacco products, Canada does not permit corner store sales of ordinary firearms.

[282] What must be understood therefore is that those individuals who choose to acquire guns do so in the knowledge that they are entering a field where Parliament has chosen to legislate extensively. By enacting the impugned licensing and registration provisions, Parliament has seen fit to impose on anyone wanting to possess and use a firearm of any kind a requirement that the person be licensed and his or her gun, properly registered. The failure to comply with this duty of care warrants the imposition of the sanctions mandated by Parliament and in my view is consistent with the philosophy underlying the following comments by the Law Reform Commission of Canada in "Workplace Pollution", Working Paper 53 (Ottawa: 1986) at 72-73:

[283] What this means in the context of guns is that the person who has a gun and does not meet the licensing and registration requirements is in effect complicit in the harm done to society by reason of their failure to meet these minimum standards. One cannot ignore the very real harm that comes with guns falling into the hands of the wrong people and the very real risk of harm that exists every time a gun is placed into the hands of someone in respect of whom a proper risk-benefit analysis has not been done. Therefore, it is not an improper exercise of Parliament’s criminal law power to impose penal sanctions on those who fail to comply with the impugned licensing and registration provisions. The sanctions vary with the degree of seriousness of the breach of the Firearms Act or the Criminal Code provisions. Parliament will continue to tolerate ordinary firearms in the hands of Canadians but only if those who want to use them have been determined to be an acceptable risk from the perspective of public safety and have duly registered their firearms.

3. COLOURABILITY

[284] The Provinces’ position, that the challenged provisions are a colourable attempt to take over the regulation of ordinary firearms, has been reviewed in the context of the pith and substance analysis. Certain aspects of it have also been discussed in this part. To recap the Provinces’ reasons for concluding that the challenged laws are colourable, they are these: (a) there is no connection between the legislation and any criminal misuse of ordinary firearms; (b) it is a highly intrusive regulatory scheme covering firearms "cradle to grave" and the prohibitions are ancillary to the regulations, not vice versa; (c) it is liberally ladled with administrative intervention; (d) it will not work anyway; and (e) it targets law-abiding citizens and not criminals.

[285] Canada and its supporters ask the question this way: Is this scheme for a criminal law purpose or is it a colourable means of regulating matters within provincial jurisdiction? The answer in their view is the former. The provisions are aimed at the protection of public safety from the misuse of firearms, through prevention of crime, and, as such, are enacted in relation to criminal law.

[286] As noted earlier, the Provinces challenge the rationale for registration on several bases. Many of them focus on the perceived inadequacies of the registration system. The Provinces assert that registration as it relates to ordinary firearms is inherently flawed and will not work. However, in my view, this approach misses the issue. The issue is not whether it will be 100% effective. It is whether there is a connection amongst the purpose, the means chosen to implement the purpose and the practical effects sufficient to dispel the colourability argument.

[287] Hydro-Québec, supra, at 291-292 explains how invoking the "colourability" doctrine requires the court to assess whether there is a legitimate public purpose underlying challenged legislation.

[288] The Provinces attempt to distinguish Hydro-Québec on a number of bases. First, they argue that possession and ownership of ordinary firearms is not inherently harmful, as is the case with the toxic substance in Hydro-Québec, PCB’s. While the Provinces concede that restricted and prohibited weapons are like toxic substances, they contend that ordinary firearms are not in this category. Indeed, as they correctly point out, the legitimate purpose and utility of ordinary firearms is not only a fact. It was one of the guiding principles of the federal government in enacting the Firearms Act.

[289] Second, unlike the situation in Hydro-Québec, where the legislation targeted a limited number of substances, PCB’s and about 25 other toxic substances out of 21,000 registered substances in commercial use in Canada, the licensing and registration provisions are not limited in any fashion, applying as they do to all guns in everyone’s hands. Thus, the legislation overshoots the mark as did the federal legislation prohibiting pollution in waters frequented by fish in Fowler v. The Queen [1980] 2 S.C.R. 213. The Provinces point to comments by La Forest, J. who discussed the narrow focus of the environmental protection legislation and the fact that Parliament had weeded out from the vast number of potentially harmful substances those which "pose significant risks of that type of harm." Hydro-Québec, supra, at 309. However, here, the Provinces contend that no such attempt was made to weed out the bad. Instead, the laws apply to all guns for all purposes.

[290] Third, the Provinces argue that the environment is within criminal law power, but not so property regulation.

[291] Despite the attempt to distinguish Hydro-Québec, in my view, it fails. I will address the Provinces’ arguments in the order listed. It cannot be successfully argued that ordinary firearms are not dangerous weapons. They are. The potential for danger is ever-present. While they may not be the weapons equivalent of PCB’s since they do have many legitimate uses, arguably they are as threatening to public safety as many toxic substances, thereby warranting public safety concerns about their possession and use.

[292] To repeat a point made earlier, the problems here arise because of the variety of legitimate uses for which ordinary firearms may be acquired. Flexibility is required because of complexity. In other words, a more detailed legislative scheme is justified than would otherwise be the case had Parliament chosen to extensively restrict or prohibit the acquisition or possession of all ordinary firearms.

[293] As for the argument that all guns are targeted, while in Hydro-Québec the list of toxic substances was only about 25 out of 21,000, the obvious answer is that Parliament is not trying to control all property through licensing and registration, but only one of the many thousands and thousands of forms of property in this country, and only one of the many types of weapons, namely guns. Thus, this is not a significant intrusion into provincial power over property generally. Nor is Parliament attempting to control all manner of use of ordinary firearms as property. While there are obviously certain things that gun owners cannot do with their guns without running afoul of the criminal law, apart from this, the enjoyment of guns generally as property has been left to the provincial governments to dictate whatever other limitations or conditions on use of ordinary firearms that they wish. Further, the federal government is not controlling all matters relating to ordinary firearms. For example, as was the case in RJR-MacDonald, the impugned legislation does not address product quality controls, pricing, and labour relations within the manufacturing and distribution processes.

[294] With respect to the Provinces’ submission that environment is within federal power but not so regulation, this statement is not only potentially underinclusive but misleading. It is underinclusive because depending on the purpose of the environmental legislation, it may fall within either the federal or the provincial domain. The same applies to regulation. It is misleading because this proposition implies that regulation is necessarily linked to property and thus falls within provincial legislative control. But regulation is not a subject matter in its own right. The key question is regulation of what? To determine which level of government has the power to regulate in an area, one would need to know what is being regulated and for what purpose. Again, depending on the answers to these questions, either federal or provincial jurisdiction will be engaged. Or both, if the double aspect doctrine applies. Or neither, if the legislation is simply too broad or vague to be competent to either level: see Saumur v. Quebec [1953] 2 S.C.R. 299.

[295] There are other reasons why the reasoning in Hydro-Québec applies to the impugned licensing and registration provisions. To restate a point discussed earlier, in Hydro-Québec, there was no general prohibition in the enabling legislation. That was fatal in the view of the dissenting minority. However, the challenged licensing and registration provisions in this Reference contain clear prohibitions in both the Firearms Act and the Criminal Code and thus, this perceived shortcoming does not exist. Hence, in my view, the reasoning of the dissenting minority adds support to the validity of the impugned licensing and registration provisions.

[296] On the question of the extent of the regulatory scheme, I do not disagree with Professor Hogg’s statement that "the more elaborate [a] regulatory scheme, the more likely it is that the Court will classify the dispensation or exemption as being regulatory rather than criminal". [Hogg, supra, at 18-26.] I would however add two comments. Professor Hogg does not state that the mere fact a scheme is regulatory means that it cannot fall within Parliament’s criminal law power. Indeed, the contrary is so. His comment inferentially accepts the proposition that the federal government may be constitutionally competent to enact a regulatory scheme under its criminal law power.

[297] Second, I do not take from what Professor Hogg has said that if a regulatory scheme is complex, it will be classified as regulatory rather than criminal. I do take from what he has said, however, that it does depend on the facts. Therefore, one must still look at the subject matter and its complexity; the context within which it applies; the rationale for the exemptions; whether they are carefully tailored to address the identified need; whether the exemptions crisply define the scope of the prohibitions or render them practically meaningless; the degree of seriousness of the penalties flowing from breach of the prohibitions; and in the end, the linkage between the prohibition and the exemptions and whether collectively they make sense in terms of achieving a purpose affiliated with the criminal law, such as public safety, morality, security and health.

[298] Gun control certainly has had a long and uninterrupted affinity with traditional criminal law concerns since Confederation. The mere fact that the controls are extensive and that a lesser form of control than absolute prohibition has been chosen does not make the form used to manage risk and control firearms unconstitutional. The nexus here between public safety and guns is clear, compelling and irrefutable, unlike the connection between safety and the colour of margarine: see Margarine Reference, supra. The exemptions seek to identify cases of unacceptable risk while accommodating the legitimate interests of firearms owners.

[299] Alberta argues that even if the licensing and registration provisions promote public safety, they are still not valid criminal laws. This argument rests on the shaky foundation that the constitutional definition of criminal law is not directed at public safety per se, although it is related to public safety. Public safety matters are, in Alberta’s view, a matter of local concern within the jurisdiction of the provinces. Alberta cites several provincial safety statutes as support in this regard. See e.g. Alcohol and Drug Abuse Act, R.S.A. 1980, c. A-38; Ambulance Services Act, S.A. 1990, c. A-40.5; Dangerous Dogs Act, R.S.A. 1980, c. D-3; Disaster Services Act, R.S.A. 1980, c. D-36; Mental Health Act, S.A. 1988, c. M-13.1; Occupational Health and Safety Act, R.S.A. 1980, c. O-2; Public Health Act, S.A. 1984, c. P-27.1; Safety Codes Act, S.A. 1991, c. S-0.5; Weed Control Act, R.S.A. 1980, c. W-6. This ignores, however, the fact that where public safety is concerned, the double aspect doctrine is alive and well.

[300] Further, and in any event, close regulation of dangerous goods or products is, in my view, essential to Parliament’s preventative criminal law role. Comparisons can be made to other federal legislation promoting public safety in this context which has been upheld under the criminal law power. The Explosives Act, the Hazardous Products Act and the Food and Drugs Act are all schemes that regulate the use of dangerous or hazardous products or poisons. Some of these also include licensing and registration schemes: see Wetmore, supra; R. v. Cosman’s Furniture (1972) Ltd. (1976) 32 C.C.C. (2d) 345 (Man. C.A.); and Standard Sausage Co. v. Lee [1933] 4 D.L.R. 501 (B.C.C.A.), supplemented by addendum at [1934] 1 D.L.R. 706.

[301] For example, the Explosives Act, R.S.C. 1985, c. E-17 includes a general prohibition on the possession of explosives and then provides for certain defined exemptions from the prohibition (s. 6 of the Explosives Act). The parallel continues. The Explosives Act provides for: the making of regulations to classify explosives and to determine the duration and character of licenses (s. 5); licensing of factories, magazines and storage places (s. 7); importing of explosives (s. 9); and inspecting of any place which an inspector believes on reasonable grounds that an explosive is being stored, manufactured or conveyed (s. 14). Violations of the Explosives Act are offences punishable only by fine or summary conviction (ss. 16-23) even though the Explosives Act falls within the criminal law power.

[302] The broad scope of Parliament’s control over such matters as drugs, unsanitary foods and poisons by virtue of the criminal law power was noted by La Forest, J. in RJR-MacDonald, supra, at 252 and 257:

This reasoning applies with equal force, if not more so, to ordinary firearms. All firearms, including ordinary firearms, possess dangerous characteristics comparable to the drugs, explosives and poisons which are subject to federal legislative control because of their potential for harm to both public safety and health.

[303] I also consider it of some relevance that the interpretation of the scope of Parliament’s preventative criminal law power in this manner happens to be consistent with, and to reinforce, gender equality guarantees in Canada. Though gun control affects all Canadians, the point has been made that women tend to experience guns and gun possession differently from men. As with other legal issues, perspective is vital. Focussing almost exclusively on property rights concentrates primarily on the owners and possessors of ordinary firearms. But equally important is the perspective of those put at risk by guns. It has been argued with considerable force that characterizing the law from the latter perspective is more consistent with equality rights: see Dansys Consulting Inc., supra, at 23-27; Affidavit of R. Gartner at 8-11, citing M. Crawford & R. Gartner, "Woman Killing: Intimate Femicide in Ontario, 1974-1990" (Women We Honour Action Committee, April 1992) at 33-37, 44-49, 83-86. And the importance of interpreting legislation in a way which is consistent with Charter values, including equality rights, has been affirmed by the Supreme Court of Canada: see Pharmaceutical Society (Nova Scotia), supra; and Hills v. Attorney General of Canada [1988] 1 S.C.R. 513.

[304] Where, as here, the challenged laws include no outright prohibition of firearms against persons who might responsibly use them for recreation or work, but there is increased protection of women from actual violence and the fear of violence from firearms, the gender dimension of firearms use and equality guarantees weighs in favour of classifying the impugned laws under the federal criminal law power.

[305] I accept that the Provinces too could respond to legitimate public concerns about violence against women involving ordinary firearms. But there are two points that must be noted. First, the reality is that the Provinces have not elected to enhance existing provincial gun control measures as they relate to ordinary firearms. Nor have they expressed any intention to do so. Second, and in any event, even if the Provinces could act, if so motivated, this does not mean that the federal government cannot pass stricter protective gun control measures to achieve the same goal. Again, this would be an example of the double aspect doctrine in operation.

[306] As I indicated earlier, other policy considerations might well enter into a division of powers analysis. The purpose of placing these on the scale is to assist in determining which level of government should have the power to enact a particular law, having reference to the balance of power between the central and provincial governments. I believe that the accommodation of diversity and regional differences in values, choices and priorities is essential to a federal state. Professor Beatty, for example, says that the federal principle:

[307] In this Reference, one can see the need to test the impugned provisions against the proportionality criteria. The federal government identifies the peaceful nature of Canada as a key reason for the tighter regulation of all firearms. The federal view is that firearms regulation in Canada should be markedly different from our neighbours to the south. This justification clearly has a dimension of nation-building: it shapes our interaction with others and the environment; it affects our safety in our homes and on our streets; and it sends a message about who we are and what we believe in as Canadians.

[308] At the same time, the fact that four provinces and two territories are participating in this Reference sends the signal that there is a strong provincial identification with firearms and interest in protecting provincial regulatory powers. The use of firearms for hunting and recreational purposes speaks volumes about who Canadians are as a people and as provincial or territorial residents. This is particularly true in those provinces and territories, like Alberta and the Northwest Territories, having a high level of firearms ownership. The image of a law-abiding, proud, self-sufficient pioneer is often associated with the use and possession of ordinary firearms. The "pioneer image" of people who live off the land, take care of their land and their neighbours, and tame the frontier is a familiar image. Albertans and residents of many other provinces and territories are justifiably proud of this image and the independence it represents. One can see how people could reasonably react to the requirement to register all ordinary firearms as a display of mistrust and an unnecessary intrusion into a matter of personal independence. In this regard, the Provinces say that the Act and its amendments to the Code are inconsistent with important provincial values. The Provinces also say that the goal of a peaceful Canada is not inconsistent with, but better served by, provincial control of licensing and registration.

[309] While I certainly understand these concerns, I do not regard the national licensing and registration scheme as a significant impairment of provincial values underlying firearms ownership and use. All persons who are eligible to own ordinary firearms because they pose no danger to the community may do so provided that they licence themselves and register their firearms. The federal regulation of firearms does not prevent provincial regulation on the use of ordinary firearms in general, including local matters such as hunting, to the extent that provincial legislation is consistent with federal law: R. v. Chaisson, (1982) 66 C.C.C. (2d) 195 (N.B.C.A.); aff'd (1984) 11 C.C.C. (3d) 385 (S.C.C.). Thus, federal prohibitions on firearms, including those addressed to licensing and registration offences, do not sacrifice the principle of federalism in the Constitution and do not threaten constitutional equilibrium.

[310] Another policy feature that, in my opinion, is relevant to the federalism analysis in this Reference is the ease and efficiency with which each government might enact and administer firearms licensing and registration provisions: see Simeon, supra, at 141. Professor Beatty raises a similar point, suggesting that courts should consider the rationality of a choice to allow one level of government to regulate a particular matter given its inability or perhaps unwillingness to do so: D.M. Beatty, "Polluting the Law to Protect the Environment" (1998) 9 Const. Forum 55 at 57-58.

[311] Which level of government then can best enact, administer and enforce licensing and registration provisions respecting firearms users and firearms? I have already discussed the advantages of federal controls (Part V. D). The Provinces argue however that they are best able to pass and administer such laws. Certainly, firearms use varies across the country. Those provinces with more hunters have more ordinary firearms per capita than those provinces with a greater percentage of urban dwellers. It would not be unreasonable to target the guns most often used in crime and the most often used guns overall for increased regulation. A province could reasonably pass and administer such laws depending on its mix of firearms and firearms users. Higher standards could obtain in provinces with higher levels of gun use.

[312] But the above scenario only captures half the relevant picture. A province may reasonably be able to tailor a licensing and registration system to its particular users and types of firearms. But the fact that a province has the ability to custom-legislate such a system does not mean that the province will impose any licensing and registration system at all. This is problematic in Canada’s view since the potential danger inherent in all firearms justifies its imposing certain minimum, preventative standards across the country.

[313] There is no doubt that traffick in illegally acquired ordinary firearms is a serious problem and one clearly related to criminal activity, suicide, accidental injury and public safety in general. As I have discussed earlier, firearms can easily be smuggled from a province of lesser regulation into a province of greater regulation. In this way, a province’s inability or unwillingness to legislate with respect to the registration of ordinary firearms would increase the safety concerns in provinces with a registration requirement. Additionally, a piecemeal system of firearms regulation would pose potential logistical and practical problems which should be placed on the scale along with the advantages of minimum national standards.

[314] The concept of minimum national standards is consistent with the willingness of Canadians to sacrifice some individual freedom in order to assist in preventing harm to the community and its members caused by the unregulated possession of firearms. This willingness is not only a fundamental value held by Canadians. It also happens to be one which distinguishes Canadians from other countries. Canada took a different turn from the United States when the drafters of our Constitution decided in 1867 that the federal government, and not the provinces, should have control over criminal law. By contrast in the United States, the criminal law power resides in the individual states and not the federal government, helping to explain, no doubt, the wide range of gun laws that exist in the United States and the resulting difficulties faced by its federal government in enacting any legislation that is effective at controlling the possession and use of guns: see Mack v. United States, 117 S. Ct. 2365 (U.S. 1997).

[315] The purpose of the criminal law is to protect society and our fundamental values, including of course human life and health: see Lamer, C.J.C. in Swain, supra, at 1005 and LaForest, J. in Hydro-Québec, supra, at 296-297. Because the misuse of guns continues to present a clear and present danger to the safety and security of all Canadians, I am of the view that Parliament is entitled under its criminal law power to impose licensing and registration controls on those who wish to secure access to guns in order to prevent actual, or threatened injury or the likelihood of injury of the most serious kind from one of the most lethal of weapons, guns, including ordinary firearms. That is what the licensing and registration provisions seek to do – manage risk, minimize potential harm, protect human life and health and promote fundamental values, and promote a safe, peaceful and orderly society. Although this legislation is comprehensive, it arguably must be so to do its work.

[316] What I conclude therefore is that there is much to be said in terms of local efficiency and fit if the Provinces chose to regulate ordinary firearms specific to their local patterns of use and ownership. However, they cannot successfully challenge the federal government’s constitutional right to legislate under its criminal law power to protect the national interest in a safe and peaceful Canada by establishing certain minimum conditions under which ordinary firearms may be acquired by Canadians. In the end, I am of the view that the federal government is best able to enact universal legislation dealing with the licensing and registration of all firearms having regard to the mobility of firearms, their dangerous characteristics and the potential cost of piecemeal firearms regulation amongst the provinces. The underlying purpose of the whole scheme is public safety – and this puts it squarely within the preventative dimension of the criminal law as well as the criminal law itself. In other words, it captures and includes features relevant not only to criminal law but also to prevention of crime, and therefore is not colourable.

D. INTERFERENCE WITH PROVINCIAL JURISDICTION

[317] Having found that the licensing and registration provisions are in pith and substance concerned with the protection of public safety from the misuse of firearms, and having found that such public safety concerns fall within the criminal law power, the next question is whether the whole scheme is validly enacted. In my view, it is, particularly given the historical affinity of gun controls with the criminal law: see Schwartz, supra. Indeed there was no suggestion by the Provinces that Parliament lacks the authority to enact the overall legislative scheme, apart of course from the impugned provisions. Alberta effectively concedes as much when it says that there is no legitimate purpose for the possession of "restricted or prohibited" firearms because "any possession of them is intrinsically dangerous." [Alberta Factum at 30.] The Provinces attack only the licensing and registration provisions and only as they relate to ordinary firearms.

[318] The overall legislative scheme is a package of comprehensive, integrated gun controls covering not only licensing and registration of ordinary firearms, but licensing, registration, import, export, ownership and transfers of all firearms. In my view, it is in pith and substance designed to protect public safety from the misuse of firearms for all the reasons already discussed. All this being so, it follows that the impugned provisions are intra vires Parliament: General Motors, supra. Therefore, it is of no constitutional significance that the provisions also intrude on provincial jurisdiction over firearms as property and civil rights. Where impugned provisions serve a valid criminal law purpose and do not violate the doctrine of colourability, those provisions may affect matters of provincial jurisdiction: see Re Combines Investigation Act [1929] S.C.R. 409 at 413.

[319] La Forest, J. affirmed this bedrock principle of constitutional law in Hydro-Québec, supra, at 297-298:

I see no reason to deviate from this well-established principle of law here.

VII. SUFFICIENTLY INTEGRATED TEST

[320] If I am wrong in my assessment that the impugned provisions are in pith and substance within Parliament’s criminal law power, then, in any event, I am of the view that they are sufficiently integrated into an otherwise valid legislative scheme to survive constitutional scrutiny: General Motors, supra; Multiple Access, supra; R. v. Zelensky [1978] 2 S.C.R. 940.

[321] In other words, regardless of the true character of the impugned provisions when taken in isolation, if these provisions are really aimed at promoting the dominant purpose of the overall legislative scheme, which I have already concluded is constitutionally valid within Parliament’s criminal law power, then so too are the impugned provisions. Lamer C.J.C. explained this approach in Reference re G.S.T., supra, at 469-470:

[322] This brings me to the crux of the issue: assuming that the impugned laws are not in pith and substance within federal control, are the impugned laws nevertheless sufficiently integrated into Parliament’s legislative gun control scheme to survive? The required degree of integration ranges from "rationally connected" at the lowest threshold to "necessarily incidental" depending on the degree of intrusion of the impugned provisions into provincial powers: see General Motors, supra, at 672. The higher the degree of intrusion, the stricter the standard.

[323] At this point, I pause to address the Provinces’ assertion that a s. 1 Charter analysis should be used for the purpose of assessing whether the efficacy of the legislation warrants the level of intrusion into the provincial sphere. The s. 1 test developed in R. v. Oakes [1986] 1 S.C.R. 103 requires an impugned law to satisfy four criteria before it may qualify as a reasonable limit demonstrably justified in a free and democratic society. Professor Hogg summarizes the s. 1 test, supra at 35-16 to 35-17:

[324] Using the s. 1 test, the Provinces challenge two aspects of contemplated efficacy of the licensing and registration provisions. First, they assert that to make any meaningful contribution to the reduction of the criminal use of firearms, the registry would have to be a "reliable universal" registry. And second, even if it were, this Court should assess whether the existence of such a registry would result in a reduction in the criminal use of firearms. On both counts, the Provinces claim that the legislative scheme fails. The registry will not be reliable, if even for the simple reason that criminals will not register their guns. And on the second count, there is no empirical evidence that a registry, even if reliable, would effect a reduction in the criminal use of firearms. Therefore, say the Provinces, Canada has failed to show that Parliament’s incursion into the provincial sphere of authority is rationally connected, much less necessary, to the achievement of a valid federal criminal law purpose. Thus, the impugned legislation cannot meet the tests of constitutionality.

[325] I cannot agree with the Provinces’ proposition that a s. 1 Charter analysis should be imported into a division of powers case, and federal incursions into the provincial arena evaluated in accordance with the tests articulated under s. 1. In my view, this kind of shopping from different constitutional carts is not permitted. That does not mean that I believe that the Provinces’ concern is invalid. What the Provinces are saying is that there must be some way of evaluating the validity of the extent of the intrusion into provincial powers, especially given the willingness to allow incidental, indeed significant, effects of otherwise valid legislation to withstand constitutional scrutiny. However, the critical point is that there already is a method for doing just this. That is the purpose of the sufficiently integrated test which requires at the highest level a "necessarily incidental" connection. In other words, the sufficiently integrated test is the constitutional equivalent, in a division of powers case, of a s. 1 analysis.

[326] If the challenged law is sufficiently integrated with a valid scheme, the courts do not interfere. Also, one must remember that the general rule is that the federal legislation has paramountcy in the event of conflict between it and provincial legislation where there is a double aspect to the subject law: Multiple Access, supra, at 190-191. Adopting a s. 1 analytical approach would arguably erode the double aspect rule and the paramountcy rule because a s. 1 analysis would potentially have the effect of drawing a bright line between what is too intrusive and what is not. By doing so, it would divide the area for action between the two levels of government. And yet the double aspect rule accepts that in respect of the same matter, the federal and provincial governments can both legislate for different purposes. If one were to say that the federal government went too far, it would be akin to finding that there is no area of provincial jurisdiction into which Parliament could tread regardless of the extent to which the subject law was integrated into a larger legislative scheme. It would represent a return to the watertight compartments kind of thinking that dominated constitutional analysis in the early part of this century and which has, for good reason, been rejected in recent years. In other words, to the extent that a s. 1 analysis of minimal impairment implies that there is a line that cannot be crossed by either level of government without a finding of unconstitutionality, it is wrong.

[327] That said, some might say that this approach would be preferable to the current one in which the provincial interests are effectively swept off the table (through the operation of the double aspect doctrine and the paramountcy doctrine) despite a finding that the two levels of government have an equivalent interest in a certain "matter". However, to continue the metaphor, the division of powers store and the Charter store have produced different products. And thus far, each has been successful in maintaining exclusive control over its product line. It may be in the future that this will change, particularly if it should be determined that considerations of democracy and individual rights should be taken into account in federalism analysis: see Simeon, supra, at 150-151. But in the meantime, the selection in each is limited to their brand products. Thus, I do not consider it appropriate to expand the scope of judicial review by superimposing a s. 1 analysis on the sufficiently integrated test.

[328] As for the required degree of connection between the impugned provisions and the legislative scheme, whether the "necessarily incidental" test should apply here or simply a "rational connection" test as suggested by Professor Peter Hogg, supra, at 15-40 is an issue I need not resolve. That is because, even accepting that the degree of intrusion of the impugned provisions into provincial authority warrants a necessarily incidental degree of connection, I am of the view that this is satisfied.

[329] Various phrases have been used to describe the necessarily incidental standard. In Regional Municipality of Peel v. MacKenzie [1982] 2 S.C.R. 9 at 22, Martland J. said that impugned provisions will only be intra vires Parliament under the necessarily incidental doctrine if they are "truly necessary", "essential" or have a "direct link" to an otherwise valid federal criminal law scheme. In Reference re G.S.T., supra, at 469, Lamer C.J.C. required the impugned provisions to be "tied inherently and of necessity" to a valid federal scheme. It was of relevance to Lamer C.J.C. that the impugned provisions had a "high degree of integration" into Parliament’s larger, valid legislative scheme. McIntyre J. described the test as one requiring Parliament to establish a "link" between the conduct proscribed by the impugned provision and "any likely harm" to the subject matter of the valid federal scheme: Fowler, supra, at 226.

[330] No matter the scope of the necessarily incidental test, my view is that the impugned provisions pass the test. My reasoning can be put this simply. The ever-present risk of harm, the gravity of the harm if realized and the actual harms caused by inherently dangerous ordinary firearms if misused establish the "direct link" between the licensing and registration provisions and the otherwise valid federal gun control scheme. The dangerous characteristics of ordinary firearms provide the "necessary" or "essential" connection to Parliament’s valid criminal law purpose of protecting public safety from the misuse of firearms warranting preventative measures and not just those directed at punishing criminal misuse after the fact. The licensing provisions screen applicants for the purpose of keeping dangerous firearms out of the hands of those persons who present an unacceptable risk of harm to society. And the registration provisions, which are linked to the licensing provisions, will help reduce illegal trafficking of firearms, encourage safe storage of firearms, assist police investigations and promote better enforcement of firearms prohibition orders. As I have said before, the licensing and registration provisions are both essential elements in this integrated, comprehensive legislative scheme designed to protect the public from the misuse of firearms in crime and otherwise. Thus, for the reasons previously discussed in Parts IV and V supra, my view is that the licensing and registration provisions demonstrate the "high degree of integration" necessary, both in relation to the overall scheme, and as between themselves, to establish them as incidental to a valid federal gun control scheme.

[331] I find the Provinces’ submission that restricted or prohibited weapons are validly subject to licensing and registration under Parliament’s criminal law power, but not so ordinary firearms, to be a distinction of degree but not of constitutional significance. One category of firearms, ordinary firearms, admittedly has more accepted social utility than other categories. Indeed, prohibited firearms have none whatever. But all share a common characteristic, namely the potential danger inherent in all firearms. Although ordinary firearms can be used for recreational and work purposes, they remain dangerous weapons with an ever-present potential for harm. The concession that restricted or prohibited firearms are the proper subject of licensing and registration provisions goes, in my view, a long way to establishing the direct link between these provisions and the protection of society from the misuse of ordinary firearms.

[332] I am also bound to say that if it should be determined that ordinary firearms are not dangerous weapons, this calls into question the justification for allowing the federal government control over the registration of ordinary firearms. If I am wrong about the potential dangerousness inherent in ordinary firearms, the provinces’ interests in the subject legislation, given their control over property and civil rights under s. 92(13) of the Constitution Act, 1867, would arguably outweigh the federal government’s interests in registration of ordinary firearms.

[333] Alternatively, if it should be determined that the licensing provisions are in pith and substance within the federal criminal law power, but not so the registration provisions, I am of the view that the registration provisions are necessarily incidental to the effective operation of the licensing provisions and the overall purpose of the gun control legislation. Even though the new licensing provisions effectively duplicate in large part the existing licensing provisions under the FAC program, it does not follow that the registration provisions cannot be necessarily incidental to them. The assumption that anything new cannot be necessarily incidental to anything old presupposes that the licensing provisions were operating perfectly and absolutely to deal with Parliament’s identified concerns. However, it is precisely because Parliament has determined that the existing gun control regime is inadequate to address current societal needs and could be improved, especially through the addition of the registration requirement for ordinary firearms, that these new provisions have been put in place. By tightening the gun control screws a few more turns, Parliament has sought to close existing loopholes and thereby further reduce the continuing losses imposed on the public as a result of the misuse of ordinary firearms nationally.

[334] My reasons for concluding that the registration provisions are necessarily incidental to the licensing provisions are tied to the interrelationship between the two. Registration and licensing are two of the essential components to the effective control of the misuse of ordinary firearms. I have already explained at length the anticipated advantages of registration. These advantages apply equally to the case where the licensing provisions are upheld as being in pith and substance within the criminal law power, but the registration provisions are not. What the registration provisions accomplish is further control over the risks inherent in the misuse of ordinary firearms.

VIII. CONCLUSION AND DISPOSITION

[335] I therefore conclude that the impugned legislation is intra vires Parliament. Given this conclusion, I do not find it necessary to fully explore the scope of Parliament’s peace order and good government power and I decline to do so. I will acknowledge however that I have considerable difficulty with the proposition that the impugned legislation can be upheld on this basis. Not only did Parliament not identify this as a rationale for the new gun control measures, more importantly, if Parliament were to be given control over ordinary firearms on this ground, it would preclude the provinces’ ability to legislate even with respect to other matters affecting licensing and registration of ordinary firearms. This is because of the sweeping effect of the peace, order and good government power on the operation of concurrent provincial authority: see the comments by La Forest, J. in Hydro-Québec, supra 285, 287-289. Thus, for example, if one province decided to impose licensing requirements restricting the use of ordinary firearms to areas outside a defined range from an urban area, it could then be argued that the province lacked the ability to do so.

[336] In the result, I am of the view that the impugned federal firearms licensing and registration provisions relating to "ordinary firearms" do affect the Provinces’ jurisdiction in respect of property and civil rights. But these provisions can be sustained as constitutionally valid laws under Parliament’s criminal law power under s. 91(27) of the Constitution Act, 1867 on the basis that they are in pith and substance within Parliament’s criminal law power or alternatively are sufficiently integrated with the legislative scheme of which they are a part (and both of which are in pith and substance constitutionally valid under Parliament’s criminal law power) to survive constitutional scrutiny. As a further alternative, if licensing is in pith and substance found to be within the criminal law power, but not registration, then registration remains constitutionally valid by reason of its integration into the licensing scheme.

[337] Accordingly, I would answer the Reference questions as follows:

APPEAL HEARD ON September 8-12, 1997

SUPPLEMENTARY WRITTEN ARGUMENTS

FILED October 27 - November 5, 1997

JUDGMENT DATED at EDMONTON, Alberta,

this 29th Day of September, A.D. 1998

338. The Lieutenant Governor in Council of the Province of Alberta referred to this court, for hearing and consideration, the matter described in Appendix A to these reasons. The matter arises out of the Firearms Act, 1995 S.C., c. 39. The reference was made under s. 27(1) of the Judicature Act, R.S.A. 1980, c. J-1.
339. In her reasons for judgment, the Chief Justice has described the history of these proceedings, the parties and the interveners. I need not do that here.
340. In particular, the Lieutenant Governor in Council requested answers to the following questions about the Firearms Act:

"2(1) Do the licensing provisions, insofar as they relate to an ordinary firearm, constitute an infringement of the jurisdiction of the Legislature of Alberta with respect to the regulation of property and civil rights pursuant to subsection 92(13) of the Constitution Act, 1867?

(2) If the answer to the question posed in subsection (1) is "yes", are the licensing provisions ultra vires the Parliament of Canada insofar as they regulate the possession or ownership of an ordinary firearm?

3(1) Do the registration provisions, as they relate to an ordinary firearm, constitute an infringement of the jurisdiction of the Legislature of Alberta with respect to the regulation of property and civil rights pursuant to subsection 92(13) of the Constitution Act, 1867?

(2) If the answer to the question posed in subsection (1) is "yes", are the registration provisions ultra vires the Parliament of Canada insofar as they require registration of an ordinary firearm?"

341. The term "ordinary firearm" is not used in the Firearms Act or in the Criminal Code. It is defined for the purpose of this reference as any firearm which is neither restricted nor prohibited under the Criminal Code. Most long guns, that is, most rifles

or shotguns, are ordinary firearms for the purpose of this reference. The questions which we are asked to answer make it clear that we are to determine the constitutional validity of the licensing and registration provisions of the Firearms Act only as they relate to ordinary firearms.

342. The effect of the sections of the Firearms Act with which we are here concerned, is that anyone who possesses or wishes to possess an ordinary firearm, must obtain a licence. He must also register any ordinary firearm in his possession. Anyone who does not comply with these provisions may be prosecuted and punished under the Act or under the Criminal Code. Put another way, the Act and the Criminal Code (as amended by the Act), prohibit possession of an ordinary firearm by anyone who has not complied with the licensing and registration provisions of the Act. Illegal possession of this kind may result in prosecution and punishment.
343. These sections of the Firearms Act are clearly about property and civil rights. The provinces have jurisdiction over such matters under s. 92(13) of the Constitution Act, 1867. The legislature of any province could have passed an act containing the same provisions as those in question here. Since no provincial legislature passed such an act, we are not here concerned with inconsistent or conflicting legislation or paramountcy.
344. Counsel for the Government of Canada argued before us that these provisions of the Firearms Act are also criminal laws. If this is so, the Parliament of Canada has the power to enact them under s. 91(27) of the Constitution Act, 1867, even if the legislation which it enacts affects property and civil rights: see P. W. Hogg, Constitutional Law of Canada, vol.1, loose-leaf ed. (Scarborough: Carswell, 1992) at 15-8, n. 26 and the cases discussed there.
345. The criminal law power of the Parliament of Canada has been considered in two recent decisions of the Supreme Court of Canada. They are RJR-MacDonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199, and R. v. Hydro-Quebec, [1997] 3 S.C.R. 213.
346. As a result, the first issue on this reference is whether in the light of these decisions, this court must find that the sections of the Firearms Act in question constitute a valid exercise of the federal criminal law power.
347. The legislation under consideration in RJR was the Tobacco Products Control Act, S.C. 1988, c. 20. That Act prohibited, subject to certain exceptions, the advertising and promotion of tobacco products. It also prohibited the sale of any

tobacco product unless the package containing it set out prescribed health warnings and

other information. The Act provided for the prosecution and punishment of anyone failing to comply.

348. In RJR Mr. Justice La Forest, writing for the majority in relation to the criminal law power, discussed (at pp. 240 and 241) the development of the definition of this power. In so doing, he noted that the Supreme Court had always defined its scope broadly, and had not confined it to a fixed "domain of activity". In conclusion, he quoted as follows from the decision of Mr. Justice Rand in Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the Margarine Reference) (at pp. 49 and 50):

"A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.

. . . .

Is the prohibition . . . enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law . . . . [Emphasis added.]"

The emphasis was added by Mr. Justice La Forest. He referred as well to R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 489.

349. Mr. Justice La Forest then pointed out (at p. 241) that the Tobacco Products Control Act contained prohibitions accompanied by penal sanctions. Did it have an underlying criminal public purpose? In answering this question, he looked at the purpose set out in the Act, the evidence introduced at trial and statements made by the Minister of National Health and Welfare in Parliament (at pp. 242 to 245).
350. Mr. Justice La Forest concluded as follows (at p. 245):

"It appears, then, that the detrimental health effects of tobacco consumption are both dramatic and substantial. Put bluntly, tobacco kills.

Given this fact, can Parliament validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use? In my view, there is no question that it can."

And at p. 246:

"The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil. If a given piece of federal legislation contains these features, and if that legislation is not otherwise a ‘colourable’ intrusion upon provincial jurisdiction, then it is valid criminal law . . . ."

351. Mr. Justice La Forest then turned his attention (at pp. 246 to 258) to the question of whether the Act was colourable. Had it been passed for an ulterior motive? Was it an attempt to intrude unjustifiably upon provincial powers under ss. 92(13) and (16) of the Constitution Act, 1867? He concluded that these questions should be answered in the negative.
352. I do not propose to analyse in similar detail the majority and minority judgments in R. v. Hydro-Quebec, supra. Mr. Justice La Forest wrote for the majority of five judges. Chief Justice Lamer and Mr. Justice Iacobucci wrote for the minority of four judges. The facts of that case are not as closely analogous to those before us, as are the facts in RJR. What is significant for our purposes is that neither the majority nor the minority expressed any disagreement with the reasoning of Mr. Justice La Forest in RJR in relation to the criminal law power.
353. In my view, the provisions of the Firearms Act with which we are concerned are analogous to those in the Tobacco Products Control Act. However, even if they are not, the reasoning of Mr. Justice La Forest clearly applies to them.
354. It should be noted at the outset that an ordinary firearm, handled with appropriate care by a responsible law abiding citizen, is not dangerous. However, that same firearm is dangerous if it is handled carelessly, or is made available to a person who is mentally unstable or who has a criminal intent. The potential for danger is always there. To build on the words of Mr. Justice La Forest: put bluntly, guns kill.
355. The provisions of the Firearms Act with which we are concerned contain prohibitions accompanied by penal sanctions. Do they have an underlying criminal public purpose? In order to answer this question, it is necessary to consider what the Act says on this subject, the evidence which was placed before us, and the statements made in the House of Commons by the Honourable Allan Rock, then the Minister of Justice and Attorney General for Canada.
356. Section 4 of the Act sets out its purpose. The relevant parts of this section read as follows:

"4. The purpose of this Act is

(a) to provide, notably by sections 5 to 16 and 54 to 73, for the issuance of

(i) licences, registration certificates and authorizations under which persons may possess firearms in circumstances that would otherwise constitute an offence under subsection 91(1), 92(1), 93(1) or . . . of the Criminal Code,

. . . .

(b) to authorize,

(i) notably by sections 5 to 12 and 54 to 73, the manufacture of or offer to manufacture, and

(ii) notably by sections 21 to 34 and 54 to 73, the transfer of or offer to transfer,

firearms . . . in circumstances that would otherwise constitute an offence under subsection 99(1), 100(1) or 101(1) of the Criminal Code; and

(c) to authorize, notably by sections 35 to 73, the importation or exportation of firearms . . . in circumstances that would otherwise constitute an offence under subsection 103(1) or 104(1) of the Criminal Code."

357. There is nothing whatsoever in the purpose set out in the Act to suggest that it has a criminal public purpose in relation to ordinary firearms. The purpose expressed is to regulate possession, manufacture, transfer and importation of such firearms. In fact, there is nothing in s. 4, read as a whole and as it relates to other than ordinary

firearms, to suggest anything other than regulation. There is no mention of use. There is no indication of a criminal public purpose.

358. The legal effect of the sections of the Firearms Act in question here, is consistent with the purpose set out in the Act. In the result, they regulate possession of ordinary firearms. They do not prohibit their use in any way. However, s. 5 of the Act suggests that the purpose of the licensing provisions is to keep ordinary firearms out of the hands of those who are likely to handle them carelessly or use them in a dangerous manner.
359. The practical effect of these sections is also relevant in considering their purpose. Authority for this proposition can be found in Morgentaler, supra, at pp. 486 and 487.
360. In this case, the practical effect of the sections in question should be considered in the light of statements made in the House of Commons by the Honourable Allan Rock, then the Minister of Justice and Attorney General for Canada, when he moved second reading of the proposed Firearms Act (House of Commons Debates (16 February, 1995) at pp. 9706 to 9711). At that time, the Minister said that one of the guiding principles for the preparation of this legislation was the need to acknowledge and respect the legitimate use of firearms (at p. 9707).
361. However, the scheme for the licencing and registration of ordinary firearms set out in the Firearms Act and the regulations made under it (SOR/98-200 to 214), cannot have this effect. This scheme is so complex and cumbersome that it can only discourage legitimate firearms users. It will either deter them from possessing ordinary firearms, or it will discourage them from attempting to comply with the licencing and registration provisions.
362. In particular, I am concerned that those who need ordinary firearms to defend themselves and their families, to protect their crops or their livestock, or to hunt for food, will be overwhelmed by it. I fear that the unsophisticated among them, will simply ignore it. Of course, they will do so at their peril. Failure to comply may result in prosecution and punishment, possibly imprisonment.
363. I do not suggest that the purpose of the sections of the Firearms Act in question here, is to discourage compliance with them. In my view, however, the purpose of these sections is to regulate possession of ordinary firearms in such a way as to discourage possession of them.
364. However, in the House of Commons, the Honourable Allan Rock described an underlying purpose for this regulation. He said (at p. 9706):

"The government suggests that the object of the regulation of firearms should be the preservation of the safe, civilized and peaceful nature of Canada."

365. The Minister quickly turned to the subject of registration, which he regarded as the most controversial aspect of the proposed regulation. He said (at p. 9707) :

". . . the universal registration of firearms is a fundamental strategy, a fundamental support system to allow us to achieve the objectives I have described."

He then went on (at pp. 9707 to 9710) to explain the connection, ". . . between registration on the one hand, and the efforts of police to fight crime on the other, or trying to achieve a safer society . . . ." I will try to set out the highlights of this explanation.

366. The Minister pointed out that criminals acquire their firearms in underground markets. It was necessary, therefore, to reduce the number of firearms moving into those underground markets. Registration would assist.
367. First, in relation to imported firearms, registration would enable the authorities to keep a record of them, and to track them to the point of sale to lawful owners. He said (at p. 9708):

"Registration will enable us to stop the kind of leakage that now occurs, to reduce the incidence of people illegally selling that which is legally imported."

368. Second, in relation to stolen firearms, the Minister said (at p. 9708):

"The police contend, and I accept it as a matter of logic, that registration which obligates each of us to record the fact of our ownership of firearms will imbue the owners with a heightened sense of responsibility to comply with laws already on the books mandating safe storage."

In his view, with safe storage the incidence of firearms being stolen would diminish.

369. In addition, he said (at p. 9708) that registration would reduce crime, and better equip the police to deal with crime in society, by giving them the information they often needed to do their jobs. He gave as an example, the situation where a person is prohibited from having a firearm in his possession. In the absence of registration, the police do not know how many firearms that person has. With registration, they would have that information, and could take steps to ensure that the order was carried out.
370. The Minister referred as well (at p. 9708) to domestic violence, suicides and accidental killings. In this context he said (at p. 9709):

"If a firearm is not readily available, lives can be saved. If registration, as the police believe, will encourage owners to store firearms safely so those impulsive acts are less likely, the result may be different."

371. In this speech the Minister has clearly articulated two underlying criminal public purposes for the sections of the Firearms Act with which we are concerned. They are to promote public safety and to prevent crime. Is there anything in the material that is before us to cast doubt on these purposes?
372. I have spoken above of the practical effect of the sections in question, which represents a departure from one of the guiding principles referred to by the Minister. However, since ordinary firearms are potentially dangerous, discouraging possession of them is consistent with at least one of the underlying purposes which the Minister has described. It responds to concerns for public safety. Whether it is an appropriate response, is not a question for this court.
373. The evidence put before us raises serious questions about the connection between licensing and registration on the one hand, and public safety and crime prevention on the other. It puts in question the effectiveness of licensing and registration to achieve these ends. However, this evidence is irrelevant on this reference unless it casts doubt on the fundamental purpose for the legislation (see Morgentaler, supra, at pp. 486 to 488, and RJR, supra, at pp. 257 and 258). In my view it does not.
374. Is this legislation colourable? There is nothing in the material before us to suggest an ulterior motive for it. What purpose could the Parliament of Canada have had in passing this legislation, other than the purposes described by the Minister in the House of Commons? No answer to this question can be found in the material before

us. The sections of the Firearms Act with which we are concerned do, of course, intrude upon the power of the provinces to legislate in relation to property and civil rights under s. 92(13) of the Constitution Act, 1867. However, that intrusion is justified under the criminal law power of the Parliament of Canada, found in s. 91(27) of the Constitution Act, 1867: see Hogg, supra, at 15-8.

375. In summary, the sections of the Firearms Act which we have been asked to consider contain prohibitions accompanied by penal sanctions. They have been enacted for criminal public purposes. They have not been enacted for any colourable purpose. Applying the reasoning of Mr. Justice La Forest in RJR, supra, they are therefore criminal laws and intra vires the Parliament of Canada.
376. Accordingly I would answer the questions referred to us by the Lieutenant Governor in Council in the following manner. I would answer "yes" to questions 2(1) and 3(1), and "no" to questions 2(2) and 3(2).

APPEAL HEARD ON September 8-12, 1997

SUPPLEMENTARY WRITTEN ARGUMENTS

FILED October 27 - November 5, 1997

JUDGMENT DATED at EDMONTON, Alberta,

this 29th Day of September, A.D. 1998

As authorized:

 

 

HETHERINGTON, J.A.




 

 

 

 

 

 

 

 

 

 

 

 

 



______________________________________________

REASONS OF THE

HONOURABLE MR. JUSTICE BERGER

 

377. The intense public debate on the issue of gun control has been dominated by a pre-occupation with that which is thought to be the core question: "Are ordinary firearms inherently dangerous?" Adjudication of the Reference questions by this Court ought not to proceed upon that mistaken premise. Parliament has not declared ordinary firearms to be inherently dangerous. Neither the language of the impugned legislation nor its reach invites or compels any such conclusion. Declarations of inherent dangerousness echo the rallying cry of those constituencies who either ignore or fail to fully understand the legislative choice. Such declarations, in any event, are unnecessary to a dispassionate assessment of the competing constitutional arguments.
378. The voices of some groups opposed to gun control have been no less strident. Pronouncements that suggest that the practical effect of the Firearms Act is to turn today’s law-abiding gun owners into tomorrow’s criminal offenders contribute nothing to the resolution of a difficult constitutional issue.
379. The Government of Canada has not attempted to defend the impugned legislation in reliance upon the inherent dangerousness of ordinary firearms. Possession, ownership and use of ordinary firearms by responsible people for legitimate purposes are not targeted evils. That is not to say that ordinary firearms are benign or inert instruments without dangerous potential. Parliament has recognized that ordinary firearms are capable of causing serious injury or death to human beings. That is because a firearm is always a weapon. As I explain, infra, it is misuse that releases the dangerous capacity of ordinary firearms and it is the prevention of misuse by curbing and discouraging possession in the hands of those unfit to have such weapons which the impugned legislation addresses. That is its object and dominant purpose. That is its pith and substance. It is constitutionally valid criminal law.

THE REFERENCE

380. Pursuant to s. 27(1) of the Judicature Act, R.S.A., c.J-1, the Lieutenant Governor in Council of the Province of Alberta has, by Order in Council dated September 26, 1996, referred to this Court four questions touching upon the constitutional validity of certain provisions of the Firearms Act, S.C. 1995 c.39. The

questions put are the following:

2(1) Do the licensing provisions, insofar as they relate to an ordinary firearm, constitute an infringement of the jurisdiction of the Legislature of Alberta with respect to the regulation of property and civil rights pursuant to subsection 92(13) of the Constitution Act, 1867?

(2) If the answer to the question posed in subsection (1) is "yes", are the licensing provisions ultra vires the Parliament of Canada insofar as they regulate the possession or ownership of an ordinary firearm?

3(1) Do the registration provisions, as they relate to an ordinary firearm, constitute an infringement of the jurisdiction of the Legislature of Alberta with respect to the regulation of property and civil rights pursuant to subsection 92(13) of the Constitution Act, 1867?

(2) If the answer to the question posed in subsection (1) is "yes", are the registration provisions ultra vires the Parliament of Canada insofar as they require registration of an ordinary firearm?

381. The phrase "infringement of the jurisdiction of the Legislature of Alberta" as it is used in questions 2(1) and 3(1) is not defined by the Order in Council. It is not clear whether "infringement" is intended to refer to an encroachment contrary to law or to "incidental" or ancillary effects upon provincial jurisdiction, whether substantial or otherwise. As I explain, infra, any such "incidental" impact is irrelevant for constitutional purposes if the dominant feature, the pith and substance of the impugned legislation, is in relation to criminal law within the meaning of s. 91(27) of the Constitution Act, 1867 and, therefore, intra vires Parliament. Moreover, if the true character of the enactment is so classified and if the impugned provisions are aimed at promoting the dominant purpose of the statute, there can be no encroachment contrary to law and, accordingly, no infringement of provincial jurisdiction.

FEDERAL CRIMINAL LAW JURISDICTION

382. Recent decisions of the Supreme Court of Canada provide definitive guidance regarding the parameters of the criminal law power and delineate the analytical matrix governing the assessment of impugned legislation whose validity is said to be grounded in the exercise of that power: RJR MacDonald Inc. v. Canada [1995] 3 S.C.R. 199 and R. v. Hydro-Québec [1997] 3 S.C.R. 213.
383. The following principles of constitutional interpretation may be derived from these cases:

1. There exists a legal presumption that the legislature intends to confine itself to matters within its competence.

2. One must first consider the category of legislative powers listed in the Constitution Act (1867) to ascertain whether the impugned provisions fall within one or more of the powers assigned to the enacting body.

3. If the provisions are in essence, in pith and substance, within the parameters of any such power, constitutional validity is made out.

4. "Pith and substance" means "dominant purpose" or "true character"; the relevant inquiry is "what is the dominant or most important characteristic of the challenged law?"

5. If the impugned provisions are really aimed at promoting the dominant purpose of the statute, then the impugned provisions are valid.

6. The validity of a legislative provision must be tested against the specific characteristic of the head of power under which it is proposed to justify it.

384. Professor Hogg has written that judicial restraint in determining the validity of statutes may be expressed in terms of a "presumption of constitutionality":

"Such a term transfers from the law of evidence the idea that a burden of demonstration lies upon those who would challenge the validity of a statute which has emerged from a democratic process." Hogg, P.W., Constitutional Law of Canada, 4th ed. p. 396.

385. One consequence of the presumption of constitutionality is that "in choosing between competing, plausible characterizations of a law, the court should normally choose the one that would support the validity of the law" (Hogg, supra, p. 396).
386. The Supreme Court of Canada has also made clear that Parliament has been accorded plenary power to make criminal law in the widest sense. It is trite law that the power extends to legislation which creates new crimes. Proprietary Articles Trade Association, et al v. Attorney General for Canada, et al [1931] A.C. 310 (P.C.). Moreover, the meaning of criminal law is not static, it is dynamic and evolutionary (R. v. Zelensky, et al [1978] 2 S.C.R. 940 and RJR MacDonald Inc. v. Canada, supra).
387. If the impugned provisions are said to survive constitutional scrutiny by virtue of s. 91(27) of the Constitution Act (1867), the criminal quality of the provisions may be discerned upon examination of the following factors or elements:

1. Does the legislation create a prohibition accompanied by a penal sanction?

2. Does some legitimate public purpose underlie the prohibition?

3. Is the impugned legislation a colourable intrusion upon provincial jurisdiction?

See Proprietary Articles Trade Association v. Attorney-General for Canada [1931] A.C. 310 (P.C.); Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference), [1949] S.C.R. 1; RJR MacDonald Inc., v. Canada, supra.

ANALYSIS

388. In the impugned legislation, the prohibitions and penalties are found in ss. 91 and 92 of the Criminal Code which are enacted by s. 139 of the Firearms Act. Section 91(1) makes it an offence for a person to possess a firearm unless the person is the

holder of a licence to possess it and a registration certificate for it. The offence is hybrid. Section 91(3) provides that on indictment the penalty is imprisonment for not more than 5 years. Section 92(1) makes it an offence for a person to possess a firearm knowing that he or she does not hold a licence and registration certificate. Section 92(3) says the offence is indictable and creates a system of maximum and minimum imprisonment terms for successive convictions. In addition, the Act creates several new offences not found in the Criminal Code. [See Appendix ‘A’].

389. Alberta submits that determining whether the first element is satisfied requires more than mere identification of the provisions which create prohibitions and attach penalties. Alberta argues: "If it is to serve a useful function, consideration of the first element should involve an assessment of the nature and purpose of the prohibition and punishment itself" (Alberta Factum, para. 24). I agree. Legislative purpose is the focal point in distribution of powers analysis (per Wilson, J. concurring in R. v. Big M. Drug Mart Ltd [1985] 1 S.C.R. 295). Wilson, J. held that the pith and substance of legislation "is achieved through an examination of the primary legislative purpose with a view to distinguishing the central thrust of the enactment from its merely incidental effects" (at p. 357).
390. Sopinka, J., writing for a unanimous Court, explained the proper approach to pith and substance analysis in R. v. Morgentaler [1993] 3 S.C.R. 463 at 481-482:

"The approach must be flexible and a technical, formalistic approach is to be avoided. See Hogg, Constitutional Law of Canada (3d ed. 1992), at p. 15-13. While both the purpose and effect of the law are relevant considerations in the process of characterization (see e.g., Attorney-General for Alberta v. Attorney-General for Canada [1939] A.C. 117 (P.C.) (the Alberta Bank Taxation Reference), at p. 130; Starr v. Houlden [1990] 1 S.C.R. 1366, at pp. 1389, 1392), it is often the case that the legislation’s dominant purpose or aim is the key to constitutional validity."

391. With the dominant purpose of keeping firearms out of the hands of those who should not have them, the historic focus of valid gun control legislation has consistently been upon the potentially dangerous user. The public policy guiding legislation of this kind has been described before:

"Part II.I [subsequently renumbered and again reenacted as Part III of the Code]... represents the latest attempt by Parliament to strike the proper balance between the interest of Canadian society in protecting its members from violent actions and the freedom of individuals to possess and use guns for legitimate purposes. It embodies wholly legitimate societal concerns for stricter regulation and control of guns and other offensive weapons ...

The policy of Part II.I is to limit the ownership of dangerous weapons to those people who will use them in an honest, responsible fashion." R. v. Schwartz [1988] 2 S.C.R. 443 at 470, per Dickson, C.J.C.

[Emphasis added]

392. Parliamentary debates evidence that the legislative will has, over time, adhered to both the underlying policy and the historic focus:

"The objectives of the government’s firearms control proposals remain unchanged. Simply, they are to prevent the potentially dangerous user from gaining access to guns to the extent feasible; to encourage responsible gun ownership and use; and to discourage the criminal use of firearms as much as possible."

[Emphasis added]

Hon.R. Basford, Minister of Justice, on the Second Reading of Bill C-51, May 11, 1977, Affidavit of R.G. Mosley, AB 20, Ex. "B", p. 5525.

* * *

"The measures contained in this Bill will improve Canada’s gun control system in many different ways. Taken together, they comprise a package that will help ensure that those who should not have guns do not have guns.

They will take the wrong guns out of all hands and all guns out of the wrong hands. They will result in the better screening of gun buyers, and they will limit access to the most dangerous types of firearms. They will reduce the accidental misuse of guns. They will encourage responsible ownership and use of guns by all Canadians. They will help to keep firearms out of the hands of those who should not have them or who might use them for criminal purposes. And finally, they will increase deterrence for those who may use guns criminally or negligently."

[Emphasis added]

Hon. A.K. Campbell, Minister of Justice, on the Second Reading of Bill C-17, June 6, 1991, Affidavit of R. Mosley, AB 20, Ex. "C", p. 1250, see also Ex. "E", p. 15573.

393. Judicial pronouncement upon such legislation has had, I suggest, the same focus. Earlier enactments were seen as attempts to keep firearms out of the hands of those unfit to have such weapons. In R. v. Schwartz (supra) McIntyre, J. said at p.48:

"The private possession of weapons and their frequent misuse has become a grave problem for the law enforcement authorities and a growing threat to the community. The rational control of the possession and use of firearms for the general social benefit is too important an objective to require a defence."

[Emphasis added]

394. In A.G. of Canada v. Pattison (1981) 123 D.L.R. (3d) 111 (Alta. C.A.),

McGillivray, C.J.A. said at p. 115:

"Looking then at the ‘true nature and character of the legislation’, its ‘real purpose and object’ or ‘the real subject-matter of the legislation’, it seems clear to me that it relates to firearms in their destructive capacity in the hands of those unfit to have such weapons...

When the object is to reduce the incidence of injury or death to the citizens of this country by the type of violence made possible by the destructive power of a firearm, it becomes clearly within the legislative competence of the Government of Canada under the head of criminal law to so enact."

[Emphasis added]

395. The Alberta Court of Appeal in Pattison, supra, agreed with the following holding in Scott v. Commissioner, Royal Canadian Mounted Police, B.C. Provincial Court, Feb. 7, 1979:

"It must surely be obvious that modern handguns and other firearms with their sophistication of design, destructive power and ease of concealment, in the hands of careless, emotionally overwrought or mentally unstable persons, not to mention those with criminal intent, are an extremely dangerous source of power and a proper subject for inclusion within the scope of the criminal law (at 12)."

396. In Martinoff v. Dawson (1990), 57 C.C.C. (3d) 482 (B.C.C.A.), the Appellant sought to compel issuance of a permit to have in his possession a restricted weapon. In one of a number of challenges to the Criminal Code provisions under which he had been denied a permit, he argued that these provisions created a licensing scheme under the guise of criminal law. The British Columbia Court of Appeal rejected the challenge and accepted the Crown’s position that "Part II.I of the Criminal Code fulfils a typically criminal public purpose in advancing such goals as public peace, order and security by maintaining strict controls on who may possess and use firearms" (at 489).
397. In R. v. Northcott [1980] 5 W.W.R. 38 (B.C. Prov. Ct.) the firearms acquisition certificate provisions were held to be valid criminal law. The court noted that licensing of firearms was not analogous to licensing of motor vehicles, which relates to the regulation of highway traffic (at p. 46):

"It does not logically follow that all licensing provisions, or the acquisition of firearms, must for that reason, fall under exclusive provincial jurisdiction. The clear object of Parliament was to increase control over the acquisition of firearms, and more particularly to protect public safety by keeping firearms away from those who would abuse the privilege."

[Emphasis added]

398. Accordingly, it is not surprising that Alberta concedes that legislation directed at the criminal use of firearms would satisfy the requirement that it be directed at a matter of public peace, order, security, health, morality or some matter of a similar nature (Alberta Factum, para. 53). Alberta also concedes that the "ultimate purpose" of the impugned legislation is to prevent the criminal use of firearms as evidenced by the criteria for licence eligibility set out in the legislation. Focus on criminal records, mental stability and propensity to violence is said to be ample justification for legislation that is aimed at such an "ultimate purpose". That position is endorsed for the most part by those interveners who support Alberta’s position. But Alberta argues that the "immediate purpose" is to establish a system of governmental control of the ownership and possession by individuals of ordinary firearms. The control, it is argued, is specific both to the individual who possesses the firearm and to the firearm the individual possesses.
399. In my view, Alberta confuses "immediate purpose" with "incidental effect", whether immediate or otherwise (discussed infra), and also confuses the purpose of the legislation with the means used to effect that purpose.
400. It must be remembered that the power to make criminal law includes both the traditional prohibitions and punishments, and measures undertaken for the prevention of crime. In Goodyear Tire and Rubber Co. v. The Queen [1956] S.C.R. 303, Mr. Justice Locke, writing for five of six members of the Supreme Court of Canada, held at p. 308:

"The power to legislate in relation to criminal law is not restricted, in my opinion, to defining offences and providing penalties for their commission. The power of Parliament extends to legislation designed for the prevention of crime as well as to punishing crime."

[Emphasis added]

See also Hogg, supra, at pp. 493 - 494; R. v. Swain [1991] 1 S.C.R. 933 at 999-1000 per Lamer, C.J.C. for the Court on this issue; A.-G. Canada v. Pattison (1981) 123 D.L.R. (3d) 111 at 116 (Alta. C.A.) cited with approval in R. v. Swain at 1000; Attorney General for Ontario v. Canada Temperance Federation [1946] A.C. 193 at 207 (P.C.).

401. If, as Alberta concedes, misuse of firearms is properly a subject matter within the jurisdiction of Parliament in the exercise of the criminal law power, it logically follows that statutory measures reasonably taken to prevent or reduce misuse also fall within that rubric. The criminal law power is not confined to the imposition of a sanction after a prohibited act has been committed. Were it otherwise, the criminal law power could only be invoked after the horse had left the barn.
402. Nor is it appropriate to narrow the legislative purpose, as Alberta has suggested, to prevent the criminal use of firearms. It is true that some elements of the legislation are clearly intended to control crime. But the purpose of the legislation includes the prevention of suicide, accidents and other forms of harm which, in my view, represents an attempt to address legitimate societal concerns.
403. It is important to distinguish between prohibited, restricted and ordinary firearms. [See Appendix ‘B’]. The relative scope of prohibition, restriction and exemption sheds light on Parliament’s assessment of dangerousness. The degree of perceived dangerousness is then echoed by the legislation. To illustrate the point, one need only compare the legislative choice respecting prohibited firearms with that pertaining to ordinary firearms.
404. Parliament has concluded that the destructive capacity of prohibited firearms is such that an almost complete prohibition is warranted. Although there are some very narrow exemptions, (see ss. 90(3.1) and 90(3.2) of the Criminal Code), the ambit of legitimate possession is severely circumscribed. It follows that Parliament considered the characteristics of prohibited firearms to be without social or economic utility and inherently dangerous.
405. In contrast, neither the language nor the reach of the Firearms Act and the impugned provisions suggests that Parliament considered ordinary firearms to be inherently dangerous. Indeed, the parliamentary debates evidence an attempt by Parliament to restrict access and impose restrictions in proportion to risk, thereby preserving and enhancing public safety while balancing risk and ultimate utility. In speaking to Bill C-68, the Honourable Allan Rock, the former Minister of Justice, emphasized that the now impugned provisions include not only measures to deal with the misuse of firearms, but also "measures overall to provide a context in which the legitimate use of firearms can be carried on in a manner consistent with public safety". He observed:

"...we must acknowledge and respect the legitimate uses of firearms. We should acknowledge and respect the history and tradition of hunting, not only as a favourite pastime in may [sic many] parts of Canada but as a very important economic activity contributing directly to the prosperity of a number of regions throughout Canada. We must acknowledge and respect the use of firearms for ranching or hunting purposes where firearms are a tool, an implement used by the proprietor of business to get by. We must allow for that. We must not interfere with it unduly." House of Commons Debates (16 February 1995) 1 9706-9711.

The legislative choice echoed those comments. The restrictions seek to identify cases of unacceptable risk, while the exemptions are intended to accommodate the legitimate interests of firearms owners (Factum of Canada, para. 49. Factum of the Alberta Council of Women’s Shelters, para 38).

406. In order to accomplish that result, the potential dangerous user must be identified. That is the purpose of the licensing provisions of the Act. They are intended to screen out those categories of persons who pose an unacceptable risk. The registration provisions are an integral part of the overall scheme. They facilitate suppression of the identified "social harm": the possession and misuse of ordinary firearms by those unfit to have such weapons. That is the dominant purpose. The Government of Canada submits, and I agree, that the registration provisions were intended, inter alia, to achieve the following specific public safety and crime control objectives which, I suggest, are intimately and rationally tied to the dominant purpose:

1. The ability, when a person is found in possession of a firearm, to determine whether or not he or she acquired it legally.

2. The ability to identify and trace the last registered owners of lost or stolen firearms, thereby deterring transfers to ineligible recipients.

3. The ability of police to determine whether registered firearms are present at the locations of disturbances, such as domestic disputes, before entering the premises, thereby increasing safety margins for police officers and members of the public who may be at risk.

4. The ability of police and Crown counsel to establish whether an individual already has firearms when seeking firearm prohibition orders, the revocation of licences and authorizations or other firearm-related conditions in relation to court orders such as judicial interim release and "peace bonds", and the ability to better ensure compliance with such court orders.

5. The control of ammunition and further deterrence of theft and smuggling by requiring a person to produce a licence and registration certificate in order to purchase ammunition for use in a firearm.

407. Comments by the Honourable Allan Rock made in the House of Commons in connection with Bill C-68, make clear that the object and purpose of the impugned legislation is to curb misuse:

...we should signal in every possible way that we will not tolerate and we will severely punish the use of firearms in the commission of crime...

* * *

May I deal directly with the issue of registration and how it is going to enable us to achieve the objectives of a safe and peaceful society, a more effective response to the criminal misuse of firearms and enhanced public safety...

What is the connection between registration on the one hand and the efforts of police to fight crime on the other, or trying to achieve a safer society?... [c]riminals derive their firearms from the underground market...

Surely we must choke off the sources of supply for that underground market. Surely we must reduce the number of firearms smuggled into the country. Surely we must cut down on the number of firearms stolen and traded in the underground. How do we achieve that? Through registration.

There is more. Registration will reduce crime and better equip the police to deal with crime in Canadian society by providing them with information they often need to do their job.

* * *

The point is broader still. Registration will assist us to deal with the scourge of domestic violence. Statistics demonstrate that every six days a woman is shot to death in Canada, almost always in her home, almost always by someone she knows, almost always with a legally owned rifle or shotgun...

What does this have to do with registration? Domestic violence by its very nature is episodic and incremental. Typically, somewhere along the line the court has made an order barring the aggressor from possessing firearms. When the police try to enforce that order, just as in the case of stalking, they do not know whether they have been successful or not. They do not know what firearms are there.

When firearms are registered, if it is necessary for a person to register and show proof of registration to buy ammunition, as it will be, the police will know what firearms are there. The police will be able to enforce those orders and lives will be saved.

Suicides and accidents provide another example. Last year, of the 1,400 people who died by firearms in Canada, 1,100 were suicides....[t]oo many of those suicides were by young people acting in a moment of anguish, acting impulsively because of a failed relationship, difficulty in the home, or problems at school.

If a firearm is not readily available, lives can be saved. If registration, as the police believe, will encourage owners to store firearms safely so those impulsive acts are less likely, the result may be different." House of Commons Debates (16 February 1995) at 9706-9711.

[Emphasis added]

408. The Honourable Warren Allmand, Chair of the House Justice Committee, reaffirmed the emphasis upon the prevention of misuse underlying Bill C-68 during its third reading in the House of Commons:

"The purpose of licensing is to screen out irresponsible, imbalanced reckless persons who might acquire guns, to screen out people who have problems with alcohol or narcotics. The licensing system in the bill is merely an extension of what we have already had for several years with firearms acquisition certificates.

The registration system will require more responsibility from gun owners and provide police with more tools for crime prevention and crime detection. The purpose of both of these measures is public safety.... It is much better to prevent the crime by keeping guns out of the hands of dangerous, irresponsible people than to punish them after they have committed the crime.

* * *

We will never control professional gangsters or professional criminals; they will always get their guns. The great majority of our murders are not committed by those people but by people who were previously law-abiding.

There is considerable evidence from Canada, the United States and all over the world that where guns are more available there are more crimes with guns. The bill will restrict the availability of guns to many who might use them criminally [sic]. It will also put barriers in the way of those who want to acquire them quickly and irresponsibly. The bill will reduce crime with guns. It will control not only guns but crime." House of Commons Debates (13 June 1995) at 13736 - 13737.

[Emphasis added]

409. It follows that the Firearms Act, in adopting measures intimately and rationally connected to the objective of keeping ordinary firearms out of the hands of those unfit to have them, follows the traditional legislative approach endorsed by both persuasive and binding judicial precedent. The parliamentary interventions relative to Bill C-68 accord with the thrust of the impugned provisions. The focus is upon the prevention of misuse of ordinary firearms.
410. I conclude, accordingly, that the legislation creates prohibitions accompanied by penal sanctions for a legitimate public purpose. The first two elements necessary to discern the criminal quality of the provisions are established.

IS THE IMPUGNED LEGISLATION COLOURABLE?

411. Here again, the Supreme Court of Canada has provided definitive guidance by explaining how the "colourability" doctrine ensures that impugned laws have a sufficient criminal public purpose. ("Colourability" in the sense of "ulterior motive" is not alleged in this case). In doing so, La Forest, J. in R. v. Hydro-Québec merged "colourability" assessment with pith and substance analysis. He said at pp. 291 - 292:

"The Charter apart, only one qualification has been attached to Parliament’s plenary power over criminal law. The power cannot be employed colourably. Like other legislative powers, it cannot, as Estey, J. put it in Scowby v. Glendinning [1986] 2 S.C.R. 226, at p. 237, ‘permit Parliament, simply by legislating in the proper form, to colourably invade areas of exclusively provincial legislative competence’. To determine whether such an attempt is being made, it is, of course, appropriate to enquire into Parliament’s purpose in enacting the legislation. As Estey, J. noted in Scowby, at p. 237, since the Margarine Reference, it has been ‘accepted that some legitimate public purpose must underlie the prohibition’. Estey J. then cited Rand J.’s words in the Margarine Reference (at p. 49) as follows:

A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and legislature has had in mind to suppress the evil or to safeguard the interest threatened.’

I simply add that the analysis in Scowby and the Margarine Reference was most recently applied by this Court in RJR-Macdonald, supra, at pp. 240-41."

412. The thrust of Alberta’s submission is that Parliament has over-reached and openly invaded provincial jurisdiction. I do not agree. If property and civil rights are affected by this legislation, it remains that the dominant purpose of the legislation is clearly established within the criminal law ambit, as the pith and substance analysis, supra, reveals. That being so, any intrusion upon provincial jurisdiction, whether substantial or otherwise, is not a concern because, as Professor Hogg explains, the pith and substance doctrine contemplates incidental and constitutionally irrelevant effects on matters within the jurisdiction of the other legislative authority (P. Hogg, supra, at p. 384, citing Lederman in Lederman (ed.), The Courts and the Canadian Constitution (1964), 188-189, 195-197). "The pith and substance doctrine enables a law that is classified as ‘in relation to’ a matter within the competence of the enacting body to have incidental or ancillary effects on matters outside the competence of the enacting body." (P. Hogg, supra, at p. 412). Once the dominant feature of the legislation is determined to be in the federal sphere, the impact, if any, on property and civil rights is constitutionally moot.

THE DOUBLE ASPECT DOCTRINE

413. I have rejected the position of Alberta and its supporters that the most dominant or important characteristics of the impugned legislation fall within the ambit of provincial jurisdiction. If, however, my analysis of the pith and substance of the enactment had led me to conclude that gun registration and licensing is a matter of equal constitutional significance to both levels of Government, the double aspect doctrine might have been engaged. If applicable, its effect is permissive. If both Federal and Provincial Governments have a legitimate interest and an overlapping jurisdiction to legislate in this field, the double aspect doctrine does not operate to prohibit the federal authority from doing so. The impugned legislation would not be ultra vires the Parliament of Canada. See: Bell Canada v. Québec (Commission de la Santé et de la Sécurité du Travail) [1988] 1 S.C.R. 749; Hodge v. The Queen (1883) 9 A.C. 117 at 130 (P.C.); R. v. Felawka [1993] 4 S.C.R. 199.
414. It must also be remembered that both the Privy Council and the Supreme Court of Canada have warned that the double aspect doctrine must, in any event, be applied with great caution: A.G. Canada v. A.G. Alberta and A.G. B.C. (The Insurance Reference) (1916) 26 D.L.R. 288 (P.C.); Bell Canada v. Québec, supra. The Supreme Court of Canada observed in Bell Canada (at p. 766):

"The reason for this caution is the extremely broad wording of the exclusive legislative powers listed in ss. 91 and 92 of the Constitution Act, 1867 and the risk that these two fields of exclusive powers will be combined into a single more or less concurrent field of powers governed solely by the rule of paramountcy of federal legislation. Nothing could be more directly contrary to the principle of federalism underlying the Canadian Constitution: see Laskin’s Canadian Constitutional Law (5^th ed. 1986), vol. 1, at p. 525."

DISSENTING OPINION IN R. v. HYDRO-QUÉBEC

415. Careful consideration must be given to the dissenting opinion in R. v. Hydro-Québec, supra. The Justices in dissent thought it appropriate to ascertain whether the Act there under review purported to grant federal regulatory power over substances which may not pose a danger to human health. They concluded that the scope of the provisions extended well beyond matters relating to human health into the realm of general ecological protection. They were of the view that the impugned provisions were not intended to prohibit environmental pollution (the evil), but simply to regulate it. The minority recognized that exemptions for certain conduct may be validly conferred without depriving the legislation of its status as criminal law. "Regulatory" schemes which confer a measure of discretionary authority, it was held, do not inevitably change the character of the law. The dissenting Judges laid down the following test (at p. 250):

"Determining when a piece of legislation has crossed the line from criminal to regulatory involves, in our view, considering the nature and extent of the regulation it creates, as well as the context within which it purports to apply. A scheme which is fundamentally regulatory, for example, will not be saved by calling it an ‘exemption’. As Professor Hogg suggests, supra, at p. 18-26, ‘the more elaborate [a] regulatory scheme, the more likely it is that the Court will classify the dispensation or exemption as being regulatory rather than criminal’. At the same time, the subject matter of the impugned law may indicate the appropriate approach to take in characterizing the law as criminal or regulatory."

416. The dissenting Judges were of the opinion that the prohibitions were ancillary to the regulatory scheme, not the other way around. They observed that no offence occurred until an administrative agency "intervened". They noted that the Act there under review provided "that the Governor in Council may, at his or her discretion, prohibit..." (at p. 253, underlining in original, emphasis added). They concluded that this was indicative of legislation, the focus of which was regulation rather than prohibition. They identified two concerns:

1. "It would be an odd crime whose definition was made entirely dependent on the discretion of the Executive." (at p. 254).

[My Emphasis]

2. "The aim of these provisions is not to prohibit toxic substances or any aspect of their use, but simply control the matter in which these substances will be allowed to interact with the environment" (at p. 255).

[My Emphasis]

417. Although the Chief Firearms Officer and the Registrar exercise certain permissive powers pursuant to s. 56 ff and s. 68 ff of the Firearms Act, the impugned provisions do not invest the Executive with the discretion to define a crime. In fact, the provisions governing the issuance and revocation of licences and registration certificates for ordinary firearms are not unlike those governing the possession and registration of restricted firearms. The nature of the offence of possession of a handgun without a valid registration certificate was considered in R. v. Schwartz, supra, at pp. 484-485. A condition precedent to the lawful possession of a restricted firearm was that one obtain a valid registration certificate. If not held, a criminal offence had been committed by the mere fact of possession.
418. I agree with the submission of the Alberta Council of Women’s Shelters that the Firearms Act continues this approach, prohibiting possession and providing for exemptions. The concern expressed by the minority opinion in Hydro-Québec, supra, regarding the definition of crime by executive discretion is, in my opinion, not here engaged. Parliament alone has defined the crime and it is to be applied without any intervention by an administrative agency or official.
419. Moreover, the aim of the impugned provisions is, indeed, to prohibit the possession and use of ordinary firearms by those categories of persons considered by Parliament to be unacceptable risks. It follows that the second concern of the minority in Hydro-Québec, supra, is also not here engaged.
420. Mindful of the nature and extent of the regulation it creates, as well as the context within which it purports to apply, I have concluded that the regulatory scheme is ancillary to the prohibitions. The impugned enactments are properly characterized as criminal law.

CONCLUSION

421. Alive to the competing social and economic interests relating to ordinary firearms, Parliament has carefully chosen, in a balanced and measured fashion, to again address a subject that has historically been seen as a proper exercise of the criminal law power: the adoption of measures intended to prevent the misuse of firearms in the hands of those unfit to have such weapons. That is surely an evil that Parliament can legitimately seek to suppress by means of discrete prohibitions. La Forest, J.’s comments in Hydro-Québec, supra, are equally applicable here:

"It is a public purpose of superordinate importance; it constitutes one of the major challenges of our time." (at p. 293).

422. In addressing that challenge, Parliament judged that ordinary firearms are not inherently dangerous. The scope of exemption reflects that assessment. That does not, however, detract from the legislative purpose. Parliament recognized that it is better to prevent misuse by keeping ordinary firearms out of the hands of dangerous, irresponsible people than to punish them after the damage is done. Parliament properly invoked the preventative aspect of the criminal law power to achieve that result.
423. For these reasons, I would answer Reference questions 2(2) and 3(2) as follows:

2(2) If the answer to the question posed in subsection (1) is "yes", are the licensing provisions ultra vires the Parliament of Canada insofar as they regulate the possession or ownership of any ordinary firearm?

ANSWER: No.

3(2) If the answer to the question posed in subsection (1) is "yes", are the registration provisions ultra vires the Parliament of Canada insofar as they require registration of an ordinary firearm?

ANSWER: No.

424. For the reasons given, supra, I consider it unnecessary to answer Reference questions 2(1) and 3(1).