BRIEF To The Senate Committee on Legal and Constitutional Affairs The New Brunswick Firearms Alliance Inc Mr G.D.Calhoun, President Mr F.H.Ryder, P.Eng, Director September 19,1995 brief5.wp Introduction Honourable Chairman , Honourable Members of the Senate Committee on Legal and Constitutional Affairs The New Brunswick Firearms Alliance Inc. is indeed privileged to have been one of the 53 invited out of the more than 1200 applicants we understand requested to make presentation to the committee. On the other hand Mr Chairman the committee does run some risk in measuring the depth and breadth of the extensive and substantial flaws in Bill C-68, in the undisclosed logic on which it is founded, and on the substantial dependence of the law on undefined regulations, by so limiting the presentations. Mr Chairman, The New Brunswick Firearms Alliance Inc. understands that the mandate of the Senate Committee on Legal and Constitutional Affairs to be as follows: The Committee has a mandate to examine legislation and matters relating to legal and constitutional matters generally, including: 1) federal-provincial relations; 2) administration of justice, law reform and all related matters; 3) the judiciary; 4) all essentially juridical matters; and 5) private bills not otherwise specifically assigned to another committee, including those related to marriage and divorce (Rule 87(1)(k)). http://info.ic.gc.ca/opengov/senate/senate.committees/legal.e That would seem to provide adequate scope for consideration of the extensive and substantial concerns with Bill C-68. Mr. Chairman the intent, purpose and function of Bill C-68 cannot be determined from what the government says it is, but rather it must flow from what a reasonable person reading the words of Bill C-68 can construe from them. Let me recount a few of these concerns: First related to process: * The obfuscation contained in the act through broadsweeping definitions, circular definitions and dependence upon undefined regulations * The removal of the authority of parliament to scrutinize regulations made under the act. * The removal of the authority of the judiciary to make determinations of the reasonableness of regulations made under the act * The constitutionality of certain elements, as it relates to the federal provincial division of power. Then related to substance: * Unlimited powers of search and seizure * Prohibition and confiscation * Undefined and/or concealed cost * Attribution of criminality to commonly accepted behaviour And finally related to effects: * The potential counterintuitive effects of the bill on crime and violence in Canada First, concerns related to process: * The obfuscation contained in the act: broadsweeping definitions, circular definitions and dependence upon undefined regulations. Mr Chairman, speaking as a layman, Bill C-68 is very badly written legislation, which seeks to obfuscate it's rationation in the very worst of Canadian tradition. Logic is convoluted and dependent on prescribed processes, documents and regulations which will only be revealed once Bill C-68 has been approved. Definitions are sprinkled throughout the document and have varying limits of application. Bill C-68's criminal code section II's definition of firearm is dependent on or uses the words weapon and firearm. Conversely the definition of the word weapon also uses the word firearm. This constitutes a circular definition. The Criminal Code Part III definition of a prohibited firearm includes: "(d) any firearm that is prescribed to be a prohibited firearm." We construe this to mean that the Minister of Justice may prohibit any and all firarms. the definition of prohibited ammunition is: "ammunition or a projectile of any kind that is prescribed to be prohibited ammunition" We construe this to mean that the Minister of Justice may prohibit any and all ammunition. In section 34 to 36 (authorized Exportation and Importation - nonresidents) uses the word prescribed seven times to define things. Mr Chairman this is not definition of law or processes at all; you are being asked to accept on trust the intent, purpose and function of Bill C-68. Mr Chairman, modern business practice requires that problems be first identified in most general terms, not unlike medical symptoms. 2. This is followed by measurement, which objectively defines the problem in quantitative terms. 3. Then the most knowledgable experts to be found brainstorm to identify possible alternative solutions. 4. A few of the most promising alternatives are then subjected to quantitative and economic analysis to define their potential effects, both positive and negative and their costs and benefits. 5. One of the most promising alternatives is selected for a prototypical demonstration to verify the effects, benefits and costs. 6. Then and only then if the prototype is successful is it chosen for general application. 7. Finally, after implementation, it becomes the subject of an operational or management audit to confirm it's effectiveness. Mr Chairman, the Honourable Minister of Justice has leaped from step 1 of this process to step 6. with Bill C-68. Mr Chairman the Minister cannot escape the judgement of the Auditor General nor of the Canadian judiciary as they are called upon to apply this legislation. Let me share with you what that judgment might be: In the judgement of Honourable Mr.Justice Gibbs in the case of Hurley vs Dawson,Newson and the Attorney General of BC at page "- 2 -", lines 11 to 17 contain the following text: "This is a difficult case. Not the least of the difficulties is due to the tortuous language of the gun control provisions of the _Criminal_Code_. In _Regina_v._Neil_ (1985) Kamloops Registry No. 25175, Gordon, P.C.J., was moved, with some justification, to refer to those provisions as "one of the most horrifying examples of bad draftsmanship that I have had the misfortune to consider", as "so convoluted that even those responsible for enforcing the provisions are apparently unable to understand it", and as "a challenge to one's sense of logic". Clearly, within the confines of their courtrooms, Canadian judges have expressed dissatisfaction with the current gun control laws and with the obscure manner of writing this portion of the criminal code. The Auditor General of Canada's report to the House of Commons in 1993 re:"Gun Control Program" Assistant Auditor General: Richard B. Fadden; Responsible Auditor: Alan Gilmore said: "27.29 Our review of the new regulations indicated that important data, needed to assess the potential benefits and future effectiveness of the regulations, were not available at the time the regulations were drafted. The government proceeded with new regulations for reasons of public policy." Clearly there is judicial and related professional opinion our existing Gun Control laws are a mess; that they do not positively contribute to crime control. Mr Chairman what is needed at this time is not more legislation in the same tradition as we have had. What's needed is a management audit of the Federal Justice Department followed by a Royal Commission into the effectiveness of Gun Control to achieve it's stated objectives. * The removal of the authority of parliament to scrutinize regulations made under the act.- The exceptions in order in council process Bill C-68 s. 111 [renumbered for the Senate as 118] requires each regulation from the s. 110 [117] list to be "laid before each House of Parliament... for 30 sitting days." s. 112 [119] then says that FA 111 [118] does not have to be complied with: (1) if a regulation previously made is being changed, no matter how severely it is changed, or even if it is reversed: (2) if the "Minister is of the opinion that the changes (are) immaterial or insubstantial), " (3) if it is made under s 110 [117] (i), e), (m), (n), (o), (q), (r). or (s), where the "Minister is of the opinion that (the matter is) urgent:" (4) if it is made under s. 110 [117] (v), where the Minister wants to change a voiding, eligibility, critical or other date affecting any provision. This provision allows sudden changes of status for large numbers of firearms and their confiscation, (5) "For greater certainty, a regulation may be made under Part III of the Criminal Code without being laid before either House of Parliament. " The above exceptions seem to effectively eliminate Parliament's role, including individual MP scrutiny, and allow the Criminal Code and the Firearms Act to operate almost as a Ministerial dictatorship. It is recommended that all exceptions to tabling regulations for thirty sitting days be expunged from Bill C-68. * The removal of the authority of the judiciary to make determinations of the reasonableness of regulations made under the act In it's original state Bill C-68 Criminal Code Section 117.15 (2) said: " 117.5 (2) The Governor in Council may not prescribe [by Order in Council] any thing to be a prohibited weapon, a restricted weapon prohibited device or prohibited ammunition if 'in the opinion of the Governor in Council' the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes." In Canadian court precedents where those words "in the opinion of the Governor in Council" appear, their effect has been to prevent the courts from overturning any order in council made under that section. In this instance the effect is to permit the Minister to declare anything "not reasonable for hunting or sporting purposes" and to prevent any challenge to that ruling before the courts. Recognizing the dangerous nature of this phrase the Justice and Law Amendments removed the words "in the opinion of the Governor in Council"from section 117.15 (2)...and To underscore his intention to use this section to prohibit all privately owned firearms in Canada, and further to prevent challenge of that prohibition before the courts, the Minister of Justice put the words "in the opinion of the governor in Council" back into Section 117.15(2) before it was submitted for third reading. Therefore it is recommended that the words "in the Opinion of the Governor in Council" be expunged from Section 117.15 (2) [renumbered for the Senate as 124.15 (2)] * Constitutionality of certain elements, as it relates to the Federal provincial division of power. Again Mr Chairman let me emphasize that we in the New Brunswick Firearms Alliance are not constitutional lawyers. That having been said we have done some research and have some observations: We have no problem with the Authority of the parliament of Canada to deal with Criminal matters and the Criminal Code. However the Firearms Act is not criminal code law it's administrative law. Now we cannot express that distinction in more quantitative terms but I can give you examples. We find it curious that our neighbouring State of Maine does have the authority to deal with these matters an example being the State of Maine Concealed Weapons Law. Similarly on the other side of the earth the Australian State of Tasmania has the authority to deal with firearms matters, an example being the Tasmanian Guns Act of 1991 which I might point out offers processes whereby a citizen of good character may qualify to own a fully automatic firearm not dependent on whether he or she owned one in 1968 or any other point in the past. I am sure others will deal more comprehensively with the logic of why the division of power I have identified in other jurisdictions should also exist here in Canada Then concerns related to substance: * Unlimited powers of search and seizure There is universal support for increased penalties for the use of weapons, in the broadest sense of the term, in the commission of crime and violence. That having been said there seem to be some curious anomalies in Bill C-68: The Criminal Code Part III section 90(1) defines the crime of carrying a concealed weapon, in the broadest sense of the word weapon, and prescribes a penalty of five years. This long standing provision is construed as a deterrent to criminals in the process of attacking their victims from using more than their bare hands. This section is followed by section 91, unauthorized possession of a firearm, penalty five years, and sections 92, possession of a firearm knowing it's possession is unauthorized, penalty 10 years. These two sections are interpreted as meaning that the government has as much as twice the concern for mere possession of a firearm long forgotten in a back shed than it has for the possession of a weapon in the immediate possession of a criminal while attacking his victim. The Amendment made by the Minister before third reading moving the threshold to ten firearms or anything prohibited does nothing to mitigate the offensiveness of these sections of the Bill. Mr Chairman Bill C-68 is not about reducing crime. It is about increasing the attribution of crime. It is designed to rid Canada of legally owned firearms, and to make illegal possession of firearms the subject of up to twice the penalty as the use of a weapon in the commission of a crime. Therefore it is recommended that Sections 91 and 92 of the Criminal Code be expunged from the Bill. The use of weapons, in the broadest sense of the term, in the commission of crime is the behaviour to be proscribed and penalized. * Prohibition and Confiscation The Unjustified Prohibition of 58% of currently registered firearms. The minister of justice has not proved the overwhelming danger of 25 and 32 calibre firearms as opposed to firearms of any other calibre. The minister of justice has not proved the overwhelming danger of firearms of barrel length shorter than 105 mm as opposed to those of say 55mm or 255mm. In making this determination the minister's consultation process was so flawed that he failed to recognize that firearms of 25 and 32 calibre and firearms of barrel length less that 105 mm are commonly used by sportsmen in competition up to and including the olympics and whereas fully automatic firearms were prohibited in 1968, and firearms converted from fully automatic were prohibited in 1992 the firearms prohibited by bill C-68 are prohibited for the shallowest of cosmetic appearance, being functionally indistinguishable from sporting firearms not having similar cosmetic appearance. The media attributed to the minister in introducing the legislation that prohibitions were being made as a symbolic gesture. Mr Chairman, what this country needs a lot less of today is symbolic gestures! Therefore it is recommended that an amendment be made expunging all new firearms prohibitions from Bill C-68, and deleting the definitions of prohibited firearms and prohibited ammunition that permit arbitrary prohibitions at the pleasure of the Minister of Justice.. * Undefined and/or concealed cost Canadian Governments, historically, by intention or incompetence, have drastically underestimated the cost of legislative programs. In these times when fundamental programs are being slashed to reduce the deficit from $40 billion to 25 billion, it is unconscionable to cloak a $2 billion firearms registration as an $85 million registration. In July 1994 Justice Canada produced a report TR1994 9e, Review of Firearms Registration Table 2 defines the cost of firearms registration in Ontario and Quebec as $82.69 and $104.02 respectively and recommends the Quebec system for all. Let's be generous and say in future it will cost $100.00 to register a firearm. The Justice Department's document Background Information on Firearms Control says on p4." there are an estimated 7 million firearms in Canada, 1.2 million registered and 5.8 million not registered." In December 1976 as part of it's gun control campaign for Bill C-51 the government estimated there were 6 million owners of 18 million firearms in Canada. During the 1991 hearings on Bill C-17 Justice officials also testified that the average net import of firearms was 190,000 per year. Restricted firearms ownership increased from 861,571 in Dec. 1984 to 1,221,179 in Dec 1993, an increase of 41% in 9 years. It's not unreasonable therefore to estimate that now there exist 21 million firearms in Canada owned by 7 million citizens, all of voting age. At $100 per registration it will cost $2.1 billion dollars to register 21 million firearms. The Minister of Justice States that firearms registration will cost $85 million and will cost the owner $10.00 to register up to 10 firearms. Then in the next breath he says that the system will be user pay so as not to cost the taxpayer anything. Between the time the program is implemented and it becomes 100% user pay there will be an unfunded liability of 1.9 billion dollars to be financed 500 million by the federal government and $1.4 billion by the provinces on the basis of TR1994 9e. This is the same logic that has brought Canada to the brink of financial bankruptcy. Is it any wonder that provinces like Manitoba, Saskatchewan and Alberta and now Ontario resist participation in this boondoggle. Other dependent provinces must be dragged into it under innuendo of reductions in other programs. Government now spends more than 50% of Gross National Product! If business is required by it's shareholders to justify policy with rigorous benefit/cost analysis it is recommended that Government not be exempt from rogour in policy justification. * Attribution of criminality to commonly accepted behaviour If Bill C-68 passes the Criminal Code Section 99 will say: 99.(1) Every person commits an offence who (a) manufacturers or transfers, whether or not for consideration, or (b) offers to do anything referred to in paragraph (a) in respect of a firearm [or].. any ammunition knowing that[he] is not authorized to do so under the Firearms act or any other Act of Parliament or any regulations [made by Order in Council (OIC] (2) Every person who commits [that] offence ... is liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year. So giving a firearm or an unusual cartridge to your father for his birthday earns you a minimum of one year in prison. Similarly the farmer can no longer have his wife pick up ammunition for the farm unless of course it's for her licensed gun. It is clear that with the passage of Bill C-68 the government intends to treat all transfers of firearms and ammunition in the same way that it treats transfers of narcotics as, crimes. And finally, concerns related to effects: * The potential counterintuitive effects of the bill on crime and violence in Canada The proponents of Bill C-68 would encourage you to believe that it will have a positive effect on the levels of Crime and Violence in Canada. To do this they point to selected British statistics. Britain is an island and if firearms prohibition were to be effective it would most likely be effective there. In fact in a country of 55 million people the number of citizens legally owning rifles and pistols has been reduced to less than 160,000 and the number of legal shotgun owners has been reduced to less than one million. Let us consider three elements representative of levels of crime and violence: Suicide, Homicide and Robbery. GUN CONTROL AND SUICIDE Country/Level of Suicide Rate restriction on civilian ownership of firearms Denmark high 31.6 Sweden high 20.5 Norway high 13.3 Scotland high 10.1 England/Wales high 6.7 Ireland high 6.6 Japan severe 14.3 Canada moderate 12.3 Australia moderate 12.2 USA low 12.0 Israel low 6.0 Guns in Medical Literature, Suter, Med. Ass'n Georgia, Vol 83, 1994 The degree of restriction on civilian ownership of firearms does not correlate with the suicide rate. The Scandinavian Countries all have the same high level of restriction have a suicide rete which varies from 13.3 to 31.6, higher to double that of Canada. Japan which has practically no privately owned firearms has a suicide rate of 14.3, higher than Canada or the USA. Israel on the other hand where any citizen of good character may be permitted to carry a loaded firearm at all times has a suicide rate of 6.0, half that of Canada. Government's phobic preoccupation with firearms is an inadequate and ineffective response to the grave social problem of suicide. GUN CONTROL AND HOMICIDE Country/Level of Homicide Rate restriction on civilian ownership of firearms Denmark high 5.7 Sweden high 9.6 Norway high 1.4 Scotland high 3.3 England/Wales high 0.6 Ireland high 1.2 Japan severe 0.8 Canada moderate 2.2 Australia moderate 2.0 USA low 10.8 Israel low 1.8 Guns in the Medical Literature, Suter, Med. Ass'n of Georgia, Vol 83, 1994 The degree of restriction on civilian ownership of firearms does not in general correlate with the homicide rate. Only by carefully selecting data can that appearance be given. The Scandinavian Countries all have the same high level of firearms restriction, and have a homicide rate which varies from 1.4 to 9.6, slightly less to four times that of Canada. If gun controls had anything to do with reducing homicide why should Sweden have a homicide rate more than four times that of Canada? Japan, and England and Wales are often cited as shining examples of the effectiveness of gun controls in reducing homicide, but why does Scotland which has the same gun laws as England have a homicide rate of 2.3, 5.5 times higher than England and 50% higher than Canada? Israel on the other hand where any citizen of good character may be permitted to carry a loaded firearm at all times has a homicide rate of 1.8, less than Canada. Government's phobic preoccupation with firearms is an inadequate and ineffective response to the grave social problem of homicide, crime and violence. GUN CONTROL AND BURGLARY Country/Level of Rate of household Percent of household restrictions on burglaries per burglaries which take civilian firearms 100,000 (1) place when owner is ownership at home. U.S.A. low 1263.7 13%(2) Canada medium 1420.6 44%(2) England/Wales high 1639.7 59%(4) Compiled by H.Taylor Buckner Two questions arise from this table: First, Why is the incidence of burglary higher in Britain than Canada and in turn why higher in Canada than the United States? Second, Why do Burglaries in Britain result in confrontation between criminal and victim 59% of the time, why 44 % of the time in Canada and why only 13% in the United States? Mr Chairman you might be tempted to argue that this data is rather old and to correct that deficiency let us now examine just a few facts, from just one issue of the London "Sunday Times', May 22, 1994. *"From 1987 to 1992 property crime in England rose by 42%. The risk of being burgled in England is now more than twice that in the United States. Violent crime increased by 40%." (Section 1, page 10) *There's a burglary every 20 Seconds in Britain." (Section 10, page 39) *"From 1981 to 1991 the total number of UK robberies involving arms rose 287%. (Section 10 page 8) *More Police officers were killed in London in the past year than were killed in Los Angeles."(section 10 page 8)" *"The police are facing more armed situations: The hidden economy of the underclass, particularly around drugs tends to remove any remaining taboos about gun law" (Section 10 page 8) *"Floods of weapons are coming in from Europe and beyond, evading Britain's historically tight licensing laws. (Section 10 page 8) Clearly British experience should instruct us that prohibiting citizens of good character from possessing firearms does not prohibit criminals from possessing them. Conclusion Mr Chairman we thank you for the opportunity to identify a few concerns with Bill C-68 We have identified concerns with respect to process and to substance and to effects. Bill C-69 is dangerous legislation. It takes authority from parliament and the judiciary and gives it to the Minister of Justice. But worst of all Mr Chairman are the counterintuitive effects. Mr Chairman, Bill C-68 is not about Gun Control, it's about Firearms Prohibition. Firearms prohibition gives criminals new confidence to do their worst without fear of being accosted. Firearms Prohibition creates more business for police, lawyers, courts and the prisons. Firearms Prohibition does not reduce crime, IT INCREASES CRIME! Mr Chairman Bill C-68 is flawed to it's very foundation! Mr. Chairman we thank you. !