C-68 FIREARMS CONTROL DESIGN FAILURES

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The Standing Senate Committee on Legal and Constitutional Affairs

C-68 FIREARMS CONTROL DESIGN FAILURES

In our 1994 and 1995 analyses of Bill C-68, we noted a severe lack of understanding of the basics of system design on the part of the writers. The writers of Bill C-15B display a similar inability to write legislation that would create an integrated and workable firearms control system, which is a difficult thing to do. They apparently did not know how to write legislation that would stay within the requirements of administrative law, regulatory law and criminal law -- all at the same time -- which is also admittedly difficult, but is necessary if this type of law is to work.

THE LUDICROUS "FIX" PROPOSED IN BILL C-15B

One ridiculous error in Bill C-15B clearly demonstrates the gross incompetence of the writers.

Many years ago, a muzzle velocity of 500 feet per second (later converted to 152.4 meters per second) was chosen as the dividing line between "firearms" that are supposedly exempt from a requirement for the possessor to have an FAC (then; a licence now) and perhaps a registration certificate, and perhaps an authorization to transport, and "firearms" that do require those documents [CC s. 2 "firearms," 84(1) "restricted firearm" and "prohibited firearm," and 84(3)(d)].

That dividing line was chosen, apparently, to exempt almost all air, gas and spring guns. The government's experts refused to consider the NFA's repeated submissions that a muzzle energy figure should be used (for valid technical reasons), rather than a muzzle velocity figure.

The muzzle velocity figure became a problem some ten years ago, when manufacturers began producing lightweight pellets by substituting aluminum and plastic for lead. Using the lightweight pellets, many air, gas and spring guns began to routinely exceed the limiting muzzle velocity. That, in turn, disqualified every such gun for the exemption. Each became, therefore, a "real firearm" -- one that, today, requires the owner to be in possession of both a licence covering that class of "firearm" and a registration certificate for that particular "firearm."

That was a requirement of law that the Registry had either been ignorant of or had been ignoring, during the initial ten-year period that the pellets were on sale. It was, however, formally adopted by the Registry as a Policy.

Department of Justice spokespeople were, in trying to explain what happened, caught in a lie.

It all started when the Canadian Firearms Registry [CFR] first noticed (in 2000, ten years after it happened) that manufacturers were offering and retailers were selling lightweight pellets for air, gas and spring guns. Those lightweight pellets came out of the guns faster than the old lead pellets. The CFR calls the lightweight pellets "hypervelocity pellets" or "HVPs."

All air, gas and spring guns are "firearms" by the definition in Criminal Code section 2, but most of them are taken out of the "firearm" category by an exemption granted by CC s. 84(3)(d). They are exempt because they cannot shoot any projectile at over 152.4 meters per second/500 feet per second. CC s. 84(3)(d) is a "fix," necessary because the CC s. 2 definition is defective.

The fact that many air, gas and spring guns that had been unable to shoot pellets over 152.4 mps/500 fps were now able to do so, using the lighter pellets, caused the CFR (when they finally noticed) to adopt a new policy. Anything capable of beating the limit with an HVP would require a licence to possess, and a registration certificate. Spokespeople for the Department of Justice said, again and again, "no such policy exists" and "no such policy has been adopted."

That was untrue. In the latest batch of Access to Information Act papers received by the NFA, I found this, in "STANDARD ADMINISTRATIVE POLICY AND PROCEDURES," Chapter 1, Change 3, dated 2000-03-06:

"Administrative Policy #14: Air, Spring or Gas firearms which are identified as capable of discharging 177 calibre pellets, shall be tested for velocity, if required[?],z to establish whether they are 'Deemed Non-Firearms' under Part III of the Criminal Code of Canada, section 84(3)(d)(i) and (ii). Breech loading -- Air, Spring or Gas shall be tested with all standards of ammunition that the firearm is capable of discharging [emphasis in original]. In the case where the firearm feeds only from a cylindrical magazine or other type of feed device, only those pellets which will feed through the feed device shall be tested. When tested the results for record shall be those results which achieved the highest velocity of the test ammunition. Ammunition standards for velocity testing shall, as a minimum, include both "Lead Waisted Pellets" and "Laser Hawk, Hyper-Velocity Pellets."

The other papers supplied through the A To I Act demand are very, very amusing.

The HVPs "converted" large numbers of air, gas and spring guns to "real firearms," requiring the licencing of their owners and their possession of registration certificates for the guns. The law is very clear on those points [CC s. 91 and 92].

The CFC's discovery could not have come at a worse time. The Canadian Firearms Centre was bogged down, unable to issue all the required licences by the 01 Jan 2001 deadline -- and now those CFR authorities were saying that the CFR would have to issue another half-million licences to airgun owners.

So -- the CFC managed to get illegal orders given to the CFR -- orders that blocked the CFR from administering and enforcing the clear requirements of the Criminal Code.

In a letter dated 17 May 2000, Cpl. L Cyr of the CFR sent a letter to the O[fficer] I[n] C[ommand] Access to Information and Privacy, RCMP Headquarters, Ottawa. In it, he said:

"You will find two attached reports. The first piece of correspondence is a letter entitled 'Re: Laser Hawk, Hyper-Velocity Pellets' which deals specifically with the application of a procedure in relations [sic] to pellet guns. The second report is entitled 'Standard Administrative Policy and Procedures' where the 'Administrative Policy #14' applies to air, spring or gas firearms which are identified as capable of discharging 177 calibre pellets."

I have already covered his "second report," but the first is even more interesting. That letter is from Supt J A J Buisson, the Registrar and head of the CFR, to William Bartlett, Counsel, Canadian Firearms Centre, Ottawa, dated 00-05-08. In it, Buisson says,

"The following is to advise you of Canadian Firearms Registry (CFR) policy regarding air, gas or spring firearms and Laser Hawk, Hyper Velocity Pellets.

"As you are aware, earlier this year Laser Hawk pellets were made available for sale. [NFA: That is apparently either a deliberate attempt to deceive Mr. Bartlett, or an amazing admission of ignorance and incompetence; lightweight pellets identical in effect to the Laser Hawk brand of pellets had been commercially available for at least ten years.] The manufacturer even advertises a 30% increase in velocity as compared with conventional pellets. Consequently, the air, spring or gas firearms no longer meet the standards set out in subs. 84(3) of the Criminal Code in order to be deemed non-firearms for the purposes of the Firearms Act and certain offence provisions of the Criminal Code.

"In the light of the above, the Firearms Identification Section (FIS) of the CFR found it had no alternative but to adopt a policy that reflects the current legislation. The policy is as follows: [see Administrative Policy #14 above]

Now let us go back to Cpl Cyr's letter of 17 May 2000. His last paragraph says,

"Supt Buisson has consulted with the Department of Justice on this matter, and it has been decided to request that these documents not be disclosed [emphasis in original] as per subsection 21(1)(c) [of the Access to Information Act]."

Oh, what a mess. But -- the law is quite clear. Unless one can prove that the "firearm" in question is not capable of firing any projectile at over 152.4 mps/500 fps, it does not qualify for the exemption. That requires proving a negative, which is impossible -- so no air, gas or spring gun qualifies for that exemption. No airgun, no paintball gun, no CO2 gun -- nothing.

When the Canadian Firearms Centre [CFC] learned what the Registry was doing, the CFC officials were appalled. By admitting that those air, gas and spring guns required licences, the Registry would increase the number of licences required across Canada, probably by about half a million, at a time (late 2000) when the CFC was severely backlogged with applications.

The CFC insisted that the Registry stop adding air, gas and spring guns to their FRT disk, and begin telling Canadians that all those air, gas and spring guns could be possessed without licence or registration certificate -- which is clearly contrary to law, and constitutes the criminal offence of counseling people to commit a criminal offence [CC s. 22].

Every person who, today, has an unregistered air, gas or spring handgun that can -- in any way -- exceed the muzzle velocity limit is eligible for years of imprisonment [CC s. 91(1)(b) and 92(1)(b)].

Many of those who own an air, gas or spring gun that is a rifle or shotgun are also criminalized, because they lack a licence covering that class of firearm and and are subject at all times to the risk of arrest and prosecution [CC s. 91(1)(a) and 92(1)(a)].

When the Registry did what it was told to do by the CFC, it also began counseling people to commit a criminal offence (violating CC s. 22). The CFC apparently has no legal power to give orders to the RCMP, the Registrar, or anyone in the Registry -- but does it anyway.

In an attempt to "fix" that problem, the government's experts wrote into Bill C-15B an amendment to the existing wording. They simply added the words "or at a muzzle energy exceeding 5.7 Joules" to the end of the existing provision [C-15B s. 4, amending CC s. 84(3)(d)(i)].

The bureaucrats say that this section means that as long as a gun fails to exceed either the muzzle velocity test or the muzzle energy test it is not a "firearm." They say paintball guns do not exceed the muzzle velocity level, and therefore they will not be firearms. According to their interpretation of this amendment, the gun has to exceed both the muzzle velocity and muzzle energy levels to be a "firearm."

That may be what they intended it to mean, but after C-15B passes, it will read:

   *

     84(3) for the purposes of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act the provisions of the Firearms Act, the following weapons are deemed not to be firearms: 
   *

     (d) any other barreled weapon, where it is proved that the weapon is not designed or adapted to discharge
   *

     (i) a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules... 

They apparently did not notice that the C-68 language is a double-negative situation. We apologize for introducing the following simplifications of that abominably bad English, but it is helpful in clearing up the actual meaning of what they put into C-15B.

In simpler language, C-15B is saying:

   * 84(3) It isn't a firearm if it is
   *

     (d) a gun that can be proved to be incapable of discharging
   *

     (i) any projectile -- at a muzzle velocity over 152.4 m per second -- or at a muzzle energy over 5.7 Joules. 

If one reverses both of the negatives to further simplify the language, one gets:

   *

     84(3) It is a firearm if it is 
   *

     (d) capable of discharging 
   *

     (i) any projectile -- at a muzzle velocity over 152.4 m per second -- or at a muzzle energy over 5.7 Joules. 

The effect of that amendment, therefore, is not the effect that seems to have been intended. By using the word "or" between the old muzzle velocity limit and the new muzzle energy limit, that wording disqualifies a "firearm" for the exemption if it exceeds either limit.

Instead of removing all those air, gas and spring guns from the real firearm class, that wording leaves them in the real firearm class, because they still exceed one of the limits. Every air, gas and spring gun that exceeds the old muzzle velocity limit is still a real firearm.

The new wording has an unexpected effect -- it disqualifies nearly all paintball guns for the exemption. Despite their low velocity, they exceed the new muzzle energy limit. Because exceeding either limit results in the "firearm" in question not qualifying for the exemption, if C-15B passes in this form, nearly every paintball gun in Canada will become a real firearm.

C-15B's attempt to reduce the number of real firearms in Canada by redefining large numbers of things now defined as "firearms," making them into non-firearms, has failed. The writer of C-15B has, instead, hugely increased the number of real firearms that will require a licence, a registration certificate, and possibly even an authorization to transport [CC s. 2, 84(1) "restricted firearm," 84(3)(d), 91, 92, and 93].

The Government's experts may say that we are incorrect in our analysis of this situation, but the only way anyone can know for certain is to put this entire area of questionable legislation in front of the Supreme Court of Canada, probably by way of a criminal charge.

PROVING A NEGATIVE

That area of the Criminal Code is even worse than it looks in the above analysis. C-68's wording, unchanged in C-15B, is "where it is proven that" the firearm "is not designed or adapted to" shoot any projectile at over the muzzle velocity limit, the exemption is granted. That wording requires proving a negative -- a notoriously difficult thing to do. One can say one does not know how to make the "firearm" exceed the limit -- but not that it is impossible for a person who has greater expertise to make the "firearm" exceed the limit. One cannot prove a negative.

That wording opens the door to further problems. For example, proof of that negative may be demanded in a court of criminal law. The best that the Crown will be able to offer is evidence that the Crown does not know how to do it -- which is not proof that it cannot be done.

As soon as C-15B becomes law, some enterprising person can be expected to prove -- by empirical test -- that each and every available air, gas and spring gun is capable of exceeding one or both of those limits -- either one of them if the proposed wording is not altered, or both if it is altered. It is not technologically difficult to do that. He or she might publish those findings.

If someone does that -- and someone probably will, just to demonstrate how defective this legislation is -- then each such "firearm" will automatically become a real firearm again, and another Bill will be needed. (R v. Hasselwander, SCC, 19 May 1993)

The Government's experts may say that we are incorrect in our analysis of this situation, but the only way anyone can know for certain is to put this entire area of questionable legislation in front of the Supreme Court of Canada, one aspect at a time, probably by way of a criminal charge.

THE LICENCE ISSUANCE SYSTEM DESIGN FAILURE OF 2000

In the year 2000, the C-68 firearms control system came near collapse, and may yet collapse as a result of the system design failures that led to the huge licencing backlog of 2000 and 2001.

The backlog was caused by the terms of Criminal Code section [CC s.] 98, which "grandfathered" both firearms and owners by the granting of invisible "deemed" licences valid until 31 Dec 2000 and invisible "deemed" registration certificates valid until 31 Dec 2002.

Predictably, most people who were granted invisible "deemed" licences did not bother to apply for real licences until late in 2000. When they applied, the firearms control system developed a massive backlog, which is not totally cleared today. An ill-worded Amnesty proclamation provided some illusory relief, but when it ended on 30 Jun 2001, the firearms control system was still in bad shape.

THE REGISTRATION CERTIFICATE ISSUANCE SYSTEM DESIGN FAILURE OF 2002

In the year 2002, the C-68 firearms control system will reach its maximum probability of failure. In that year, all firearms currently held on CC s. 98 invisible "deemed" registration certificates must be registered, and all firearms registered on old green paper registration certificates must be reregistered. The firearms control system, as presently constituted, cannot handle the influx.

It is inevitable that the same situation that occurred with the licences will recur, in a much worse form. Several elements will make the failure much worse.

1. The number of registration certificates that must be issued is much larger than the number of licences that had to be issued, as an average firearms owner requires one licence and three registration certificates.

2. The error and/or omission rates on registration applications will be much higher than similar rates on licence applications, due to the nature of the information required.

3. The omission rates on registration applications will be much higher than similar rates on licence applications, due to the side effects of FA s. 106 and 109.

4. Information taken from a firearm that is not stamped into the "frame or receiver" of that firearm is untrustworthy, and cannot be used by an applicant to identify the firearm. (The majority of firearms have most or all of their identifying information stamped into the barrel, the slide, or some other uncontrolled, interchangeable spare part that may or may not have been part of the firearm on the day it was manufactured. Such data is unusable.) Even data stamped into the "frame or receiver" is unreliable, as it may be a "house name," or the name of an importer, or the name of a distributor, rather than the name of the maker.

5. Information taken from an old green paper registration certificate is untrustworthy, and cannot be used as valid information in registering a firearm today. (Entries accepted by the registration system officials in that era were hopelessly inaccurate, and the system also suffered from the "ghost gun" and "gone gun" problems described below.)

6. High error and/or omission rates require high rates of personal contact by firearms control system personnel, a situation that requires generous staffing and funding.

7. Where an error and/or omission cannot be resolved by contact over a telephone, the firearm itself will have to be physically examined, which is a costly procedure.

8. The Crown may request that the firearm be shipped to an examiner, which is costly (and which the Crown has no authority to demand), or it may choose to send a representative to the location of the firearm to look at it, which is even more costly.

9. Legally, and notwithstanding the FA s. 105 requirement to "produce" the firearm on demand, the applicant may lawfully refuse to ship the firearm in for examination.

10. Refusals to ship can be expected, because the Crown has a poor track record when it comes to exercising due care of the firearm when such shipments for examination are made.

11. Refusals to ship can also be expected because the Crown has a poor track record when it comes to prompt return of the firearm.

12. Given the problems likely to arise regarding information error and/or omission rates on registration certificate applications, staffing and funding levels will have to be increased enormously to deal with the predictable problems that will arise in late 2002.

13. If the present strictures on funding and staffing continue, the firearms control system cannot possibly deal with the situation that will arise in 2002.

GHOST GUNS AND GONE GUNS

The Canadian Firearms Registry [the Registry] has been trying for years to ignore the severe problems caused by the presence in the Registry's records of "ghost guns" and "gone guns."

A ghost gun comes into existence when the Registry issues a new registration certificate to a new owner, and fails to delete the old owner's registration certificate from its data base. From that moment forward, the system shows two guns where only one exists -- the real one, in the hands of the new owner, and the "ghost gun" in the hands of the previous owner.

A firearm is represented, in the Registry, by a registration certificate which says that a particular firearm is in the hands of a particular individual at a particular location. There is no known way to tell whether any registration certificate in the Registry's data base represents a real firearm or a "ghost gun," other than by a query to the supposed owner.

The Registry's records show stocks of "ghost guns" in dealer inventory for virtually every dealer -- comprising, usually, between 20 and 60 per cent of the dealer's total inventory, but sometimes exceeding 100 per cent of the dealer's actual inventory.

If, on any day after the issuance of registration certificates, the owner moves to a new location, emigrates, or dies -- and no one tells the Registry -- all firearms certificates in the name of that person are still in the Registry, but they have become meaningless. The firearms are "gone guns" -- they are probably no longer at that location, the registered owner is no longer at that location, and the firearms may no longer be in the possession of the registered owner.

There is no known way to tell whether any registration certificate in the Registry's data base represents a real firearm or a "gone gun," other than by a query to the supposed owner.

The NFA's best estimate is that somewhere over 30 per cent of all firearms recorded in the Registry are ghost guns or gone guns. Those records are meaningless and useless. In Jan 2001, the registry admitted that of the 1,250,000 registration records in their system, at least 650,000 are meaningless -- and have now been recognized as spurious.

The Registry has never, in its entire 67 years of existence, carried out a major test that included queries to supposed owners. Apparently, Registry personnel are aware that any such test can bring their house of cards crashing down. The Registry flatly refuses to do that test.

SYSTEMS DESIGN FAILURES IN THE C-68 FIREARMS CONTROL SYSTEM

The problems of the C-68 firearms control system are caused by failures of system design. The person or persons responsible for writing Bill C-68 apparently had no training in system design.

It is vital that the clarity of firearms control law be superb. If it is not, court cases can easily dissolve into confusion, simply because the law can be read in more than one way. If the law can be read in more than one way, then a precedent set by a criminal prosecution can affect the meaning of one or more firearms law provisions from that day forward.

The quality of the legislation that created the C-68 firearms control system was miserably poor. Bill C-68 was riddled with loopholes that one could drive trains through, and those loopholes are now part of the firearms control system. They loopholes are not corrected by Bill C-15B.

The 50-odd changes to C-68 recommended by the Committee were rejected by the then Minister, Alan Rock. C-68 was enacted virtually without changes, which made the 2002 system design failure inevitable.

The C-68 definitions, which are fundamental to operating the C-68 firearms control system, are appallingly bad. Something is a "firearm" in one provision, then it is not a "firearm" in another provision because a more specific section has taken it, in whole or in part, out of that definition. It is a "prohibited firearm" -- then, no, it is not, because it is a "restricted firearm." Then it is a "prohibited firearm" again -- but an uncontrolled one. That is all very confusing for anyone who has anything to do with this area of rather addled law.

For example, a Colt Peacemaker revolver, because it was made before 1898, is classed as an "antique firearm" which does not require its owner to have a licence, registration certificate, or authorization to transport. Then it is taken out of the "antique firearm" category because it can discharge .44-40 ammunition. If the owner removes the barrel and cylinder, it drops back into the "antique firearm" class because it can no longer discharge .44-40 cartridges. If the owner then adds a .44 Special cylinder and barrel, it remains in the "antique firearm" category, because, although the .44 Special cartridge is a widely-available and modern cartridge, it is not on the list of cartridges that will take a handgun out of the "antique firearm" class.

CC s. 2 defines the word "firearm" -- far too broadly. Then CC s. 84(3) redefines the word "firearm" by exempting certain firearms from that definition, for certain purposes. As a result, a paintball gun is a "firearm" by the CC s. 2 definition, and apparently ceases to be a "firearm" for most purposes as a result of CC s. 84(3)'s redefinition -- provided that one accepts the firearms control bureaucrat's interpretation and ignores the necessity to prove a negative in order to qualify for the exemption.

Notwithstanding CC s. 84(3), a paintball gun definitely is a "firearm" for the purposes of CC s. 87 [CC s. 2 "firearm" and 84(3)]. It is therefore a criminal offence to point any paintball gun, loaded or unloaded, at another person. The penalty can be up to five years in prison.

It is easily possible to make errors in constructing criminal law, but making too many of them -- particularly silly ones -- brings the law into disrepute once the errors are brought into force.

REGULATIONS

Putting provisions into Regulations rather than law has proved to be a very bad idea. As provisions in Regulations prove unworkable, they are replaced by new Regulations. It therefore becomes impossible to learn what the law is by reading the law. Where provisions in the law are unclear or missing, the Regulations that augment or replace them frequently form the basis of criminal prosecutions. That can have damage or destroy public respect for our criminal law.

For example, in R v. Rusk, heard by the Saskatchewan Provincial Court in Prince Albert on 02 Jun 2000, the entire case revolved around Regulation 4, in the "Storage of Non-Restricted Firearms Regulations." The Crown and defence lawyers argued hotly about the precise meaning of the words "stored with" (ammunition). The judge analyzed their arguments and ruled in favor of the defence.

However, the Regulation they were looking at became null and void on 01 Dec 1998. It was part of a set of Regulations that had been superceded by a new set of Regulations that were made in Mar 1998, but did not come into force until 01 Dec 1998.

The offence in question took place on 04 Aug 1999, so the new Regulation -- 5, not 4, and with differing wording -- should have been the subject of the trial. Apparently no one -- Crown, defence or judge -- was aware of the fact that they were looking at an invalid Regulation.

Major difficulties arise from keeping track of what the government is doing by way of Regulations made by Order in Council. The Regulations change without notice or warning, and it is quite likely that any available printed version is obsolete. It is utterly impossible to be certain, at first glance, that any Regulation under consideration has been properly made, has come into force, and is still in force. One can look into the Criminal Code with some certainty that what one finds is stable, but there is no stability whatever in the Regulations. They can be impossible to keep track of, and impossible to use correctly.

There is no good way of warning Canadians --Crowns, defence lawyers, or defendants -- when the government changes a Regulation.

There is no book of Regulations that includes all Regulations.

There is no book of Regulations that accurately says what the Regulations are today.

The "Firearms Act Regulations" book of Regulations published in March 1998 is now riddled with errors because many of those Regulations have been changed. It is unreliable, and nothing reliable has been, or can be, created to replace it.

ANOMALIES

Both the current laws and the laws as amended by C-15B allow a person who has no licence, no registration certificate, and no authorization to carry, to carry a loaded handgun in his pocket -- legally. (More and more people are learning how to do that.) One can only conclude that the other House intends the loss of control that is now taking place in that area to continue. As this document will be widely circulated, we do not specify how this can be done unless confidentiality can be agreed upon between the NFA and a Senator.

The Government's experts may say that we are incorrect in our analysis of this situation, but the only way anyone can know for certain is to put this entire area of questionable legislation in front of the Supreme Court of Canada, probably by way of a series of criminal charges.

Both the current laws and the laws as amended by C-15B allow registered non-restricted, "restricted" and "prohibited" firearms to be lawfully shipped clear across the country from a licenced person to any other licenced person without any paperwork. After that method of shipping has been used, the control system no longer knows where those firearms are -- because it has failed to create a subsystem to track them in those circumstances. One can only conclude that the other House intends that loss of control to expand and continue.

The Government's experts may say that we are incorrect in our analysis of this situation, but the only way anyone can know for certain is to put this entire area of questionable legislation in front of the Supreme Court of Canada, probably by way of a series of criminal charges.

C-15B does try to correct a ridiculous error in the current law, which says one can have a "prohibited" or "restricted firearm" at "the dwelling-house of the individual, as indicated on the registration certificate ." The new version substitutes " the dwelling-house of the individual, as recorded in the Canadian Firearms Registry" [emphasis added, C-15B s. 103 and FA s. 17].

That change was made embarrassingly necessary by the fact that, when one looks at the new-style registration certificate that came into use on 01 Dec 1998, there is no location "indicated on the registration certificate." The name and address data blocks no longer appear.

However, the C-15B change is a failure, and should be sent back for redrafting. One may lawfully lend a registered firearm and the registration certificate for it to another [FA s. 33].

When that happens, the borrower becomes the lawful "holder" of that no-address registration certificate, and is in lawful possession of that firearm [CC s. 84(4)(b)(ii) and FA s. 59].

Because the location of the firearm "as recorded in the Canadian Firearms Registry" is the address of the lender, and the "holder" of the registration certificate is now the person living at the address of the borrower, this provision simply cannot work. It is an embarrassing error and a failure of systems design. It criminalizes the lawful borrower unless he possesses the firearm at the home of the lender, and that is patently absurd [C-15B s. 103 and 93, plus FA s. 17].

Additionally, data "recorded in the Canadian Firearms Registry" is riddled with errors, omissions and duplications. It is unavailable to the person in lawful possession of the firearm, and cannot be checked for error by owners, borrowers, or others in lawful possession. Because of the extensive duplication problems built into the Registry, questions in this area are likely to get differing answers each time they are asked, depending on which of the duplicated records the clerk finds. It is utterly unacceptable to impose the Registry's defective registration record system on any owner, possessor, dealer or borrower -- and then criminalize him on that basis.

It should be noted that once a person is in possession of a firearm, no further control can be effective without the willing cooperation of that person. Therefore, the entire control system for movement of firearms from place to place depends entirely on the willing cooperation of those who are in legal possession. The movement controls are redundant, and affect no one but a person who willingly complies with them -- a person who is not a danger to society.

This entire area of movement control can therefore be easily replaced by limits in the law, eliminating the need for the Authorization to Transport, a third-level licensing document. The individual has already proved that he is not a menace to society in order to get a licence. Then he has proved it again in order to get a registration certificate. What is gained by requiring him to prove the same thing for a third time, to get an authorization to transport?

This C-68 subsystem -- the program, procedures and mechanism devoted to the issuing of Authorizations to Transport -- is only a pointless make-work job at best, and need not exist. Moving a firearm from one class to another is physically easy, and may or may not be illegal by a bewilderingly complex set of rules. Even the bureaucrats who wrote those rules can neither understand them or keep track of the effects of ever-shifting changes made by Order in Council.

THE AMNESTY EXTENSION SERIES

With Amnesties, extensions have usually been made (by Order in Council) at the last moment, or even after the original Amnesty has expired. That tends to bring the law into disrepute, as it is seen as an attempt by government to bluff owners into surrendering firearms that the government intends to keep subject to amnesty.

The original (1994) intent of proposed legislation was to confiscate all "prohibited handguns" without payment of compensation to the owners. The intent was to confiscate all .25 and .32 calibre handguns, and all handguns with barrels less than 105mm/4.14" long.

There are three solid Supreme Court of Canada cases saying that in such circumstances compensation must be paid unless the statute specifies that no compensation will be paid. (The law that says each publisher must send two free copies of each item he publishes to the Library of Parliament includes wording that specifies that no compensation will be paid).

Apparently, the bureaucrats who wrote C-68 learned of those cases very late. Their solution to the problem was the introduction of "grandfathering" of both owners and firearms [FA s. 12].

No firearms control law specifies that compensation will not be paid for property that is lost or rendered valueless by a change in statute. The Crown's liability in this area is substantial.

It took from December 1995 to 01 Dec 1998 to organize things well enough to bring C-68 into force. By that time, huge numbers of "prohibited handguns" had been transferred to new owners -- many of them committed to fighting confiscation in court, at ruinous expense to government.

The government set up an amnesty running from 01 Dec 1998 to 01 Dec 1999, by way of Order in Council SOR/98-467, dated 16 Sep 1998.

That Amnesty was extended (on 08 Dec 1999, after it had expired) to 31 Dec 2000.

That extension was further extended (on 02 Jan 2001, after it had expired), to 30 Jun 2001.

That extension was then further extended to 31 Dec 2001, and then to 31 Dec 2002.

The apparent reason for these repeating extensions is the fact that none of the firearms can actually be confiscated unless the owner is willing. Each owner has several options, including but not limited to the following.

1. He or she may just remove the barrel (and cylinder, if any), which converts the firearm from CC s. 84(1) "prohibited firearm" (a) status to CC s. 84(1) "restricted firearm" (a) status. Example "restricted firearm" registration certificates covering that situation are already in the NFA's hands. This avenue seems likely to prevent successful confiscation.

2. He or she may appeal the seizure to a court of law. This avenue (likely to be used by wealthier and more activist owners) is very costly for the Crown, and is likely to result in court orders to pay compensation to the deprived owner.

HOW SHOULD REGISTRATION TRANSFER WORK?

During a transfer, there are three things that need to be done:

   *

     The new registration certificate must be issued and delivered to its new "holder."
   *

     The firearm itself must be lawfully transferred from the old owner to the new owner.
   *

     The old registration certificate must be voided after the transfer. 

Obviously, the law must be structured to allow that process to be followed without accidentally criminalizing anyone. Therefore, the system must follow three obvious rules:

   *

     The registration certificate of the old owner must not be allowed to expire before the new registration certificate has been delivered to the new owner.
   *

     The firearm should not be physically given to the new owner until the new owner has received his registration certificate.
   *

     Sufficient overlap must be allowed to prevent the inadvertent criminalization of either party. 

The government's "expert" bureaucrats do not seem to understand that those simple principles must be adhered to, because the law will be brought into disrepute if they are not. A procedure that criminalizes nearly everyone who tries to follow the procedure -- and that is what the current transfer system does -- commands neither respect nor affection. C-15B does nothing to correct this situation. C-15B makes it worse.

THE C-15B SYSTEM DESIGN FAILURES

In the proposed registration transfer system, the transferor has no way of knowing whether or not his "informing the Registrar" will actually result in the firearm being deleted from the Registry's records of his own holdings. He may still be shown on the Registry's records as still being in possession of a "ghost gun" twenty years after transferring the firearm -- lawfully -- to another. [C-15B s. 105, FA s. 23(c)] The Registry makes that error often, because the Registry is, always has been, and apparently always will be, riddled with errors, omissions, and duplications. As proof of that statement, please note that firearms dealers usually have 20 to 50 per cent more firearms in stock in the Registry records than they do in the store. The extras are not real; they are "ghost guns" created by clerical failures in the firearms control system or the Registry.

Under the C-15B procedure, the situation is unclear, because it depends on "regulations" and the regulations are not known, and probably have not been written yet. If the new system works as it appears to, the transferor has no way of knowing whether the transferee has even applied for a registration certificate in his own name. [C-15B s. 105, FA s. 23] If the transferee has not applied, the "transfer" process inside the Registry will be aborted, and the firearm will continue to be shown as being -- only -- in the possession of its former owner. The proposed legislation provides no way to inform the transferor of that problem.

The C-15B method, unless radically altered by regulations, is guaranteed to make the registration system useless for non-restricted firearms, as the transferor can always (truly or falsely) claim that he did "inform the Registrar." The information can always be said to have gone astray, not been properly processed, etc. No one can prove that the transferor did not "inform the Registrar" as required.

Note that "informing the Registrar" does not guarantee that a registration certificate will be issued. The Registrar is authorized to "refuse to issue...for any good and sufficient reason." In the NFA's view, that wording is very dangerous, because it vests the Registrar with the power to exercise his own personal opinion judgement -- unfettered by any reasonable set of limitations. He is, for example, authorized by that language to refuse to issue the registration certificate because the transferee is black, female, or Jewish [FA s. 69].

It is probable that a court would override such a faulty decision -- but why should an expensive court case be necessary, when better wording in the law would solve the problemn

C-15B ON TRANSFER SYSTEM FOR RESTRICTED AND PROHIBITED FIREARMS

C-15B will allow the transfer of a "prohibited firearm or a restricted firearm" if the transferor "informs a chief firearms officer and "obtains the authorization of the chief firearms officer." Note carefully the effects of "a" and "the" in that one. The wording allows a transfer to a non-resident of a province or territory, acting through the CFO of that province or territory ("a" CFO, who may, or may not, in the second clause, become "the" CFO). [C-15B s. 105/FA s. 23(1)(d)].

The form of the "authorization" is unclear. Are we looking at something in writing, an email, or a verbal communication? With the wording as it is, a verbal communication is sufficient, and that sort of sloppy procedure can easily result in criminalizations and major court cases.

C-15B also imposes a condition that is outside the control of the transferor. He does not and cannot know if that new registration certificate "is issued" to the transferee, because he is starting the transfer process, so it has not happened yet. May he physically deliver the firearm before he sees the new registration certificate in the hands of the transferee? If he may, then C-15B can criminalize him because someone else fouled up the process. If he may not, then existing law criminalizes him at the moment that he ceases to be the owner of that firearm. [C-15B s. 105/FA s. 23(1)(e), FA s. 66(a) and CC s. 91(1)(b), 99 and 101]

This area of C-15B is an admission that the government has lost control. This is not a transfer procedure, because the effect of the new provisions are unknowable unless one has access to the latest version of the Regulations. This is one of several areas where the government has been unable to come up with a viable process. It is holding its options open by allowing an Order-in-Council change to the rules, ad hoc and without warning, at any time that the latest foulup becomes obvious. That is an unacceptable way to write criminal law. [C-15B s. 105/FA s. 23(1)(f)]

C-15B also says that where the Registrar refuses to issue a registration certificate, that he "shall" inform the CFO of his decision. However, he is apparently not required to inform either the transferor or the transferee. This provision is deadly, because the transfer can be aborted without either the transferor or the transferee being aware of it [C-15B s. 105/FA s. 23(2)].

INTENDED PURPOSES VERSUS ACTUAL EFFECTS

The apparent purposes of the entire C-68 registration system are to uniquely identify each firearm, uniquely identify each owner of each firearm, uniquely identify the location of each firearm, and track firearms as they move from place to place and owner to owner. The C-68 firearms control system is a proven failure at each and every one of those purposes.

Unique identification requires identifying the "firearm" so well that it cannot be confused with any other firearm, and no other firearm can be confused with it. That standard usually cannot be met in any practical fashion, so the identity of a firearm is always disputable in a court.

In order to uniquely identify a firearm, the current registration system records the Make, Model and Manufacturer as primary "identifying" information. Those entries should place the firearm as being one of a group of near-identical firearms. If the Registry understood what it was doing, all firearms in a group would have to share the same "frame or receiver" as the primary method of identifying the firearm. No other group of firearms could use that "frame or receiver."

Unfortunately, that is not what the Registry is doing, and it is not something that can be done. Under the system the Registry is using, the same Model may be made by several Manufacturers, and other Makes and/or Models may use the same "frame or receiver" -- which results in endless confusion. Additionally, the Registry apparently has no rules that make sense about what constitutes a valid entry for "Make," "Model" or "Manufacturer."

The current registration system also uses the Calibre, Class, Type, Action, Shots (magazine capacity), and Barrel length to help identify the firearm. All of those identifying entries can be, and often are, changed by the addition, removal and/or substitution of uncontrolled interchangeable spare parts. They are largely useless as features used for unique identification.

In early 2002, the government scrapped the entire idea of unique identification. It began issuing Applications to Register and Registration Certificates that were incompatible with the concept of unique registration. The resulting registration certificates are nearly useless for the purpose of identifying a firearm.

As an example, one of the new registration certificates "identifies" a firearm as being a "Make: Savage, Type: Rifle, Action: Bolt, Class: Non-restricted" firearm. Comparing that information with the data on the Firearms Reference Table CD-ROM, we learn that the registration certificate is describing any one of 195 different firearms.

Similarly, comparing the new registration certificate for a "Make: Smith and Wesson, Type: Handgun, Action: Revolver, Class: Restricted" firearm with the CD-ROM data results in the "identification" of the firearm as being any one of 276 Smith and Wesson revolvers.

Under the situation in force today, such a registration certificate could not provide enough identification of a stolen firearm to charge the person caught with it for having stolen property, and could not identify the firearm well enough to allow police to return it to its owner.

The definition of "firearm" says, roughly, that it means a whole gun or the "frame or receiver" of a gun. In other words, the "frame or receiver" is the "firearm" and whether or not a number of uncontrolled spare parts are attached to it or not is irrelevant.

Only the "frame or receiver" has to be registered. It is often impossible to identify a "frame or receiver" uniquely -- and unique identification of the firearm is one main purpose of registration.

Most manufacturers do not put extensive markings on the "frame or receiver." A Serial number is usually -- but not always -- stamped into or attached to the "frame or receiver," but a "frame or receiver" is usually not marked with the Make, Model, Manufacturer and other information formerly used for unique identification by the C-68 firearms registration system. Those markings, if they exist at all, are frequently all on uncontrolled spare parts.

No information that is stamped on an interchangeable spare part should ever be used as identification information on an Application to Register. Since the owner cannot know whether or not the information is correct for the "frame or receiver," he should not use any data that is not stamped into the "frame or receiver" in any application for registration. If he does, he risks prosecution under FA s. 106(1), 106(3) and 109.

An assurance from a firearms control bureaucrat that no such charge will be laid can be trusted, because such a bureaucrat has no control over police, Crown prosecutors, or judges. Until the legislation itself is changed, filling out an application to register remains very a risky business.

THE SERIAL NUMBER PROBLEM

To laymen, a Serial number seems to be the most important part of the unique identification of a particular firearm. That is incorrect. Many makers use the same serial number repeatedly. The serial number is often useless for unique identification of a particular firearm in a court of law, if the defence has access to relevant knowledge in this complex area.

For example, few people are aware there are often two or more perfectly valid serial numbers on the same firearm -- and yes, that does mean multiple serial numbers on the "frame or receiver." The NFA had to send an expert witness to Toronto to clear up a case regarding two Sten submachine guns and two registration certificates. The guns were not registered using the original British serial number, a situation that baffled the Crown's experts. They were registered using a valid serial number applied well after manufacture by the French government. The French apparently did not like the location of the British Serial number -- which was on an uncontrolled spare part. The French number was on the "frame or receiver," and was therefore preferable for "identification."

The Serial numbers of German military firearms -- which are very common in Canada -- are useless for unique identification, by reason of frequent and deliberate duplication. Iver Johnson revolvers share that problem, and so do many other firearms. On some firearms, the Serial number is hidden or not easily recognized as a Serial number. At one point, the Registry had over a dozen Walther semi-automatic handguns registered in a manner that showed the Patent number as being the Serial number.

Serial number systems are often complicated and very confusing. People write books about how particular countries, manufacturers, and armies dealt with Serial numbers in the past, trying to understand what they did, why they did it, and how it affects identification of firearms. Many, many firearms have no Serial number at all, because the law, at the time and place of manufacture, did not require the manufacturer to stamp Serial numbers on that type of firearm. Some military surplus firearms have no Serial numbers because a government ordered them made that way for use in clandestine operations.

Others have a Serial number -- but it is stamped only on an uncontrolled spare part.

OLD REGISTRATION SYSTEM PRACTICES

Under the Registry procedures as they stood until C-68 came into force, firearms were registered in such an amateurish fashion that the Registry was hopelessly untrustworthy. The same firearm could be registered in 50 or more different ways.

Most registered firearms today were registered and are still registered using the Registry's old, sloppy methods. Those defective registrations make data base searches unreliable -- today.

The Registry is currently issuing new certificates by using that old, corrupt data, although one of the objects of the "new system" was to get rid of that defective data -- replacing it with clear identification based on the FRT CD-ROM data and system. Under the latest system, it appears that the very expensive FRT CD-ROM system is now meaningless, as it has been abandoned.

For example, a search for a "Make: Fabrique Nationale" handgun, "Model: 1935," will often fail because the firearm is registered as a "Make: Browning" handgun, "Model: High Power" -- an equally valid description of the same firearm. The Registry's own listing shows that particular handgun as being correctly registered if any one of six entries for "Make" was used, and any one of twelve "Model" entries, making a total of 72 different ways to register the same gun.

Identification of firearms varies -- depending on which books one consults. The people who write reference books do not agree on what to call particular firearms, and the Registry's "Make, Model and Manufacturer" system is not used by anyone else.

The vast majority of registered firearms are still registered only in the sloppy fashion used by the Registry in the construction of their original sadly defective data base. That, in turn, makes it impossible to trust the result of a search. The old, sloppy data is now being certified as "accurate" by the Registrar -- without any attempt being made to consult the FRT CD-ROM or examine the actual firearm.

That process guarantees that the "new system" will not be an improvement on the "old system."

THE QUALITY OF THE REGISTRY

The Registry is capable of issuing sworn documents that are false, and has done so. In one hilarious case, the Crown prosecutor, with the firearm in his possession, requested a search for a "Chinese machine gun, calibre 9mm, Serial Number 001120." The Serial number was correct.

The Registry sent a sworn document to the Crown prosecutor saying that a careful search of their data base for that machine gun showed that the gun had never been registered. Another certified document was sent to the defence lawyer in that case. It was a certified true copy of the Registry's copy of the registration certificate for that particular submachine gun. Both documents were signed by the same man -- the head of the Registry -- on the same day.

That firearm was registered as, "Make: Chinese," but "Chinese" is the nationality of a people, not a "Make" of firearm.

It was registered as "Model: M3A1." It was not. It was a Taiwanese "Type 36," which is a copy of the American "M3A1" submachine gun.

The Crown prosecutor, in requesting a data base search, called it a "machine gun," for which the Registry entry is "MG." It was a submachine gun, for which the Registry entry is "SM." That entry on the actual registration certificate was "HG," meaning "handgun."

The Crown prosecutor, with the gun in his hands, requested a search for a gun of "calibre 9mm." It was actually a .45 calibre gun.

The defence lawyer's request resulted in the registration certificate being found -- because he already had the accused person's copy of the registration certificate, and could ask for a search in terms of the entries known to be on that defective -- but valid! -- certificate.

A danger of error and resulting injustice arises from the combined incompetence of those who initiate and those who process search requests. More danger arises from the very high number of errors and duplications embedded in the old Registry, now being copied into the new Registry.

A huge and unpardonable increase in the probability of error arises from the latest methods of registering firearms, which are hopelessly inadequate for the purpose of unique registration.

The risk of miscarriage of justice in the case described above is well illustrated by the fact that, had either the Crown document or the defence document been presented to the court alone, it would have been accepted -- without question -- as being an accurate presentation of fact.

SEARCHING THE REGISTRY'S DATABASE

The only valid way to search the Registry's defective database is to enter the database searching only for the particular Serial number and for nothing else. However, even that style of search is likely to fail, although the firearm being sought actually is in the data base.

A Serial number search is quite likely to turn up a fairly large number of firearms -- all with the same Serial number. That short list must then be manually searched by a human being.

In many cases, a firearm that actually does show up on the short list will not be recognized. Even the fact that the firearm being sought is on the list as having that Serial number is not enough to guarantee that it will be recognized. It is often quite difficult to determine which firearm is meant by examining specific registration certificate data.

For example, the firearm being sought in the above case was registered as an "M3A1" when it was actually a "Type 36," as a "Calibre .45" when the Crown's search request wrongly specified "Calibre 9mm," and as "HG (handgun)" when it was actually "SM (submachine gun)." The possibility of not recognizing it on a list of guns with that Serial number was quite high. It is unlikely that a Registry clerk would know that an "M3A1" and a "Type 36" are twins.

A search for a particular Serial number can fail because the firearm is registered -- but a patent number or an assembly number was mistaken for the Serial number, or a faulty reading of a partly-obliterated stamping or a faulty transcription of the number from gun to application form or from application form to Registry computer resulted in the firearm being registered under an incorrect Serial number. Those are very common errors.

That problem also works in reverse. Choosing the wrong number from the gun, or faulty reading of a stamped Serial number, or faulty transcription of the number, can result in a firearm that is registered under the correct Serial number not being found because the searcher asked the computer for the wrong number.

SYSTEM DESIGN FAILURE IN CLEANING UP THE REGISTRY

To clean up their defective registration system, the Registry was working on the Firearms Reference Table, a CD ROM. The latest version (V. 2.3) had grown so much that it now comprises two CD ROMs. It was very expensive to create, and it is already obsolete.

The FRT format consists of "display pages," one page per group of firearms that are to be registered in one particular way, to show the one and only proper way to register each firearm.

That system does not and cannot work, particularly since the Kingsley Beattie case, which set a new precedent. That case prohibits the Registrar from altering entries made on the application form to entries that the FRT disk says are correct, unless he secures the applicant 's agreement.

It also prohibits the Registrar from using on the registration certificate any entry taken from the FRT disk that was not on the application form. [Kingsley Beattie and Administrator of the Canadian Firearms Registry, Sup C of ON, File 00-CV-13005, 22 Jun 2000]

One possible effect of that case will be to increase severely the cost of processing applications to register, as the Registrar negotiates with the applicant over how the firearm will be registered.

Alternatively, the Registrar may simply accept whatever terminology is offered by the applicant on the application to register. If the Registrar does that, the FRT disk is merely a costly fiasco with no purpose. The Registry, in turn, becomes even more difficult to search, and its database becomes even more useless for supplying useful information to police and courts.

REGISTRATION TRANSFER SYSTEM DESIGN FAILURES

The registration transfer system is an classic example of an inept system design. It criminalizes almost everyone who tries to use it, including the system bureaucrats.

Consider, for example, a simple transfer of a firearm. A sells the gun to B. At the moment that the firearm changes ownership (not possession), A's registration certificate expires [FA s. 66(a)].

At that moment, the firearm becomes an unregistered firearm. If A is still in possession of the firearm, then, at that moment in time, A becomes a criminal. [CC s. 91(1)(b) or 92(1)(b)].

The firearms control bureaucrat who is handling the transfer is usually unaware of the above problems, and does not know that the firearm has gone to "unregistered" status. He therefore transfers the firearm in accordance with the rules for registered firearms, violating CC s. 126.

If A has already given the firearm to B, but no registration certificate has yet been issued to B, then B is not the "holder of a registration certificate" for that firearm [CC s. 84(4)(a)]. In that situation, B is criminalized at the moment that he takes possession of the firearm [CC s. 91(1)(b) or 92(1)(b)].

This entire area, like many others, is a running sore in the law. Regulations dealing with the transfer of a firearm, current and proposed, routinely set up situations in which neither A nor B can legally be in possession of the firearm, or both A and B can legally be in possession of the firearm at the same time. This is system failure resulting from both ill-considered provisions and their complex interactions [FA s. 23, 27, 31 and 66(a), plus CC s. 91(1) and 92(1)].

Activists are now exploiting a major loophole in the legislation's apparent intent:

A transfers a firearm to B, who is issued a registration certificate. However, unless A ceases to be the owner of the firearm, A's registration certificate remains valid and B's registration certificate is also valid. The firearm is now legally registered to both A and B. FA s. 16(1) does not prohibit this transaction or its effects, although that may have been the intent of its writer.

Many firearms owners are taking advantage of that particular peculiarity in the law, and many firearms are now registered to multiple individuals.

REGISTERING FIREARMS

In theory, each firearm is now registered by certificates showing only Make, Type, Action and Class entries for that group of firearms. (Formerly, Model and Manufacturer were also used.)

The unique identification was formerly augmented by Calibre, Magazine capacity and Barrel length entries shown on the registration certificate. That is no longer true.

That system cannot work, for technical reasons that are obvious to a genuine firearms expert.

The intent of creating the Registry's FRT disk was to eliminate the practice of registering a particular firearm type in many different ways. It is a failure. For example, on the FRT Version 2.3 disk, there are 90 "display pages," each showing the one and only correct way to register a "Make: Winchester" and "Model: Model 70" rifle.

If one asks the FRT disk for "Winchester" and "Model 70," it finds two display pages -- the "Model 70" as made by two different Manufacturers. That can wreck a data base search.

If one asks the FRT disk for "Winchester," it finds 90 display pages for "Model 70" variants.

The FRT disk does not notice the fact that three quite different rifles have been marketed as the "Winchester Model 70" -- for commercial reasons. It also does not recognize the fact that many of the 90 versions displayed use the same "frame or receiver," and that some of the display pages describe different "frame or receiver" possibilities on the same page, resulting in identical registration certificates for two or more firearms that are obviously different.

The current Version 2.3 of the FRT disk provides many different ways to register firearms that are identical, or that can be made identical by simple substitution of interchangeable uncontrolled spare parts. It is also riddled with errors, very difficult to search, and much of the data on it can confuse any person who is not a world-class expert in firearms identification.

RECOMMENDATIONS

The NFA recommends that the Registry be subjected to a searching test of its accuracy, cost, utility, cost-effectiveness and system design. It is the NFA's contention that the entire Registry is rotten to the core, hyper-expensive, and almost completely useless. It is incapable of uniquely identifying a firearm, incapable of accurately tracking a firearm, incapable of showing the present location of a firearm, and incapable of detecting an error in its data base.

MORE BASIC SYSTEM DESIGN FAILURES

Other defects of the C-68 firearms control system are also not rectified by Bill C-15B. The most serious defects are not even looked at by C-15B, which is itself badly written and riddled with serious errors. The unexpected side effects of badly written law can be very serious.

For example, the most basic foundation stone of the firearms control system -- the legal definition of the word "firearm" -- is sadly defective [CC s.2]. It has not been changed.

The firearms control system cannot work as intended until the problems with that definition are addressed. C-15B does not address them.

The law defines "firearm" as meaning a whole gun, or the "frame or receiver" of a gun. The apparent intent was to say that a whole gun is a "firearm," and, just to make sure the "firearm" will not evaporate clear out of the law if disassembled, one part will still be a "firearm" when the gun is completely disassembled [CC s.2].

However, the wording results in a reversal of the apparent intent. The effect of that definition is that any "firearm" consists of one "frame or receiver" -- which is the "firearm" -- and which may or may not have uncontrolled spare parts attached to it. If a "frame or receiver" has enough uncontrolled spare parts attached to it, it is a complete gun and can be discharged. Even if the "frame or receiver" is not part of a complete gun, it is still a "firearm" by definition [CC s. 2].

Most firearms have one "frame" or one "receiver." A few have one "frame" and one "receiver." A number have two "receivers." A surprisingly large number have no "frame" and no "receiver."

A firearm with no "frame" and no "receiver" apparently can evaporate clear out of the firearms control system simply as a result of disassembly. C-15B still ignores that problem.

It is often impossible to say which part of a gun is the "firearm." Is it the "frame" or is it the "receiver"? Is it the upper "receiver" or the lower "receiver"?

WHERE DOES THE DECISION-MAKING AUTHORITY LIE?

The only person vested with the authority to resolve the resulting confusion is a judge sitting in a court of criminal law, and that is costly. Asking a firearms control bureaucrat or a police officer is futile, because such a person is not vested -- by either the Firearms Act or the Criminal Code -- with any power to make a binding decision. One could get an interpretation that would be equally valid by asking any person in the street or by asking the NFA.

Even worse, any decision made by a judge and established as a precedent can be overturned -- later -- by any superior court. We do not know, and cannot know, the meaning of this legislation --until every minor questionable point in the entire system has been decided by the Supreme Court of Canada. Until that happens, every analysis made by a Crown lawyer or an NFA lawyer may be right or wrong. There is no possible way to tell for certain.

DEFECTIVE DEFINITIONS

The defective definition of the word "firearm" has a devastating effect on the firearms control system. The definitions that flow from the fountainhead definition -- "firearm" -- define the various classes of "firearms." The classes of firearms are often based on which uncontrolled spare parts are attached to a particular "frame or receiver" [CC s. 2 and 84(1)].

An owner can choose to register a "firearm" by registering the "frame or receiver," and that is now called, in the firearms community, flexible registration. As the deadline for registration draws closer, flexible registration will become much more common, because it is legal, and because it demonstrates just how deficient the C-68 firearms control system is.

If the owner chooses to register the "frame or receiver," there are two possibilities. It can be registered as "frame or receiver only," and the March 1998 Regulations' "Firearms Registration Certificates Regulations" Regulation 4(b) will require that the holder of the registration certificate "advise the Registrar, within 30 days" of any "modification that makes it capable of disscharging ammunition."

To register something as a "frame or receiver only," one must strip away every other part in the "frame or receiver" assembly, leaving only a naked "frame or receiver." Anything else is not a "frame or receiver only," it is merely an incomplete firearm to which Regulation 4(b) does not apply, and that is the type of "firearm" that can be "flexibly registered" -- with some interesting side effects in these days of multiple-possibility firearms. A single firearm, for example, may be capable of firing several different calibres of ammunition and have several different actions, through simple substitution of uncontrolled spare parts.

The "flexibly registered" firearm's partial lack of attached uncontrolled spare parts often makes it impossible to say whether the flexibly-registered firearm does or does not lie within one or more of the subclass definitions, "restricted firearm," "prohibited firearm," "handgun," "converted automatic" and "automatic firearm" -- because those definitions depend on which particular uncontrolled spare parts are attached to the "frame or receiver" that is the registered "firearm."

That lack of uncontrolled spare parts can also make it impossible to say whether the "firearm" is a rifle or a shotgun, what the Model is, what the Action is, what the calibre is, what the barrel length is, and how many cartridges the magazine can hold -- all of which are things that the registration system must carefully record in order to uniquely identify a "firearm" and determine which class it falls into.

INTERCHANGING UNCONTROLLED SPARE PARTS

It is a fact that interchanging uncontrolled spare parts can often shift the "firearm" from one class or subclass into another. The government's experts apparently ignored that fact.

It is a fact that most modern firearms made after 1850 will accept a variety of interchangeable precision-made parts. The government's experts apparently ignored that fact.

In reverse, the definition of "firearm" makes a "frame or receiver" into an uncontrolled "antique firearm" if it is "prescribed to be an antique firearm" [CC s. 84(1) "prohibited firearm" (d)].

That situation has interesting side effects, which some people are already exploiting.

Let us look at a typical example: A particular old Colt revolver is defined as being both a "firearm" and a "prohibited firearm" [CC s. 2 and 84(1) "prohibited firearm" (a)].

It is then redefined by an Order in Council as an "antique firearm" which is not a "firearm" for the purposes of licences, registration certificates, and transport permits, but it is still a "prohibited firearm" under the definition of that term. It is, in effect, an uncontrolled "prohibited firearm" [Order in Council SOR/98-464 section 7, CC s. 84(3)(a), and 84(1) "prohibited firearm"(a)].

It is then re-redefined, by the same Order in Council, as being a "firearm" for the purposes of licensing and registration -- because it uses a particular cartridge [Order in Council SOR/98-464 section 7].

The owner removes and disposes of the barrel and cylinder, which are uncontrolled spare parts (although the barrel may be a "prohibited device"). That throws the now-unserviceable "firearm" back into the uncontrolled "antique firearm" class because it no longer uses one of the listed cartridges, and throws it into the "restricted firearm" class because it no longer fits the "prohibited firearm" definition [CC s. 84(1) "restricted firearm" (a) and "prohibited firearm" (a)].

The owner fits a new barrel and cylinder, or sleeves the original barrel and cylinder, so that it will use cartridges which are not among those that would throw it out of the "antique firearm" class.

Doing so may also throw it back into the "prohibited firearm" class, but, whether it is classed as a "restricted firearm" or a "prohibited firearm," it remains exempt from nearly all firearms control law, including the entire Firearms Act, because it is also an "antique firearm" [CC s. 84(3)(a)].

The owner now has a serviceable revolver that fires modern, easily available cartridges. It can be bought, sold, transported, and used in the field for varmint hunting (if the provincial game laws allow it) by anyone, including a person who has no licence, no registration certificate and no authorization to transport.

That may not have been the intent -- but those are effects of current law. C-15B does not change that situation, so the other House apparently intends the law to continue having those effects.

Similarly, some semi-automatic pistols can enjoy the same freedom from controls by following a similar pathway through the C-68 system.

The Government's experts may say that we are incorrect in our analysis of this situation, but the only way anyone can know for certain is to put this entire area of questionable legislation in front of the Supreme Court of Canada, probably by way of a criminal charge.

This question will hit the courts when some person is charged with illegal possession of such a firearm. That person will enjoy the benefit of the rule that unclear law must be interpreted in the way most favorable to the accused. The accused will probably win.

ALTERING REGISTERED FIREARMS

It is perfectly legal to disassemble any registered firearm, and to dispose of any or all of its uncontrolled spare parts. The registration certificate then covers the "frame or receiver," just as it used to cover the whole gun. The firearm can then be built up again into another form -- in a different class. That is legal, as long as the owner holds a valid licence for whatever class of firearm he or she chooses to build.

Regulation 4(a) requires the Registrar to attach a condition to each registration certificate requiring the holder to reregister the firearm if the firearm changes class or if a registered "frame or receiver" is made capable of discharging ammunition ["Firearms Registration Certificate Regulations" in the Firearms Act Regulations of March 1998, s. 4].

That regulation is apparently null and void, because the Act does not give the Governor in Council any authority to make such a regulation, or any authority over the Registrar, who is an independent, quasi-judicial, one-person licencing tribunal.

The Governor in Council, for the purposes of the Firearms Act and the Criminal Code, is not the government of Canada. It is merely a creature of statute, given certain powers by an Act, and limited, for the purposes of the Act, to exercising those powers and no others, always within the limitations set by the Act. Its government powers do not carry over into the firearms control area of jurisdiction.

Neither of the two C-68 enabling sections give the Governor in Council the authority to make a regulation requiring reregistration of a firearm by reason of a shift in class on the part of the firearm itself [CC s. 117.15 and FA s. 117].

It is quite appalling to see that such an illegal regulation was not only made, but also published in a government-issued book of Regulations. It is not the only illegal regulation made and published by the government, and such a regulation is a land mine that may blow up at any time.

The NFA does not understand why new regulations are not screened for legality by a competent lawyer, well-versed in this area of law. (It should also be noted that, in other areas of the Firearms Act Regulations book dated Mar 1998, there are other similarly illegal Regulations. That situation will take years to resolve, and the only path to clarity runs through criminal cases.)

The Registrar is apparently not vested by the Act with any authority to attach conditions to a registration certificate, even if illegally ordered to do so by a creature of statute that is, itself, not vested with any authority to order the Registrar to do anything [FA s. 31, 60 and 69].

THE CLASSIFICATION MESS

Before reading this, get out the aspirin bottle. You will need aspirin before reaching the end of it.

In the beginning, the government intended to confiscate every .25, .32 and short-barreled handgun (small handgun class, which the NFA calls SHG) in Canada -- with no payment of compensation to the owners. The NFA pointed out to them that we could probably win a court case forcing them to pay -- and that the bill would be extremely high. Figure it out -- they were proposing to confiscate 58 per cent of all handguns in Canada, and their Registry said there are about 1.25 million handguns in Canada. 58 per cent of 1.25 million handguns is 725,000 handguns. If the owners demand an average of $200 per handgun, and get it, the cost is 725,000 times $200 -- or $145,000,000.

The government panicked and added "grandfathering" to Bill C-68 before passing it -- allowing owners to keep their SHGs until they died. Their pattern of "grandfathering" was very complicated. It uses both "grandfathered" guns and "grandfathered" owners. (They had used "grandfathering" before, for full-automatic firearm owners, in 1978.)

The definition of an SHG is found in CC s. 84(1) [class] "prohibited firearm" [subclass] (a), which says:

   *

     84. (1) “prohibited firearm” means 
   *

     (a) a handgun that
         o

           (i) has a barrel equal to or less than 105mm in length, or
         o

           (ii) is designed or adapted to discharge a 25 or 32 calibre cartridge, 
   *

      but does not include any such handgun that is prescribed [by an Order in Council], where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union. 

There is no "grandfathering" of guns in that subsection, or anywhere else in the Criminal Code.

The "grandfathering" shows up in Firearms Act section [FA s.] 12, where both people and guns are "grandfathered."

12. (6) A particular individual is eligible to hold a licence authorizing [him] to possess [SHGs] for which, on February 14, 1995, a registration certificate…had been issued to or applied for by that or another individual [that is the “grandfathering” of the handgun] if [he]

   *

     (a) on February 14, 1995
     (i) held a registration certificate [for an SHG], or
     (ii) had applied for a registration certificate that was…issued for one or more {SHGs]
   * (b) on [December 1, 1998] held a registration certificate [for an SHG]; and
   *

     (c) beginning on [December 1, 1998] was continuously the holder of a registration certificate for one or more [SHGs] 

FA s. 12(6) (a) to (c) defines the “grandfathering” of the individual, and 12(6) also defines a "grandfathered" firearm of this class by limiting the licence to coverage of firearms registered on or before 14 Feb 1995. Bill C-15B changes the dates, but not the concepts.

An SHG is a grandfathered gun (GG) if it was registered to an individual on 14 Feb 95 or if an application to register it had been made before that date. If it was in the hands of a dealer on 14 Feb 95, it is an ungrandfathered gun (UG) -- at least until Bill C-15B is proclaimed as law.

In a recently-proposed government “omnibus” bill, the bill would have changed the “grandfathering" of the handgun to make handguns that were in the hands of a dealer on 14 Feb 95 “grandfathered” handguns. The bill ran into trouble because other provisions in it (not the parts that changed the “grandfathering”) raised a firestorm of protest. The government backed away from the fight, and that bill died, unpassed.

Later, Bill C-15B was placed before the other House to replace the previous Bill, with the intention of passage before 30 Jun 2001. Bill C-15B is also a long-delayed mess.

An individual is a grandfathered individual (GI) if he or she possessed a registered SHG on 14 Feb 95, and it or another on 01 Dec 98, and continuously possessed one or more SHGs from 01 Dec 98 on. If he or she did not have one, he or she is an ungrandfathered individual (UI). (It does not matter whether or not the 01 Dec 98 registration certificate was rendered illegal by the 01 Dec 98 changes to the law, because it was not voided on that date. There was an Amnesty in force!)

That double "grandfathering" results in four possibilities:

   *

     "Grandfathered" individual with "grandfathered" gun (GIGG, legal).
   *

     "Grandfathered" individual with "ungrandfathered" gun (GIUG, illegal).
   *

     "Ungrandfathered individual with "grandfathered" gun (UIGG, illegal).
   *

     "Ungrandfathered" individual with "ungrandfathered" gun (UIUG, illegal). 

FA s. 12(7) mirrors the UI and GI concept, creating one class of owners who are close relatives of GGs, and another consisting of those who are not. Those who are close relatives can inherit SHGs -- but only particular SHGs that were manufactured before 1946. The language of FA s. 12(7) may have a powerful side effect on the CC s. 84(1) "antique firearm" definition.

The two firearm subclasses found in FA s. 12(6) are then mirrored in FA s. 12(7), with 12(6)and 12(7), combined, subdividing the two into four subclasses -- GG manufactured before 1946, GG manufactured after the end of 1945, UG manufactured before 1946, and UG manufactured after the end of 1945.

This is still further complicated by CC s. 84(1) "prohibited firearm" (a)'s removal of some of the firearms it just made "prohibited firearms" back into the "restricted firearm" class if they are "prescribed [by OIC], where the handgun is for use in international sporting competition governed by the rules of the International Shooting Union."

What handguns are shifted out of the "prohibited firearm" class for use under ISU rules? Those on the OIC list that are taken out of the "prohibited firearm" category. The listed firearms are found in Order in Council SOR/98-465, published in Canada Gazette Part II, Vol. 132, No. 20, at pages 2730-2731. There are 22 of them.

It would have made more sense to simply accept the handguns that may, by ISU rules, be used in ISU competition.

IS THIS FORM OF SUBDIVISION EVEN LEGAL?

There is considerable doubt that all this subdivision is legal, because it makes a nonsense of the no-subclasses definition found in CC s. 84(1) "prohibited firearm" (a). As well, FA s. 2(2) says,

   *

      (2) For greater certainty, unless otherwise provided, words and expressions used in this Act have the meanings assigned to them by section 2 or 84 of the Criminal Code. 

Bill C-68 passed in Dec 1995. The old law remained in force until 01 Dec 1998, and that caused many problems. During that three-year period, both the "grandfathered" and "ungrandfathered" SHGs were just "restricted weapons" that could be transferred to anyone. Many of them, including "ungrandfathered" guns, were transferred to "ungrandfathered" individuals, because the law allowed it during the Dec 1995 to 01 Dec 1998 period.

Late in 1998, the new law was about to come into force. Suddenly, all GIUG, UIGG, and UIUG situations would be illegal under the law. Every illegally possessed handgun should be confiscated at that point in time. Only GIGG situations would be legal.

The NFA pointed out to the government -- shortly before the law came into force -- that they had a mess on their hands. Thousands of SHGs had been legally transferred into what were now about to become illegal UIGG, GIUG, or UIUG situations. If they were now to be confiscated, the firestorm of rage would probably result in huge numbers of refusals to surrender the legally acquired firearms. The government would have to take thousands of firearms owners into court – at an estimated cost of $3000 to $5000 per firearm taken in this way. That is a very expensive way to confiscate relatively cheap handguns.

In an attempt to buy time, the Minister of Justice ordered an amnesty running from 01 Dec 98 to 01 Dec 99 -- as the NFA expected. For that period of time, the guns were legally in possession of their owners, and the law was temporarily suspended by the amnesty. During that period, the Minister foolishly expected that every GIUG, UIGG, and UIUG situation would disappear, as every owner lined up to get out of the illegal situation.

That did not happen. Most owners decided to keep their guns, and fight it out in court when the amnesty ended. If that happened, the cost would still be around $3000 to $5000 for each SHG confiscated -- and some of those cases would be won by the NFA's arguments, or payment of compensation would be ordered, creating a new kind of mess. The other House did not want to risk that.

The government extended the amnesty, continuing it from 01 Dec 1999 to 01 Jan 2001, and then to 30 Jun 2001, and then to 31 Dec 2001, and then to 31 Dec 2002. That means no seizures, no court cases -- until at least 01 Jan 2003. It is a stalling tactic, not a winning one.

The mess has been made worse by fairly frequent bureaucrat errors. Even after 01 Dec 1998, the CFO and his bureaucrats authorized “illegal” transfers of UGs into the hands of UIs and GIs. They authorized “illegal” transfers of GGs into the hands of UIs. Those transfers will add to the cost of confiscation after 01 Jan 2001 by creating even more complex court cases.

Where the CFO authorized an illegal transfer, he and/or his bureaucrats are liable. If, for example, a UG was transferred to a GI, the correct procedure is for the government to seize and destroy the firearm, find an identical firearm that is a GG, purchase it, deliver it to the GI, and register it to him or her. They are, after all, responsible for covering the GI's loss -- which was caused by their error.

At the same time, the NFA pointed out a little-known flaw in the old law. When a registered firearm was transferred under the pre-01-Dec-1998 law, the registration certificate of the seller was not revoked. No provision of the law or procedure revoked it. It apparently remained in force. Therefore, if the handgun was in the hands of a dealer on that key date, it meant nothing. Until a search of the records proved that the particular firearm had never been registered to an individual at any time between Jul 1934 and 14 Feb 1995, it was still registered to an individual on 14 Feb 1995.

The Registry's records are not nearly good enough to prove that it was never registered to an individual during that 60-year period.

To "fix" that mess, new legislation was introduced to change the law. In the new Bill, the change was that any SHG in the hands of a licenced dealer on 14 Feb 1995 was also "grandfathered." That might have simplified things a bit, but it did not solve the problems.

That Bill died, unpassed, but now Bill C-15B is expected to change the key dates for GGs and GIs to 01 Dec 1998. That is too little, too late.

After the amendment passes, we will still have "grandfathered" individuals and the "grandfathered" guns. We still have GIGG (legal), GIUG (illegal), UIGG (illegal), and UIUG (illegal) situations. We will still have legal transfers to relatives of GIs who are not themselves GIs. The series of extensions of the amnesty (currently to 31 Dec 2002) is an obvious attempt to pass this barrel of snakes on to the next federal government -- as an unsolved puzzle.

In recent weeks, some "weak sisters" gave up their SHGs to the police. Those guns are gone -- because the government will not give them back. They were "voluntarily surrendered" (under threat of criminal prosecution, which the government knew to be a false threat from the day the extended amnesty was decided upon). If they were "voluntarily surrendered," the owners have no right to claim compensation. Those who toughed it out now have a government guarantee (for what that is worth!) that they will be able to keep their property until at least 31 Dec 2002.

By that time, the C-68 firearms control system may be long gone.

The government needs to realize that the GIGG, GIUG, UIGG, and UIUG mess is just too complicated to fix. It will result in twenty years of fights in the law courts, and will skyrocket the billion-dollar cost (paid out or contracted to pay, Jan 1994 - Dec 2002) of the C-68 system.

The SHGs are not "especially dangerous" because they are small and easily concealed.  They shoot small, feeble cartridges that are unlikely to kill a person.  By outlawing them, the Crown pushed violent criminals toward more powerful handguns that are more likely to kill. 

The "grandfathering" now in place is an admission of that. If SHGs are actually a danger to society, "grandfathering" is wrong. No one should be allowed to own one.

The government cannot have it both ways; either the SHGs are a menace to society and should all be confiscated, or they are not. If they are not, then they should all be folded back in with the "restricted firearms" to make a single class out of today's confusion.

The situation the government has set up is amusing. "Restricted firearms" can be bought, sold, traded, and transferred by anyone with the appropriate licence. "Prohibited firearms" can be bought, sold, traded, and transferred by anyone with the appropriate licence. Why do those two classes exist?

In the "prohibited firearm" category, there are four subclasses in CC s. 84(1) -- (a) SHGs, (b) sawed-off long arms [SOLs], (c) converted automatics [CAs], and "(d) any firearm that is prescribed [by Order in Council] to be a prohibited firearm." Those four subclasses are further subdivided by FA s. 12.

The four subclasses in the CC s. 84(1) "prohibited firearm" definition each become two subsubclasses ("grandfathered" and "ungrandfathered") in each of FA s. 12(2), 12(3), 12(4), 12(5), 12(6) and 12(7) -- for a grand total of 12 subsubclasses.

Then we have to look at the fact that the subsubclasses in FA s. 12(4) and (5) are actually only lists of subsubsubclasses, each with its own problems of definition. FA s. 12(4) covers the 7 firearms listed on "Prohibited Weapons Order No. 12," "and any variant or modified version of" that firearm," 13 of which are listed on the included but incomplete lists. FA s. 12(5) does the same for 25 more firearms on "prohibited Weapons Order No. 13," and includes incomplete lists of 156 more firearms that fit within the "variant or modified version" terminology. Total? 201 different listed firearms, plus all unlisted "variant or modified" versions of them.

Each "variant or modified version" is a subsubsubsubclass, and each must be carefully analyzed to see which firearms form subsubsubsubsubclasses in the next layer down -- because there is often yet another "variant or modified version" of the first "variant or modified version" that goes by yet another name. When all the variants and modified versions (listed and unlisted) are added, the number of subsubsubsubsubclasses is well over 1000.

That is the creation of a family of "prohibited firearms," each based on a single "design" that outlaws all its relatives. The exact wording used is:

   *

     "The firearm of the design commonly known as the XXXXXXXX, and any variant or modified version of it, including the [partial list of variants and/or modified versions]." 

For every firearm on those FA s. 12(4) and (5) lists, double the numbers one has to deal with -- because each firearm on them appears in both a "grandfathered" and an "ungrandfathered" version. We are now at well over 2000 subsubsubsubsubclasses.

Each such firearm can be owned by a "grandfathered individual," but not by an "ungrandfathered individual." Again, we have GIGG, GIUG, UIGG and UIUG situations, with only the GIGG situations being legal.

Actually, that is the simplified version. Many more complications arise from overlaps between the various provisions. For example, anyone with a registered lawfully-owned FN FAL or HK or BM59 rifle is "grandfathered" to "acquire and possess any prohibited firearm referred to in that [FA s. 12(5)] subsection" [FA s. 120(2)(b)].

That means that a person who has a registered firearm on that list (such as one of the above) can "acquire and possess" any other firearm on that list, which is called "Prohibited Weapons Order No. 13 [PW 13]." The FN FAL is item 74 on the PW 13 list.

Item 86 on the PW 13 list is "the firearm of the design commonly known as the Thompson submachine gun, and any variant or modified version of it..." Therefore, the people "grandfathered" by FA s. 12(5) are apparently entitled to buy live, full-automatic Thompson submachine guns that are GGs.

That may not have been what the drafters of Bill C-68 intended, but it is the result when one reads what they wrote. The other House passed what they wrote, and it is now the law of the land. If we have to obey this law, so do they. In the near future, someone qualified by being on the PW 13 list is going to buy himself a new Tommy-gun, and that is going to generate a very interesting court case.

Such a case is now before the courts. The buyer lost in provincial court, but only because the judge was so confused by the complexity that he made a very serious error in reading what the 01 Jan 1978 law had to say. The case is now going to appeal, and, if won, will make the above interpretation the law of the land for that province -- unless the government appeals that verdict.

Although PW 12 and PW 13 were reissued as two parts of Order in Council SOR/98-462 in 1998, FA s. 12(4) and (5) say that, for their purposes, the re-issued versions cannot be used. They require anyone affected by FA s. 12(4) or 12(5) to go by the 1992 version of PW 12 and the 1994 version of PW 13.

In reverse, there are also interesting side effects. For example, OIC number SOR/98-462, Part 1, section 44, puts the "US Arms PMAIP Assault .22 pistol" into the "prohibited firearm" (d) class. Formerly part of Prohibited Weapons Order No. 11, it is not one of the firearms referred to in FA s. 12, and therefore there is no way that anyone can be eligible for a licence that covers owning one. The PMAIP is simply the complete action of a common Mossberg .22 rimfire semi-automatic rifle, fitted with a longer magazine, a short barrel, and a different stock. It may be made by Mossberg and marked US Arms, or it may be a slightly modified copy made by US Arms -- and that doesn't matter. It is easily close enough to include all similar Mossbergs.

Every .22 rimfire Mossberg semi-auto rifle in Canada is apparently a "variant or modified version of" the "US Arms PMAIP Assault .22 pistol." One apparently cannot own one, possess one, use one, or register one.

Naturally, no one is enforcing that -- but that is what the law says, and it can be enforced at any minute. No changes or Orders in Council are necessary; it is already in force.

Protests can erupt. How can this US Arms PMAIP pistol turn Mossbergs into "prohibited firearms"? The Mossbergs are older than the PMAIP pistol! So they are not "prohibited firearms"! And the PMAIP is a US Arms firearm, not a Mossberg!

Wrong. The relationship described by the word "variant" sweeps broadly. It is not defined in law, or in the Order in Council, so the only way we can see how broadly it sweeps is to look at the lists of "variants" given in the OIC, SOR/98-462, and study their relationship to the "parent" design.

Look at Part 2, section 2 of that Order in Council. There we find this description:

   *

     2.  The firearm of the design commonly known as the M-16 rifle, [originally made by Colt] and any variant or modified version of it, including the
   *   (a) Colt AR-15 (designed and manufactured before the M-16)...
   *   (o) Armalite AR-15 (manufactured before both the Colt AR-15 and the M-16 in a different factory)...
   *

     (q) AP 74 (made in Italy for .22 rimfire or .32 ACP cartridges; a lookalike that is completely different in mechanism from the M-16/AR-15 family of rifles)... 

So: "variant" means any rifle that looks a little bit like an M-16 military rifle -- even if it has a completely different mechanism, shoots a different cartridge, and is made in a different factory, in a different country, out of different materials.

There is much more similarity between an ordinary American Mossberg blowback .22 semi-auto rifle and the American US Arms PMAIP blowback .22 semi-auto Assault pistol than there is between an American gas-operated M-16 select-fire .223 calibre military rifle and the Italian blowback AP 74 .22 rimfire popgun.

Calibre is unimportant. Factory is unimportant. Action type is unimportant. Name is unimportant. If it looks like a prescribed "prohibited firearm," it is a "variant" of that prescribed "prohibited firearm."

Now look at the list of "variants" again. The Colt and Armalite AR-15 rifles -- both of which pre-date the M-16 military rifle -- are listed "variants" of the M-16. Therefore, the "variant" relationship runs backward in time as well as forward, and catches older firearms.

All the Mossberg .22 semi-auto rifles are definitely caught in the "prohibited firearm" class. That is the law -- now. Any "peace officer" can act on his personal interpretation of what the law means. No firearms control bureaucrat has any power to stop him.

All of that, however, does not fully define the problems imposed on us by OIC SOR/98-462.

Part 1, section 64 puts this firearm into the "prohibited firearm" category:

   *

      64.  The firearm of the design commonly known as the AK-47 rifle, and any variant or modified version of it except for the Valmet Hunter, the Valmet Hunter Auto, and the Valmet M78 rifles, but  including [here follows a list of 69 "variants" -- emphasis added].  

Included in that list of 69 "variants" are many .22 rimfire lookalikes. There are also firearms that do not look at all like the AK-47, but do share mechanical similarities. For example, the Dragunov is on that list at (l), although the Dragunov is semi-automatic rather than select-fire, 7.62X54R calibre rather than 7.62X39 calibre, and does not look at all like the stubby little AK-47. That tells us that mechanical similarity, even if the firearm does not look like the "parent" design, is enough to trigger the "variant" relationship and put the firearm into the same class as the "parent" firearm.

(As an amusing side comment, the person who wrote the exemptions was apparently unaware that the exempted Valmet M78 is a .308 calibre 20-shot rifle with a carrying handle and a bipod, a variant of a light machine gun design. It looks more like an AK-47 than a Dragunov does.)

Part 1, section 10, defines "The firearms of the designs commonly known as the Barrett Light Fifty Model 82A1 and the Barrett Model 90 rifle, and any variants or modified versions of them [no list]" as "prohibited firearms." The Barrettodel 90 is a bolt-action rifle, made only in calibre .50 Browning Machine gun.

Are all bolt-action firearms similar enough to the Barrett Model 90 to trigger the "variant" relationship? As we have seen above, calibre is unimportant, and the degree of similarity required to trigger "variant" status is quite small.

No one knows -- and no one can know, until the Supreme Court of Canada rules. No one but a judge sitting in a court of criminal law can make any decision on what these confused and confusing provisions mean, because the law does not give anyone any authority to make such a decision, and any decision by any lower court can be overturned on appeal.

THE REGISTRAR

The Registrar is, apparently, both a creature of statute and an independent quasi-judicial licensing tribunal vested with the power to issue, renew, revoke and refuse to issue several licensing documents. Because he is quasi-judicial, he must always consider the particular circumstances in each case. His powers are defined by provisions of the Act.

There is a procedure for appealing to the courts against his decisions, so no one can be given authority to give him directions that control his judgements, unless the entire firearms control system is heavily altered. If anyone could order him to decide this way or that way, the court appeal would have to be against the decision of the person who made the decision, not against the Registrar. C-15B does not propose such alterations.

However, the bureaucrats often operate the system as if it were a hierarchy of command.

MAKING RULES ABOUT DECISIONS BY ORDER IN COUNCIL

It is a fundamental rule of our system of law that no creature of statute has any power that is not vested in it by the Act of Parliament or by a legally made Order in Council.

Making a rule or policy that binds a licensing tribunal to decide cases in a way set by such a rule or policy is actually the creation of new criminal law -- and only Parliament can do that. The Governor in Council cannot do that, unless it is specifically enabled, by the Act, to make an Order in Council that lies within limits set by the Act.

The Governor in Council, for the purposes of the Firearms Act and the Criminal Code, is not the government. It is merely a creature of statute, with no powers above and beyond those specified by those two statutes. This area is rife with litigation possibilities.

LICENCING TRIBUNALS GENERALLY

The various licensing tribunals created within the C-68 firearms control system to issue, refuse to issue, renew and revoke licensing documents are required by law to decide each and every case on the basis of the particular circumstances. They are vested with certain discretionary powers, but those powers do not include the power to make new legislation.

Therefore, any regulation that orders the Registrar to attach conditions to a registration certificate is apparently null and void for several solid reasons. Anyone can register his "firearm" in any way that he chooses, and leave it registered in that fashion. The registration apparently remains valid regardless of any changes made to the "firearm."

Nothing in the law requires a firearm to be registered in accordance with the pattern of entries chosen by the Canadian Firearms Registry. It is enough, the law says, that it is registered -- no matter whether the description on the registration certificate is accurate or not, and no matter whether all of the entry boxes are filled out or not. C-15B does not alter that state of affairs.

In almost all situations, the current legislation and Bill C-15B allow each licencing tribunal to make a decision based on "any good and sufficient reason." That provision is overbroad, and can be challenged in a court of law for overbreadth. It authorizes the tribunal to rule against a person because that person is black, female or Jewish -- if the tribunal considers that to be a "good and sufficient reason." It should not be necessary to go to court to correct such an action.

The Government's experts may say that we are incorrect in our analysis of this situation, but the only way anyone can know for certain is to put this entire area of questionable legislation in front of the Supreme Court of Canada, probably by way of a series of criminal charges.

THE MORASS CREATED BY THE WORD "PRESCRIBED"

Another major problem with both the C-68 firearms control system and the system as amended by C-15B is that the system repeatedly uses the word "prescribed" instead of inserting words that tell the reader what the criminal law actually is. They also frequently invoke the word "regulation" to substitute an Order in Council regulation for proper criminal law. The word "prescribed" is used 36 times in C-15B, and the word "regulation" is used 17 times.

Those two words are apparently used so that when the rules turn out to be unworkable -- as so many current C-68 rules have proved to be -- they can be changed by an Order in Council.

If legislation writers are not competent to write firearms control law that works, that situation should be corrected. The problem should not be masked allowing fast and easy changes to criminal law through Orders in Council -- over and over again, without reference to this House.

Criminal law is our most serious law. Violation of criminal law -- including violation of any "prescription" or "regulation" that exists by way of an Order in Council -- can result in a criminal record and in imprisonment, so the Canadian Charter of Rights and Freedoms is usually involved. It is therefore, the NFA submits, inappropriate to create criminal law that is not to be found in the Act, but must be hunted for in a confusing maze of current, revised, overlapping and obsolete Orders in Council. That should not be a legitimate path to prison for the accused.

Additionally, any violation of any one of those prescriptions and regulations can result in automatic confiscation of all firearms seized from the accused -- no matter how petty the offence, even if the accused is granted an unconditional discharge [CC s. 491(1)(b) and (3)].

CRIMINALIZATION OF CANADIANS

Currently, the firearms control system frequently criminalizes the users of the system. It also routinely criminalizes the firearms control bureaucrats themselves, because it is simply not possible to do things in the way required by the legislation. The CFC and the Registry are always trying new shortcuts -- but those shortcuts are usually violations of criminal law.

It is possible to know the Criminal Code and Firearms Act, simply by studying the relevant Act. It is not possible to know all the Regulations unless one has a subscription to the Canada Gazette, and tracks the actions of the Governor in Council with care and attention. The Regulations change too frequently, and with insufficient publicity.

As an example, the Amnesty for small handguns was proclaimed for a year, extended for another year, extended again for another six months, extended again for a further six months, and extended again for another year. Each time, it was extended after it had expired. Every time it was extended, the vast majority of owners were unaware that they had been criminalized for those few days in which it was not in force. Even worse, the vast majority of police were, on each occasion, unaware that another extension had been granted until long after the fact.

Most police -- even to this day -- are not aware of precisely what the various Orders in Council have to say on that subject. Criminal charges that cannot be laid -- according to those Order in Council amnesties -- have been laid, and undoubtedly some of those illegal cases have been successfully prosecuted in spite of the little-known Amnesties.

The NFA routinely supplies copies of the relevant Canada Gazettes to people covered by those amnesties who have been charged with criminal offences, because the police and Crown prosecutors are unaware of the current legal situation. The charges are usually then dropped.

Certainly, many firearms that are covered by the small-handgun amnesty have been surrendered to the authorities on the basis of bullying letters that stated -- falsely -- that their owners had no legal alternative to surrendering their property and being denied compensation.

In a recent court case that came to the NFA's attention, the Crown and defence lawyers argued the exact meaning of language in a certain regulation. The entire case turned on the exact wording of the regulation, and it was eventually decided by careful analysis of that wording.

Unfortunately, the judge, Crown and defence were all unaware that the wording they were analyzing was wording that had become null and void nearly two years before the case began, and nearly a year before the "offence" was committed [R v. Rusk, Saskatchewan Provincial Court decision of 02 Aug 2000, S.J. No. 518].

It is not surprising that the police and the officers of the court were confused. The new Order in Council dated from March 1998, but did not come into force until 01 Dec 1998. When it did so, it came into force by a strange and confusing route, and without adequate notice, explanation or publicity.

This illustrates a major problem with firearms control law as it stands today. If authority is given to issue so many Orders in Council, how can judges, Crown prosecutors, defence lawyers, and other affected persons be expected to understand what the criminal law forbids and what it requires on a day-to-day basis? Must they all subscribe to the Canada Gazette?

While "Regulations" and definitions made under the authority of Orders in Council may have a place in regulatory law, we submit that they should not be included in criminal law. The Orders in Council are simply not widely available, and they are inadequately publicized. They are also often badly written, with uncertain meanings. More often than one would expect, they are null and void because they were made without the existence of the necessary enabling legislation.

Above all, there are far too many of them. The CFC's major book, "Firearms Act Regulations March 1998" was always incomplete, and is now riddled with errors because more Orders in Council have been made, modifying regulations in that book. It has become untrustworthy, but the CFC has not re-issued corrected copies to all affected agents of the Crown. This tends to bring the law into disrepute.

It is, the NFA submits, a serious error to rely on Orders in Council as a valid way of setting forth criminal law, or to allow their use as a basis for criminal prosecution.

Those affected by them -- including Crown officers -- are not usually subscribers to the Canada Gazette. It is wrong to believe that everyone knows, or can know, what is in every Order in Council. They are not easily available to either Crown prosecutors or to defence lawyers.

THE QUALITY OF CANADIAN FIREARMS CENTRE HANDOUTS

The CFC issues document after document to explain the law's provisions in simple language. Those publications are often misleading, and the consequences can be severe. Many of them include errors that counsel the reader to commit a criminal offence.

If the writers of such handout documents are not properly trained, the result can be serious liability for the government. Anyone who follows such illegal advice is protected from criminal charges if he or she can demonstrate that he or she was a victim of official misdirection -- but that is small comfort if the result has been the destruction of a legacy.

For example, the CFC issued a document entitled, "How the Law Applies to...FIREARMS LEFT IN A WILL" (dated 2000/01/28). It contains this advice:

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     IF YOU ARE THE EXECUTOR 

        ...If the firearms were illegally owned, you must turn them in to the police.

That is false, and counsels the executor (who holds the estate in trust) to commit a criminal offence -- breach of trust. The executor of a will is exempt from virtually all firearms control law [CC s. 91(4), 92(4), 93, 94(4)].

For example, an executor may convert an illegally-owned "prohibited firearm" to legal form by deactivating it, or converting a short-barreled "prohibited" handgun to "restricted firearm" status by barrel substitution, and then sell it for the benefit of the estate, or he may sell it, intact, to a museum or dealership that can lawfully acquire it.

If the executor follows the advice given in the CFC's document, he is denuding the estate of a valuable asset without gaining easily-available compensation, may therefore be in breach of trust. The penalty includes imprisonment [CC s. 2, 122, and 336].

Additionally, because the CFC formally provided that bad advice to the executor, both the executor and the estate are in an excellent position to sue the Crown for any losses that arise from an executor's actions based on the official misdirection.

In the CFC's Special Bulletin for Justices of the Peace No.3, we find the following statement:

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     A grace period  until June 30, 2001 has been announced for licence applicants who have not yet received their licence, but who applied on or before December 31, 2000.    

If one reads the licence "grace period" Amnesty, one finds that it sets dates -- but says nothing whatever about what coverage the Amnesty affords.

Compare the wording of the .25, .32 and short-barreled "prohibited handgun" Amnesty with the wording of this licence Amnesty. The handgun Amnesty says:

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     2.  Any individual who...is in possession of a prohibited handgun...cannot be found guilty of [a firearms control] offence by reason only of being in possession of that handgun... 

The licence amnesty says only:

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     8.1 (2) The purpose of the [licence] amnesty period is to permit the individual to obtain a licence. 

The licence Amnesty says nothing about which criminal charges the accused person cannot be found guilty of because of the Amnesty [Canada Gazette Part II, Vol. 135, No. 1, page 53, SOR/2001-13].

What the licence Amnesty language means is open to conjecture. To obtain what licence? Covering what? It is not an amnesty provision that can be interpreted with accuracy in a court of law. It is vague enough to permit all sorts of behavior, and a court may soon have to find the accused innocent of truly criminal conduct on the basis of the fact that the law must always be interpreted in the way most favorable to the accused.

In the CFC's Special Bulletin for Justices of the Peace No. 5, "Licences for Non-Residents," the following statement is made:

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     There are two new types of documents that will act as licences specifically for non-residents.  The Non-Resident Firearms Declaration is for visitors who bring their own firearms to Canada. The Non-Resident Temporary Borrowing Licence for Non-Restricted Firearms is for visitors who wish to borrow non-restricted firearms while in Canada.
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     The Non-Resident Temporary Borrowing Licence for Non-Restricted Firearms] is only valid for up to 60 days at a time... 

Unfortunately, only one of those two documents is apparently legal. The Firearms Act specifically makes the Declaration a licence, and includes the 60-day term. It is therefore a case of the specific overriding the general [FA s. 36].

However, there is apparently nothing in the Act that would specifically authorize the issuance of a "Non-Resident Temporary Borrowing Licence for Non-Restricted Firearms." In fact, then, such a document apparently cannot be issued for any term other than the five-year term mandated by the Act [FA s. 64(1)(a)].

The definition of "licence" is "a licence issued under the Firearms Act" [CC s. 84(1)].

If the "Non-Resident Temporary Borrowing Licence for Non-Restricted Firearms" is not "issued under the Firearms Act" -- and it apparently cannot be, as that Act never speaks of it, and it is, according to the CFC, specified to have a term that the Act does not allow -- then it is not a "licence" under the definition in, and for the purposes of, the Criminal Code. It is, apparently, a nullity.

The people responsible for the creation of this invalid licence are not given any power under the Firearms Act or the Criminal Code to deal with the actions of police, Crown prosecutors or judges. Those officials may base their actions on what the law, in their opinion, says -- and prosecute. If their interpretation is not the same as the interpretation of the CFC, the accused, and the Minister of Justice, it will take a Supreme Court of Canada decision to sort this out.

THE QUALITY OF CRIMINAL LAW

A government ought to be able to write criminal law in a fashion that enables the average reader to understand it. At the very least, it should be able to write criminal law in a fashion that enables a lawyer to understand it. Both the current law and the law as amended by C-15B fail that simple test.

Parliament should not enact criminal law that cannot be understood without reference to the latest variant in a long, long, series of ever-changing Orders in Council.

The NFA specifically requests that you require the Department of Justice to supply you with one copy of each and every Order in Council made under the authority of each of FA s. 117, CC s. 117.14, and CC s. 117.15. We draw your attention to the fact that a large number of those Orders in Council were made nine months before the bulk of Bill C-68 was proclaimed into law.

We request that you ask the bureaucrats for a document that lists each provision of each Order in Council that has been made obsolete or partially obsolete by a later Order in Council, with a clear reference to the new provision in the new Order in Council that made the change. In particular, we request that you make certain that all changes are covered, as some Order in Council provisions have been changed twice or more [e.g., amnesty dates set by SOR/98-467, altered by SOR/99-452, and re-altered by SOR/2001-13, and then altered again].

The NFA strongly recommends that the words "prescribed" and "regulations" be struck from C-15B, and, for that matter, from every C-68 firearms control law section, wherever found. In our view, all firearms control legislation should be re-drafted on that basis. The NFA also recommends that FA s. 117 and CC s. 117.15 be repealed without replacement.

The NFA submits that no one should place before this House law that has no chance whatever of working. Proposers of criminal-law legislation should not try to cover defective criminal law by enabling the issuing of Order in Council after Order in Council after Order in Council, in vain attempts to fix defective, badly written criminal law.

THE QUALITY OF BILL C-15B

For another example of the poor quality of Bill C-15B, please look at its section 97(3):

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     97. (3) Section 2 of the [Firearms] Act is amended by adding the following after subsection (2):
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      (2.1) Sections 5, 9, 54 to 58, 67, 68, and 70 to 72 apply in respect to a carrier as if each reference in those sections to a chief firearms officer were a reference to the Registrar and for the purposes of applying section 6 in respect of a carrier, paragraph 113(3)(b) of the Criminal Code applies as if the reference to a chief firearms officer were a reference to the Registrar.  

In simpler language, if one reads any one of those 12 sections of the Firearms Act or that one section of the Criminal Code, one will understand it to mean exactly what it says -- unless one knows about the existence of that rather obscure section [FA s. 2(2.1)]. It requires knowledge of an obscure section of a different Act to understand a provision of the Criminal Code.

Altering the plain meaning of 12 sections of the Firearms Act and one subsection of the Criminal Code by way of an obscure subsection in the Firearms Act is an unacceptable way to write criminal law. It is a method that provides no warning to the reader of any of those 13 sections that what the plain meaning of the words is apparently trying to tell him is actually incorrect.

The NFA submits that this is an unacceptable way of writing criminal law. The criminal law must be complete, clear, and easy to understand by reading it -- or this House has failed in its duty to tell citizens precisely which actions may result in their being imprisoned.

The existing FA s. 10, which s. 2(2.1) replaces, altered the meaning of 3 subsections. FA s. 2(2.1) alters the meaning of 13 subsections -- an unacceptable increase.

Even worse, C-15B s. 101 repeals FA s. 10, without mentioning the fact that C-15B s. 97(3) inserts FA s. 2(2.1) to replace and broaden the old s. 10. As a result, a person familiar with the existing s. 10 and seeking information about how C-15B handles this problem will probably never find the new amendment. That is unacceptable, and an indication of incompetent writers.

Finally, the NFA questions the legality of this attempt to amend a section of the Criminal Code by way of an amendment to the Firearms Act, with no actual amendment of the Code itself.

THE COST OF OPERATING THE C-68 FIREARMS CONTROL SYSTEM

The firearms control system enacted as law by Bill C-68 has been clearly proven to be defective. The cost of operating this defective firearms control system has already exceeded the estimates by a factor of at least eight. The benefits, if any, clearly do not justify that expenditure. The detriments, so far as they can be quantified, swing the balance even farther into the debit column.

It is not difficult to design and operate a firearms control system that does work, enjoys enthusiastic public support, and operates at reasonable cost. The NFA knows this, because the NFA has done it -- using a model with a 200-year history of success.

If this is true, why has the other House ignored what the NFA has done? To the best of our understanding, it is because the other House continues to rely solely on "in-house experts." As each new Minister takes office, his or her first visitors are the senior bureaucrats, come to sell the idea that the senior bureaucrats are the world-class experts in the firearms control field.

They warn the Minister that a Minister should never communicate directly with anyone who lives and works in the firearms field, on pain of branding as being "in bed with the gun lobby."

As a result, the Minister -- and the other House -- have no access to the real world. They are limited to input from the senior bureaucrats -- who are apparently dedicated to gaining more power, more budget, and more staff. We see no comparable dedication to serving the public.

For as long as this situation continues, there is no hope that Canada will ever have a firearms control system that makes any sense. The Department of Justice bureaucrats are not competent to create one, and no one else -- other than the Senate -- has power to do anything.

In our 1994 and 1995 analyses of Bill C-68, we noted a severe lack of understanding on the part of the Bill's writers of the basics of system design. They apparently did not know how to write legislation that would create an integrated and workable firearms control system, which is a difficult thing to do. They apparently did not know how to write legislation that would stay within the requirements of administrative law, regulatory law and criminal law -- all at the same time -- which is also admittedly difficult, but which is vitally necessary for this type of law.

The majority of the defects have not been seen by courts yet, but some are already apparent. For example, the original plan to confiscate every small handgun in Canada by classing each such firearm as a "prohibited firearm" has failed miserably. The 1994 idea of outright confiscation was replaced by overly elaborate "grandfathering" provisions in the 1995 version -- but that approach did not work either.

As a result, that entire set of subclasses of "prohibited firearms" was the subject of an amnesty running from 01 Dec 1998 to 01 Dec 1999; then another running from 01 Dec 1999 to 01 Dec 2000; and then another running from 01 Dec 2000 to 30 Jun 2001; and then another running from 01 Jul 2001 to 31 Dec 2001; and then another running from 31 Dec 2001 to 31 Dec 2002. That is a record of failure [Canada Gazette Part II, Vol. 132, No. 20, page 2734, SOR/98-467 for 1998-99 amnesty; Vol. 133, No. 25, page 2615 for the 1998-2000 extension; and Vol. 135, No. 1, page 53 for the 1998-2001 extension; etc.].

It should be noted that each of those extensions was published after the previous amnesty had already expired, which is, we submit, a demonstration of incompetence. The original amnesty ran until 30 Sep 1999, and the extension was published in the 08 Dec 1999 Canada Gazette; the second extension ran until 31 Dec 2000, and the extension to it was published in the 03 Jan 2001 Canada Gazette.

The NFA strongly condemns the issuing of those extensions in a way, and with a timing, that criminalized huge numbers of people temporarily, and made it impossible to adequately publicize the extensions. The failures of the Ministers are indicated by this confusion.

The entire series of amnesties apparently resulted from inadequate knowledge of law, firearms technology, and firearms history on the part of those responsible for writing Bill C-68.

The NFA confidently predicts that those firearms will not be confiscated, beginning on 01 Jan 2003. That situation will continue to be a costly embarrassment for many years, simply because the writers of the original legislation were, apparently, well out of their depth.

Now we are faced with provisions in C-15B that reset the "grandfathering" dates in that area, from 14 Feb 1995 to 01 Dec 1998. This is not going to solve the problems. Whoever wrote that change did not understand law, firearms technology, and firearms history. C-15B's proposed changes are still a recipe for extreme cost, continuing confusion, and endless litigation [C-15B s. 102 and FA s. 12(6) and (7)].

For example, if confiscation is attempted on some future date, the owner can merely say, "I removed the barrel and the cylinder (if any). It is no longer a prohibited firearm. It is now a restricted firearm, which I can legally possess. Go away." A firearm is what it is, not what a registration certificate says it is. Therefore, the officer cannot confiscate the firearm. He can do nothing more, and must leave [CC s. 84(1) "prohibited firearm" (a) and "restricted firearm (a)].

If the government is determined, it can try to get an order for the confiscation of that firearm from a court. The Crown will have to explain why the Registry has already issued many, many registration certificates for what were formerly "prohibited handguns" but now have no barrel (and no cylinder, if any) showing them to be restricted firearms." It will be a long and costly battle, fought through many courts at enormous cost to the taxpayers.

THE NFA'S ATTEMPTS TO COMMUNICATE AND COOPERATE

After many years of trying to establish communication and cooperation, we are now well convinced that communication and cooperation are unlikely until the faith of the Minister of Justice and the other House in the expertise of Department of Justice firearm control bureaucrats is at least severely eroded.

The bureaucrats apparently have a firm desire to prevent Ministers, Committees, and Members of Parliament from discovering just how incompetent their firearms control system bureaucrats are. This is understandable; it is what they can be expected to do in order to maintain their own unjustified budget, unwarranted prestige, inflated staffs, and excessive powers.

Unfortunately, we have not yet seen any serious signs that any former, current or future government recognizes failure when failure is staring it in the face. We do not see that doubt about the competence of Justice bureaucrats has yet penetrated the mind of the other House or its Ministers, or that any consideration has been given to direct communication and cooperation with the experts in the recreational firearms community.

Certainly, Ministers have arranged committees of "user groups" to advise them -- on condition that all advice given to the Minister be secret, and that members of the committee do not reveal what advice was given, or whether or not the advice was followed. The Minister's knowledge of what happens at those meetings is limited to whatever fraction of the total is transmitted to the Minister by the bureaucrats. Bureaucrat control of information flow was, is, and apparently will continue to be, absolute.

Certainly, Ministers have hosted meetings between bureaucrats and firearms community representatives, on condition that the Minister learn only what the bureaucrats want to tell the Minister about a meeting which the Minister did not attend.

As a result, we are limited to fighting for sanity in this House and in the courts. Fortunately, we are more likely to win in court than is the government, because we have a better understanding of what the law actually says, and means to a judge, as opposed to what it is believed -- by the bureaucrat who wrote it -- to mean. We are considerably assisted in our efforts to achieve sanity in gun control law by the fact that a badly-written law must be interpreted in the way most favorable to the accused.

Progress toward sanity is slow. We must wait for someone to be charged with a criminal offence before we can place an alternative interpretation before a court. Sometimes, courts rule as they think the Crown or police want them to rule, without bothering to consider evidence that proves the Crown's interpretation of the law to be incorrect. Sometimes, courts opt for the NFA's interpretation of the law. It takes a long time for anything to be finally resolved, because there are contradictory decisions from all over Canada -- and firearms control cases rarely get to the Supreme Court of Canada.

The situation, today, is chaotic -- apparently because the writers of C-68 and C-15B were and are incapable of designing a firearms control system that works.

THE ACTUAL EFFECTS OF THE C-68 FIREARMS CONTROL SYSTEM

Since the C-68 firearms control system came into effect on 01 Dec 1998, we have noticed how much more firearms crime is being committed in Canada. In particular, gang-related shootings, shootings in bar fights and home invasions -- never serious problems in Canada before the C-68 system came into effect -- are now common crimes reported daily in our morning newspapers.

This is an unexpected side effect of severe firearms control laws. At least, it was unexpected by the other House. The NFA expected it, and predicted it, and was ignored.

In Britain, blind faith in severe firearms control laws as violent crime preventive measures has failed them. British violent crime rates now exceed the same rates in the United States, in all categories except murder. When Bill C-68 was before Parliament, in 1995, the NFA warned the other House and other Canadians that C-68 would have the same effect in Canada that the overly severe firearms control laws in Britain were having at that time. We were correct.

The problem is a simple one. One cannot reduce violent crime by disarming all the victims, while at the same time relying on a firearms control system that is an utter failure at disarming the nation's violent criminals, one that merely guarantees the safety of the criminal. Such a system merely encourages the criminal to take control of any victim that he chooses, for any criminal purpose that he chooses.

The "protection" to be expected from police action is largely mythical. When was the last time that you can remember the media reporting a case in which the police arrived in time to prevent -- or even interrupt -- a violent crime? Criminals have choice of time and place for their crimes, and they usually do not choose a time and place where interruption by the police is likely.

Why does the other House find that so difficult to understand?

A VERY OFFENSIVE PROVISION

C-15B section 137 adds this to the Firearms Act:

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     82.1 (2)  The person occupying the position of Registrar of Firearms on the day section 82 of the Act, as enacted by subsection (1) of this Act, comes into force is deemed, as of that day, to be appointed as Registrar of Firearms under the Public Service Employment Act and continues to occupy that position until another person is appointed or deployed as the Registrar of Firearms under that Act. 

That provision is a remarkable example of how the power to make a decision is taken away from the Minister and from the other House by a bureaucrat writing new legislation. The NFA strongly opposes the addition of 82.1(2) to the Act, because the Registry is disarray. If the current Registrar of Firearms was that good, he should have aired and fixed many of its problems instead of diligently hiding them from public scrutiny. The NFA strongly recommends that a "new broom" be brought in to try to sort out the worst of this mess.

The firearms control system, as presently constituted, is too expensive and too complicated. The legislation and the "system" created by it are too badly flawed, in too many ways, to ever form a basis for a working firearms control system.

The C-68 firearms control system is a costly failure. It will continue to be a costly failure until the other House stops relying on ill-trained bureaucrats to write the laws and design the systems.

At present, the bureaucrats of the CFC, who specialize in licencing systems, are designing criminal law. The Department of Justice lawyers, who specialize in criminal law, are designing regulatory law and licensing systems. The Registry bureaucrats who specialize in maintaining files of registration certificates are designing criminal law and classifying firearms.

The C-68 firearms control system is an excellent example of the Peter Principle. The bureaucrats responsible for the unfortunate state of Canadian firearms control have been promoted to an area in which they are incompetent. Their "solutions" do not work, and will never work, because they lack the necessary knowledge.

A firearms control system should have several effects:

1. The system should, after fair and objective consideration, make it illegal for a person who should not have a firearm to be in legal, unsupervised possession of a firearm.

2. The system should classify firearms into not more than four classes.

3. The system should classify firearm use categories into not more than six classes.

4. The system should licence applicants on the basis of three questions:

(a) Does this applicant know how to use this class of firearm safely for this class of use?

(b) Does this applicant know the rules of safe handling and use, and the relevant laws?

(c) Is this applicant the kind of person who obeys the rules of safety and the laws?