Charter Statement - Bill C-71: An Act to amend certain Acts and Regulations in relation to firearms

Tabled in the House of Commons, March 22, 2018

Explanatory Note

The Minister of Justice prepares a "Charter Statement" to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice's most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms ["the Charter"]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill's potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-71, An Act to amend certain Acts and Regulations in relation to firearms, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-71 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Conditions - licence issued to business

Clause 7 of the Bill (new subsection 58.1(1)) amends the Firearms Act so as to require, as a condition of licences issued to business, that businesses maintain certain information with respect to firearms transfers, and retain this information for a period of at least 20 years. When a business ceases operations, it must turn over the information referred to above to an official, to be prescribed by regulation, who would be responsible for safeguarding the information, and for destroying it only in accordance with the regulations.

Right to be secure against unreasonable search and seizure (section 8)

Section 8 of the Charter protects people against "unreasonable" searches and seizures of their person, property and private information. The purpose of section 8 is to protect individuals from unjustified intrusions upon their privacy. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable in the sense of striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner. New subsection 58.1(1) requires the collection and retention of certain personal information in order to preserve access for possible future criminal investigations, and therefore has the potential to engage s. 8 of the Charter.

The following considerations support the consistency of new subsection 58.1(1) with section 8 of the Charter. The information that must be retained relates to activities within a very highly regulated sphere of commercial activity where any privacy interests are diminished. The information that must be retained is also limited to basic information about a transaction: the reference number issued by the Registrar; the day on which the reference number was issued; the transferee's licence number; and the firearm's make, model, type and serial number. Government, including law enforcement, could only access the retained information (whether held by businesses or the prescribed official) in conformity with existing lawful authorities and applicable privacy protections. The scheme furthers the important state objective of investigating firearm-related crime by enabling the tracing of firearms involved in crimes.

Scope of criminal liability

Various provisions of the Bill affect the scope of potential criminal liability. Contravention of new conditions attached to licences under clauses 7 and 14 can constitute offences under section 110 of the Firearms Act. Clauses 1, 3-5, 15 and 18 affect the scope of activity captured by offences under the Criminal Code.

Right to liberty (section 7)

Section 7 of the Charter protects against the deprivation of an individual's rights to life, liberty and security of the person unless done in accordance with the principles of fundamental justice. Offences that can be punished by way of a term of imprisonment deprive the right to liberty and so must accord with the principles of fundamental justice.

Principles of fundamental justice are legal principles for which there is sufficient consensus that they are vital or fundamental to society's notion of justice, and which are capable of being identified precisely and applied predictably. Examples include that criminal offences require proof of an accused person's guilty mind, and that they be drafted in sufficiently clear terms. The list is not closed, and new principles may be identified in the future. Three principles commonly discussed when it comes to the substance of criminal offences are arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that affects section 7 rights in a way that is not rationally connected to the law's purpose. An overbroad law is one that affects section 7 rights in a way that, while generally rational, goes too far by prohibiting some conduct that bears no relation to advancing the law's purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be "completely out of sync" with the law's purpose.

In reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice.

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