Bill C-21: An Act to amend certain Acts and to make certain consequential amendments (firearms)
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for in 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 inconsistency 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.
The Minister of Justice has examined Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms), for any inconsistency with the Charter pursuant to his 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-21 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.
Bill C-21 proposes a number of amendments to the Criminal Code, the Firearms Act, and other federal legislation that seek to fulfill the Government of Canada’s commitments in relation to gun control and to protect Canadians from firearms-related harm.
The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:
- Freedom of expression (section 2(b)) – Section 2(b) of the Charter protects freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
- Right to life, liberty and security of the person (section 7) – Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. These principles include the requirement that laws which engage these rights must not be arbitrary, overbroad or grossly disproportionate. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that is so broad in scope that it includes some conduct that bears no relation to its 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.
- Right to be secure against unreasonable search or seizure (section 8) – Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect individuals from an unreasonable intrusion into a reasonable expectation of privacy by the state. 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.
- Right not to be arbitrarily detained or imprisoned (section 9) – Section 9 of the Charter guarantees to everyone the right not to be arbitrarily detained or imprisoned. The purpose of section 9 is to protect individual liberty against unlawful state interference.
- Rights to persons who have been charged with an offence (section 11) – Section 11 of the Charter guarantees certain procedural rights to persons who have been charged with an offence, including the presumption of innocence and the right to a fair and public hearing before an independent and impartial adjudicator. Its protections apply only to persons “charged with an offence”. Persons are “charged with an offence” within the meaning of section 11 if they are subject either to proceedings that are criminal by nature, or that result in “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, as may be the case where the fine or penalty is out of proportion to the amount required to achieve regulatory purposes.
- Protection against cruel and unusual treatment or punishment (section 12) – Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In the context of sentencing, section 12 prohibits grossly disproportionate punishments.
For the purpose of this Statement the amendments in the Bill have been grouped into the following categories: Criminal Code amendments, Firearms Act amendments, and Nuclear Safety and Control Act amendments.
Criminal Code Amendments
Deeming certain firearms to be prohibited devices
Clause 1 of the Bill would deem unregulated firearms that exactly resemble regulated firearms to be “prohibited devices” for the purposes of sections 99-101, 103-107 and 117.03 of the Criminal Code. All of these sections of the Criminal Code except section 117.03 (seizure of firearms on failure to produce authorization of lawful possession) are firearms offences that target conduct in relation to prohibited devices. Each of these offences carry the potential for imprisonment upon conviction, including mandatory terms of imprisonment for the weapons trafficking and smuggling offences under ss. 99, 100 and 103. As the effect of the deeming provision would expand the scope of criminal liability for certain firearms offences – some of which include mandatory minimum penalties – it engages the right to liberty under section 7 and the right not to be subjected to any cruel and unusual treatment or punishment under section 12 of the Charter.
The following considerations support the consistency of the deeming provision with sections 7 and 12. The provision is intended to close a gap under the Criminal Code with respect to “replica firearms” that are currently prohibited from importation, exportation, transfer and sale in Canada. The current definition of replica firearms only captures things that exactly resemble a regulated firearm, but are not powerful enough to meet the definition of a “firearm” under the Criminal Code, meaning that they are not capable of causing serious bodily injury or death to a person. The deeming provision would ensure that unregulated firearms that also exactly resemble regulated firearms (such as certain airguns) are also prohibited from being imported, exported, sold or transferred in Canada. The penalties for the weapons trafficking and smuggling offences, including in the case of escalating penalties for repeat offenders, recognize the seriousness of the conduct and the threat that illegally transferred or smuggled firearms, weapons and other devices pose to public safety. The newly-deemed prohibited devices pose the same public safety risks as replica firearms given they are indistinguishable from regulated firearms, and may be used to commit criminal offences. Individuals would still be permitted to legally possess and use the newly-deemed prohibited devices, as long as it is not for the purposes of import, export, sale or transfer. The measure would promote the important public safety objective of combating the criminal use of these devices.
New offence of altering a cartridge magazine
Clause 2 of the Bill would create a new offence for altering a cartridge magazine to exceed its lawful capacity. A person who does not have a lawful excuse for committing this offence could be found guilty of either: (1) an indictable offence with a maximum penalty of five years imprisonment, or (2) a summary conviction offence with a maximum penalty of $5,000 and/or imprisonment of two years less a day.
As the offence provision would provide for criminal charges and the possibility of imprisonment, it engages the right to liberty under section 7 and procedural rights under section 11 of the Charter. In reviewing the provision, the Minister of Justice has not identified any potential inconsistencies of the measure with the principles of fundamental justice under section 7 or rights under section 11.
Emergency prohibition orders and emergency limitations on access orders
The Bill would establish a regime to allow anyone to apply to a court for an emergency prohibition order or an emergency limitations on access order against another individual for public safety reasons. An emergency prohibition order would temporarily prevent an individual from possessing firearms and other weapons (as specified in the order) where there are reasonable grounds to believe it is not in the interests of safety for the individual to possess them. An emergency limitations on access order would impose specific terms and conditions on an individual’s possession and use of firearms and other weapons (as specified in the order) in specific circumstances. This type of order may be made where there are reasonable grounds to believe that an individual lives or associates with a person who is prohibited from possessing any firearm, ammunition or weapon, and where that person would or might have access to such weapons possessed by the individual against whom the order would be made. If granted, both types of emergency orders would take immediate effect upon the day on which the judge makes the order and last for up to a maximum period of 30 days.
Clauses 4 and 10 of the Bill would authorize the search and seizure of any thing (e.g., firearm or other weapon) and related document (e.g., a licence or registration certificate) that is identified in the emergency orders issued by the judge. Peace officers would be permitted to search and seize such objects – either with or without a warrant – under specified circumstances. These search and search powers have the potential to engage section 8 of the Charter.
The following considerations support the consistency of these powers with section 8. The purpose of the measures is to protect the safety of people by removing firearms and other weapons from the possession of individuals who pose a safety risk to themselves or others. Judges would have discretion to issue a search and seizure warrant for objects set out in an emergency order. There must be reasonable grounds to believe that it is against the interests of safety for the person who is the subject of an order to continue possessing such objects, and that the object is in the place to be searched. Warrantless searches and seizures would only be permitted where the grounds for obtaining a warrant under the new regimeexist, but for reasons of possible danger to the safety of a person, it would not be practical to obtain one. The powers to search and seize created by the Bill are similar to existing authorities under the Criminal Code that have been upheld by courts.
Increase to maximum terms of imprisonment
Clause 14 of the Bill would increase the maximum penalty of imprisonment on indictment from 10 to 14 years for weapons smuggling, trafficking, and other specified offences (under sections 95, 96, 99, 100 and 103 of the Criminal Code). The new penalty provisions have the potential to engage section 12 of the Charter, which protects against cruel and unusual treatment or punishment. The change in the maximum penalty may result in a higher sentence for an offender who commits an offence after the coming into force of the provisions than for an offender who commits an offence and is sentenced prior to the amendments coming into force.
The following factors support the consistency of the provisions with section 12. Higher maximum penalties on their own are unlikely to limit section 12 because courts retain discretion to impose proportionate sentences. While a disproportionate sentence in an individual case could be corrected on appeal, the validity of the maximum sentencing provision would not be in question.
Firearms Act Amendments
Disclosure of information
Clause 35 of the Bill would authorize the Commissioner of Firearms, the Registrar or a chief firearms officer to disclose certain information to law enforcement where they have reasonable grounds to suspect that an individual has committed a weapons trafficking offence, and where disclosure would be for the purpose of investigating or prosecuting that offence.
The following considerations support the consistency of the proposed amendments with section 8 of the Charter, which protects against unreasonable search and seizure. The information that may be disclosed under the new provision is either provided by licensees or generated in the course of the administration of the Firearms Act regulatory regime, a regime that is aimed at promoting safety by reducing the misuse of firearms. The purpose of the disclosure, namely the investigation of misuse of licenses under the Act, is closely tied to the original purpose for which the information was either provided or generated. Accordingly, these disclosures may not attract a reasonable expectation of privacy.
The categories of information that may be disclosed are narrowly defined, and do not include highly sensitive information likely to attract a high expectation of privacy. Disclosure is further limited by the fact that the information may only be disclosed for the purpose of investigating or prosecuting a weapons trafficking offence that may have been committed using the individual’s licence. As well, the official disclosing the information must have a reasonable suspicion that the licence was misused before the disclosure can be made. Clause 36 proposes that information regarding the use of this power be included in the Commissioner’s Annual Reports to the Minister. This is an accountability measure that contributes to the transparency of the use of this power, and to its overall reasonableness.
Clause 37 proposes to make it an offence for any business or certain persons involved in a business to advertise a firearm in a manner that depicts, counsels or promotes violence against a person. This prohibition is already in place as a condition of licences issued to businesses. The Bill would put this prohibition into law and make any breach an offence punishable on indictment or by way of summary proceeding. This measure has the potential to engage section 2(b) which protects freedom of expression as well as sections 7 and 11 of the Charter.
The following considerations support the consistency of the proposed amendments with section 2(b). Violence, and threats of violence, fall outside the protection of section 2(b). Counselling violence can also fall outside the protection of section 2(b). While commercial expression that does not fall into the “violence exception” is generally protected under section 2(b), the fact that the expression is commercial is a relevant factor in determining whether any limits on that expression are justifiable under the Charter. Businesses that would be subject to the proposed prohibition are participants in a very highly regulated industry selling inherently dangerous goods whose use is itself highly regulated. Further, gun violence is a persistent problem in Canada. Restrictions on advertising that may encourage, whether directly or indirectly, the use of firearms in violence against persons are directly tied to the Firearms Act’s goal of promoting safety by reducing the misuse of firearms. This prohibition does not prevent businesses from engaging in firearms advertising generally or from informing customers about their products.
As a breach of the offence provision by a business or person could result in criminal charges and the possibility of imprisonment, it engages the right to liberty under section 7 and legal rights under section 11 of the Charter. In reviewing the provision, the Minister of Justice has not identified any potential inconsistencies of the measure with the principles of fundamental justice under section 7 or rights under section 11.
Nuclear Safety and Control Act Amendments
Peace Officer Powers of Nuclear Security Officers
Clause 42 of the Bill would expand the duties of nuclear security officers to include the preservation and maintenance of the public peace at high-security sites. The Canadian Nuclear Safety Commission (CNSC) would be authorized to designate a nuclear security officer as a peace officer (within the meaning of the Criminal Code) for the purpose of performing their duties at a high-security site and for the performance of limited off-site duties that are prescribed in the regulations, for example off-site training at a target shooting facility.
Designated nuclear security officers would not have the full range of peace officers powers set out in the Criminal Code. Clause 42 of the Bill would limit the extent of these powers to the following:
- Verifying the identity of any individual;
- Conducting searches of individuals and things;
- Arresting without a warrant, in accordance with the Criminal Code, any individual whom the nuclear security officer: (i) finds committing an offence under the Nuclear Safety and Control Act, the Criminal Code or the Controlled Drugs and Substances Act (CDSA) that poses a risk to the safety or security of the site or (ii) believes on reasonable grounds has committed or is about to commit an offence under those Acts at the site; and
- Seizing any thing that the nuclear security officer has reasonable grounds to believe: (i) poses a risk to the security of the site or (ii) is in relation to an offence under the Nuclear Safety and Control Act, the Criminal Code or the CDSA that has been, is being or is about to be committed.
Under clause 42, nuclear security officers would be permitted to use the appropriate level of force in carrying out their duties, subject to the applicable restrictions under the Criminal Code.
The search and seizure powers in clause 42 have the potential to engage section 8 of the Charter. The following considerations support the consistency of these powers with section 8. The purpose of the search and seizure is to protect the security of nuclear sites and the people and property within them. Privacy expectations are reduced in the tightly regulated environment of high-security nuclear facilities where the compromised security of such facilities could significantly impact national security, the Canadian economy, human health and the environment. Authorized seizures would be subject to a high threshold (i.e., reasonable grounds to believe) in limited circumstances (e.g., where there is a risk to the security of nuclear sites or where a criminal offence has been, is being or will be committed on the sites). The Bill would also promote oversight over the use of the search and seizure powers by requiring that the CNSC ensure there is a public complaints process to review the conduct of nuclear security officers in performing their duties as peace officers.
The amendments to allow warrantless arrests and the use of force have the potential to deprive persons of their liberty and engage section 7 of the Charter. Because arrests amount to a detention, the ability to arrest without a warrant also engages section 9 of the Charter. The following considerations support the consistency of these provisions with sections 7 and 9. The Bill would permit nuclear security officers to exercise existing peace officer powers that have been upheld by the courts in the criminal context. To safeguard liberty interests, nuclear security officers may only arrest individuals without a warrant in narrow circumstances related to the safety or security of nuclear sites. Furthermore, nuclear security officers may only use the degree of force that is necessary in the circumstances and must be acting on reasonable grounds when doing so. The purpose of these provisions are to equip nuclear security officers with the necessary powers to fulfill their duties in maintaining the safety and security of nuclear facilities.
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