Concerns Regarding the New Regulations on Firearms

by Justice Centre Staff

The Justice Centre announced on July 13, 2020 that it will apply to intervene in the Federal Court legal action commenced by the Canadian Coalition of Firearm Rights (CCFR), which challenges the constitutionality of Justin Trudeau’s Cabinet Order confiscating legally acquired property from law-abiding Canadians.

On May 1, 2020, and under the cover of the coronavirus pandemic, the federal cabinet issued Order-in-Council PC 2020-298 [“the OIC”] amending Regulations under the Criminal Code. This OIC arbitrarily reclassified approximately 1,500 previously-legal firearms and “variants” as “prohibited,” thereby making it suddenly illegal to own them. Trudeau’s Cabinet also issued an amnesty order, allowing current owners a two-year amnesty period ending in April 30, 2022. This OIC results in a massive and arbitrary confiscation of private property from law-abiding Canadians.

Since COVID-19 lockdowns were imposed in March, Trudeau’s government has done its utmost to avoid checks and balances, by suspending Parliament and by its unsuccessful attempt to shield federal government spending from Parliamentary scrutiny through to the end of 2021. Trudeau has sequestered himself away in Rideau Cottage, where he speaks only to selected media.

Trudeau’s arbitrary confiscation of private property from Canadians was also not effected via Parliament. No public consultation, debate, or study occurred in advance of this mass confiscation. Very little explanation has been given by Trudeau’s Cabinet to explain how or why it selected the firearms that it is now confiscating from law-abiding citizens.

The Justice Centre’s intervention application will focus on the Constitution’s allocation of legislative power to Parliament, and the Constitution’s inherent safeguards which are intended to prevent the tyranny of a government that operates independently of democratically-elected representatives. The Justice Centre is preparing its intervention application and will release further details in the days ahead.

“The arbitrary and opportunistic confiscation of property from Canadians by a Federal Cabinet operating behind closed doors, with no transparency and without accountability to an independent Parliament, is little better than theft,” states Jay Cameron, Litigation Director with the Justice Centre for Constitutional Freedoms.

“Canada is a democracy, but Trudeau’s Cabinet passed this Order-in-Council during a pandemic and during a Parliamentary shut down when this Order-in-Council has nothing to do with COVID-19. This looks like an effort to avoid the scrutiny of the representatives of Canadians in Parliament. Our position is that the Order-in-Council is outside the bounds of the rule of law and the Constitution.”

The Justice Centre understands the concerns about the federal government’s recent Order-in-Council prohibiting certain firearms and components. We also understand that the vast majority of firearms owners in Canada are law-abiding citizens who are already subjected to heavy screening measures and regulations. We share your concerns about opportunistic government overreach that appears to be based on emotion rather than evidence. Arbitrary laws that impact citizens who have long engaged in lawful activities such as hunting, fishing and collecting do not comply with the ideal of the Rule of Law, one of Canada’s founding principles.

Background information: Concerns Regarding the New Regulations on Firearms

The federal government’s new Order-in-Council (OIC) regarding firearms has increasingly been the subject of discussion since it came into force on May 1. The Order banned eleven broadly-defined firearm models, including more than 1,500 individual variants of firearms, with the stated goal of curbing gun violence. Prime Minister Trudeau justified the decision by stating the firearms included under the ban were designed to “kill the largest amount of people in the shortest amount of time.”

This newly banned list includes firearms which had historically been classified as “unrestricted” (the lowest level of classification) even though many functionally similar firearms are still for the moment classified as unrestricted. Many of the now-banned firearms function exactly the same as many which are still unrestricted. The OIC also appears to target 12-guage shotguns, making them illegal due to the OIC’s prohibition of any weapon with a bore of more than 20 mm.

Trudeau didn’t table legislation to push this significant change through Parliament democratically. Rather, he used a regulatory mechanism called an order-in-council to change the classification of many guns owned by law-abiding firearms owners.

Section 117.15(1) of the Criminal Code of Canada limits the powers of the Governor-in-Council (legal term for “cabinet”) to classify any firearm, weapon, device or ammunition as prohibited or restricted, if Governor-in-Council is of the “opinion” the firearm is reasonable for use in Canada for hunting or sporting purposes. This provision could be legally challenged on two grounds:

  1. It has no checks and balances on the “opinion” of the cabinet
  2. Many of the prohibited items may be, and in fact are, used for hunting and sport shooting.

The order-in-council represents a significant increase to the number of firearms prohibited in Canada, and the number of law-abiding citizens who have now become criminals in possession of banned weapons, with the stroke of the pen.

As this was done via an order-in-council, there is little explanation as to how the firearms were chosen, or what specific considerations went into their prohibition. The methodology of the government appears hasty and haphazard. The arbitrariness of these decision may be grounds for challenging the regulations as not being rationally connected to the Government’s stated goal, and therefore could be found to have unjustifiably infringed on Canadians’ Charter rights and freedoms.

Laws and Government Decisions must Respect the Constitutional Rights of Canadians

When governments, through their laws or decisions, violate the rights and freedoms of citizens, citizens can go to court and ask the court for a resolution.  Courts have the power to nullify a law and to overrule a government decision. However, Section 1 of the Charter requires governments to justify any violation of Charter freedoms, if a law, policy, cabinet directive or decision violates Charter freedoms. If a government is able to convince a court that its law or decision is a justified violation of a person’s constitutional rights and freedoms, the court will not likely not overturn the law or overrule the government decision.

Governments would try to justify violations of Charter rights and freedoms by saying that the public must be protected from violent crimes involving firearms, such as the recent tragedy in Nova Scotia. A court would look to the circumstances of each case before making a ruling.

The Justice Centre is taking action

The Justice Centre is currently liaising with Canadians and researching the constitutional implications of the Order-in-Council. We will review requests for individual legal help on a case-by-case basis.  Depending on the facts, it could be within our mandate to represent an individual who is challenging the constitutionality of these regulations. We would carefully review the specific facts of each case, as well as looking closely at the specific law or government decision that is being challenged.

We have considered actions that may be brought by groups representing firearms owners and have announced we will provide our assistance and legal expertise to the challenge being brought by the CCFR.

If you have submitted a request for legal assistance, you will hear back separately from our legal team.

How You Can Help

You and other citizens should contact your federal MP to share your concerns. Citizen participation in the democratic process remains as important as ever (and can be done easily without needing to visit the MP office in person!). You can also write letters to media outlets and editors across the country to express your viewpoint. There is strength in numbers.

Please feel free to share our news releases, columns and articles with your friends and family to help more people become aware of their Charter rights during this time. You can join our mailing list and receive our free monthly newsletter to stay up to date on our activities.

The Justice Centre is a non-profit, non-partisan, registered charity and public interest legal advocacy organization, which relies entirely on voluntary donations from Canadians to carry out its work. We represent all our clients free of charge, and we are entirely funded by donations. We do not ask for, or receive, government funding.

If it is within your means to do so, we appreciate any donations to help us continue the fight to maintain the freedoms of all Canadians. We issue official tax receipts in respect of all donations.

Once again, thank you for your continued interest in defending Canadians’ constitutional rights and freedoms.