OFAH analysis on firearms ban
OFAH letter to Minister of Public Safety and Emergency Preparedness, Bill Blair
On behalf of the Ontario Federation of Anglers and Hunters (OFAH), our 100,000 members, subscribers and supporters, as well as our 725 member clubs, including 128 Chief Firearms Officer approved ranges, we have had an opportunity to fully review the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted: SOR/2020-96 (hereafter referred to as the ‘amended regulations’), and cannot support them as written. In short, they criminalize legal firearms owners, will negatively impact businesses, and do nothing to address gun violence in Canada.
We appreciated the opportunity to meet with you in the days following the government’s May 1, 2020 announcement to discuss our concerns with the amended regulations as we understood them at that time. It will be critically important for you and your ministry to remain actively engaged with the firearms community to understand the implications of the amended regulations on Canadians and Canadian businesses, as well as maintain a constructive dialogue about how to mitigate these concerns. Since our meeting, we have additional questions and concerns that we need to raise with you as we continue to analyze the amended regulations.
The comments and questions included in this letter are subject to change given the fluid nature of the dialogue and evolving implications of the changes that were announced earlier this month. We also offer recommendations for how the government can act to mitigate the issues facing the firearms community.
We acknowledge that this letter is quite lengthy and dives deep into the technical policy and its implications, but our membership expects us to get beyond the basic ideologies that plague firearms policy, and look ‘under the hood’ of these amended regulations to tackle the core issues. This letter does not take a position of being ‘for’ or ‘against’ the firearms that have been prohibited by the amended regulations. Our analysis looks at the policy, its development, and the implications it will have for the firearms community and society-at-large.
The OFAH remains fortunate to have a committed and passionate membership who bring diverse backgrounds and perspectives to this conversation. Our members are hunters. They are recreational shooters. They are collectors. Many are all of the above. Despite sometimes differing ideologies and specific policy positions, our members share a common interest in having clear, transparent, and evidence-based policy. They expect strong OFAH advocacy to ensure government accountability related to this common interest, and this is where we focus our efforts.
The OFAH fully recognizes and shares the government’s desire to respond to the “increasing public demand for measures to address gun violence and mass shootings,” but we don’t support the approach that is being taken. An outright prohibition on these firearms is not required to enhance public safety and will not reduce gun violence. The evidence doesn’t corroborate the narrative.
If the government’s intention is to prohibit firearms to reduce “the concern resulting from the inherent deadliness of assault-style firearms,” then prohibitions must be made based on criteria that eliminates the functionality that contributes to this concern. As we will outline in this letter, the basic functional concerns (sustained rapid-fire capability and ability to receive large capacity magazines) are already illegal, making the new prohibitions redundant in their potential to achieve the government’s stated objectives.
In addition, there were alternative regulatory and non-regulatory measures available to further reduce the potential for legal firearms to be used in gun violence and mass shootings. These options have a far greater degree of specificity in their application to address the concerns and achieve objectives. Blanket prohibitions are a blunt policy instrument that have many and far-reaching non-target implications. All regulatory and non-regulatory means should have been fully explored prior to implementing a ban that will have a significant negative impact on law-abiding Canadians and the Canadian economy.
The redundancy of the new prohibitions and not using available alternatives suggests that the amended regulations are a political response to the perception of what the government has deemed to be ‘military-style firearms.’ This is not an appropriate way to classify firearms. The OFAH firmly believes that classification must be evidence-based using form and function, and not the perceived public safety threat of a black synthetic stock with a curved magazine.
The mismatch between the government’s stated intent and the outcomes of the amended regulations have fueled an already burning mistrust of government policy related to firearms. Either the intent doesn’t match the outcome, because of unintended consequences resulting from a lack of robust regulatory consultation and adequate preparation, or the government’s intent has not been truly articulated. Either way, there are still options to mitigate the unnecessary consequences of the amended regulation, and we present many throughout the remainder of this letter.
Removing the newly listed (and unlisted) prohibited firearms won’t end or significantly reduce gun violence as the government, society, and the firearms community are collectively seeking.
The government needs to step up and invest in a deeper look at the root of these issues and commit right now to tackling the social determinants of gun violence, gangs, and the demand for illicit firearms. Significant investments need to be made today to ensure a reduction in gun violence tomorrow. This will require a long outlook and, perhaps more importantly, a sustained commitment of resourcing and government priority. This needs to happen. It is the only way to address the systemic issues of gun violence rooted in Canadian society.
That said, we can’t simply wait on long-term solutions. There are many ways the government needs to invest in the short term, and we remain supportive of the Government of Canada’s commitments to tackle gun violence by targeting criminals. It is clear that more is needed.
This includes giving Canada Border Services Agency (CBSA) the tools and resources needed to stop the flow of illegal firearms into Canada, as well as further investments in police services at all levels to tackle gangs, organized crime, and the market for illegal firearms. Taking firearms away from law-abiding Canadians won’t reduce the demand for illicit firearms by criminals. This needs to be addressed directly.
Once investments have been made in catching criminals, we need to make sure they are fully prosecuted. This will require further investments in our justice system with the capacity and policies needed to keep criminals in jail.
The narrative that rationalizes the need for these amended regulations often refers to the potential for legally purchased domestic firearms to be diverted to the illegal firearms market. The theory is that banning these firearms will reduce illicit firearms by shutting off the domestic supply. The Government of Canada needs to show leadership in the coordination of police services across the country to better flag suspicious purchases and other firearm-related criminal offences. This has been identified as a significant gap that has contributed to domestically-sourced firearms diversion that should have received government attention prior to implementing a ban. This serves as a prime example of a non-regulatory alternative that could have enhanced public safety.
We acknowledge that Section 117.15 of the Criminal Code allows for the Governor in Council (GIC) to make regulations prescribing firearms and weapons as prohibited; however, the sweeping changes in the amended regulations have fundamentally altered the existing firearms classification system, in part using a model-based approach. In our view, the changes included in the amended regulations were substantive enough in terminology, language, and approach that it reinterprets the firearms classification system in the Criminal Code and, therefore, would have justified legislative changes and full parliamentary review.
An Order in Council (OIC) may be a legal instrument to prescribe prohibitions, but it does not exempt the Government of Canada from the due diligence and rigor of the robust regulatory process that Canadians deserve. We do not support the use of an OIC without the level of upfront consultation that is required to truly determine the impact of such significant regulatory amendments on law-abiding Canadians and Canadian businesses. Ideological differences aside, all Canadians deserve a better approach.
The Regulatory Impact Analysis Statement for the amended regulations described “extensive public engagement on the issue of banning handguns and assault-style firearms” between October 2018 and February 2019. The OFAH participated in the roundtable discussion in Toronto, submitted extensive written comments, and met face to face with you twice in your role as minister of Border Security and Organized Crime Reduction. This is not to mention the parallel dialogue on Bill C-71 that weaved in and out of the ‘assault-style firearm’ discussion as it made its way through both the House and Senate. We testified before both the House and Senate standing committees that studied Bill C-71 and spoke with many parliamentarians on the subject.
We fully appreciated the dialogue that occurred on ‘military-style assault firearms’ at the time and felt that it resulted in some constructive discussions about what is actually needed to tackle the real issues with gun violence in Canada; however, we do not believe these amended regulations are consistent with the results in the government’s own Engagement Summary Report – Reducing Violent Crime: A Dialogue on Handguns and Assault-Style Firearms. The described engagement started and stopped with a discussion about whether we should or shouldn’t ban ‘military-style assault firearms’ and did not address the ‘what’ or the ‘how.’ Although the broad engagement was an important part of scoping a regulatory proposal, it was too high level and lacked the specificity of potential changes needed to truly assess the implications of different options. The severe negative implications of the government’s approach are playing out in real-time. The 2018-19 dialogue, an election platform, and a mandate letter were signals about what was coming, but they were not nearly sufficient enough to call them consultation on the amended regulations announced on May 1, 2020. Not even close.
The timing of these changes during a global pandemic and while Parliament is struggling to function, is being viewed as undemocratic by many. At the very least, robust regulatory consultation with the public and stakeholders that is commonplace with changes of this magnitude would have served to inform the discussion, prevent unintended consequences, and demonstrate sorely needed ‘respect for law-abiding firearms owners’ that has been a platitude of this government.
The amended regulations prescribe a list of approximately 1,500 models of firearms as prohibited, including nine principle models and the known variants. These models are specifically listed in the amended regulations, and are hereafter collectively referred to as the ‘listed firearms prohibition.’ Two new categories of prohibited firearms were also created through the amended regulations for, 1) bore diameter of 20mm or greater (hereafter referred to as the ‘bore diameter prohibition’; and 2) muzzle energy of greater than 10,000 joules (hereafter referred to as the ‘muzzle energy prohibition’).
A prohibition on ‘military-style’ firearms
What is a ‘military-style assault firearm’?
The government has stated that the listed firearms prohibition is intended to capture ‘military-style assault firearms.’ There is currently no definition of what a ‘military-style assault firearm’ is, so the prohibition has been based on three criteria: 1) have a semi-automatic action with sustained rapid-fire capability (tactical/military design with large magazine capacity); 2) are of modern design; and 3) are present in large volumes in the Canadian market.
The principal criteria that considers the function of the firearm is related to the action, rate of fire capability, and magazine capacity. Semi-automatic actions are extremely common in modern firearms used for hunting and sport shooting, including shotguns, rifles, and handguns. Although a semi-automatic action is described as a fundamental component of the criteria, it is not a distinguishing characteristic of this prohibition. It is the additional characteristics of 1) sustained rapid-fire capability, and 2) able to receive a quickly reloadable, large capacity magazine, that the government has used to define ‘military-style assault firearms.’
The other criteria are irrelevant, if not contradictory, to enhancing public safety. What is a modern design? And how does it contribute to the firearms’ risk to public safety? We acknowledge that the laws of probability would suggest that large volumes in the Canadian market increase the likelihood that some of those firearms could be diverted to the illicit market; however, if it is the form and function of those firearms that is a risk to public safety, then why introduce a criteria that would downplay the relevance of a potentially ‘high-risk’ firearm because it isn’t as common. We question why those criteria were even included, and would appreciate greater clarity for the rationale behind it.
What is ‘sustained rapid-fire capability,’ and isn’t it already prohibited in Canada?
‘Sustained rapid-fire capability’ has not been defined. This is hugely problematic from both a public perception and policy perspective. A semi-automatic action is differentiated from an automatic action in that a single round, and no more, is fired per pull of the trigger. Therefore, it is safe to assume that ‘sustained rapid-fire capability’ is a rate of fire that is higher than the definition of a semi-automatic.
The ambiguity of the terminology and insufficient description of ‘sustained rapid-fire capability’ has created a public perception that the government is prohibiting fully automatic firearms (aka: machine guns). Fully automatic firearms have been prohibited in Canada since 1977. This misleading narrative in the government’s dialogue has been one of the most disappointing aspects of the amended regulations. The government must do a better job in clarifying misinformation rather than fueling pervasive misconceptions.
To be clear, the OFAH does not support or advocate for civilian use of fully automatic firearms in Canada.
From a policy perspective, there is no such thing as a legal semi-automatic firearm with ‘sustained rapid-fire capability.’ Criminal Code regulations (SOR/98-462) already describe that “any electrical or mechanical device that is designed or adapted to operate the trigger mechanism of a semi-automatic firearm for the purpose of causing the firearm to discharge cartridges in rapid succession” as prohibited in Canada. The existing regulation would capture ‘bump-stocks’ and anything else that easily increases the rate of fire in semi-automatic firearms.
All other alterations to the firearm to increase the rate of fire, also illegal already, are not easily or quickly performed. Any blanket prohibitions to prevent these modifications would have negligible benefit to public safety, because they are not available to the average person, and anyone willing to go to those lengths outside of the law will not be deterred by additional prohibitions.
Large capacity magazines are already prohibited in Canada.
The second characteristic the government has used to define ‘military-style assault firearms’ is the ability to receive a quickly reloadable, large capacity magazine. The same Criminal Code regulation (SOR/98-462) that prohibits ‘sustained rapid-fire capability’ also already prohibits large capacity magazines.
The existing exception to this regulation allows for larger capacity magazines in Canada, so long as it has been altered or re-manufactured (e.g. pin, plug, etc.) to render it incapable of containing more than five or ten cartridges. It has been argued that this regulatory exception that enables the lawful purchase and presence of these pinned or plugged magazines in Canada creates the potential for conversion into illegal high capacity magazines.
If magazine capacity is a primary concern, then the government should have examined and exercised policy solutions that specifically target the issue. For example, a modification of the existing regulatory exemption for high-capacity magazines would have been an obvious place to start a conversation. Any change to this exception would also have been unpopular with many, but is a far more reasonable approach that would have shown more respect for the law-abiding firearms community because it specifically targets an identified problem instead of using a blanket ban. The bottom line is that other regulatory options were available and should have been explored prior to implementing the drastic measure of banning firearms.
The government has suggested that the bore diameter prohibition is intended to eliminate things like grenade launchers. We understand that the government’s technical professionals described 20mm as the appropriate diameter to eliminate grenade launchers; however, we don’t understand why an inclusive bore diameter prohibition was used when an exclusive prohibition targeting those devices could have been. Additionally, an exception for shotguns and any other common firearm used for hunting or sporting purposes that are at risk of being unintentionally captured by the prohibition could have been included (e.g. the United States excludes shotguns from the definition of ‘destructive device’ that has a bore greater than a 12.7mm).
The bore diameter prohibition has created a scenario where firearms are captured well beyond the government’s stated intent. Was this prohibition intended to capture anything other than grenade launchers?
Shotguns and the bore diameter prohibition
There has been mass confusion about how shotgun bores are officially measured for the purposes of this regulation. Officials from Public Safety Canada and the RCMP’s Canadian Firearms Program (CFP) have been extremely attentive in responding to our questions as we seek clarity for our members. We appreciate the clarifications we have received thus far. The RCMP’s technical assessment of firearms based on the legislation to make classification determinations are appreciated, but contradictory legal opinions solicited by industry have exacerbated uncertainty within the firearms community. The CFP has stated that nominal bore diameter (i.e. gauge or calibre) will be used for classification purposes, suggesting that bore diameter measurements are based on their ‘standard size’ and would not be subject to reclassification due to bore thinning in older firearms, or back-boring to repair or improve accuracy. Is this correct?
Minister, we appreciate your resolute statements that the ‘government is not banning any shotguns’ with these amended regulations, and acknowledge that most 10- and 12-gauge shotguns will not be captured under the bore diameter prohibition based on the CFP interpretation and classification using the standard sizes (both less than 20mm); however, the new bore diameter prohibition category has resulted in some shotguns being added to the list, including large bore firearms like 2, 4, 6, and 8-gauge shotguns, and even more commonly used 10- and 12-gauge in exceptional circumstances. What are these circumstances, and how many 10- and 12-gauge shotguns are newly prohibited under the amended regulations? The government needs to set the record straight to end the broad and growing speculation about how far this new prohibition reaches.
There are grenade launchers with 20mm and 25mm bores resulting in an overlap with the specifications of some shotguns. This makes the existing bore diameter prohibition inappropriate if the intent is to not ban shotguns. Furthermore, the government has described the prohibitions as capturing “weapons primarily designed to produce mass human casualties or cause significant property damage at long ranges.” I think we can agree this description of the government’s intent does not come close to matching the design of shotguns, even the large bore shotguns. The fact that large bore shotguns are rarely manufactured today and are not commonly available, only emphasizes the inappropriateness of this prohibition.
The existence of non-government legal opinions raising uncertainty about what firearms are included under this prohibition has created serious anxiety within the hunting community, as well as significant business process challenges and economic hardship for the industry.
Therefore, the OFAH recommends the current bore diameter prohibition be immediately repealed and replaced with a prohibition that specifically prescribes grenade launchers or a more explicit description (e.g. 20mm+ bore diameter and designed to deliver an explosive payload). If a bore diameter prohibition is used, it must provide exemptions for shotguns and other common firearms that are not the intended target of this prohibition. As long as the current bore diameter prohibition remains in effect, the government must immediately provide legal clarification that offers the certainty needed by firearms owners and businesses.
The government has stated that the muzzle energy prohibition is intended to include firearms such as “.50 caliber sniper rifles.” Much like the bore diameter prohibition, the muzzle energy prohibition has the potential to capture many more firearms than the government’s stated intent of “weapons primarily designed to produce mass human casualties or cause significant property damage at long ranges.” There are many ‘dangerous game’ rifles that are now prohibited because of this section of the amended regulations. How does the .460 Weatherby Magnum and other newly prohibited ‘dangerous game’ rifles fit the stated intent?
We remain very concerned with the potential for this prohibition to capture a large number of firearms. Unlike the bore diameter prohibition, the muzzle energy prohibition doesn’t have a nominal measurement that can be used to clarify.
The Firearms Reference Table (FRT) will differentiate using the make, model, and calibre of firearms, but does not consider the myriad of load specifications for powder, projectile, and cartridge size for any given firearm. The majority of hunting rifles have a muzzle energy that falls below 10,000 joules when firing standard manufactured cartridges (typically capped at 30% less than maximum capacity for safety reasons), but the possibility exists for handloads to exceed the prohibition threshold in some firearms. Using modified loads ‘capable of’ exceeding 10,000 joules may not be advisable due to the risk of the safety of the individual firing the gun, performance issues of the load, or irreparable damage to the firearm itself. That said, it is possible, even if it is only possible to fire it once.
The amended regulations state “any firearm capable of discharging a projectile with a muzzle energy greater than 10,000 joules” will be prohibited. Although the broad prohibition is concerning in and of itself, it is the term ‘capable of’ that draws more specific concern. Handloading is a common practice in the firearms community and can be achieved with relative ease using widely available equipment and basic knowledge and skills. We are concerned that using this language has a strong potential to broaden the unintended consequences of an already broad-reaching prohibition when viewed from a legal perspective.
Again, we don’t understand why an inclusive muzzle energy prohibition was used when an exclusive prohibition targeting specific concerns could have been used instead. The Government of Canada should be using a prescriptive regulation that will increase transparency of their intent and minimize unintended consequences.
Therefore, the OFAH recommends that the muzzle energy prohibition be immediately repealed and replaced with a clear and transparent prescribed list of firearms that the government intends to prohibit.
The government states that “the Governor in Council is not of the opinion that any thing prescribed to be a prohibited firearm or a prohibited device, in the Annexed Regulations, is reasonable for use in Canada for hunting or sporting purposes.”
This is important, because the regulation making powers of the GIC to prohibit firearms is restricted in 117.15 (2) of the Criminal Code based on whether the firearm is reasonable for hunting or sporting purposes: “In making regulations, the Governor in Council may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.”
There is no definition of hunting or sporting in the Criminal Code, so how did the government establish a threshold for ‘reasonable’ related to those purposes? Almost every single newly prohibited firearm is used for hunting or sporting purposes.
The government has acknowledged that “some of these newly prohibited firearms were previously used by individuals for hunting or sporting purposes, it is the view of the Government that those firearms are unreasonable and disproportionate for such purposes.” The ‘reasonable use’ of newly prohibited firearms for hunting and/or sport shooting has been dismissed with general statements and no resolution for how the occurrence or the legitimacy of their use was assessed. This vague dismissal does not respect the interests of law-abiding Canadians who enjoy these activities.
The government rationale for the newly prohibited firearms being ‘unreasonable for hunting or sporting purposes’ includes that they are “tactical and/or military-style firearms” and “numerous types of firearms remain available for lawful ownership for hunting or sporting purposes.” Some of the newly prohibited, but previously non-restricted, firearms chambered for .223 Remington were very popular for varmint and predator hunting. There are many alternative firearms that can be used for these activities; however, the simple existence of alternatives is insufficient rationale to conclude that they are not ‘reasonable for hunting or sporting purposes’ and to justify such a far-reaching and sweeping amendment.
For example, it has been suggested that some of the newly prohibited firearms are high-power rifles that are designed for ‘dangerous game’ hunting and, therefore, are not designed for hunting in Canada. Firearm-related hunting restrictions are commonly introduced by the governing jurisdiction (mostly by provinces with the exception of migratory birds) for a variety of reasons including appropriateness for the animal being hunted (i.e. minimum requirements for big game). These hunting-based restrictions don’t often include big game firearm maximums, so we question the appropriateness of the Government of Canada making determinations about what firearm specifications are reasonable for hunting in Canada through Criminal Code regulations. Did the Government of Canada consult with relevant agencies responsible for hunting to make these determinations? Additionally, many Canadian hunters travel to international destinations to hunt large game. How did the government determine that lawful international large animal hunting is not a ‘reasonable’ activity for Canadians to own a specialized firearm for?
The amended regulations provide a temporary (for the duration of the amnesty) exception to the use and transport aspects of the prohibition for Indigenous firearms owners. We understand the government is including this exception, because an immediate prohibition of use could infringe on S. 35 Constitutional rights. If the government is directly acknowledging the use of newly prohibited firearms for the purpose of hunting, then doesn’t it undermine the government’s definition of ‘reasonable for hunting’? Again, it has been suggested that the government considered what the firearm was ‘designed’ for as opposed to what it was ‘used’ for in Canada. Indigenous and non-Indigenous hunters select firearms for the same reasons, including availability, cost, and performance.
In many cases, the existing use may be telling and more appropriate than the manufacturer’s design intentions; not to mention, what a firearm is and isn’t ‘designed’ for is not abundantly clear, particularly on older firearms without modern marketing. Furthermore, many common hunting rifles have military origin and were clearly designed for purposes that were not hunting or sporting (at the time of original design). Some firearms used in tactical shooting have military origins, but are modern firearms designed for range shooting. It becomes very difficult to differentiate ‘reasonable’ using design.
Did the government use a threshold for determining ‘reasonable’ that included a dichotomy between ‘design’ and ‘use’? If so, then how is ‘design’ defined for this purpose?
The government must more clearly define the terminology of ‘reasonable for hunting and sporting purposes’ and specifically address how the amended regulations are consistent with the related restriction on regulation-making powers of the GIC. The legality of the amended regulations depends on it.
Firearms owners are asking ‘Am I legal?’
As you know, the firearms captured under the bore diameter and muzzle energy prohibitions are not specifically listed in regulation, making it extremely difficult for the average firearms owner to get certainty in whether their firearm is prohibited. The prohibitions were announced during open hunting seasons, and some hunters became very concerned about whether it was legal for them to be using their firearms. The existing public version of the FRT is an extremely large PDF file that is extremely cumbersome to use and potentially not even accessible for the average firearm owner. The government needs to invest in a more accessible and user-friendly public FRT that enables a user to easily search and understand the results.
The government also needs to do a better job of sharing information with the hunting community related to the amended regulations. This would not only result in greater compliance for the government, but more certainty for firearms owners. We recommend the RCMP establish a regularly updated webpage that clearly identifies the firearms that have been reclassified as prohibited since May 1, 2020. This would allow firearms owners a more accessible resource to determine new prohibitions.
More than three weeks after the coming into force (12:00 a.m. on May 1, 2020) of the amended regulations, we are still seeing firearms being reclassified and added to the FRT as prohibited. It is our understanding that all firearms captured under the amended regulations were considered to be prohibited as of May 1, 2020 regardless of when they were added the FRT. Since May 1, 2020, these newly prohibited firearms could have been used, transported, transferred, or even attempted to be imported based on the classification designation in the FRT. This has put many firearms owners, retailers, and distributors in a precarious legal position. For example, the buyer of a firearm must hold a licence for that type of firearm. On May 1, no one would have held a firearms licence with privileges for the newly prohibited firearms, meaning that any transfers would not have been in compliance with the Firearms Act. These are unusual circumstances and individuals or businesses operating in good faith using the best available information should not be held at fault for any non-compliant transfers that have occurred due to delays in updating the FRT. The government must do everything in its power to ensure that police and prosecutorial discretion is used to eliminate any criminal liability under the circumstances of this officially induced error.
The fact that government is still determining what firearms are prohibited many weeks after the amended regulations came into force is a sure signal that these changes were not given the necessary time and scrutiny required for regulatory development of this magnitude. It remains completely unacceptable that the government subjected Canadians, knowingly or unknowingly, to criminal liability. An upfront regulatory process would have established an FRT that completely reflected the prohibitions of the amended regulations at the time of coming into force. This would have significantly reduced, or even eliminated, the potential exposure of criminal liability to Canadians.
The amended regulations are causing undue hardship on the Canadian firearms industry. There are the obvious direct and immediate implications of the prescribed prohibitions listed in the amended regulations, but the far-reaching ripple effects caused by uncertainty and confusion with the new bore diameter and muzzle energy prohibitions is still unfolding and is extremely alarming.
The industry has expressed significant concerns with how this uncertainty is, and will continue to impact the supply chain for all firearms. A large percentage of the manufacture and distribution of firearms is done outside of Canada. This means that the firearms sold in Canada are largely imported. Canadian retailers require significant planning and coordination to ensure they have the appropriate inventory throughout the year. Firearms that are now prohibited, or even those with uncertain classification, are not being shipped to Canada. Often these firearms are only a part of a much larger shipment, and even if only a single affected (prohibited or questionable classification) firearm is contained within the order, the entire shipment is cancelled, because export permits won’t allow incomplete orders. In general, Canadian industry is very concerned about having any more inventory imported, because of uncertainty about what will be flagged as prohibited upon import.
If the order is flagged prior to shipment, then retailers are required to restart the months-long import permit process to receive those firearms with no guarantees of securing their preferred firearms. When shipments are cancelled due to questionable inventory, Canadian industry is often losing the allocation of that product, because manufacturers are oversold or the inventory won’t be there by the time the order goes through again (2-month process). The firearms market in Canada is small (relative to the United States) and it can be hard enough for Canadian businesses to secure shipments even without this added uncertainty.
If the order is not flagged prior to shipment, or if an FRT update changes any classifications while en route, then the entire shipment will be seized at the Canadian border. If this occurs, then the business can apply for an export permit (to return the shipment to the supplier), or it can be surrendered to the Government of Canada. The shipment will only be held by CBSA for a maximum of 14 days and require secure storage that comes with significant costs to the business. Additionally, it is our understanding that the export permit process is not typically completed in 14 days. The OFAH recommends that the maximum storage period and fees be waived, as well as the export permit process be expedited due to the current circumstances caused by officially induced error.
We continue to learn about the unexpected and unfortunate fallout of these regulatory measures. It is our understanding that many Canadian customs brokers are not servicing the firearms industry right now, because of the uncertainty and challenges caused by the amended regulations. It is clear that the entire Canadian firearms supply chain is being compromised and mitigative actions must be taken immediately.
The Canadian firearms industry is experiencing regulatory-induced hardship, and the OFAH implores the government to do everything it can to alleviate the high degree of uncertainty that is sure to have immediate and lingering impacts on the businesses and economies that rely on firearms. The government must clarify, with as much legal certainty as possible, the list of firearms captured under the prohibitions, including consistency in interpretations among government agencies such as the RCMP and CBSA.
The short- and long-term firearms supply in Canada is precarious as a result of the confusion and uncertainty surrounding the amended regulations, and our understanding of the implications continues to unfold on an almost hourly basis. This will not only have massive economic implications, but a compromised firearms supply chain for non-prohibited firearms will impact many Canadians.
The industry’s concerns are not simply based on fear of what could happen; all of these concerns are playing out now in real time. How is the government planning to mitigate the loss in revenue and other effects in the firearms industry resulting from the intended and unintended consequences of an abrupt and flawed regulatory change?
Non-restricted firearms that are now prohibited
As a result of the amended regulations, some previously non-restricted firearms have been reclassified as prohibited. The fact that some previously non-restricted firearms became prohibited overnight begs the question of why these firearms skipped a level of classification. If there was concern about these specific firearms, a more natural progression of policy would have examined reclassification to ‘restricted.’ The restricted level of classification comes with additional firearms training and licensing requirements for the owner, registration of each firearm, and additional restrictions on storage, transportation, and use.
Since the long gun registry records were destroyed, there should be no records of who owns any newly prohibited firearms previously classified as non-restricted. The government has acknowledged this, but has only said that “communications are in place emphasizing the obligation on affected owners to comply with the new prohibitions.” How does the government intend to inform these individuals of the changes? It is likely that any blanket correspondence with all firearms owners, especially one sharing a list of 1500-plus firearms, would be cost-prohibitive and ineffective in increasing voluntary compliance. What will happen to owners of previously non-restricted firearms who do not comply with the amended regulations during and/or after the amnesty period? How will the government differentiate between intentional and non-intentional non-compliance with those individuals?
The amended regulations establish an amnesty period for newly prohibited firearms. Given the immediate coming into force of the amended regulations, this was an absolute necessity. The clock has already started on this amnesty period, and without the upfront process to establish what the buy-back and grandfathering programs will look like, it is likely that the parliamentary process to establish clarity will continue to run down the clock and leave less time for programs to be implemented and voluntary compliance to occur. Is two years an adequate amount of time for an amnesty period?
Additionally, the OFAH is recommending that the use and transport of firearms should not be prohibited during the amnesty period. Given the significant uncertainty and confusion, this would minimize the potential criminal liability firearms owners are facing by unknowingly transporting and using their firearms after such an abrupt change. Many of the newly prohibited firearms already have strict transportation and use requirements (i.e. as restricted firearms), and the government has already deemed that transport and use is acceptable for Indigenous firearms owners during the amnesty period. The same privileges should be afforded to all Canadians.
The government has been mandated to establish a buy-back program for these firearms, but no details were released when the amended regulations were announced. Given the concerns outlined in this letter, the OFAH cannot support the amended regulations in whole or in part. The OFAH recommends that any buy-back program for prohibited firearms should be completely voluntary, and therefore, requires a grandfathering option for those who wish to keep their firearms (see Grandfathering section below).
Valuation of prohibited firearms
A buy-back program that prescribes uniform prices based on model is unacceptable. There must be a comprehensive system that fairly values the price of the firearm, and there will be different measures of value that need to be considered.
Some firearms have significant current market value that far exceeds an equivalent replacement value. This is common in older or limited-edition firearms that may or may not be ‘collector guns.’ There are many factors that contribute to the fair market value of these firearms, including condition, relative rarity and demand in the market, firearm-specific after-market enhancements, etc. Some of these firearms have achieved full appreciation while in the possession of an owner (or multiple owners in the case of a family heirloom). Other owners have invested significantly and strategically in these firearms. In both cases, the true market value of these assets must be reflected in the compensation price. How is fair-market value assessed when there is no longer a market in Canada? Is it established as April 30, 2020, the day prior to the prohibitions coming into force?
In the case of most common contemporary firearms that are widely available and/or continue to be manufactured, the value may have depreciated since purchase. In these situations, the ‘replacement value’ could be much higher than fair market value of the firearm depending on the model, condition, and other factors. If the owner had no intention of selling the firearm, then they should be compensated in a way that allows them to purchase another firearm at the equivalent of the replacement value.
The OFAH recommends that any buy-back program that respects Canadian firearm owners and provides ‘fair compensation’ must evaluate both values (fair market and replacement) and offer the higher of the two prices for all prohibited firearms.
Eligibility of other products specific to newly prohibited firearms
The firearm itself is only one aspect of what should be considered in a buy-back program. The average owner of a newly prohibited firearm will have ammunition, magazines, replacement parts, and many other accessories in their possession. Any of these products specific to a prohibited firearm will no longer have a market or value in Canada. Canadian firearms owners should not be expected to be at a loss because of these amended regulation for any product that they lawfully purchased.
Industry buy-back program
The immediate coming into force of the amended regulations has resulted in the Canadian firearms industry having existing inventory of firearms that is no longer available for sale. Industry should not be penalized in any way for having an inventory of firearms and related components, accessories, and other products specific to those firearms. The OFAH recommends that there must be an industry-specific component of any buy-back program that reflects robust consultation with the industry and provides full compensation for all products that are now prohibited or specific to prohibited firearms.
As stated multiple times in this letter, the OFAH cannot support the amended regulations in whole or in part. If the government maintains the prohibitions in the amended regulations, then the OFAH strongly recommends it must offer firearms owners a grandfathering option to allow Canadians to maintain their lawfully purchased firearms. The government signaled that grandfathering would be considered for any newly prohibited firearm under the amended regulations. This is consistent with previous prohibitions (e.g. Bill C-71). Although this may not be appealing to all owners of the newly prohibited firearms, there are many collectors and other individuals who believe the guns are worth more to them in their possession than what the government will be willing to pay them.
While some firearm owners may be content to retain prohibited firearms for a collection, sentimental value, or any other reason, there are many who have the simple interest of responsibly using their firearms. The OFAH recommends that the continued transport and use of the newly prohibited firearms, under the strict provisions governing restricted firearms, be fully explored during grandfathering discussions.
The OFAH also recommends that the government take all financial resources saved by implementing a voluntary buy-back program (i.e. money that doesn’t need to be paid out to owners who retain their firearms), and invest it directly in relevant social programs, police services, CBSA, and the Canadian justice system to help reduce gun violence. This would not only allow firearm owners to retain their property, but also establish key common ground that can help to rebuild the trust and respect with law-abiding firearms owners that the government has repeatedly expressed an interest in achieving.
The OFAH fully supports the government’s intent to prevent mass shootings and gun violence; however, we strongly oppose these amended regulations as the means to achieve the government’s stated objectives.
First and foremost, there are far more pressing needs for government policy attention and resource investment to address gun violence in this country. We acknowledge and fully support the government’s investments in policing, the border, and other areas to tackle illegal guns and gangs. It isn’t enough, and a conscious reorientation of government focus away from lawful Canadians and on to criminals is needed. Continued investment in policing and the CBSA will be required to catch criminals, but we need to plug holes in the justice system to help break the cycle of firearms-related criminal activity. Arguably, the most challenging and important priority is the need to tackle the upstream social determinants of gun violence. This will take a sustained commitment that extends the typical life cycle of a government. If we really want to make a difference for the public safety of Canadians, then this is where we need to be.
Additionally, this is bad policy. The first prohibition in the amended regulations was to eliminate ‘military-style assault firearms’ from Canada. If we get past the misleading terminology and narrative, then we would see this policy is largely redundant and, therefore, not necessary to functionally enhance public safety beyond what already exists. ‘Rapid-fire capability’ is one of the primary criteria outlined by the government as needing to be eliminated, but is already prohibited in Canada.
Where the amended regulations are not creating redundant prohibitions, they are being used as a blunt instrument to solve a precise need. The other function-related criterion is the ‘ability to receive large capacity magazines’ and this could have been addressed with enhanced regulatory measures specific to magazine size. This would have lowered actual risk to public safety to the same degree without a ban. A ban was unnecessary.
The second type of prohibition in the amended regulations are in the form of two new categories that put maximums on bore diameter and muzzle energy. These inclusive prohibitions have captured far more firearms than they were intended to, and are inappropriate policies to tackle the government’s objectives. Again, these were blunt policy instruments to achieve a specific need that has resulted in an unnecessarily long list of banned firearms as collateral damage.
The amended regulations are flawed policies that should not have been implemented. There was a clear lack of adequate consultation and preparedness, and the uncertainty that has resulted has been arguably more damaging than the prohibitions themselves. Had these regulatory measures went through proper regulatory process typical of such sweeping changes, many of the unintended consequences could have been flagged and mitigated without implications to responsible firearms-owning Canadians and Canadian businesses. The layering of a global pandemic, sweeping and immediate prohibitions, and this uncertainty has put the firearms industry and the entire Canadian supply chain in an extremely precarious position that will have lingering negative socio-economic impacts.
The outcome of the amended regulations is unacceptable. The OFAH is urging the government to take immediate steps to minimize the damage of these harmful regulations by repealing them and replacing them with a measured policy response that is evidence-based and will have maximum enhancements to public safety with minimum impact on responsible firearms owners.
We would be happy to discuss this letter in greater detail, or anything else related to the amended regulations with you and your staff to find workable solutions that achieve the government’s mandate to reduce gun violence in a way that doesn’t unnecessarily impact Canadian firearms owners and businesses.
Yours in Conservation,
Manager, Fish and Wildlife Services
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