What Does the 2020 Firearms Ban Mean for Firearms Owners?

Through an Order in Council titled 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, the Liberal government has banned a over 1500 models of firearms affecting approximately 90,000 firearms with an aim to prohibit “military-style assault weapons”. Historically, “military-style assault weapons” i.e. the ones used by the Canadian Armed Forces (CAF), in war-time and peacekeeping activities, have already been inaccessible (via prohibited status) since June 27, 1969 when the Criminal Law Amendment Act, received royal assent.

This was an omnibus bill that introduced major changes to the Canadian Criminal Code. The bill was a massive 126-page, 120-clause amendment to the criminal law and criminal procedure of Canada. Importantly, it made it illegal to provide firearms to persons of “unsound mind” or criminals under prohibition orders. The law also expanded the definition of a “firearm”, which, prior to 1969, included only handguns and automatic firearms, and introduced non-restricted, restricted, and prohibited firearm categories. Further firearms legislation proclaimed in August, 1977 (but not in force until 1978 and 1979 in part) used Orders in Council to ban automatic firearms and tighten the noose on many other restrictions.This was an omnibus bill that introduced major changes to the Canadian Criminal Code. The bill was a massive 126-page, 120-clause amendment to the criminal law and criminal procedure of Canada. Importantly, it made it illegal to provide firearms to persons of “unsound mind” or criminals under prohibition orders. The law also expanded the definition of a “firearm”, which, prior to 1969, included only handguns and automatic firearms, and introduced non-restricted, restricted, and prohibited firearm categories. Further firearms legislation proclaimed in August, 1977 (but not in force until 1978 and 1979 in part) used Orders in Council to ban automatic firearms and tighten the noose on many other restrictions.

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This previous legislation already bans all the current weaponry used by the CAF with the possible exception of the C3A1, as it does not appear on the prohibited firearms regulation to the Criminal Code or the new order. Considering Canadians’ inability to legally access military grade (or even low grade automatic) firearms for over 40 years, it remains unclear, what legal “military-style assault weapons” this order is seeking to inhibit or what this undefined term means.

The order-in-council is predominantly comprised of semi-automatic non-restricted firearms. The list also includes two categories of firearms the government hopes to ban:

  • Firearms with a calibre of more than 20 mm; and
  • Firearms capable of producing muzzle energy of more than 10,000 joules.

Taken together, these two categories address some types of civilian firearm such long barreled rifles that use high velocity cartridges (such as the .50 BMG) for long distance target shooting. Similarly, this could apply to overbored competition 12 gauge shotguns used in shooting skeet or sporting clays and possibly many 10 gauge hunting shotguns.

Orders in Council

What Is an Order in Council?

The Governor General in Council and the Lieutenant Governors in Council exercise their authority on behalf of the Crown and on the advice of their councils. An order in council is initiated by a recommendation from a minister to the council. If the recommendation is accepted by the council, it is then put in the form of an order and submitted by the council to the Governor General or the Lieutenant Governor for approval.

How Does it Operate?

The role of these councils is to typically draft and propose regulations to pre-existing legislation (in this case the Firearms Act), or other powers, to further the goals of pre-existing legislation. In the absence of a statutory or other special provision providing otherwise, an order in council becomes legally operative upon the Governor General or a Lieutenant Governor signifying his approval, usually by writing approved on it.

Doesn’t This Practice Contravene Parliament?

Legislatures or Parliament cannot abdicate their function of making laws, but, within reasonable limits, they can delegate their powers to the executive government.  Legislatures may authorize administrative bodies to make regulations to carry out the objects of an Act instead of setting out all the details in the Act. Although an Act may provide that regulations made under it may be taken and read as part of the Act, the regulations cannot add to the Act’s objects. In other words, it cannot reinterpret, divert, or reuse the existing legislation for another purpose contrary to Parliamentary intent.

What if the Order in Council Oversteps the Bounds of the Act?

Ordinances or regulations passed by the Governor in Council or by a Lieutenant Governor in Council which are repugnant to or unauthorized by the provisions of the Act of Parliament giving the subordinate authority jurisdiction to make them, have no legal effect.

How Does the Power of an Order in Council Apply to the Regulation of Firearms?

Pursuant to subsections 84(1) and 117.15(1) of the Criminal Code, the Governor in Council (GIC) has the authority to prescribe a firearm or a device to be prohibited in accordance with the definitions of “prohibited firearm” and “prohibited device.”

Banned Firearms

What if I Own a Banned Firearm?

While an individual may dispose of a firearm by deactivating it, legally exporting it or delivering it to a police officer prior to the implementation of the buy-back program, compensation will not be available until the buy-back program is in effect. An individual should not deliver a firearm to a police station without first making arrangements with a police officer for a safe and scheduled delivery or pick up.

Amnesty for Firearms Owners?

Pursuant to section 117.14 of the Criminal Code, the GIC is authorized to declare an amnesty period when a firearm or device is prohibited for the purpose of permitting affected owners to come into compliance with the law. Because of this, the government has made a second order in council named Order Declaring an Amnesty Period (2020).  The Order Declaring an Amnesty Period (2020) accompanies the Regulations to protect individuals, who were in lawful possession of one or more of the newly prohibited firearms or prohibited devices on the day the Regulations came into force, from criminal liability for unlawful possession for the purpose of allowing individuals to come into compliance with the law. This order expires on April 30, 2022.

During the amnesty period, the Government intends to implement a buy-back program to compensate affected owners for the value of their firearms after they are delivered to a police officer; however, until a buy-back program is offered, affected owners will not be eligible for compensation. An option to participate in a grandfathering regime would also be made available for affected owners. Further public communications on the buy-back program and the grandfathering regime is expected to follow later.

When Do These Amendments Come into Effect?

The amendment to the Classification Regulations and the Amnesty Order both come into force today – May 1, 2020.

Conclusion

This article is not meant to be an exhaustive legal guide to gun charges in Canada, but rather a glimpse into the complex and labyrinthine nature of the legislation relating to the new firearms ban.

The odds of success with any responding to any of these charges are much higher with the insight and guidance of experienced counsel. Maybe you found your grandfather’s now banned pistol in a trunk and want to legally dispose of it.  What if you went hunting with some friends and left a box of shells laying out at the cottage. If the Crown is seeking jail time, you need your weapons for your employment, hunting, or home security, or you just want to make sure that your current set-up is legally compliant – then it is strongly suggested that you retain competent legal counsel.

The lawyers in our firm offer experienced legal representation for serious gun law offences like Careless Use of a Firearm, Contravention of Storage Regulations, or even Assault With a Weapon.  You can reach us 24 hours a day by calling (416) 999-9389 or complete a consultation form here.