Under the provisions of the 1867 Constitution, which continue as part of the 1982 Constitution, criminal law is under federal jurisdiction. So the Criminal Code is a federal statute.
The Firearms Act is also a federal statute. Whereas the Criminal Code deals with criminal offences involving firearms, the Firearms Act deals specifically with licensing of firearms owners and registration of firearms. Actually, I guess that what the Firearms Act did was amend the Criminal Code.
Firearms Act
PURPOSE
4. The purpose of this Act is
(a) to provide, notably by sections 5 to 16 and 54 to 73, for the issuance of
(i) licences, registration certificates and authorizations under which persons may possess firearms in circumstances that would otherwise constitute an offence under subsection 91(1), 92(1), 93(1) or 95(1) of the Criminal Code,
(ii) licences and authorizations under which persons may possess prohibited weapons, restricted weapons, prohibited devices and prohibited ammunition in circumstances that would otherwise constitute an offence under subsection 91(2), 92(2) or 93(1) of the Criminal Code, and
(iii) licences under which persons may sell, barter or give cross-bows in circumstances that would otherwise constitute an offence under subsection 97(1) of the Criminal Code;
(b) to authorize,
(i) notably by sections 5 to 12 and 54 to 73, the manufacture of or offer to manufacture, and
(ii) notably by sections 21 to 34 and 54 to 73, the transfer of or offer to transfer,
firearms, prohibited weapons, restricted weapons, prohibited devices, ammunition and prohibited ammunition in circumstances that would otherwise constitute an offence under subsection 99(1), 100(1) or 101(1) of the Criminal Code; and
(c) to authorize, notably by sections 35 to 73, the importation or exportation of firearms, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition and components and parts designed exclusively for use in the manufacture of or assembly into automatic firearms in circumstances that would otherwise constitute an offence under subsection 103(1) or 104(1) of the Criminal Code.
(You'll have to excuse some of the stupidly awkward wording here. Canadian legislation is enacted in both English and French. A few years ago, "co-drafting" was introduced: bills aren't written in one language and translated into another, they're written simultaneously in both languages. Theoretically. What actually has happened is that (a) the French versions, in aid of being made more concise, are often so concise as to be impossible to understand without reading the English, and (b) the English versions have taken on the characteristic that was objected to in the old French versions, of looking like a bad translation from the French rather than like English. Who the hell says "notably"? The French
notamment, which is just an expression of lazy writing anyway, is actually properly translated as
inter alia, "among other things", and we just don't write that lazily in English; we say exactly what we mean and mean exactly what we say. Don't get me wrong -- I'm a strong partisan of Canadian bilingualism, biculturalism and bijuralism (two languages, two cultures and two legal systems). I just think that what is actually happening in these situations is the antithesis of what they mean, it's a messy amalgam that disregards and disrespects the
génie of each language, culture and legal system. Rant over.)
Your patchwork of criminal law in general, not just firearms laws and regulations, is indeed strange to the outsider. There's a whole big thing behind it that is probably outside the parameters of this discussion, but it of course has to do with USAmericans having very different concepts of and feelings toward "government" from what the rest of us out here tend to have.
Here's another basic sort of reference for the Cdn law on firearms:
http://www.lexum.umontreal.ca/csc-scc/en/pub/2000/vol1/html/2000scr1_0783.htmlThe Supreme Court of Canada decision in
Reference re Firearms Act
(Can.), <2000> 1 S.C.R. 783.
In 1995, Parliament amended the Criminal Code by enacting the Firearms Act. The amendments require the holders of all firearms to obtain licences and register their guns. Alberta referred constitutional questions to the <Alberta> Court of Appeal to determine whether the licensing and registration provisions of the Firearms Act, as they relate to ordinary firearms, are intra vires <within the power of> Parliament. The majority of the Court of Appeal concluded that the Act is a valid exercise of Parliament's criminal law power. Alberta appealed to this Court.
Held: The appeal should be dismissed. The impugned provisions of the Firearms Act are constitutional.
The 8 paragraphs of the headnote (summary) that follow that, at the beginning of the decision, explain ... well, heck, I'll just copy and paste. The issue was whether the kind of law in question fell under the federal Parliament's "criminal law" powers, or under the provincial governments' "property and civil rights in the province" powers. ("Civil rights" means what it meant in the 19th century, not "human rights" or "constitutional rights" or that sort of thing -- basically, things relating to legal capacity and status.)
The province that started the constitutional reference, Alberta, is of course our own hotbed of both anti-gun-control activism and right-wing redneck fundamentalist politics. The other provinces joined in the appeal to the Supreme Court because, well, what province or state wouldn't take an opportunity to snatch power from a federal government?
The Firearms Act constitutes a valid exercise of Parliament's jurisdiction over criminal law. The Act in "pith and substance" is directed to enhancing public safety by controlling access to firearms. Its purpose is to deter the misuse of firearms, control those given access to guns, and control specific types of weapons. It is aimed at a number of "mischiefs", including the illegal trade in guns, both within Canada and across the border with the United States, and the link between guns and violent crime, suicide, and accidental deaths. The purpose of the Firearms Act conforms with the historical public safety focus of all gun control laws. The changes introduced by the Act represent a limited expansion of the pre-existing gun control legislation. The effects of the Act also suggest that its essence is the promotion of public safety. The criteria for acquiring a licence are concerned with safety. Criminal record checks and background investigations are designed to keep guns out of the hands of those incapable of using them safely. Safety courses ensure that gun owners are qualified.
The Firearms Act possesses all three criteria required for a criminal law. Gun control has traditionally been considered valid criminal law because guns are dangerous and pose a risk to public safety. The regulation of guns as dangerous products is a valid purpose within the criminal law power. That purpose is connected to prohibitions backed by penalties.
The Firearms Act is not essentially regulatory legislation. The Act's complexity does not necessarily detract from its criminal nature. Nor does the law give either the chief firearms officer or the Registrar undue discretion. The offences are clearly defined in the Act. The chief firearms officer and the Registrar are explicitly subject to the supervision of the courts. Further, the law's prohibitions and penalties are not regulatory in nature. They are not confined to ensuring compliance with a scheme, but independently serve the purpose of public safety. Parliament's intention was not to regulate property, but to ensure that only those who prove themselves qualified to hold a licence are permitted to possess firearms of any sort. Finally, Parliament may use indirect means to further the end of public safety.
The 1995 gun control scheme is distinguishable from existing provincial property regulation schemes. The Act addresses the aspects of gun control which relate to the dangerous nature of firearms and the need to reduce misuse. While ordinary guns are often used for lawful purposes, they are also used for crime and suicide, and cause accidental death and injury. Their control accordingly falls within the criminal law power.
The registration provisions cannot be severed from the rest of the Act. The licensing provisions require everyone who possesses a gun to be licensed; the registration provisions require all guns to be registered. These portions of the Firearms Act are both tightly linked to Parliament's goal of promoting safety by reducing the misuse of any and all firearms. Both portions are integral and necessary to the operation of the scheme.
The Firearms Act does not trench on provincial powers such that upholding it as criminal law will upset the balance of federalism. The provinces have not established that the effects of the Act on provincial jurisdiction over property and civil rights are more than incidental. First, the mere fact that guns are property does not suffice to show that a gun control law is in pith and substance a provincial matter. Second, the Act does not significantly hinder the ability of the provinces to regulate the property and civil rights aspects of guns. Third, assuming (without deciding) that the provincial legislatures have the jurisdiction to enact a law in relation to the property aspects of firearms, the double aspect doctrine permits Parliament to address the safety aspects of ordinary firearms. Fourth, the Firearms Act does not precipitate the federal government's entry into a new field since gun control has been the subject of federal law since Confederation. There is no colourable intrusion into provincial jurisdiction.
The problems associated with the misuse of firearms are firmly grounded in morality. However, even if gun control did not involve morality, it could still fall under the federal criminal law power. Parliament can use the criminal law to prohibit activities which have little relation to public morality.
The apprehensions of northern, rural and aboriginal Canadians that this law does not address their particular needs do not go to the question of Parliament's jurisdiction to enact the law. The cost of the program and the efficacy of the law, or lack thereof, are equally irrelevant to Parliament's ability to enact it under the division of powers analysis. Within its constitutional sphere, Parliament is the judge of whether a measure is likely to achieve its intended purpose.
I'm curious too; there is federal firearms legislation in the US of course, right? Something has to have some inter-state aspect for the federal government to be able to legislate in relation to it, where it's not specifically assigned to the fed? Does that mean that this "federal firearms licence" thingy proposed would be valid if it applied to people taking firearms from one state to another, but not within a state ... and not if a state into which a firearm were taken had validly enacted more restrictive legislation?
.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
