Last week, Federal Public Safety Minister Ralph Goodale announced an overhaul to the Canadian Firearms Advisory Committee. This federal committee examines rules regarding firearms in Canada and recommends reform. The committee will now be headed by an as yet to be identified “distinguished Canadian jurist” (whose name has not yet been released), and efforts have been made to diversify the committee. The new committee will feature representation from mental health and family violence experts, in addition to the police, farmers, hunters, and sport shooters who were already represented.1
But why is this federal jurisdiction? Firearms are property, and property falls under provincial responsibility.2 Despite provincial authority over property, this did not prevent the federal government from passing the Firearms Act in 1995.3 The purpose was to establish licensing and registration regimes for firearms, in which non-compliance would be a criminal offense.4 The application of criminal law put the regulatory regime under federal constitutional authority.5
This assessment by the federal government was challenged by Alberta in 1996, and ended up going to the Supreme Court of Canada (SCC) in 2000.6 The province challenged the legislation on the grounds that firearms, as personal property, fall under provincial authority in s 92(13) of the BNA Act.7 The SCC did not accept Alberta’s challenge and concluded that the legislation was valid criminal law.8
One important element that the SCC examined was identifying a valid criminal law purpose in the legislation. The SCC found that purpose in public safety. The definition of firearms includes the ability to cause bodily harm and death.9 This justifies their restriction under criminal law because they are seen as inherently dangerous objects.10 The Court also found there to be prohibitions and penalties included.11
Purpose, prohibition, and penalty are not enough. Jurisdiction over some complex issues is decided by whether or not the prohibitions and penalties are regulatory or criminal in nature. In the case of the Firearms Act, there is a thin, nuanced line between the two. There is a complex regulatory scheme with a large amount of power given to the Chief Firearms Officer (CFO) and the Registrar. However, the actual offenses are clearly defined in legislation rather than being decided by the CFO and Registrar. The offenses are related to possession without a licence, while the CFO and Registrar made decisions on who can be disqualified from possessing a license.12 The key point according to the SCC was that the legislative aim was not to regulate firearms, but to regulate who can access firearms. This subtle distinction changed the legislation from regulating property to regulating people, putting it under federal criminal jurisdiction.13
That distinction may be confusing to some. This shows how subtle the line can be between federal criminal law and provincial regulatory law. These kinds of decisions by the SCC can hinge on nuanced details and exemplifies why constitutional law is so important.
1 Alison Crawford, “Public Safety Minister to Unveil 'Substantially Different' Firearms Advisory Committee”, CBC News (26 Jan 2017), online: <http://www.cbc.ca/news/politics/goodale-firearms-advisory-committee-1.3953521>
2 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985, Appendix II, No 5.
3 SC 1995, c 39.
4 Ibid, s 4.
5 Supra note 2, s 91(27).
6 Reference re Firearms Act (Canada), 2000 SCC 31, 1 S.C.R. 783, at 1.
7 Ibid, at 3.
8 Ibid, at 58.
9 Supra note 3, s 138(2).
10 Supra note 6, at 33.
11 Ibid, at 34.
12 Ibid, at 37.
13 Ibid, at 38.