Ian Binnie and the Senate Committee

 On October 26, 1995, Lawyer Ian Binnie (now a Supreme Court Justice) appeared before the Standing Senate Committee on Legal and Constitutional Affairs concerning "Consideration of Bill C-68, an Act respecting firearms and other weapons."

Mr. Binnie's Stated Credentials: "Perhaps I should say to the committee that I have a special interest in aboriginal matters. Essentially for the last 15 years, I have looked at aboriginal issues from the government perspective. I was Associate Deputy Minister of Justice federally from 1982 to 1986. I was responsible for all litigation to which the Crown was party, but with particular responsibilities for aboriginal matters, including constitutional conferences on aboriginal rights which took place during those years." (Page 61:9)

Page 61:10 of the Proceedings: "My concern, as expressed in the opinion letter, is that Bill C-68 does not indicate that Parliament has really put its mind to an issue to which the courts have said Parliament must put its mind, and that is the particular balance between what Parliament wants to do for the general population and Parliament's desire to sweep up aboriginal people in the general policy."

"The only evidence in the original bill that aboriginal peoples were considered is that relief could be granted at the discretion of the Governor in Council by way of regulation. As I indicated in my letter, I do not think that is good enough. I do not think Parliament can say, 'We override these rights, but the government can grant relief if it so desires.'"

"It is clear that the Supreme Court of Canada expects the government to consult with aboriginal peoples regarding provisions in the law generally applied to Canadians insofar as that law has a special impact on aboriginal and treaty rights. It also seems clear, as I understand the testimony, which has been given to this committee, that there was no such consultation."

Mr. Binnie outlined, to the Standing Committee, the three general concerns he had with the specific provisions of Bill C-68 in relation to aboriginal rights:

(1) His first concern was the vagueness of many of the standards imposed on both the licencing and registration side.

(2) His second concern was that the administrative machinery seems geared to big-city crime and has little relationship to most aboriginal communities, and

(3) His third concern is that the licensing and registration provisions give far too much discretion and subjective ability to the firearms officers and registrars as to who may or may not possess what weapon for the purpose of exercising aboriginal rights..

Other Comments and Concerns made to the Senate Standing Committee by Mr. Binnie

"...where aboriginal people have either a treaty or aboriginal right to hunt, they have the right to weapons and ammunition to accomplish the hunt." (Page 61:11)

"Perhaps instead of a licencing system there should simply be a process of exclusion whereby the potential trouble makers, the potential risk people, can be identified and prohibited from holding arms." (Page 61:11)

"Under section 70, the licence could be revoked for any good and sufficient reason. What has that to do with the specific requirement imposed by the courts on the government to establish a necessity for overriding rights which have been solemnly affirmed by the Constitution." (Pages 61:11 and :12)

"In respect to the registration provisions, again the language 'any good and sufficient reason' is used. I think that is too general. The courts will say that it is not good enough to have some reason, not even if it is a good and sufficient reason; it must be a reason directed to public safety, and it must be established that giving a firearms to this particular individual poses a danger to the public." (Page 61:12)

"The added amendment states that nothing in the act is to be construed so as to derogate from constitutionally guaranteed aboriginal and treaty rights. I suggest this amendment is not adequate, and I say so for the following reasons." (Page 61:12)

"...the non-derogation clause simply stands as a symbol of Parliament not having forgotten aboriginal peoples and thus it was not intended to take away those rights. However, all the problems have been left in place." (Page 61:13)

"As a practical matter, it creates a patchwork policy across the country." (Page 61:12)

"The bill does not say to aboriginal peoples, 'We understand there should be a regime for aboriginal people, and we will put in place a suitable regime.' The bill simply says, 'Well, if you can establish that we are violating a constitutional right, then I guess the bill does not apply.' That is an abdication of responsibility." (Page 61:13)