Shooting Range Approval

NFA BRIEFING DOCUMENT 3  VERSION 2

UNDER THE OLD ACT, PRE-DEC O1 1998:

Shooting ranges required approval by a provincial minister if and only if “restricted weapons” were used on that range [old CC s. 110(2)(c)].

UNDER THE POST-DEC 01 1998 FIREARMS ACT:

All shooting ranges (including even trap and skeet ranges) require the approval of a provincial/territorial minister (or the federal Minister of Justice if the province/territory has opted out of the administration of the C-68 firearms control system), or they cannot be operated [FA s. 29(1)]. {mosbookmarks:bm=1431;box=2}

However, FA s. 29(1) has not yet come into force (as of 15 Aug 2000).  Therefore, until it is proclaimed and published in the Canada Gazette, a shooting range can be operated without approval.

The “provincial minister” is authorized to issue approvals [FA s. 29(2)] and to revoke them [FA s. 29(3)].

The term “provincial minister” means the provincial minister designated by the provincial government.  It also means the federal Minister of Justice in the territories and in the provinces that have opted out of administering the C-68 system of firearms control [FA s. 2 “provincial minister”].

Under FA s. 134, an approval under the old Act was “deemed” to be an approval under the new Firearms Act, valid until “the earlier of” the expiry date on it or “one year after [01 Dec 98].”

The writer of FA s. 134 apparently thought that this “grandfathering” of range approvals by allowing the old-style approval to become a new-style approval would be enough.  The Chief Firearms Officer (CFO) offices would issue a new range approval before the “grandfathered” approval expired.

That just did not happen.  The CFO offices failed to do it, and time ran out.

Many CFO offices extended approvals that would have expired on 31 Dec 98 “for a period of one year.”  That caused problems, because all “grandfathered” approvals expired on 01 Dec 99 at the latest [FA s. 134(2)].

Therefore, many shooting range operators fell into a strange condition.  Their approvals expired, but because FA s. 29(1) had not come into force, they were still able to operate their shooting ranges.

Similarly, many shooters held Permits to Carry (PTCs) issued under the old Act that had an expiry date of 31 Dec 98 or later.

Those PTCs automatically became Authorizations to Transport (ATTs) or Authorizations to Carry (ATCs) on 01 Dec 98 [FA s. 129].  A PTC that became an ATT or ATC expired on “the earlier of” the expiry date shown on it or 01 Dec 2000 [FA s. 129(3)].

The CFOs extended many of those PTC/ATTs “for a term of one year.”  That caused problems, because most of those PTC/ATTs included the words “to and from any approved range [emphasis added] in the province/territory of…”

The approvals of those ranges expired, in most cases, on 01 Dec 99 [FA s. 134(2)(b)].  Even the approvals that had been “extended” by the CFOs expired, at the latest, on that date, because they were merely extended “grandfathered” approvals granted the previous year, not new-style approvals granted under the new legislation.

Therefore, such a PTC/ATT became invalid on 01 Dec 99, because it only allowed transport to and from an “approved” range — and the range was no longer approved.

CFOs have recently tried to deal with this mess by sending out letters stating that the “Permits to Carry” (actually ATTs, as a result of the action of FA s. 134) were no longer valid as of [some date, sometimes the correct date, 01 Dec 99, and sometimes another date].  Some of the letters contained a replacement ATT, some did not.  Where a replacement ATT was included, it was often illegal, as it was for a term of 11 months — and FA s. 65(3)(b) prohibits the issuance of any ATT with a term “less than one year.”

Dave Tomlinson ran a test case in his own name regarding what the CFO’s office did with his personal ATT.   In the first hearing, the judge dodged the issue by claiming that the “100-km radius” ATT did not constitute a “constructive refusal” to issue the province-wide ATT that was applied for.

That case is then went to the Alberta Court of Queen’s Bench.

Among the highlights of the case, this is the messiest:

Tomlinson applied for an ATT covering two addresses where his registered firearms are stored.  The CFO issued an ATT for one address, after checking with the Canadian Firearms Registry (CFR) in Ottawa.  The CFR said that all Tomlinson’s firearms were registered to one address – which was false.  When the CFO’s officer said that in court, he was handed a stack of registration certificates with the second address on them.

At the next day’s hearing, the CFO’s officer said he had made contact with the CFR again, and they now admitted that Tomlinson had firearms registered to two addresses.

Tomlinson pointed out that FA s. 17 authorizes the keeping of registered firearms at three locations: “only at the dwelling-house of the individual, as indicated on the registration certificate, or at a place authorized by a [CFO].”

The Crown countered with the idea that “the dwelling-house of the individual, as indicated on the registration certificate” is a single location.

Tomlinson pointed out that it is two locations, because Parliament was recognizing that many people have firearms registration certificates that show an address other than their “dwelling-house,” so Parliament had to deal with that.  He also pointed out that the location of the “dwelling-house” is notindicated on the new plastic-card registration certificate, so “as indicated on the registration certificate” can only apply to the old green paper certificates.

The judge ruled that  “the dwelling-house of the individual, as indicated on the registration certificate” is a single location.  He also said that the CFO should have issued an ATT for bothaddresses, as both were valid.

It will take a higher court to sort that mess out.  In the meantime, Tomlinson has firearms at both locations, and two ATTs — each covering all restricted firearms and prohibited handguns registered to him.  Each allows him to take the firearms to and from a number of ranges, but the two, taken together, allow him to take firearms to one range from one address, and then take them to the other address.
GENERAL CONDITIONS:

Firearms Act section 117 authorizes the Governor in Council to make regulations by Order in Council.  One paragraph authorizes the Governor in Council to make regulations: “FA s. 117… (e) regulating (i) the establishment and operation of shooting clubs and shooting ranges [emphasis added].”

That is very different from a provision that would authorize the government of a province or territory to regulate the design of shooting ranges.

The wording of that FA s. 117(e) provision indicates that the words “establishment and operation” are being used as verbs.

Black’s law dictionary says,

Therefore, Parliament’s intention in FA s. 117(e) was apparently to authorize the “provincial minister” to approve or refuse to approve the founding and operation of a shooting club or shooting range, not to exercise control over the design of the shooting club’s shooting range.

Similarly, Parliament’s intention in FS s. 29(1) was apparently to require the operators of the shooting range to get prior approval for the establishment (or founding) of the shooting club and its range.  Once those in charge of such an approved range received that approval, they had a right to consider that they could operate the range for as long as they complied with the “regulations made under  paragraph 117 (e) [CC s. 29(2)(a)].”

The ranges in question have met those conditions.  They gained the approval, long ago.   Their approvals were automatically “grandfathered” [CC s. 134].

They have operated those ranges in accordance with all regulations lawfully made under FA s. 117(e) since 01 Dec 98.

FA s. 117(e) does not, however, authorize the Governor in Council to make regulations specifying the design of a shooting range.   It says,

Nothing in that authorizes the Governor in Council, or any subordinate agent of the Crown, to make regulations regulating the design of a shooting range.

FA s. 98 authorizes a Chief Firearms Officer to “perform the function of the provincial minister of designating firearms officers for the province” (if and only if the provincial minister authorizes him to do so, in writing).  However, there is nothing in the Act that authorizes the Chief Firearms Officer — or even the provincial minister — to perform any function of the Governor in Council.

It is noted that the firearms control officials of the provincial government of British Columbia have apparently taken it upon themselves to compile and distribute a document entitled, “Guidelines to the Construction of Small Arms Ranges and Shooting Clubs, and Shooting Range Approvals.”  They are apparently operating under the assumption that their document has force of law.

Nothing in the Firearms Act, firearms sections of the Criminal Code, or March 1998 Firearms Act Regulations delegates the FA s. 117(e) power of the Governor in Council to any British Columbia government or official.  There is no way, under the law as written, that the authority could be so delegated.

Therefore, neither the British Columbia CFO’s “Guidelines” or the federal CFC’s “Range Design and Construction Guidelines” books of range designs and principles of range design have force of law.  They apparently they cannot be considered as relevant in any court action appealing the refusal or revocation of a shooting range approval.

It should be noted that both issuers are apparently aware that their offerings do not have force of law.  Both use the word “Guidelines” in the title, clearly indicating that the material contained in the publication is merely a bureaucrat’s personal opinion, and has no force of law behind it.

As is regrettably common when such documents are formally issued, many of the lower-grade bureaucrats do not understand the status of the publication, and begin trying to enforce the provisions in the publications as if they do have force of law.

It is important to note that once a licencing document has been issued, there is a presumption in law that the licencing document will be renewed.  In simple language, it is a minor thing to refuse toissue; but refusing to renew is a much more serious matter, one which a court of law should take very seriously indeed.

For example, a firearms business which has qualified for a business licence may face a refusal to renew its licence.  The store may well have a lease which extends beyond the date of refusal to renew, and the refusal to renew (which effectively closes the business) can therefore have severe financial implications.  Similarly, the store’s stock in trade can be devalued by the action.

A CFO may exercise the some or all of the FA s. 29 powers of a “provincial minister” if he or she is authorized to do so in accordance with FA s. 29(4).

In FA s. 29(3), the “provincial minister who approves a shooting club or shooting range for the purposes of this Act may revoke the approval for any good and sufficient reason…”

That language apparently limits the power to revoke.   Only the “provincial minister” who approved that particular shooting club or shooting range has it.

The power to revoke was vested in the “provincial minister who approves” the original approval.  It was not vested in any subordinate official, and could not be exercised by any subordinate official other than a Chief Firearms Officer.  The CFO could “perform such duties and functions of the provincial minister” as he was “authorized in writing” to perform, and only if he was so authorized [FA s. 29(4)].

It should be noted that the “provincial minister,” when acting as authorized by this Act, is not a minister of the provincial government.  His work, in this area, has nothing to do with his work as a provincial minister.  He is, in this area, not a provincial minister.  He is a mere ‘creature of statute,’ vested with a limited authority by the Act itself, and controlled by the wording of the Act.

It is recommended that the Australian High Court case FAI Insurances v. Winneke and others 41 ALR 1, HC of A, 1982, be studied closely by anyone wishing to understand the status of such a ‘creature of statute.’  Copies are available from NFA, Box 1779, EDMONTON AB, T5J 2P1.

It should also be noted that the words allowing minister to revoke an approval “for any good and sufficient reason” [FA s. 29(3)] are likely to be held unconstitutional for overbreadth in a court of law.  The statute vests the ‘creature of statute’ with great power — and then fails to guide him as to how and under what circumstances he may exercise that power.

The wording allows him, if he is so inclined, to revoke the approval for the “good and sufficient reason” that the operator of the shooting club or shooting range is black, female, or Jewish — or that the sound of shooting disturbs the minister’s cat.  The guidance provided to explain the limits of his powers is clearly inadequate.

By the ordinary rules of administrative law, the rules for ab initio issuance are rather tighter than the rules for renewal, because there is a presumption that renewal will be granted if nothing was changed in the approved situation after the approval was granted.  The BC ranges cases were not ab initio situations.  Those shooting ranges had been operating for years, without incident.

The reason for the difference between refusal of an ab initio application and refusal of an application to renew is quite clear.  If the applicant gains approval, the applicant may invest serious money and effort into what he believes will be an ongoing operation.  His ab initio application may have arrived late in the year, so that his calendar-year approval ends quite soon.  If the renewal is then refused — when the particular circumstances have not changed — then it was obviously unfair and unjust to refuse the renewal on the basis of a whim of the issuing official.  The FAI Insurances case is instructive about this.

SITUATION AFTER 01 DEC 99:

The “deemed” approvals granted by FA s. 134 have all expired [FA s. 134(2)(a) or (b)].

An ATT or PTC that became an ATT under FA s. 129, and was then extended by CFO order for a further year, usually carries wording that authorizes transporting to and from one or more “approved ranges.”

If the shooting range’s approval has expired, the ATT or PTC/ATT is of no value, because it only authorizes transport to and from a location that does not exist.

Because FA s. 29(1) is not in force yet (at least, at the time of writing), the operator of the range can continue to operate the range.  However, the shooters of restricted and prohibited firearms cannot get there, because their ATTs and PTC/ATTs have become invalid.

There is a fairly dangerous defence available if someone is charged with being at the range illegally.  This paper does not go into the details, which are complex, but all members of every shooting club should be briefed to say nothing if they get into trouble.

They have a right to remain silent, and they should use it.  More cases are lost because the individual tried to talk himself or herself out of trouble than for any other reason.

If anyone does get into trouble, phone (780)439-1394, weekdays, between 8 and 11 AM Alberta time to ask for help.  The NFA will supply your lawyer with defence material, at no charge to you or the lawyer — and we have some unpleasant surprises for the Crown prosecutor.

DEFENCE IN COURT, IF REQUIRED:

For absolute safety, the following are the requirements for any shooting range:

1.  No person, other than the shooter, may be within a circle whose radius is greater than the farthest range that any projectile being fired from the firearms being used can reach, and whose center is the firing point.
2. There may be no road or navigable waterway within a circle whose radius is the range that a projectile being fired from the firearms being used can reach, and whose center is the firing point.
3. There may be no residence or animal shelter within a circle whose radius is the range that a projectile being fired from the firearms being used can reach, and whose center is the firing point.
4. No domestic animal or bird may be within a circle whose radius is the range that a projectile being fired from the firearms being used can reach, and whose center is the firing point.
5. No aircraft may fly over the range at any altitude below the altitude that any projectile being fired from the firearms being used can reach.

Establish those points by means of expert witnesses.  Then point out that no shooting range meets those criteria, or is operated in that way.

Then point out that safety is always a matter of reasonable precautions, and not a matter ofabsolutes.

As evidence that the range IS safe, and that the Crown’s demands are unreasonable and mere harassment, quote the insurance rate that the club pays.

455 shooting clubs were affiliated with the NFA on 12 Aug 2000.  The NFA, on that date, was insuring 19,281 individuals, some through their affiliation with the club and some individually.

The NFA has been selling that insurance to clubs for ten years.

In ten years, only two claims have been paid out.

The cost of NFA Liability Insurance is $4.75 per year (01 Dec – 31 Nov 2002) per individual covered, regardless of whether the coverage is of an individual directly or of an individual by virtue of his or her membership in an insured club.

NFA Liability Insurance covers each individual with $5 million ($500 deductible) per occurrence liability coverage.  The coverage extends to all legal shooting on ranges and/or in the hunting field, all range archery, all bowhunting, and all fishing, anywhere in Canada or in the continental United States.

At no extra cost, where the coverage is taken out by a shooting club to cover its members, the club is covered for commercial general liability ($5 million, $500 deductible), non-owned automobiles ($2 million, $500 deductible), wrongful acts, errors and omissions by Directors and Officers ($2,000,000, $500 deductible), and tenants legal liability ($250,000, $250 deductible).

In addition, the owner (individual or corporation) of the land or building where the shooting range is situated can be added as a co-insured with the club, at no additional cost.

In the years from 1990, when we first began offering insurance, to the present day, the total number of claims paid out has been 2.

The first claim was for $4,284.  It was paid to cover damage to an automobile caused by a marquee tent that blew down in a windstorm at a shooting competition.

The second claim was for $1,116.  It was for damage to the finish of a car hit by shotgun pellets while the car was parked next to a shooting range during a sporting clays shooting competition.

There have been no injuries in this ten year period.

One bodily injury claim was filed in 1992, regarding an accident in which a snowmobile operator drove his machine into a club’s fence.  The club was not at fault in any way, so no payment was made.

That is the most powerful, unbiased proof that the range is SAFE that could possibly be imagined.  The insurance company is entirely unbiased, and cares nothing about theoretical safety problems.  It cares only about facts and profit.

By setting its rates at the absurdly low figure of $4.75 per year for $5,000,000 coverage, the insurance company is telling the court that the range is safe.  It is saying that the insurance company is willing to back its own belief in the safety factor at odds of more than a million to one.

As further evidence of the safety of shooting ranges, NFA Liability Insurance originally cost, ten years ago, $4.50 per person covered per year.  At that time, the coverage was $1,000,000 per occurrence.

Over that ten-year period, the cost per person per year has increased to $4.75 per person per year – a 25 cent, or 5.6 per cent, increase.  However, the $4.75 now buys coverage of $5,000,000 per occurrence, a fivefold increase in coverage.

One advantage of arguing a court case on the basis of insurance premium is that the argument issolid.  The insurance company is entirely objective, and has its eyes firmly fixed on guaranteed profit.  It does its research, sets the price, and increases the price if the expected profits are not forthcoming.

The ten-year experience cited above, therefore, is a powerful indicator.

Another advantage of using that argument is that virtually no one ever tries to claim that insurance information is false or misleading.  The reason for this is not known, but is believed to lie in human perceptions.  Insurance figures are apparently just too dull to question.