UPCOMING GUN BANS AND CONFISCATIONS: WHAT TO KNOW AND WHAT TO DO!
The Canadian Government has made it clear that it intends to ban so-called “military style assault rifles” (“MSAR”). Since there is currently no legal definition of that expression in Canadian law, it is impossible to predict with certainty what exactly will be banned. However, we can most certainly expect that certain firearms, such as the AR-15, will be on the list of banned rifles.
The process that will be followed is also uncertain, although clues have been given out in declarations by Minister Bill Blair, and in the recent mandate letter given to Mr. Blair.
Here is what we know:
1. A list of guns to be banned is being made up and will be made public soon;
2. The Government expects to implement a mandatory buy-back program; and
3. There will be a two-year amnesty period.
Since a buy-back program and related amnesty are announced, it is not expected (albeit, not impossible) that there will be immediate confiscations.
How a MSAR Ban will likely unfold
Again, there is no certainty as to this scenario, but it appears as the most plausible, given the existing legal context.
1. First, the Government will make a list of specific firearms to be banned and will likely include the list in regulations to be enacted by way of Order in Council (“OIC”). We expect those regulations to include temporary grandfathering provisions, pursuant to either paragraphs 12(8) or 12(9) of the Firearms Act. This situation will prevail until buy-back time, which is part of Stage 2, as described below.
A few remarks about the foregoing:
A.Whether or not there will be temporary grandfathering is a key consideration. Indeed, if there is no grandfathering, even temporary, affected gun owners will be required to turn over their firearms to police or face prosecution. The manner to address this potential situation is discussed below.
B. Assuming temporary grandfathering of existing owners, the affected owners will continue to possess their MSAR, although use will likely be limited to approved ranges, in a best-case scenario.
i. If the newly prohibited MSAR was formerly in the “restricted” class, the existing registration certificate will be revoked and a new one will be issued, referring to the new classification. Owners will also receive a new licence card (PAL) referring to Class 12(9).
ii. If the newly prohibited firearm was formerly classified as “non-restricted”, existing owners will likely be required to register their firearm as prohibited, to qualify for grandfathering and/or buy-back. There will be a deadline attached.
2. Second, the Government will introduce new legislation in the House of Commons to implement its buy-back scheme. This step will likely happen almost simultaneously with the enactment of the Regulations referred to above. This entails amending existing legislation (Criminal Code, Firearms Act and Regulations) to end all licence rights (i.e. 12(8) or 12(9) grandfathering) and revoke all registration certificates attached to MSARs. Once the legislation comes into effect, there will be a two-year amnesty period. During the amnesty period, owners will be immune from prosecution for mere possession of MSARs. It remains to be seen whether usage (at shooting ranges) will be permitted during the amnesty period. The Government may elect to disallow usage, in order to entice owners to hand over their MSARs.
If the New-Zealand experience is any indication, the amnesty period will coincide with the buy-back period. The Government will enact Regulations providing for buy-back prices or a formula to determine pricing. There may or may not be a mechanism to dispute the amount offered as compensation. Of course, “buy-back” is a euphemism for “confiscation with compensation”, since the seller will not be at liberty to sell.
3. Third, upon the end of the amnesty/buy-back period, owners who shall remain in possession after the end of the amnesty period will be subject to criminal prosecution.
What to do if there is no temporary grandfathering
Again, although we expect temporary grandfathering of existing owners, the Government may attempt a speedier confiscation process in respect of specific MSARs.
In that event:
1. Affected owners whose MSAR is currently registered as “restricted” will likely receive a notice in the mail, revoking their existing registration certificate, but no new registration certificate. The notice will instruct them to turn over their MSAR to police or to a party legally authorized to possess prohibited firearms of that class, likely within thirty (30) days.
Affected owners who wish to contest the confiscation of their MSAR must do so within thirty (30) days of the receipt of the notice revoking their registration certificate. Such contestation is done by way of a “Reference” under s. 74 of the Firearms Act. The appropriate forum to file is the provincial court of the locality where the owner resides. The Registrar of Firearms (RCMP) must be designated as a Respondent. You do not need a lawyer to file a Reference, although it is recommended that you hire one. The NFA will assist in the process by publishing templates of documents that may be used to file a Reference. Once the Reference is filed, it may be incumbent upon you to serve it upon the Registrar of Firearms. It is too early to fully articulate the legal grounds under which such a Notice of revocation could be legally challenged. However, recent amendments to the Firearms Act, more specifically the addition of paragraph 12(9) suggests that whenever firearms are to be prohibited by way of Regulations, their respective owners must be grandfathered. Hence, if existing owners were not to be grandfathered further to the enactment of Regulations, a contestation may likely be filed on that basis.
2. Affected owners whose MSAR is currently considered as “non-restricted” may not receive any notice of the change of status of their firearm, simply because non-restricted firearms are not registered. However, we would like to remind you that Quebec has created its own registry of non-restricted firearms, and that the data of the old federal long gun registry still exists and is available to the Government.
What if police show up?
Should police show up at your doorstep and ask that you surrender your MSAR, here is what to do:
1. Before you let them in, ask the police if they have a warrant.
A. If the answer is “no”, tell them politely to come back when they have a warrant. Never let them in voluntarily if they do not have a warrant. If they force their way in, do not resist, and call a lawyer.
B.If the answer to the warrant question is “yes”, ask to see the warrant.
2. Assuming that a satisfactory warrant is shown by police, let them in. Do not let them go anywhere that is not covered by the warrant (e.g. other address or location). Do not obstruct the work of the police. Open any containers or rooms that you are asked to open.
3. Take pictures of everything and make a list of all seized items.
4. You do not legally have to answer any questions from police, other than identifying yourself.
5. Do not volunteer any information that is not asked for.
6. Call a lawyer as soon as you can, preferably before the search starts.
This is a fluid situation. We also made certain assumptions that may ultimately prove to be incorrect. As more becomes known about the upcoming MSAR ban, we will update this page. Please check it regularly.
We may, in due course, consider engaging in litigation to challenge the validity of the legislation purporting to implement a MSAR ban (Regulations or Statute) or certain aspects thereof, should we determine that there are valid grounds to do so.