Bill C-21 – The Largest Gun Prohibition in Canadian Legislative History

Public Safety Canada has stated: “the Criminal Code will be amended to allow anyone to apply to a judge for an order [Emergency Prohibition Order] to immediately remove firearms from an individual who may pose a danger to themselves or others. The judge can also issue an emergency order to ensure that a third party does not provide firearms to an individual who is prohibited from possessing them. The order is for a period of 30 days. Judges would have discretion to protect identify of applicant or anyone known to them. ”

In a follow-up discussion in 2021 with officials from Public Safety Canada and the Department of Justice, they provided some additional clarification when the proposed Emergency Prohibition Order (EPO) was first proposed (NOTE: still need to confirm that these additional details remain relevant for the 2022 Bill C-21 proposals):

Government’s policy intent – the intent is more about stopping something that could happen, NOT something that IS happening (e.g., not when someone calls 9-1-1). The two examples provided were someone who is suicidal (and has access to firearms) or in situations of domestic violence where an individual is too afraid to go to the court/police.

Making application directly to the court – the proposed EPO is considered to be a stopgap measure that is more expeditious and efficient than the current Prohibition Order, which must be requested by a peace officer, police officer, or Chief Firearms Officer. Currently, the Criminal Code allows for a person to apply to the court to obtain a peace bond (protection order) against another individual (e.g., restraining order). The EPO would enable this process for the removal of firearms from an individual.

Third-party application to the court – in the second example used to illustrate the government’s policy rationale above, a third-party would now be allowed to go to the court on the individual’s behalf.

Abuse of the EPO & Judge’s discretion – similar to a protection order now, a judge is the ‘filtering’ process to determine whether claims are unfounded and to prevent abuse of the system. Depending on the situation, the judge would have discretion to determine what happens with the firearms, including 1) search and seizure, 2) surrender, or 3) transfer to another person with a valid firearms licence.

Notification – the individual which the order is sought against is not notified until after order is issued. This is the point when individual can get involved.

Appeals – The ‘defendant’ would need to go through common law to fight the order because there is no appeal process. The ‘defendant’ can request a full hearing on the issue.

EPO expiry & Triggering a longer-term order: A judge will determine if a longer prohibition is required/justified and can set a date for a full hearing (i.e., existing Prohibition Order kicks in). If no date is set for a full hearing, the EPO expires automatically after 30 days.

Public Safety Canada has stated: “ Chief Firearms Officer (CFOs) could temporarily suspend an individual’s firearms licence if the CFO receives information calling into question their licence eligibility. During the suspension, an individual is prohibited from using their firearms, and cannot acquire new ones. This provides a pause while CFOs assess whether to revoke the licence. If the information calling into question their licence eligibility is eliminated prior to the end of the 30 days, the licence would be immediately reinstated.”

Public Safety Canada has stated: It would now “Require surrender of firearms during a legal challenge of licence revocation, and measures to facilitate their safe disposal if required.”

The Bill does not propose any change to current magazine capacity limits; however,  Public Safety Canada has stated: there will be “future regulations to address commitments on Large Capacity Magazines: to require the permanent alteration of long gun magazines so that they can never hold more than five rounds, and prohibit the sale and transfer of magazines capable of holding more than the legal number of bullets.

Public Safety Canada has stated: It will “Create a new Criminal Code offence for altering a cartridge magazine to hold more than its lawful capacity with a maximum penalty of five years imprisonment on indictment or punishable on summary conviction.”

In a follow-up discussion with officials from Public Safety Canada and the Department of Justice in 2021, some additional clarification on the proposed penalties related to magazine capacity was provided:

Currently, there is no specific offence for ‘unpinning’ a magazine. It is a ‘lesser included offence’ and the government is trying to broaden the scope to make it a specific offence.

This amendment will be a tool to target those individuals who are purposely committing crimes (e.g., organized crime), and will aid in tracking a person’s behaviour when looking at their criminal record.

No. The government has said it will consult with industry on compensation values. The Minister of Public Safety, Marco Mendicino also stated the buyback program will commence before the end of 2022.

Public Safety Canada has stated: “New Bill C-21 removes non-permissive of storage (to make buy back of prohibited assault-style firearms mandatory).”

Public Safety Canada has stated: they will “amend provisions for Authorizations to Carry (ATC) for personal protection to allow only the Commissioner of Firearms to approve and formalize the approval requirements in regulations.”

In 2021, we were assured the changes only related to self defence. Trappers will be able to retain and continue to hold onto their ATCs, and trapping will continue to be recognized as a legitimate purpose (to be confirmed in 2022). The decision to issue or revoke an ATC remains the authority of the provincial CFO.

Public Safety Canada has stated: It will “Close the gap in the Criminal Code regarding ‘replica’ firearms by ensuring the prohibition on importation, exportation and sale applies to all unregulated airguns that look like regulated firearms. Un-regulated airguns that look like modern firearms and fire a projectile below 366 feet per second (fps) are already considered replicas, and are prohibited. This amendment will close a gap so that air guns firing a projectile between 366 and 500 fps are also considered replicas if they look like modern firearms. Current owners will be allowed to keep those they already own, but they cannot transfer them to another person. Manufacturers/retailers wll be able to continue to sell airguns, but will need to adjust designs so they do not look like modern firearms. Government of Canada will consult with industry and law enforcement on how to implement the law.”

In 2021, officials from Public Safety Canada and the Department of Justice provided some additional clarification on the proposed changes to replica firearm provisions in the former Bill C-21 (to be confirmed for the new Bill C-21 (2022):

Determination of replicas – replica firearms are determined solely on visual presentation, and must exactly resemble an existing firearm, including MAKE and MODEL.

Use of replicas – current owners are not affected. There are no limitations on using or possessing any models deemed to be exact replicas. You can still own, use, and transport these firearms. The only restrictions on lawfully owned pellet, bb or airsoft deemed to be replica firearms is you cannot transfer, sell or bequeath them. This proposal would ‘close the market’ by eliminating the sale and importation of firearms deemed to be replicas (done at the industry level).

Public Safety Canada has stated: It will “Amend the Firearms Act to require presentation of a firearms licence to import ammunition to ensure that individuals without a licence cannot obtain ammunition from abroad, e.g., for an illegal firearm.”

Public Safety Canada has stated: It will “Improve the ability of the CBSA to manage inadmissibility to Canada when foreign nationals commit offences upon entry to Canada, including firearms-related offences. Technical amendments to Immigration and Refugee Protection Act would clarify that the existing regulation-making power may prescribe specific offences, whether in Acts or regulations, as applicable for this inadmissibility ground. Concurrent regulatory amendments are under development which would better focus the inadmissibility on the most serious cross-border offences, and would provide officers at ports of entry the authority to issue removal orders for the most straightforward offences, such as importing a firearm without a permit. Transfer policy responsibility for transborder criminality from the Minister of Immigration, Refugees and Citizenship to the Minister of Public Safety to better align with the Minister of Public Safety’s existing policy responsibilities with respect to border management, immigration enforcement, and criminal law enforcement.

Public Safety Canada has stated: It will “Create an offence for a business that promotes or depicts violence against a person in firearms advertising with a maximum penalty of two years imprisonment, in the case of a first offence, and five years for each subsequent offence. ”

Public Safety’s explanation of the new Bill C-21(2022) highlights “against a person,” which is important because this excludes a depiction of hunting with a firearm as ‘violence’.