“Assault rifle” challenge rejected
Requests by a loose but like-minded alliance of individuals and groups for a judicial review of the federal government’s May 2020 decision to reclassify certain types of rifles as “assault” weapons have been dismissed in a comprehensive Federal Court ruling.
The 63-page decision written by Justice Catherine Kane covered six applications (Docket Nos. T569-20, T-577-20, T-581-20, T-677-20, T-735-20 and T581-20) and flows from eight days of hearings in Ottawa last April.
All the applications had a common fundamental theme: whether the government’s regulations under legislation passed by Parliament in 2019 were not only “ultra vires” or outside the scope of the Criminal Code but also unconstitutional.
The regulations resulted in the prohibition of more than 1,500 models of “assault-style” weapons as well as the upper receiver, essentially the core frame, of a number of newly-prohibited guns. They also specified maximum muzzle velocities and bore diameters.
In an attempt to provide hitherto legal owners with some financial relief through a buy-back program, the government also put in place a Criminal Code amnesty period which it extended for two years October 30 (having awaited the Federal Court ruling) – to protect owners of legally-obtained guns from criminal liability while they take steps to comply with the law.
When it proposed the original legislation, Bill C-71, in 3015, the government was responding to what it described as “a steady increase in gun-related crime over the past several years” but that was challenged by hunters and other sports shooters a well as firearms manufacturers and distributors.
Addressing a question about whether the applications were about the need for further regulation of firearms, Justice Kane said the ruling was “not an opinion on whether or how firearms should be further regulated in Canada.” She pointed that the debate on whether and how to reduce public risk had “raged on for decades and will no doubt continue.”
The fundamental issue was whether the government had “acted within its authority […] and to make the Regulations and made a reasonable decision to prescribe as prohibited the firearms that, in its opinion, are not reasonable for hunting and sporting purposes.”
Justice Kane also noted that there was a general view “that firearms are not the real threat to public safety” and that it was “people who obtain and/or use firearms illegally pose this threat.” There also was “a common theme” among the applicants that “their use of firearms is already highly regulated and that they take safety extremely seriously and abide by all the existing laws, licensing and registration requirements” an that “the regulations will not further contribute to the protection of public safety.”
In dismissing their call for judicial review, Justice Kane flatly the rejected argument that the government’s approach had been ultra vires. She said the Governor-in-Council (procedurally the Governor General acting on the advice of cabinet) “did not exceed the statutory grant of authority delegated to it by Parliament pursuant to […] the Criminal Code.”
Moreover, the Governor-in-Council had decided that the prohibited firearms were “not reasonable for use in hunting and sport and the opinion and decision to prescribe the firearms as prohibited are reasonable.”
Nor, she continued, had the cabinet delegated its legal authority to police services. “The role of Specialized Firearms Support Service of the Royal Canadian Mounted Police in assessing and classifying firearms as non-restricted, restricted or prohibited reflects the opinion of the Specialized Firearms Support Service,” she wrote.
“The Governor in Council does not owe a duty of procedural fairness to firearm owners affected by the regulations. The jurisprudence is clear that the duty of procedural fairness does not apply to the legislative process. Nor does the Specialized Firearms Support Service owe any duty of procedural fairness to firearm owners in the context of its assessment and classification of firearms.”
Justice Lane rejected arguments that the regulations are vague, too broad and arbitrary and said the “minimal infringement on firearm owners […] is outweighed by the beneficial impact of the regulations in terms of reducing the harm from mass shootings and the inherent danger posed by the now prohibited firearms, and achieving the broader objective of enhancing public safety.”