Are Some Gun Owners Not Covered By The Amnesty?

December 16, 2020

Are Some Gun Owners Not Covered By The Amnesty?

There’s some confusion in the firearms community around the issue of whether there are some gun owners that are not covered by the amnesty. The answer is yes, for a few, but not the ones being discussed in recent articles. Let’s dive in (best get a coffee first).
The History
On May 1, 2020 the Governor in Council (meaning David Lametti with the rest of cabinet, plus the Governor General) declared the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted: SOR/2020-96. This we know as the gun ban or the Order in Council, (the “OIC”).
The OIC amended the Schedule to the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted: SOR/98-462 (the “Regulation”).
The Regulation’s Schedule provides (among other things) which guns are restricted and which are prohibited. The OIC added ~1500 types of guns to the Schedule’s list of prohibited guns, which was hundreds of thousands of individually-owned firearms in Canada (the “Affected Guns”). This is commonly referred to as the “Ban”.
The Affected Guns can be classified into 4 groups, being those that are:
  1. Prohibited by name;
  2. Are a Variant of a gun prohibited by name (this is the problem);
  3. Have a bore greater than 20mm; or
  4. Are capable of greater than 10k joules at the muzzle
I’ll pause to state that the Ban serves no purpose and is ineffective, unethical, and probably illegal. See CCFR v Canada (Federal Court T-577-20) for the largest, most comprehensive litigation against a government for abuse of law–abiding firearm owners in Canadian history.
To avoid having to arrest tens of thousands (or more) of gun owners over those hundreds of thousands of Affected Guns, the Governor in Council simultaneously declared the Order Declaring an Amnesty Period (2020): SOR/2020-97. This provides an amnesty for being non-compliant with the new Regulation in respect of the Affected Guns until April 30, 2022 (the “Amnesty”).
The Amnesty made “safe queens” out of the Affected Guns, where they cannot be used and cannot be bought or sold.
Critically, the Amnesty only applies for Affected Guns you owned on May 1, 2020.
One last segue before we move on: the RCMP Police Specialized Support Services Unit (“SFSS” or “RCMP Lab”) maintain a Firearms Reference Table (the “FRT”) where – notionally – all firearms in Canada are listed and their classifications, in the opinion of the SFSS, are set out. The FRT is used by law enforcement across Canada in deciding who to charge for offences regarding firearms. It is also used by businesses to verify the classification of guns in order to qualify buyers as to their proper license status. Recently private sellers have used it for that as well.
Notably, the opinion of the SFSS is not the law. The Regulation, as amended by the OIC, is the law (until CCFR v Canada gets rid of that abomination – please support this noble cause).
Finally, the FRT has been revised from time to time after the OIC to report to the users what the opinion of the SFSS is as to various guns. Problematically, some guns remained classified as Non-Restricted (“NR”) long after the OIC, but were then changed to “Prohibited” status post-OIC, creating significant legal risk to people who traded in those guns in the interval.
It is with this that we are concerned:

1. The Affected Guns that changed classification on the FRT post-OIC;

2. The people who owned them before the OIC and still do; and

3. The people who transacted them after the OIC but before the FRT was updated.

That’s the background.
The Triggering Information
Recently our very good friends at the Canadian Sporting Arms and Ammunition Association (“CSAAA”) asked the Ministry of Public Safety some technical questions about the May 1, 2020 firearms ban by Order in Council (“OIC”). One of these questions was this:
11. Non-restricted that changed to prohibited after May 01 retroactively: If they changed hands between May 01, 2020, and the delayed change in FRT who does amnesty belong to?
Public Safety provided this answer:

The items subject to the regulatory package were prohibited on the coming into force of the Regulations on May 1, 2020. The Regulations and accompanying Amnesty Order, which protect individuals from criminal liability for possessing those items while they take steps to comply with the law, do not operate retroactively. Anyone in possession of a firearm that was previously non-restricted and transferred after May 1, 2020 when they became prohibited, would not be protected from criminal liability (e.g., illegal possession) by the Amnesty Order, unless covered by the sole exception allowing for the use of a firearm for sustenance hunters or those exercising a right recognized and affirmed by Section 35 of the Constitution Act, 1982

Note that the question drove the answer – the question was only about guns that changed hands between May 01, 2020, and the delayed changes in FRT – our Item 3 from the list above.
Public Safety is unfortunately correct. The Amnesty does not extend to anyone who did not own the subject gun on May 1, 2020. It was a legal trap and I urge extreme caution and good legal counsel.
The Problem
Shortly after the CSAAA Q&A happened, the Canadian Shooting Sports Association (“CSSA”) issued a report, based on the Q&A, that said:

Then on May 6th, 2020, the RCMP, presumably under the direction of Public Safety Minister Bill Blair, began reclassifying hundreds of Non-Restricted and Restricted firearms as Prohibited that were not on the May 1st list.

Owners of these arbitrarily reclassified Prohibited firearms are NOT protected by the May 1st amnesty order.

The government makes this clear in the text of SOR/2020-96.

The Order Declaring an Amnesty Period (2020) accompanies the Regulations to protect individuals, who were in lawful possession of one or more of the newly prohibited firearms or prohibited devices on the day the Regulations came into force, from criminal liability for unlawful possession for the purpose of allowing individuals to come into compliance with the law.

The amnesty order (SOR/2020-97) only protects owners of firearms specifically listed in the gun ban by Order in Council.

Words have meaning - "specific" means" clearly defined or identified" - something the RCMP's made-up "variant" is not. In fact, the recently released RCMP definition of what a "variant" is so vague and non-specific that it is laughable.

In other words, if your newly-prohibited firearm is not specifically listed in the OiC, you do not have the protection of the amnesty and you could be criminally charged for the mere possession of your own property.

Unfortunately this is not correct. The Amnesty provides:

The Amnesty Order 2020

Definitions

1 The following definitions apply in this Order. ...

“specified firearm” means a prohibited firearm referred to in any of paragraphs 83(a) to (p) or any of items 87 to 96 of Part 1 of the schedule to the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted.

2 (1) The amnesty period set out in subsection (3) is declared under section 117.14 of the Criminal Code for

(a) a person who,

(i) on the day on which this Order comes into force, owns or possesses a specified firearm and holds a licence that was issued under the Firearms Act,

(ii) at any time during the amnesty period, is in possession of the specified firearm..."

The Schedule to the Regulation sets out the list, and please watch for “variants”:

The Regulations (Extracts)

87 The firearms of the designs commonly known as the M16, AR-10 and AR-15 rifles and the M4 carbine, and any variants or modified versions of them — other than one referred to in item 47, 49 or 50 of this Part — including the ... [insert massive list]

88 The firearm of the design commonly known as the Ruger Mini-14 rifle, and any variant or modified version of it, including the ...

89 The firearm of the design commonly known as the US Rifle, M14, and any variant or modified version of it, including the ...

90 The firearm of the design commonly known as the Vz58 rifle, and any variant or modified version of it, including the ...

91 The firearm of the design commonly known as the Robinson Armament XCR rifle, and any variant or modified version of it, including the Robinson Armament ...

92 The firearms of the designs commonly known as the CZ Scorpion EVO 3 carbine and CZ Scorpion EVO 3 pistol, and any variants or modified versions of them, including the CZ ...

93 The firearm of the design commonly known as the Beretta Cx4 Storm carbine, and any variant or modified version of it. ...

94 The firearms of the designs commonly known as the SIG Sauer SIG MCX carbine, SIG Sauer SIG MCX pistol, SIG Sauer SIG MPX carbine and SIG Sauer SIG MPX pistol, and any variants or modified versions of them, including the SIG Sauer ...

95 Any firearm with a bore diameter of 20 mm or greater — other than one designed exclusively for the purpose of neutralizing explosive devices — including the ...

96 Any firearm capable of discharging a projectile with a muzzle energy greater than 10,000 joules — other than one referred to in item 12, 13, 14, 20, 22 or 30 of this Part or one designed exclusively for the purpose of neutralizing explosive devices — including the ..."

We can see immediately that the Amnesty applies to a defined set of “specified firearms” by its very definition, and contrary to the CSSA report, it does not exclude guns that are not specifically named; that is just a mistake. Clearly variants are included.
The Amnesty covers guns that are identified in the OIC, and that includes guns that are:

1. Prohibited by name;

2. Are a variant of a gun prohibited by name (this is the problem);

3. Have a bore greater than 20mm; or

4. Are capable of greater than 10K Joules at the muzzle.

The CSSA article ignores the “variants” throughout the Regulation, and the fact that they are covered, provided you owned the on May 1, 2020. That oversight caused the error in their information.
The REALLY BIG Problem
Next we have to attend to the really big problem. The SFSS left some (alleged) variant guns listed as NR on the FRT after the OIC, and based on that people bought and sold them. The SFSS later reclassified them as prohibited, and that classification, if correct, is in effect from May 1, 2020. That means the sales and purchases after May 1, 2020, were illegal as trafficking in prohibited weapons, and the Amnesty does not apply.
Calibre Magazine
Finally, Calibre Magazine just published a story that reads:

Update (1:30 PM PST, 16 Dec 2021)

Further examination of the government’s response by CSAAA and CSSA around this issue included clarification that all firearms not included on SOR/2020-96 are not subject to protection under the OIC’s Amnesty. In plain English, that means anyone that owns a recently prohibited firearm that was not included on the OIC list released by Prime Minister Trudeau is not covered by the Amnesty. Technically this means anyone that owns a Typhoon F12 or any number of the dozens of other firearms that have since been banned with no explanation could be charged with possession of a prohibited firearm, and leads to even more questions about their potential inclusion in the much-maligned and seemingly stillborn Government buyback program.

This falls into the same error as the CSSA in that it misunderstands what the OIC, the Regulation and the Amnesty actually say. The OIC amends the Regulation. The Amnesty is granted in respect of everything the OIC amended, ergo if the FRT properly reflects a gun’s status on the OIC, the Amnesty applies (post-OIC sales excluded).
Here’s the fundamental flaw in all of this: The changes to the FRT are not changes in law. The FRT is not law. The FRT is the RCMP opinion on what the law is. They will be right in some cases and wrong in others, but this much is crystal clear, or should be: The OIC and Regulation are the source of the law, not the FRT, and the Amnesty covers all May 1 owners of Affected Guns. Later changes to the FRT can only be based on the law as of May 1, 2020, which provides the Amnesty.
I hope this helps, and if you made it this far you deserve a cigar. 
~CCFR General Counsel Michael Loberg
Article written by Tracey Wilson

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