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Clear regulations are problematic ~Public Safety

In text from the transcript of yesterday’s scrutiny of Regulation Committee, MP Bob Zimmer argued to have the definition of “variant” added. The response from the Department of Public Safety was that too clear a regulation could be “problematic”. 

Would a clearly defined regulation not be more favorable, leaving less room for interpretation and re-interpretation? Is the intention to keep things unclear? 

Read the text below;

THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

OTTAWA, Thursday, November 23, 2017

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. to review of Statutory Instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

The Joint Chair (Mr. Albrecht): Members, today we have before us an issue dating back to February, 2005. We have been in constant communication regarding this issue, and at one of our previous meetings, the committee decided to ask witnesses from the Department of Justice and Public Safety Canada to come and meet with us. We have Mr. Piragoff, Mr. Hoover and Ms. Clarke with us. Mr. Piragoff, please start with your statement, and then we’ll be open to questions following that.

Donald K. Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice:  Thank you, Mr. Chair. I am pleased to be here today on behalf of the Department of Justice to discuss the issue of adding the definition of “variant or modified version thereof” and “commonly available in Canada” to 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.

I would like to first take the opportunity to thank the committee for its diligent work. It is critically important to the integrity of our legal system that we ensure that regulatory instruments do not exceed their legislative authority and that they are easily undisturbed by the public and the courts.

Seated with me is Paula Clarke, Counsel in the Criminal Law Policy Section at the Department of Justice. Also with me is Douglas Hoover, Counsel, Criminal Law Policy Section, and he has attended this committee before on another matter.

Firearms is an area of shared responsibility between the Department of Justice and Public Safety Canada. The Department of Justice is responsible for Part III of the Criminal Code, which is where the definitions of non-restricted, restricted and prohibited firearms are located, and it’s related regulations, including the regulations that classify firearms, which we are discussing today. Public Safety Canada is responsible for general firearms policy while the RCMP, which is part of the Public Safety portfolio, is responsible for making determinations about the classification of a particular firearm.

The committee has raised three concerns with the regulations. First is a discrepancy between the French and English versions in section 5 of the regulations; second, the term “commonly available in Canada” is vague; and third, the phrase “variant or modified version” is also vague.

In response to these issues, the committee recommended that section 5 be amended to correct the discrepancy between the French and English versions and that definitions of “commonly available in Canada” and “variant or modified version” be added to the regulations.

As the committee the aware, the Minister of Justice has agreed to the former request concerning section 5 and to this end, the department identified a regulatory and/or legislative vehicle, but is unable to provide you with a timeline as to when that amendment will be made as it is a matter of cabinet confidence. With respect to the other two recommendations, the Department of Justice appreciates the concerns of the committee but it is of the view that adding a definition of the terms “variant” or “commonly available” would not be significantly helpful in assisting the public to understand whether or not a particular firearm is a variant of a listed firearm. The Minister of Justice has written, on October 10, 2017, to inform the committee that the government has no plans at this time to add these definitions.

My comments today will mostly focus on the issue of variant or modified version. In the limited number of cases where the courts have reviewed the term “variant,” a plain meaning of the term has been applied by the courts. In its most recent letter to the Department of Justice, the committee referred to the affidavit of Murray Smith from the RCMP, Canadian Firearms Program, which was filed in a legal matter in British Columbia and that set out a list of factors that are considered when determining whether a firearm is a variant of a listed, restricted or prohibited firearm.

The committee asked why these factors could not be incorporated into a working definition of variant or modified version. These are questions that should be directed to the RCMP and to Public Safety as they are responsible for making these determinations, and any answers whether such factors can or should be frozen into a regulation are within their responsibility.

In addition to the issue of factors that are used to determine and assist the RCMP, there is also the risk that adding a definition of “variant” in the regulations could perhaps create new loopholes in the regulations. The term “variant” or “modified version” was added to the regulations originally to ensure that manufacturers did not slightly modify or vary a firearm that was described to be restricted or prohibited in order to evade the regulations.

It is thus possible that a new definition of variant could also create the opportunity for manufacturers to look for loopholes through which they could introduce new firearms that are largely similar to existing restricted or prohibited firearms. It should also be noted that the phrase “variant or modified version” has been around since 1992. It was first used in the original orders that were incorporated into the current regulations in 1995.

In the intervening 26 years, the phrase has not resulted in a significant amount of litigation, nor have the courts had difficulty interpreting the term. But most importantly, it is not clear whether adding a definition of “variant” or “commonly available in Canada” would actually make it any easier for the average person to know whether a specific firearm meets the definition of a variant given that firearms classification determinations are based on highly technical information which is beyond the common knowledge of most Canadians. It requires technical evaluations of the particular firearm and/or evaluation of any supporting material provided by manufacturers. This is performed, as indicated, by the RCMP.

Given the inherent complexity firearms classification, the Canada Firearms Program has measures in place to provide information to the public about the classification of a specific firearm. Again, officials from the Canadian Firearms Program and Public Safety can speak to any questions about how, on a practical level, the Canadian Firearms Program makes information about the classification of a firearm available to the public or to the Canadian industry.

As indicated by the chair this morning, the Minister of Public Safety and Minister of Justice sent a letter to you yesterday advising that due to the complexities of the issues involved, including operational and policy issues, they will consult with the Canadian Firearms Advisory Committee to discuss whether and how best to increase the transparency and public understanding of the regulations.

For the information of the committee members, the Canadian Firearms Advisory Committee is an advisory committee that was created to advise the Minister of Public Safety on measures to reform Canada’s firearm policies, laws and regulations.

The membership of the Canadian Firearms Advisory Committee represents a broad range of interests because decisions about firearms affect all Canadians. The committee members include civilian firearms users, farmers, hunters and sports shooters, as well as representation from conservation organizations, law enforcement, public health organizations, women’s groups and the legal community.

As such, the Canadian Firearms Advisory Committee is well-positioned to provide insight on a broad range of policy and operational questions.

The Minister of Public Safety has indicated that he, along with his colleague the Minister of Justice, would report back to this committee on the Canadian Firearm Advisory Committee’s findings.

I will close at this point, Mr. Chair, and indicate that we are pleased to answer any questions that you may have within the mandate of the Department of Justice.

The Joint Chair (Mr. Albrecht): Thank you, Mr. Piragoff.

(French follows — Mr. Dusseault: Merci pour votre présence…)

(après anglais — Le coprés. Albrecht : Thank you, Mr. Piragoff.)

  1. Dusseault: Merci pour votre présence aujourd’hui. Ce n’est pas aussi rassurant que je l’aurais aimé. Ma première question est sur le problème linguistique soulevé, et il a même été accepté qu’il y avait un problème linguistique dans le règlement. Je me demandais c’est quoi pour vous un laps de temps acceptable? Du moment où vous reconnaissez qu’il y a un problème et jusqu’au moment où vous le corrigez, pour vous, est-ce qu’il y a un laps de temps que vous trouvez normal que lorsqu’on découvre un problème, on ne le corrige pas immédiatement? Est-ce que pour vous c’est une bonne gestion de nos lois et règlements?

(anglais suit — M. Piragoff : The issue with respect to…)

(Following French — Mr. Dusseault — …nos lois et règlements?)

Mr. Piragoff: The issue with respect to section 5, as I indicated, was one of three issues that were part of conversations and letters between the committee and the department.

It was only as of June 2017 that one of the two issues was resolved. It’s not the intention of the department to proceed with a piecemeal reform of regulations.

There were three outstanding issues. We agreed that one issue could proceed and I think that was indicated in June.

We are currently in the process of working with Treasury Board of Canada Secretariat to move forward with the necessary paperwork to bring this before ministers to obtain an order-in-council. When that order-in-council might be promulgated is, of course, a question for ministers: It is their prerogative as to when they wish to bring that before their colleagues at Treasury Board. I can indicate to the committee that the department is doing the necessary paperwork together with Treasury Board to move this forward.

The particular date is within the purview of the prerogative of ministers.

Mr. Dusseault: I understand. My understanding is that on December 2, 2011, your department agreed for the first time that an amendment to the English version of section 5 would clarify its meaning and more closely align it with the French version:

Accordingly, we have recommended that such an amendment be made at the earliest opportunity.

You said earliest opportunity in 2011. Are you saying there has been no opportunity since December 2, 2011 to amend the regulation?

Mr. Piragoff: The decision as to when to bring forward regulations is one made by the executive. It is not in the purview of the department to make regulations; we advise the government with respect to regulations that can be made. It is in the purview of governments to decide when they wish to bring matters before cabinet or Parliament.

Mr. Dusseault: So when you send us those letters saying “earliest opportunity,” should we expect that that means nothing? Should we expect that “earliest opportunity” doesn’t mean anything to you?

Mr. Piragoff: For us it means something. We advise ministers, we advise governments, governments and ministers’ offices make decisions and we take instructions from our ministers’ offices.

(French follows — Mr Dusseault — Ce n’est pas très rassurant.)

(après anglais – M. Piragoff : …we take instructions from our ministers’ offices.)

  1. Dusseault: Ce n’est pas très rassurant. Vous avez dit que lorsqu’on est trop précis, par exemple si on mettait la définition du mot « variante » dans le règlement, terme qui a été utilisé dans une cour de justice où on a vu, sur papier, l’utilisation actuelle pour déterminer ce qu’était une variante, que ce serait être trop précis. Donc, en étant trop précis afin que les citoyens puissent comprendre le règlement, cela créera des échappatoires. C’est ma compréhension de votre analyse. S’il y a trop de précision dans nos lois, cela va créer des opportunités aux citoyens d’échapper à ces lois.

Utilisez-vous souvent ce raisonnement dans la rédaction vos textes législatifs et réglementaires? Vous essayez d’être le plus flou possible pour réussir à attraper tout le monde. Ils ne peuvent pas s’attendre à avoir des précisions quand ils lisent les lois et les règlements. Utilisez-vous souvent cette façon de légiférer au ministère de la Justice?

(anglais suit – Mr Piragoff: Mr Chair, I think the honourable member has misunderstood our statement.)

(Following French – Mr Dusseault — …ministère de la Justice?)

Mr. Piragoff: Mr. Chair, I think the honourable member has misunderstood our statement.

We’re not saying that precision is bad. We’re saying that any attempt to make a definition has the potential for implications. I think Bill C-230, which was before the House of Commons, is a good example of that situation. It was an attempt to try to define the term “variant” for the purposes of the Criminal Code as well as the regulations.

The bill was debated and defeated in the House of Commons at second reading because of concerns that, in trying to draft a definition which was not accurate and could not be precise, all definitions raise questions of interpretation and could have a negative impact on the classification system.

That’s why the ministers have indicated to the committee that it is a complex issue. Precision is not easy if words themselves in a definition lead to more vagueness that then could create loopholes. Bill C-230 is an example of an attempt that members of Parliament thought was not precise enough. Therefore, the ministers have indicated that they will seek the advice of their advisory council to determine what is the best way to bring transparency to the Canadian public, because these issues have implications on operational policy and Bill C-230 is an example of that.

If we were to do a definition in the regulations, like Bill C-230 or some other phraseology, we would be running into the same type of issues and debate that occurred with Bill C-230. That is the reason why the ministers are acknowledging that there is an issue here and that the regulations, in the opinion of the Department of Justice, are legal and can be administered by law enforcement. The RCMP is able to interpret them and the courts have been able to interpret them.

Nevertheless, the government does realize that transparency can always be improved and the two ministers have sought a process to seek to improve the transparency of the meaning of the regulations.

That means they will get options from the committee and, as the minister indicated, will bring their findings back to this committee.

The Joint Chair (Mr. Albrecht): Just for clarification, Mr. Piragoff, in the 2009 letter you talked about a working group being established to address these three issues. This advisory group you’re now referring to is a completely new animal that has been created in the last few weeks to try to address the concerns of the committee. Am I interpreting that correctly?

Mr. Piragoff: Yes, that’s correct. The committee that was referred to in that letter was an interdepartmental committee of members of the government. It looked at the issue and as a result of its work, it provided recommendations up the line. As a result of those recommendations and the exchange of letters, the two ministers have decided that they would like to seek the advice of their advisory committee which is non-governmental and comprised of members and stakeholders.

(French follows — Mr Dusseault — J’aimerais faire un commentaire.)

(après anglais – Mr Piragoff : …non-governmental, which is membersful stakeholders.)

  1. Dusseault: J’aimerais faire un commentaire. Je suis encore un peu inquiet de voir que c’est encore le raisonnement utilisé au ministère de la Justice. Ce n’est pas la première fois que je vais dire cette phrase en comité, mais nul n’est censé ignorer la loi. Quand on lit la loi et le règlement, il n’y a absolument aucune clarté. On demande aux citoyens canadiens de faire la recherche de jurisprudence pour réussir à trouver une certaine forme de définition pour savoir à quoi s’en tenir lorsqu’ils sont en possession d’une arme. C’est inacceptable et je ne crois pas que la réponse qui nous est donnée aujourd’hui soit satisfaisante. Je vais laisser les autres membres s’exprimer. Cela conclut mon intervention.

(anglais suit – Mr Diotte : First, I’d like to say…)

(Following French – Mr Dusseault — Cela conclut mon intervention.)

Mr. Diotte: First, I’d like to say that the foot-dragging on this is totally unacceptable. We see this kind of thing at the committee all the time but this is a particularly important thing.

I still don’t understand what you’re saying. It makes no sense when you say that adding a definition of variance could create more loopholes and lead to more variance. It’s circular logic if you define what a dog is in legislation and then worry that that’s bad and that somebody will find a loophole. It makes no sense whatsoever and I’d like you to try to explain that again.

Mr. Piragoff: As I indicated, I think the experience of Bill C-230 indicates the complexity of trying to develop a definition.

There was a proposed definition in Bill C-230. The majority of members of the House of Commons were concerned that that definition could have negative implications on the existing firearms classification determinations and the bill did not proceed beyond second reading.

Whether that was a bill or a regulation, any attempt at making definitions is a complex process. If you make a mistake and you are vague in the definition, you create more loopholes and ambiguity. That is the reason why the two ministers have said they understand that there is a need for greater transparency.

There is some transparency with respect to the RCMP and their method of advising the public through their hotline, but, in terms of the actual legal definition, we acknowledge that there could be greater transparency in the regulations. How to proceed with transparency is a different question. One option could be a definition. There may be other options, and each of those options would have different operational or policy implications for the firearms system. I think what the ministers want is the opportunity to consult the firearms community with respect to whether and how best to improve transparency.

That could include a definition. If so, what would the elements of the definition be, and how flexible would that definition have to be? Because a definition can be very locked in, and, if you do that, you could actually exclude certain firearms from a definition or be overexpansive and include other firearms that were not previously included in the definition. So those are implications that have to be ensured.

The concern about the definition of a dog: You don’t want a definition of a dog that is so broad that it also includes cats, for example, because it’s not worded properly. On the other hand, if you have a definition of a dog, you don’t want to only include some dogs but not all dogs. That is the difficulty and particularly in the area of firearms, which is a very complex issue. Firearms themselves are complex. The ministers have indicated to the committee, by their letter, that they wish to seek the advice of the stakeholders before proceeding with what is the best option to provide greater clarity and transparency to the regulations.

The Joint Chair (Mr. Albrecht): If I could just say as chair, it’s my hope that the advisory committee would have complete access to the transcript of this meeting so that they hear directly from the mouths of committee members what our frustrations are, what the concerns are, so that they have a full picture of our concerns. Mr. Diotte, are you through? Okay. Mr. Zimmer.

Mr. Zimmer: Thank you. Just a couple of issues with some things you said. You said it’s too expansive, that it includes other firearms. That’s exactly the problem. It’s up to the RCMP to decide willy nilly what is restricted, prohibited, et cetera, and deemed a variant, rather than an absolute, hard definition that we’re asking for. I agree with my colleague, Mr. Diotte. To say that it is too defined is ridiculous. I’ll give you the actual for the benefit of the room here. This was the proposed definition in Bill C-230: “Variant, in respect of a firearm, means a firearm that has the unmodified frame or receiver of another firearm.” It doesn’t get any clearer than that. That is a global definition that’s understood around the globe. That is how variants are defined. It just is the way it is. For some reason, I think we know that this particular government is hostile towards lawful firearms ownership in Canada. We’ve seen that before. We see this again. I think a better place for you to stand is to simply say it was defeated on the floor of the house, but to actually defend that this is somehow going to make it too expansive is, again, ridiculous.

I know you have a job to do, sir, but I do too. I represent a whole bunch of lawful firearms owners in this country and our concern with legislation that, when it’s given into the hands of other entities, is used to restrict rather than benefit lawful firearms ownership in Canada. I wanted to just ask you, again, a clarification question.

Our chair has talked about the Firearms Advisory Committee. I just wanted you to clarify because you just said that it’s a new group, but this group has been around since previous Liberal governments, in the Chrétien government. I actually know some of the former members of the previous firearms advisory council that were there for, I think, 20 years. So, just to be clear, which committee are you speaking about when you talk about the Firearms Advisory Committee or council?

Mr. Piragoff: I think the name is, as in the letter, the Canadian Firearms Advisory Committee. It is in the letter, and any questions with respect to it should be directed to Public Safety because it’s not within our mandate.

Mr. Zimmer: Okay. So, just to clarify, it’s not a new committee. It’s been around a long time.

The Joint Chair (Mr. Albrecht): I just want to clarify or possibly clarify. It could be a new committee. This is the confusion that I think we’re dealing with. Is it referring to the council or the committee, or is it a completely new animal?

Mr. Zimmer: What our speaker has said, chair, is that it’s made up of a farmer, a sports shooter and somebody else. I think that was the term. If that is the case, I think you’re speaking about the Canadian Firearms Advisory Committee because you talk about it having a whole bunch of experts and people that are firearms experts, et cetera. There is nobody on there that’s a firearms expert in terms of understanding. There’s one person on there that would get close to an expert, and this is Lynda Kiejko. I apologize if I’m not saying her name correctly. She’s a competitive shooter. But that’s as close as we can get to an absolute expert that we could define as an expert on that advisory committee.

I’m speaking about that this morning because we have a letter that said that this is going to be deferred to that particular group to define. This is what concerns firearms owners across this country, again. This is being handed to a group that’s not necessarily pro-lawful firearms ownership in Canada. It’s more on the other side of the issue, and, if you look at the numbers on the committee, they are groups that are concerned citizens about firearms, et cetera. So, as a firearms representative of the community, I am deeply concerned that this important legislation is going to be put into the laps and decision-making authority of a facade of a firearms advisory committee, of what it once was. We used to have members from the Canadian Shooting Sports Association and many other absolute experts that are actually absolutely defined as firearms experts. We simply don’t have that on this new committee.

This government has talked about not bringing back the long-gun registry and all kinds of things and trying to appease that rural firearms owner in Canada because we know that there are lots in the members’ ridings. This is legislation that is attempting to define for the benefit of lawful firearms ownership in Canada. That’s purely what it’s meant to the do, and, to see the government kind of whitewash the issue, that you’re handling it and providing due diligence, is inaccurate. I honestly wish that this government would consider clarifications like this as a positive not as a negative and respect lawful firearms owners in this country.

Mr. Oliver: Thank you for being here. I would just like to remind all of the participants here that this problem has been in existence since 2005, I think. That’s when we first flagged it. There have been a couple of governments that have been looking at it.

For clarification, if an enforcement officer decides to charge somebody with possession of a variant, do they make that determination themselves at the time? Do they go to a list somewhere and confirm that it’s on the list and that, therefore, it’s a variant? Or is it the determination that it’s a variant made after the fact, after the arrest, when they examine the gun? How does the enforcement officer make the determination that it’s a variant?

Paula Clarke, Counsel, Criminal Law Policy Section, Department of Justice:  Law enforcement would refer to the Firearms Reference Table, which is a tool that is available to law enforcement in Canada. That lists the classification of every firearm that is known on the international market.

Mr. Oliver: So we’ve seen other regulations that refer to a third party’s technical table or technical list so that it can be available both to the general public and to the people that would be enforcing a regulation.

Why wouldn’t you just reference the Firearms Reference Table? I’m assuming that’s kept up to date. There are problems with referencing third-party tables because you need to know what version you’re working with at what time the charges are. But other regs deal with that, and other structures deal with those changes. Why wouldn’t you refer the public, through the regulation, to that table so that they have the same resource material that the arresting officer has? The arresting officer can’t do anything that’s not on that table, so the specificity issue fades the away when you have a special table that the charges are being laid against.

Mr. Piragoff: Thank you. That is one of the options the Canadian Firearms Advisory Committee would examine.

As I said, a definition is one option. There are other operational or policy options that can be considered. You’ve suggested an operational way of increasing transparency, and that is something the committee, as well as the government, would look at.

There may be a number of ways to increase transparency. A definition is one, but there may be other ways as well. I think that’s why the ministers have asked the committee to provide some ideas. As to the question raised by the chair — will we, as officials, bring the transcript of these proceedings to the committee — I will convey to my colleagues at Public Safety who are responsible for the administration of that committee that it should have the benefit of the debates of this committee.

The Joint Chair (Mr. Albrecht): Going back to a conversation we had two or three meetings ago on the issue of incorporated by reference, we were referring to some outside legal definitions or guidelines. I’m going to ask our counsel to speak to that.

Evelyne Borkowski-Parent, Counsel: On that specific issue, there are restrictions in the Statutory Instruments Act on a regulation-making authority incorporating by reference a document that originates from the regulation-making authority, either solely or jointly, for the simple reason that people would then just incorporate their own documents and not regulate anymore. So there are restrictions to incorporating government documents in the regulations.

Mr. Maloney: This reference table you spoke about, Ms. Clarke, if I were to go to that right now and look at a particular gun and any variant, would it list specific weapons on it?

Ms. Clarke: By “weapons,” are you referring to just firearms?

Mr. Maloney: In response to Mr. Oliver’s question, you said that when an enforcement officer is going to lay charges, he can go to this reference table to determine whether the weapon falls into a category that’s subject to charge. What would you find in that reference table?

Ms. Clarke: The Department of Justice is not responsible for the reference table; this is something that falls under the purview of the Minister of Public Safety and the RCMP as part of his portfolio, but to my best knowledge — and I will clarify later if I am not correct — the firearms reference table only refers to firearms and does not include prohibited weapons.

Mr. Maloney: How does it assist somebody in laying charges? Does it give a specific weapon that’s prohibited?

Ms. Clarke: It would list by make and model a specific firearm.

Mr. Maloney: If you add a definition to the word “variant” that makes it more specific, as suggested by Mr. Zimmer, would that list have to be amended, and would somebody have to interpret it in advance and add or delete weapons from that list?

Mr. Flint: It would depend on the definition, and all firearms would have to be reassessed, perhaps, to see —

Mr. Maloney: So you could end up with a more comprehensive or restrictive list, depending on the definition?

Ms. Clarke: There could be unforeseen impacts on the current classification of firearms.

Mr. Maloney: Right. Then you’re into another debate about definitions.

On this issue of urgency, have any legislative steps been taken in the last 10 or 12 years to deal with these issues?

Mr. Piragoff: The previous government introduced a bill to deal with firearms.

Mr. Maloney: On this specific issue.

Mr. Piragoff: No, not on this specific issue.

Mr. Benzen: I’m curious. It says there may be up to 4,000 variants on this database, on this table. Why can’t I go and look at that table today?

Mr. Piragoff: That is a question you should be directing to Public Safety and the RCMP. They are responsible for the table, not the Department of Justice.

Mr. Dusseault: I had the same question. According to publicly available sources, this document exists and there are 4,000 firearms in it, why can’t Canadians access it? But he can’t answer that question.

The Joint Chair (Senator Day): Mr. Piragoff, in your discussions with Mr. Oliver, you said that a definition may be one of the ways to go if it’s deemed that there needs to be some clarification. Is another strategy just to leave of it alone, and if there is a problem, the courts will sort it out in due course?

Mr. Piragoff: That is an option, but that’s not an option this committee would be favourable to.

Legally, as we’ve said, in the view of the Department of Justice, the regulations are valid, the regulations have been able to be administered by law enforcement and law enforcement is able to classify firearms according to the regulations. The RCMP, as I understand, conveys those determinations through a table. They also have a 1-800 line to the public to convey the results to the public. The courts have been able to adjudicate.

Even though something may be legal, it may be optimal to be better than legal. I think that’s the issue this committee is considering; namely, that even though the regulations may be legal, they could be more transparent and the issues could be clearer.

That’s why ministers have said they’re asking for advice. If you look at the letter, they’re looking at whether and how best to improve transparency. That could be a definition. It could be, as Mr. Oliver suggests, operational issues. It could be left as it is, as an option, but we know this committee does not think that is a good option. We will convey to the advisory committee that this committee does not think that’s a good option.

Mr. Zimmer: Mr. Maloney brought up some different questions about this. I’m still having a hard time understanding why clarifying firearms regulation is somehow a problem. I would simply make it more accurate. The way that firearms are classified should be based on the receiver. As I was saying, that is the global understanding about how firearms are defined.

I’m going to highlight one example of how this goes wrong. Rather than doing it explicitly on the receiver, as I mentioned, then they’re simply classified because they resemble another — looks like, without being like it at all, in any shape or form — completely different. I’ll read this quickly, chair:

Mossberg’s latest autoloading rimfire rifle, the Blaze, has managed to be both non-restricted and prohibited at the same time. Available in smorgasbord of different models, the Blaze is available in a variety of different conventional configurations with varying finishes, sights, magazines, and even in a shorter, more compact version for youths. These rifles have earned a non-restricted classification and are widely available.

Some of you might have them at home.

However, the Blaze 47 model has run afoul of the RCMP Firearms Lab, and has been listed as a prohibited firearm.

— simply because it looks like an AK-47.

The Blaze 47 trades the conventional stock for a plastic kit designed to emulate the appearance of an AK-47. This rifle, although being internally identical to the Blaze (the AK-47 style stock and conventional stock are interchangeable), was recently classified as a prohibited firearm. According to a Federal Government source with knowledge of the matter, “The Minister’s Office has asked the RCMP to review the prohibited classification of the Mossberg Blaze 47 22 LR rifle to determine whether it was made in error.”

I don’t believe that has been reversed at this point. This is just one example. You can decide whether you want to have a .22 at home or not, but I don’t think that’s what we are discussing this morning or making value judgments on people that do.

This group is supposed to decide on making our regulations more accurate so Canadians can have a legal system that is accurate. On the one hand, you have a simple .22 that most farmers will have in their homes. Our family has .22s, the kids have shot them since they’ve been little, very safely. And yet one of these, just because it looks like something and the RCMP has made that judgment, it is deemed prohibited. So, this is exactly what this definition, what former colleague Larry Miller offered before in his attempt at a great private member’s bill, and it’s to help that kind of situation not happen. I will finish with that, Mr. Chair. Thanks for the time.

Ms. Dhillon: You mentioned during your testimony that it’s very complex to find a definition. How is a regular person, who is subject to the law and penalties that the law gives, able to understand what falls under a definition or not? These are Canadians that are going to be subject to the law, sometimes very severely and sometimes just with a simple penalty. I think there needs to be a definition, at least, and you said there are several options. Maybe we can have both a definition and operational, like a reference list of the weapons. We are not limited to only one option.

The other thing is that you said the court could adjudicate, but already our justice system is so clogged that at least we can have some sort of definition to allow officers or those enforcing the law a certain framework to work within. And the rest could be adjudicated, but if you are adjudicating, this will clog an already overburdened justice system. It’s not a perfect system, but we need as much accuracy and clarity as possible. Do you not think clarity is essential for our justice system to keep rolling efficiently?

Mr. Piragoff: Thank you for the question. Clarity is definitely important, if you get clarity right. If you get clarity wrong, then you have a situation where you may have, as indicated, unintended implications. So you have to make sure you get it right, such that you are clear and you are capturing everything that you want to capture and not capturing things that you do not want to capture. That’s why definitions are tricky. As Mr. Zimmer has indicated, there is dispute over the example that you provided. There is a difference of views between certain members of the public and possibly the RCMP with respect to that issue. You can check with the RCMP on their view on that. But again, that’s the example where there may not be clarity.

That’s why, as I said, the ministers have recognized that there is an issue here. They agree with the committee that transparency could be improved and they are seeking the advice of the stakeholder community as to how best to improve that. And there may a number of options. Right now, the RCMP has a program whereby Canadians can call up a 1-800 number and find out if a particular firearm is or is not on the list. That doesn’t give you clarity as to how it got on the list, but there is a means to find out whether a particular firearm is or is not on the firearms reference table. Again, you should speak to the RCMP as to how they manage that and also the program that I understand they have with the firearms industry.

Ms. Dhillon: Should we not start somewhere? For years, this problem has been lingering and, in the meantime, people are subject to legal action. I think that’s very wrong.

Mr. Piragoff: As I indicated, Mr. Chair, as officials, we provide advice to our ministers’ offices. They make decisions. The decision has been recently made by the current two ministers to proceed on this matter by referring to an advisory committee for their advice and they have indicated they will bring it back to this committee. So there is action.

(French follows — Mr. Dusseault: Rapidement. Allez-vous utiliser…)

(après anglais — M. Piragoff : So there is action.)

  1. Dusseault: Rapidement. Allez-vous utiliser la même logique? Pouvons-nous nous attendre, en fait, à ce que vous utilisiez la même logique avec la Loi de l’impôt sur le revenu? Allons-nous conserver une définition aussi vague du mot « revenu » et laisser les autorités en décider plus tard, dans des documents secrets? Pouvons-nous nous attendre à ce que le ministre des Finances utilise la même logique pour la Loi de l’impôt sur le revenu?

(anglais suit — M. Albrecht : I think that’s a rhetorical question…)

(Following French — Mr. Dusseault — …l’impôt sur le revenu?)

The Joint Chair (Mr. Albrecht): I think that’s a rhetorical question, but a point well taken.

Committee members, I think we’ve all had a high degree of frustration around this issue that has been dragging on, depending on when you start to clock, from 2005 or 2008. I think the frustration for us — and this is directed back to the particulars and we will have to communicate by letter — is that we’ve been dealing with this for years. At two minutes to midnight, we get a letter that is offering a new possible solution. In my opinion, as a committee, we have no option other than to probably agree with that, but to insist that there be rapid follow through with this new committee being established — if it is a new one — or to get the other one working quickly and expeditiously on this and address this immediately, if not sooner. This has been dragging on and I think the frustration level is high in this room and it’s high among the Canadian public.

Mr. Zimmer gave one example, we have the examples of court cases and Ms. Dhillon made a great point about the courts being clogged. There are all kinds of reasons for us to move expeditiously on this and I think you received this message from us today, hopefully politely but firmly.

As a committee, are you prepared to accept this recommendation that the new committee be established and that we address a letter to the two ministers in question urging rapid resolution of the problem? Because it has been dragging on for too long and the potential consequences for those who may get caught in the system are too great to leave unattended.

Is a committee member prepared to suggest that as a possible way forward or do you have another option? I’m trying to expedite the work of our committee. We’ve been here for almost an hour. Let’s move ahead.

Is there a general agreement with that process, that we will accept this recent letter in good faith but that we expect expeditious follow through?

The Joint Chair (Senator Day): The letter of November 21.

The Joint Chair (Mr. Albrecht): The one we just received this morning. Any further comments on that? I see nodding. We do try to work with consensus when possible.

Counsel, are you comfortable with the direction you have received in order to proceed with the next steps?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Mr. Albrecht): So agreed.

Thank you for your patience.

The Joint Chair (Mr. Albrecht): We will move on to our second item and our Justice officials will stay here for this one.

Does counsel care to make an opening statement? We’ll move with an opening statement and proceed with counsel and committee member input.

The Joint Chair (Mr. Albrecht): In consultation with counsel, I want to ask her to clarify a couple of items we may have overlooked as a committee in terms of our ongoing communication with the Department of Justice.

Ms. Borkowski-Parent: First of all, there is the issue of whether the Department of Justice considers its regulations to be lawful and it’s just a matter of greater transparency. With all due respect, the committee came to a different conclusion, which is that when the Criminal Code states that you have to prescribe firearms as restricted, non-restricted or prohibited, prescribed is a narrow enabling power. You’re supposed to ascertain, with a good level of certainty, what is prescribed. Therefore, the committee is of the opinion that by using vague terms you have not followed your enabling authority. That’s the first aspect.

The second is the reliance on the fact that Bill C-230 was defeated in the house and that was a matter for parliamentarians to debate.

In this instance, we’re dealing with regulations. It is a delegated legislation and it is bound to a higher level of scrutiny, which is what this committee does. Leaving the rights of citizens unduly dependent on administrative discretion infringes on this committee’s sessional order of reference, which is criteria number 10. I don’t think you can jump to the conclusion that adding a definition to the regulations is a bad idea because Bill C-230 was defeated. You are dealing with regulations here, not with an amendment to the Criminal Code.

The Joint Chair (Mr. Albrecht): I think that was the general understanding of many of us who were frustrated with the conversation that went around. I think it’s good to have that clarified by counsel so that we can include it.

SOR/2014-304 – SAMPLES OF BODILY SUBSTANCES REGULATIONS

(For text of documents, see Appendix B, p. )

(For text of documents, see Appendix B, p. )

We’re going to move on to the second item, which is the samples of bodily substances regulations. We will look to Mr. Piragoff for an opening statement regarding this issue as well.

Mr. Piragoff: Thank you. With regard to the samples of bodily substances regulations, as you know, these came into force on March 31, 2015, under the authority of the response to the decision of the Supreme Court of Canada in R. v. Shoker Act.

That act amended the Criminal Code to establish lawful authority for the collection of bodily samples from offenders under a court order to abstain from drugs and alcohol. The act requires regulations to ensure proper safeguards in the taking, storage, analysis, use and destruction of the samples. After review, the committee advised the department of three specific concerns.

The first is that the English definition of a qualified medical practitioner in section 1 was inconsistent with other provisions in the Criminal Code. The second was why a qualified technician is allowed to take samples in some circumstances while in others a qualified medical practitioner is required. And third, there was a discrepancy in the French version between subsection 19(2) and subsections 5(2) and 12(2), which, in principle, should all use the same language given that these three subsections use the same wording in the English version.

After subsequent correspondence between the committee, counsel and the department, I understand that the committee accepts that no amendments are required regarding the first two issues.

Regarding the third issue, the department has indicated agreement that an amendment should be brought to ensure these subsections are identical in the French version. Furthermore, the department indicated that an amendment would be brought forward as soon as is practical even though the technical error identified has not yet impeded operation of the regime. I understand the committee is now seeking clarification on the timing of the proposed amendment.

While I apologize for the delay, the department has been analyzing all three issues as one comprehensive package rather than bringing the third issue amendment forward on its own and separate from the other two. Now that the other two issues are resolved, the department is able to move forward on the one issue that clearly needs to be addressed. I believe the last exchange of correspondence was in summer of 2017. The department is seeking to expedite this matter but I cannot commit to any specific timeline as indicated previously this morning.

It is the prerogative of the minister as to when she wishes to bring a regulation forward to her colleagues, but we are in the process of preparing the necessary paperwork to bring this matter to the attention of the government.

With me today is Mr. Doug Hoover, our lead counsel on this matter, and we’ll be pleased to answer any questions you may have.

The Joint Chair (Mr. Albrecht): Thank you.

Ms. Borkowski-Parent: You mentioned you are unable to provide a timeline. Has the Department of Justice put forward a forward regulatory plan?

Mr. Piragoff: It is another part of the department that is responsible for the drafting of legislation and regulations. They do work with either the Privy Council Office or Treasury Board in terms of a plan. How it goes and what goes into it are different issues.

The first issue is that ministers and officials, whether they be with the Department of Justice or any other department, have to brief up to their ministers’ offices for the need for an amendment. That is the process that we are engaged in right now to advise our ministers’ offices that there is a need for a regulatory amendment to correct the English and French versions.

The plan is something that is worked out not within the department but between legislation, Privy Council regulations and Treasury Board of Canada Secretariat.

Ms. Borkowski-Parent: After consulting your forward regulatory plan, the regulations amending the samples of bodily substances regulations are on it for 2017-2019, so why wasn’t it possible for the department to mention that in a letter when the committee repeatedly asked for your timeframe? This is publicly available online.

Mr. Piragoff: I don’t control that regulatory plan. Mr. Hoover is involved with this issue. He may have been in contact with our regulatory drafters.

Douglas Hoover, Counsel, Criminal Law Policy Section, Department of Justice:  All I can say is that, once we acknowledged that there was a technical error, I think we advised that it would be proper to put it on the forward regulatory plan, but, again, specific timing as to the date that it’s coming forward is not necessarily something that we advise on. It’s something that’s determined by the minister in consultation with cabinet.

The Joint Chair (Mr. Albrecht): Again, we have dealt with this for a long time, and we are eager to see these resolved more expeditiously.

(French follows — Mr. Dusseault — On se retrouve…)

(après anglais — Le coprésident (M. Albrecht): …to see these resolved more expeditiously.)

  1. Dusseault: On se retrouve encore avec le même problème que le premier enjeu dans le dossier précédent où le 9 mars 2016, le ministère nous a dit qu’il était prêt à corriger les erreurs. Je lis le document en anglais.

(anglais suit — Mr. Dusseault cont’g.: “As soon as is practical…)

(Following French — Mr. Dusseault — …en anglais.)

“As soon as is practical in the circumstances.”

(French follows — Mr. Dusseault — C’est assez vague.)

(après anglais — Mr. Dusseault : …in the circumstances.”)

C’est assez vague. On l’a constaté tantôt. Depuis cette lettre datée du 9 mars 2016, vous dites que vous êtes toujours en train de remplir la paperasse pour le porter à l’attention du gouvernement — je présume le ministre. Pourquoi s’est-il écoulé autant de temps? Vous dites que vous avez repéré l’erreur et qu’elle sera corrigée en temps opportun. Toutefois, selon vos propos ce matin, cela n’a pas encore été porté à l’attention du gouvernement et la paperasse n’est pas encore terminée. Comment se fait-il qu’il s’écoule autant de temps entre les deux?

(anglais suit — Mr. Hoover: As has already been stated, we agreed…)

(Following French – English — Mr. Dusseault — …entre les deux?)

Mr. Hoover: As has already been stated, we agreed in 2016, with the third issue, that an amendment would be proper, but it was a very minor amendment if you look at the exact words. So it’s not complicated, but that doesn’t mean there is not paperwork that has to be done and briefing and a decision by cabinet. At the same time, when there are these other two issues that are still unresolved, we use the words “as soon as practical.” Until those issues are resolved, it would not seem to be practical to bring one amendment forward while the two are sill in discussion. Again, we received notice that the committee is satisfied with our explanation on first two in June 2017. So, again, the clock really, for us, has started ticking. So we are prepared to push this forward for briefing up to the minister, and then it will be in the minister’s hands as to when they want to bring that forward to cabinet.

(French follows — Mr. Dusseault — Mon autre question…)

(après anglais — Mr. Hoover: …to bring that forward to cabinet.)

  1. Dusseault: Mon autre question porte plutôt sur la complexité entourant la correction d’un règlement. On vient de terminer, en Comité des finances, l’étude du projet de loi C-63, qui fait plus de 300 pages, de façon expéditive. Quand on parle de règlement au sein de ce comité, on a l’impression que ça prend des années avant qu’une correction soit apportée dans une ligne d’un règlement. L’intention au départ était-elle d’avoir des règlements pour assurer plus de flexibilité aux législateurs — au gouvernement, plutôt — et de facilité dans la correction des lois?

(anglais suit — Mr. Piragoff: That is the purpose of regulations…)

(Following French — Mr. Dusseault — …la correction des lois?)

Mr. Piragoff: That is the purpose of regulations, but I think, as Mr. Hoover says, for the purposes of seeking this amendment, the clock has really only started as of June 2017 because, as Mr. Hoover indicated, from 2016, when he said we’ll move forward as soon as practical, it wasn’t practical to move forward with one amendment when we still had two other outstanding issues that were only resolved in June. So, as of June, we’re now proceeding with advising the minister of the necessity to move forward. As the clerk indicated, it is now on the regulatory plan.

The Joint Chair (Mr. Albrecht): I think, Mr. Piragoff and Mr. Hoover, the level of frustration is high because of lack of communication. It’s on the forward regulatory plan, which is public. We, as a committee, were not directly informed of that. In my opinion, had we been informed that it’s on the 2017-2019 regulatory forward plan, we would have said, “Thank you very much. Please make sure it happens in 2017,” and then that gets back to the minister. That’s how I see it. This is a way we can make government more efficient, and it’s in all of our best interests in terms of waste of time, resources and lack of clarity. I think Mr. Dusseault makes a good point. Any further comments on this issue from committee members? Do we want to establish a tight expected timeline for which we would ask the department to actually have this in place?

The Joint Chair (Senator Day): I just want to make sure, on my co-chair’s point, that the minister is aware that we’re spending a tremendous amount of time, energy and resources. Just look around this room. It’s all you have to do. So, when you indicate that you are making your best efforts with respect to this amendment, does that include telling the minister that this committee has been seized of this for some time now and that we’re very interested in getting it resolved? If we could have a timeline, we could put the file away and then come back and look at it.

Mr. Hoover: As far as I’m concerned, absolutely. When we brief up on this issue and on this committee appearance, we’ll make that clear. Speaking just for myself, I have the greatest respect for the work of this committee. I understand how important regulatory environments are. I take that part of my job very seriously, and, when I return to the office today, action will be taken.

The Joint Chair (Mr. Albrecht): Thank you. Further comments? Do we want to establish a timeline of expectation for Mr. Hoover to bring forward to the minister? Here we are, almost through 2017. What’s your suggested timeline? Anyone have a suggested date you’d like to put forward? Is March 2018 unrealistic?

Mr. Dusseault: Are our witnesses able to tell us what is a reasonable timeline or not or, they will say, timely? What does that mean?

The Joint Chair (Mr. Albrecht): Mr. Hoover, honestly, in your opinion, what would you suggest is reasonable in this case, in this specific case?

Mr. Hoover: If I had nothing else to do, the documents could be ready for review by my superiors in a matter of weeks. Unfortunately, in the times we live in, I have other priorities as well, but, again, I am going to do my very best, from my perspective. But I’m not a very important player in all of this. There are a number of steps that have to be taken. I think your committee is well aware of the amount of the paperwork it takes to bring regulations forward — prepublication, et cetera, et cetera. All I can suggest, from my perspective, is that I’ll do everything I can to ensure the paperwork goes up for approval and, ultimately, into the minister’s hands for a decision.

The Joint Chair (Mr. Albrecht): Have you considered the miscellaneous amendments route?

Mr. Hoover: Again, it’s not within my responsibility to identify the vehicle that it would be in. That lies with other individuals.

The Joint Chair (Mr. Albrecht): You indicated you have a lot of other things on your plate, as does this committee, and we would really welcome your best efforts to move this forward.

Mr. Zimmer: With all due respect, as a visitor to this committee, I would challenge that a hard date be established because, again, agreeing with my NDP colleague, clarity is what we sought this morning when we talked about a regulation in terms of firearms, and I think clarity needs to be sought here.

The Joint Chair (Mr. Albrecht): I’m open to suggestions, Mr. Zimmer.

Mr. Zimmer: If it were me, it would be next week. As a visitor, I’m not sure. I guess I’d maybe defer to the counsel here, but I would absolutely establish a hard date.

The Joint Chair (Senator Day): It’s a question as to when we ask counsel to bring this file out to look at it again.

Ms. Borkowski-Parent: When we consult the forward regulatory plan, there is the mention that, because it’s a technical amendment, going through miscellaneous amendment regulations also avoids the step of prepublication. It is usually a determination made by Justice and the Treasury Board, but for English-French discrepancies, it’s not unlikely it would fall within that realm. That means an expedited process.

The Joint Chair (Mr. Albrecht): How many months is that?

Ms. Borkowski-Parent: It all depends on when the Treasury Board cabinet committee sits. I’m not aware of those sitting dates.

The Joint Chair (Mr. Albrecht): In the interest of time, let’s suggest the end of March 2018. I’m going to suggest that. I’m open to opposition. I see none. So the end of March 2018, we expect it to be clarified.

(French follows — Mr. Dusseault: Je crois que c’est…)

(après anglais — M. Albrecht : …expect it to be clarified.)

  1. Dusseault: Je crois que c’est réaliste. Je voulais juste, avant de terminer, vous assurer que j’ai quand même beaucoup de sympathie pour votre travail, vu le système dans lequel vous vivez. Vous êtes un peu victime d’un système qui est devenu tellement lent que j’ai quand même de la sympathie pour votre travail.

(anglais suit — M. Albrecht : That’s a good note…)

(Following French — Mr. Dusseault — …sympathie pour votre travail.)

The Joint Chair (Mr. Albrecht): That’s a good note to end on. Are there any further comments from committee? That deals with our work for today.

On the last item, we would like it completed by March 28. That’s what I understood the committee to suggest: completed by March 28. Are there no other agenda items, so we will adjourn the committee.

Thank you very much, witnesses, for being here today.

(The committee adjourned.)

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