Issue:

PRIVACY RIGHTS

Policy Memorandum No.:

15-3

Last Reviewed:

16 July 2019

POLICY:

The CCFR believes that individuals ought not have to give up their reasonable expectations of privacy guaranteed under the Canadian Charter of Rights and Freedoms for the simple reason that they are firearm owners or hold a firearms licence. Sections 101 to 105 of the Firearms Act ought therefore be repealed.

RATIONALE AND DISCUSSION:

Currently, ss. 101 to 105 of the Firearms Act grant an “inspector” (as defined in s. 101) broad powers to enter and inspect any place where the inspector has reasonable grounds to believe (a) a business (as defined in s. 2(1) of the Firearms Act) is being carried on, (b) records of a business are to be found, (c) a gun collection is located, (d) records relating to a gun collection are to be found, (e) a prohibited firearm is located, or (f) more than ten firearms are located. The powers of the inspector include opening any container, examine any firearm or any other thing and take samples of it, conduct any tests or analyses or take any measurements, and require any person to produce records or documents for examination or copying (s. 102).

The Firearms Act goes further and imposes a duty on the owner or person in charge of a place inspected and every person found in a place inspected to give the inspector all reasonable assistance and to provide the inspector with information (s. 103). The only limits are with respect to a dwelling-house where a business is not being carried out (s. 104). In that case, the inspector must give reasonable notice to the owner or occupant, obtain the consent of the occupant, or obtain a warrant under s. 104(2). Refusal of entry to the inspector is one of the required grounds for the warrant (s. 104(2)(c), though the constitutionality of such a provision has yet to be tested in Court). An inspector can also demand the production of a firearm (s. 105).

These provisions ignore the privilege against self-incrimination found in s. 7 of the Charter and the right to be secured against unreasonable searches or seizures found in s. 8 of the Charter. In the case of R. v. Collins (1987), the Supreme Court of Canada held that for a search to be reasonable, it must be (a) authorized by law, (b) the law authorizing the search must be reasonable, and (c) the search must be conducted in a reasonable manner. In the classic case of Hunter v. Southam Inc. (1984), a unanimous Supreme Court of Canada held that a warrantless search is presumptively unreasonable. The CCFR submits that the search powers under the Firearms Act, which do not require grounds to believe an offence have been committed, are a violation of s. 7 and s. 8 of the Charter and therefore unconstitutional. However, this has not yet been tested in Court.

We note that s. 487 of the Criminal Code allows a peace officer to obtain a search warrant where the peace officer has reasonable grounds to believe an offence has been committed under any Act of Parliament, and reasonable grounds to believe that evidence of that offence will be found in the place to be searched. This is the proper standard, which has stood up to Charter scrutiny.

Note:

Bill C-71’s expansion of the background check for licensing and renewal presents a potential privacy concern when a persons long past history is counted into their eligibility for licencing and renewal.

The RCMP must ensure that privacy concerns are primary when assessing a person’s eligibility for a PAL or RPAL.

The addition of online activity as an element of the eligibility must include a clear criterion that is public and transparent and maintains a strong respect for the freedom of expression of firearm owners. Freedom of expression and association are foundational elements of Canadian democracy as expressed in the Charter and firearm owners must not be required to relinquish those rights to enjoy their firearm rights.

Secondly, the newly instituted record keeping requirements (previously prohibited by the Act) imposed on the RCMP Registrar to collect and keep a record of the identifying information of all those transferring firearms creates a privacy concern; in that it creates a record of personal associations and relationships which were previously private under the Act.