Public Safety Committee on May 14th, 2015

[Todd Brown]

Personally I don't know of any problems yet, but as I said, let's take care of a problem with a preventative measure before something happens. This bill will cover something that has left a hole in the legislation, with a potential for misuse and for charges to be laid. Why don't we take care of this before something happens?

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

To your knowledge, it is not a problem and has not been a problem in the past for the businesses selling this kind of firearm.

Mr. Farrant, are you aware of any problems that business are currently having?

[Greg Farrant]

No, I'm not, but I would point out that, as I said earlier, we live in a very litigious society. We also live in a society in which there are people—and everybody is entitled to their views—who very adamantly oppose the use of firearms in any way, shape, or form. There are people who believe that no person, let alone a younger person, should have access to a firearm of any type, and all it takes is one complaint and the next thing you know you have litigation.

While the number of convictions under the current law may not be high—I certainly have seen the 10 cases that were cited during the Dunn proceedings—the fact is that litigation, particularly for an individual, although for a business as well, is extremely expensive.

We have seen cases involving other parts of the Criminal Code pertaining to cruelty to animals and other parts of the law in which individuals have had charges brought against them on the basis of an individual complaint by someone who didn't like something or the actions of a person, and it has cost the individual tens of thousands of dollars only to be found not guilty or to have the charges dropped somewhere down the line. That litigation can ruin careers; it can ruin finances for people. This is a preventative measure.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Farrant.

Thank you, Madam Michaud.

Now we go to Mr. Payne, for five minutes.

[LaVar Payne, Conservative, Medicine Hat, AB]

I'd like to thank the witnesses for coming today and also those participating by audio conference.

As a youngster, I had a BB gun and I was taught how to use it. My father taught me that you never point it at anybody and that you make sure it's not loaded. These air guns that we're talking about, whether they're paintball guns, pellet guns, or BB guns, are air guns of low velocity, as has been stated a number of times.

I think, Mr. Brown, you said that some 20 years ago a police officer would actually stop somebody, check the air gun, and speak with them, and without a problem.

I just want to confirm that these were your comments in your opening remarks.

[Todd Brown]

Yes, I have mentioned that. Perhaps 20 years ago wasn't enough. As I age, the years seem to pass by more and more quickly. I'm referring to the time pre-1995.

As a young boy, I used to have an air gun and a pellet gun. I was never bothered by the police, even though I was out with it alone quite frequently. I never did anything illegal with it.

There were times when I had friends who had been stopped by the police or law enforcement, and things were checked out. “You guys aren't up to any trouble or anything”, they would be asked, and everybody would say no, that they were just out having some fun or doing whatever, and that was that. There were no issues, never any criminal charges laid, and the parents weren't brought into it. It was done in a very rational manner.

[LaVar Payne, Conservative, Medicine Hat, AB]

I think, Mr. Brown and Mr. Farrant, you both indicated that if you use one of these air guns irresponsibly—you point it at somebody, threaten somebody, use it in a criminal manner—you could still be charged. I want both of you to make a comment on that.

[Todd Brown]

Yes, absolutely. Anything can be used as a weapon, and an air gun and a pellet gun are not exempt from that. Under the definition of a weapon in the Criminal Code, I could throw my coffee cup at you with intent and be charged with assault with a weapon. The same could be said for any of the pens that are on the table before you. It's no different with a BB or pellet gun. As long as it's being used in a responsible manner, there's no problem, but if you want to use it to commit a crime or in the commission of a crime, then yes, you are still open to criminal charges.

[LaVar Payne, Conservative, Medicine Hat, AB]

Okay.

Mr. Farrant.

[Greg Farrant]

That's correct. Anybody who uses a firearm, no matter whether it's an air gun, a BB gun, a pea gun, whatever type of article that is a firearm or a gun of any sort, in a threatening manner is subject to charges. The amendment proposed in this bill doesn't change that fact at all.

It is a fact, however—and please, I don't say this in a pejorative manner, because police officers have a very difficult job and do an admirable job—that not all police officers have an understanding of firearms law or of what safe storage or safe transportation is.

In this particular context, you could certainly see a charge being laid against somebody under the letter of the law as it currently stands. That would be unfortunate, because in the end the court would throw it out, but somebody would still have to face that issue in court. This just clears it up for police officers and everybody else in terms of understanding exactly what the law means.

[LaVar Payne, Conservative, Medicine Hat, AB]

I have a major concern about hundreds of thousands of kids with air guns being charged because the law isn't clarified.

I know both of you said that you're safety training instructors for firearms. Mr. Farrant, you indicated that at the Ontario Federation of Anglers and Hunters you teach young children, using air guns, in some facility that you talked about.

[Greg Farrant]

That's correct.

[LaVar Payne, Conservative, Medicine Hat, AB]

What kind of safety training do you provide to them?

[Greg Farrant]

The people who are instructing them are all certified. They go through the procedures of safety. It's on a firing range.

They're taught the proper way to load the firearm, the proper way to discharge the firearm. They are taught about not pointing it in any direction other than down range. They are taught not to move until the range officer says it's clear to move. They are taught all the normal safety standards that you would put in place with any firearm.

Because these are children, we take particular care to ensure that they understand the rules. They are supervised with immediate supervision. When I say “immediate”, I mean supervised by somebody at their elbow at all times for every individual who is on that range at any given time.

We take that very seriously. We're not talking about high-powered firearms here. We're talking about low-velocity pellet guns, but we still take them very seriously. We don't want to see an injury to anybody for any reason. It behooves us to take those precautions.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Payne. Your time is up. I'm so sorry.

We welcome Mr. Atamanenko to our committee. You have the floor for five minutes, sir.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Thank you very much, Chair.

Thank you, gentlemen, for being here.

The argument today seems to be that the system appears to be working but that there's a possibility of abuse of the system, in other words, a possibility of charges. That's what the bill is about. That's kind of what I have in my mind as far as a summary of the argument is concerned.

The existing practice, as I understand it, is that air guns with a certain velocity, the ones we're talking about, are exempt from penalties in the Criminal Code for possession of a firearm without a valid licence or registration certificate. As we discussed, they're considered under the Criminal Code if they're used to commit a crime.

I'm just not clear in my mind in that they're part of the current practice, but they're not. The possession, acquisition, and use for lawful purposes are regulated more by provincial and municipal laws, but these arms are also exempt from specific safe storage. I don't understand. I have three rifles that are registered and locked up appropriately under the existing law. Mr. Farrant, do BB guns have to have the same storage now, or not?

[Greg Farrant]

Technically, under the law, yes. That's the inconsistency here. You do not currently need a licence to purchase or possess BB guns or pellet guns. But technically, under the law as it stands, they are subject to safe storage and safe transportation regulations, as is any firearm. There's the rub right there, the inconsistency.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

The Criminal Code requires that reasonable precautions be taken when using, carrying, handling or transporting them. The law that we have for firearms is the same law that applies to these arms in question. Is that correct? Am I right?

[Greg Farrant]

The relevant section of the Criminal Code is paragraph 84(3)(d) and it exempts lower velocity firearms from certain offences under the Criminal Code, such as possession without a licence. It does not exempt them from other offence provisions under the code, including subsection 86(1), which makes it an offence to store or transport firearms, including lower velocity firearms, in a careless manner or without taking reasonable precautions for the safety of others.

On one hand, they're saying to go ahead and buy one, that you don't need a PAL, possession and acquisition licence, or a POL, possession only licence, like you would for a regular firearm, but on the other hand, you have to store and transport them like a regular firearm, even though they're not considered to be one under the law.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Here's another question for both of you.

Apparently the Canadian Police Association has raised concerns about this bill and expressed their belief that the number of convictions resulting from transporting air guns and BB guns is currently very low, in the single digits. The occurrence is so low that they are of the belief that the proposed changes in Bill C-637 are not warranted and that often police officers find it difficult to distinguish visually between a regular firearm and an air gun.

If in fact the view of the Canadian Police Association represents police officers across the country, why would we make their jobs more difficult if they feel that it might be the case?

[Greg Farrant]

There are many ways to respond to that.

First of all—and I don't know if this is the case here; I'm only citing a previous example, so please understand that—when we talked about Bill C-19 to scrap the long-gun registry, there was a real division within the policing community across the country, including the Canadian Association of Chiefs of Police, as to who supported it and who didn't support it. The fact that the association says one thing does not mean it speaks for all of its members across the country, I want to be clear about that.

Second, the fact that there may have been relatively few charges laid to date under this does not make it right, and if there's any opportunity to clear up ambiguities in the law, I think it behooves us to take that opportunity to make it clearer. It also helps police officers do their job when the law is clearer. Right now, as I said during my comments, it's as clear as mud. People could inadvertently be charged, and we've seen cases where they have been, and have had to go through the proceedings under the current system, as it stands.

As for police officers having difficulty, and this goes back to an earlier question, identifying replica guns, or guns which look like something that they're not, police officers, as Mr. Brown has indicated, have the ability to stop anybody at any time to identify a firearm and what has been going on with the firearm, what use it has, what type it is, etc. Nothing changes here because of this.

[The Chair, Conservative, Daryl Kramp]

Thank you very much. Our time is up, Mr. Atamanenko.

At this time, on behalf of the committee, I would like to thank Mr. Farrant for taking the time to be at committee again.

Mr. Brown, we thank you very much for your testimony before committee today. It has been most welcome and useful.

We will now suspend for a minute while we change witnesses for the second hour.

[The Chair, Conservative, Daryl Kramp]

Colleagues, welcome back.

We have two witnesses with us for the half hour we have left, give or take a little. Our first witness will be a little late arriving. She's at Centre Block now so she will be arriving here shortly.

We will start by way of video conference from Markham with Mr. Tony Bernardo, the executive director of the Canadian Shooting Sports Association.

We will start with you, sir, while we're waiting for Dr. Austin. You have the floor for up to 10 minutes.

[Tony Bernardo, Executive Director, Canadian Shooting Sports Association]

Thank you, Mr. Chairman and members of the SECU committee.

I'm Tony Bernardo, the executive director of the Canadian Shooting Sports Association. I have been asked to testify to this committee with regard to the technical aspects of this bill. I also wish to provide some background information regarding the development of this situation with air guns in Canada.

The current laws and regulations that Canada has regarding air guns came as a result of an RCMP firearms lab program that was trying to circumvent previous regulations in order to further restrict the possession of air guns. The firearms lab had been taking air guns of the type purchased at Canadian Tire stores, and had been firing ultralight pellets from these air guns, chronographing the velocity of the ultralight pellets. When it was determined that the velocity exceeded 495 feet per second, they were classifying ordinary air guns as real firearms and demanding that they be registered.

Needless to say, with hundreds of thousands, perhaps millions, of these very ordinary BB guns in the public domain, the Liberal government of the day was extremely concerned that Canadians would find themselves in criminality over the purchase of a common BB gun. The minister of justice at that time, the Honourable Anne McLellan, decided to form the original firearms experts technical committee. This committee was given the mandate to develop new air gun laws that would prevent the RCMP from continuing down the path of criminalizing ordinary Canadians.

The makeup of the committee was wide and diverse and included members of the firearms community, activist groups, and the RCMP, among others. Over the course of several months, the committee met a number of times to discuss how best to keep Canadians safe without unduly restricting freedom or criminalizing ordinary people. I was privileged to be on that committee and to serve Minister McLellan in that regard.

After months of work, the committee recommended that the current air gun laws be changed from a simple 495 feet per second ceiling to a slightly more complicated 495 feet per second with a newly introduced energy component of 5.7 joules of kinetic energy. Because kinetic energy is a measure of mass times velocity squared, the use of ultralight projectiles in BB guns would not exceed the energy requirement even though the tested velocity might be over 495 feet per second. This is a very important point, and I will return to it later in this presentation.

Of particular interest to this committee might be the issue of why this law is so needed. Air guns found themselves in the crosshairs of the Supreme Court of Canada as a result of the so-called pig's eye test. The pig's eye test began to be introduced several years ago as court evidence by zealous crowns bent on obtaining Criminal Code convictions against individuals who had committed certain offences with air guns.

Related to this is the Criminal Code definition of “firearm”. Section 2 states:

“firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person....

The pig's eye test is based on a postwar military study that demonstrated that a velocity of 214 feet per second was necessary to incapacitate a person. This was done by firing military projectiles—not BBs—into the eyes of dead pigs. However, velocity does not tell the whole story. As illustrated in the first part of this presentation, it was recognized that velocity alone is not sufficient to seriously injure a person. A speck of dust at 214 feet per second will make a person's eye water. A bowling ball at the same speed would easily kill someone.

This was recognized by Minister McLellan's committee and was incorporated into Canada's air gun laws.

As well, there has been no demonstrated correlation between a pig's eye and a human's eye. We know that an octopus' eye is different from a sparrow's eye, which is different from an alligator's eye, but there has never been a medical correlation that I'm aware of between a pig's eye and a person's eye.

Why is this important? Because the Criminal Code says “serious bodily injury...to a person”, not to a pig. If one is to accept the premise that these are interchangeable, it must be clearly established that the two are the same.

The third point regarding this test is that there is no legal opinion I'm aware of that states that losing an eye constitutes serious injury. I'm sure we can all agree that it would almost certainly be very painful and would bring out a huge squeamish factor in most of us, but since the beginning of mankind, people have been losing eyes in accidents and they go on to live perfectly normal lives.

Once again, I'm not suggesting that damaging an eye is not a serious matter. It certainly may be. I'm simply stating there is no legal evidence to establish this and that such a thing becomes necessary when a Criminal Code conviction hangs in the balance.

The point of all this information is that Canada's air gun laws were developed based on the results of committee recommendations from a group of experts appointed by the former Chrétien government. Minister McLellan was satisfied that the recommended changes to the old regulations on air guns were both evidence-based and satisfied public safety requirements. Indeed, we've been using these regulations since that time and there has been no lack of safety surrounding Canada's air gun laws.

Bill C-637 would not restore the former government's status quo of BB guns as non-firearms, but only speaks to the transportation and storage regulations. A kid with a BB gun could still be charged with firearms offences in certain circumstances, and myriad other very serious Criminal Code offences. The decades-old warning about being careful with your Red Ryder BB gun certainly pales against the spectre of being run through Canada's legal system. Even with the successful passage of this bill, all that would revert to the previous legislation is storage and transportation of these BB guns.

Air guns are the primary trainers of the firearms world. Many generations of novice shooters have learned the skills of marksmanship and the responsibilities of safe gun handling through the use of pellet and BB guns, and many more will. The air gun is a marvellous training tool to teach with. Air guns are quiet, safe, and very accurate. That the Supreme Court chose to circumvent the clearly stated will of Parliament is disappointing to the tens of thousands of Canadians I represent. These lawful, trustworthy citizens of this great country now look to you to make this right again.

It is the position of the CSSA that we support this bill. We would like to see it expanded to fully return to the old status of air guns enjoyed by Canadians for so many decades. Air guns are not firearms. They do not have the reach, lethality, or potential of real firearms. Those air guns that do possess those characteristics of real firearms were already regulated adequately within Canada's legal framework. BB guns should not be treated as firearms. I think all of us intuitively recognize the wisdom of this, and we look to our Parliament to make this right again.

Thank you for your time and consideration on this now.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Bernardo, for your testimony.

We now welcome Dr. Katherine Austin, and we apologize for any confusion that might have taken place with regard to your appearance here today, but you're here now. Welcome.