Public Safety Committee on June 7th, 2018

[Paula Clarke]

The motion, as drafted, would capture bail conditions, so you are correct there.

With regard to having your firearm seized, that would be done only on public safety grounds. You could have a firearms prohibition order issued as part of bail, and then the firearms would have to be surrendered. This information would be considered by the CFO, along with the ultimate disposition of the case.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

It is possible, then, for a frivolous and vexatious complaint to be made. They happen all the time, where someone is accused of committing a violent offence and it did not happen. In the interim an individual's firearms could be seized, their PAL could be suspended, and that could go on for, potentially, a couple of years until that's disposed of.

[Paula Clarke]

There are two issues here. One would be a no-contact order, and then I think the second issue you're alluding to would be a firearms prohibition order.

A firearms prohibition order is made by a judge considering evidence that's presented, which would reasonably make a judge believe that an identified person or the person who is the subject of a prohibition order could be at risk of harm to themselves or others. This would be a judicial determination made on the best evidence available.

The second would be the no-contact order peace bond. Again, that has to be made with judicial authorization, taking into account evidence that's put before them.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

In this context, does the CFO, in their considerations, have the same evidentiary burden placed on their adjudication of a PAL as what would be expected in court?

[Paula Clarke]

It would not be beyond a reasonable doubt. The decision would have to be reasonable, which is a different standard. If the decision made by the CFO not to grant a firearms licence were unreasonable, then that could be judicially reviewed and the CFO would then have to reconsider his or her determination.

[The Chair, Liberal, John McKay]

I'd like go to the other people who want to jump in on this, Ms. May, Mr. Calkins, and Ms. Dabrusin. If you still have questions, I'll come back to you.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes, thank you.

Thanks particularly to Ms. Clarke, because she's covered some of the points I was going to make.

The attempt here, and my amendment, was to deal with orders. They would fall short of criminal convictions. They're not covered at all by subsection 5(2) of the Firearms Act. They would deal with such things as restraining orders, between intimate partners, to stay away from a woman who feels threatened by a former partner. That would not come to the attention of a firearms officer or a judge under subsection 5(2) of the Firearms Act, but would come to the attention of them in the way either my amendment or the new LIB-1 was put forward.

I know it was put forward as a hypothetical by Ms. Clarke that the threatening conduct might be toward an animal. Because these things can get misreported, I want to make sure everyone understands that hunting is not at all in the ambit of LIB-1. Legal hunting activities do not constitute threatening actions. The animal part would come in if an ex-husband said to his former partner, “I'm going to kill the dog.” That would be a very threatening act of violence, in fact, for people who are willing to do such violent things for the purpose of harming a specific person, in other words, their former intimate partner. That would be pretty threatening.

I will reassure Mr. Motz that this is not an amendment that would in any way, shape, or form affect legal hunting activities and the right for legal hunters to have a firearm at home. This is not the goal of this amendment.

That's all I need to say. I really do think this is a strong amendment. It's not moot. It's not redundant to existing legislation. It adds something important without being overly broad.

[The Chair, Liberal, John McKay]

Thank you, Ms. May.

Mr. Calkins.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Chair, while I appreciate Ms. May's intervention, I'm not quite as confident as she is, although I think she does make a good point. However, I'm really concerned about who may get caught up in this, keeping in mind that subsection 5(2) is all about licensing. Anybody who is applying for a licence or is reapplying for their licence would be the people who would be caught up in this.

I have some questions, some hypotheticals. I don't know if this is particularly fair, but I want to be clear on who's going to get caught in this “has a history of behaviour that includes violence or threatened or attempted violence and threatening conduct”, which is the new benchmark that's being added here. All this language is very, very subjective. There is evidence, some bars, or some measures that are tested in law and there are others that are not, so this is a subjective call on behalf of the chief firearms officer, for the most part.

I'm wondering if, for example, a bouncer would get caught up in this. There is a charge against him, or an allegation against a bouncer who likes to go hunting part time, who obviously uses certain tools in his or her duties to remove somebody from property. What about anybody who says anything, perhaps on social media, that might be construed one way even though it was meant in another way? Police officers and soldiers, all the time, in the exercise of their duties, could get caught up in this. I'm imaging they're excluded as part of their duties from being caught up in this, but police officers and soldiers get charged for certain things while they're in theatre or while they're employed.

I'd also like some clarification on those who use firearms in the unenviable situation where they're defending themselves or their property and find themselves in a situation where they need to reapply or apply for a firearms licence, about how this proposal would affect them.

[Paula Clarke]

The use of force is a defence that can be made when violence or force needs to be used, in an appropriate fashion, to deal with violence toward a person. The standard is that the force used must be reasonable. It must be a reasonable use of force. If the use of force is unreasonable or excessive, then that person has committed an act of violence. In the example of the bouncer, if he's trying to expel a person who is drunk and belligerent and attacking him, and he uses excessive force and the person ends up in the hospital, then that would be violent conduct or threatening conduct because it's unreasonable.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

The only way a chief firearms officer can implement any of the subjective conditions in proposed paragraph 5(2)(c) is if they've met a test in the court.

[Paula Clarke]

I'm not saying that.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

In southern Alberta there is a gentleman who is facing charges for the firearm for shooting who he suspected to be thieves endangering him and his family or his property. He is before the courts right now. I know we're not supposed to talk about things that are before the courts right now, but there is other evidence or examples of this in my constituency. There was a person about 10 years ago who did the same thing. He used a shotgun in defence of his family and his property, and he actually faced more charges than the people who came to steal from him in the first place.

In the process, before the determination of the court, whether they're using a section 34 or section 35 defence and whether that defence holds up or not, they're going to be in a process that's likely going to take several years to untangle throughout the judicial process. Would they get caught up in proposed paragraph 5(2)(c)?

[Paula Clarke]

Rob, do you want to answer questions as to the application of the CFO's discretion?

[Rob O'Reilly, Director, Firearms Regulatory Services, Canadian Firearms Program, Royal Canadian Mounted Police]

Certainly.

If I understand your question correctly, you're asking if paragraph (c) were to be added to subsection 5(2), would individuals who are facing charges potentially now come to the attention of the CFO, and their eligibility to hold a licence come into question or be reviewed.

I would think the answer is yes in that situation, if it came to the attention of the chief firearms officer for consideration. Obviously, with 2.1 million clients, many examples of individuals who are facing criminal charges who come to the attention of the CFO.... If there is a significant amount of evidence to suggest that the CFO has grounds to revoke that licence prior to the conclusion of the criminal charges, that may occur. But in many cases, if there are pending court cases, the CFO will often defer those decisions until such time that there is a conclusion relating to the charges, depending on severity, gravity, and risk to the public safety.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

The problem we have, though, is when during the process where a person whose eligibility to have firearms in their possession is in question their licence expires, given there's a grace period provided for them to continue to own their property or have their property legally, they could be denied that opportunity because the CFO is waiting for the determination.

How would that be resolved, Mr. O'Reilly? Do you know what I am suggesting?

[Rob O'Reilly]

Sort of.

If an individual's licence expires, that would not preclude them from making reapplication on the firearms licence, nor would their firearms licence necessarily be denied. The CFO, while the licence was valid, would have the opportunity to make a determination right then and there, or not.

If the licence in the interim were to expire while that consideration is ongoing, the individual could certainly make reapplication without prejudice. There might still be some eligibility issues before the licence is fully issued and green-lighted, so to speak, but that would not preclude them from making reapplication.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Right, but because the CFO would likely—

[Rob O'Reilly]

It's hard to speculate. I know there are some circumstances that—

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

I don't think there are going to be a lot of those circumstances, but there are some grey areas there.

[Rob O'Reilly]

I guess all I would say is that the CFO would consider all of the information in front of them and try to make the most informed decision possible.

[The Chair, Liberal, John McKay]

I'd like to be able to get the other members in, and then we can come back.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Certainly, but please put me back on the list.

[The Chair, Liberal, John McKay]

Ms. Dabrusin was next, but she's left, so it's Mr. Motz, and Mr. Fragiskatos.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Chair.

I notice some levels of frustration from my colleagues on the other side of the aisle, because.... Well, I don't understand why, because there are two sides to this issue.

There is the issue of what our intended goal is here, and that is to ensure that we have public safety. The other side of this, very clearly, is to ensure that while we're trying to address public safety, the interpretation of this as we move forward is going to be consistent. Right now this language is too subjective to ensure that we have consistent interpretation and then application of this moving forward. That will harm the other side of the argument, and law-abiding, gun-owning Canadians will potentially be adversely affected by a wrong interpretation of us trying to get public safety right.

As I've indicated before, getting this right is paramount not only to public safety, which is the purpose of our committee, but also for those who really don't pose a threat to public safety: law-abiding gun owners who could be caught up in a situation where interpretation could be an issue. That's where and why I'm concerned about some of the language that exists here with previous orders. I think that's too broad and open to interpretation.

Perhaps I can go to new proposed paragraph 5(2)(f) just for a second. Where it says “for any other reason, poses a risk of harm” to anyone, there are some very subjective and undefined parameters that we already cover off in proposed subsection 5(2). Even if we accept the “threatening conduct” portion of new proposed paragraph 5(2)(c), and we add some of (d)—(e) has already been covered off in previous firearm legislation on intimate partner violence—the interpretation of this concerns me.

Again, no one around this table is not concerned about public safety or is trying to completely ignore that, but it's a bigger issue in terms of interpretation. We've all seen legislation with multiple levels of interpretation, depending upon who you speak with. Providing clear, clean, distinctive language that is not left to interpretation by anyone.... In Alberta the CFO could have an interpretation of this that potentially would be totally different from that of someone in Ontario. We can't have that happen. We need to ensure that we have language that doesn't let it happen.

Mr. O'Reilly, Mr. Koops, and Ms. Clarke, I would certainly ask you to weigh in on that thought in terms of how we can clean up this language. I know you had a part in making this language already, but is it possible—I think it is possible—that it's...? Well, it's going to cause issues where issues don't have to be created, in my opinion.

Maybe I'll start with you, Ms. Clarke, because you've been interacting and helping us out with this already.