Order Amending the Order Declaring an Amnesty Period (2020): SOR/2022-45

Canada Gazette, Part II, Volume 156, Number 6

Registration
SOR/2022-45 March 4, 2022

CRIMINAL CODE

P.C. 2022-217 March 3, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 117.14(1) footnote a of the Criminal Code footnote b, makes the annexed Order Amending the Order Declaring an Amnesty Period (2020).

Order Amending the Order Declaring an Amnesty Period (2020)

Amendment

1 Section 2 of the Order Declaring an Amnesty Period (2020) footnote 1 is replaced by the following:

Amnesty

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

Purpose

(2) The purpose of the amnesty period is to

Amnesty period

(3) The amnesty period begins on May 1, 2020 and ends on October 30, 2023.

Coming into Force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

On May 1, 2020, the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted (the Regulations) came into force. They prohibit approximately 1 500 makes and models of assault-style firearms and specific devices, including (1) nine types of firearms, by make and model, and their variants; (2) firearms with a bore diameter of 20 mm or greater; (3) firearms capable of discharging a projectile with a muzzle energy greater than 10 000 joules; and (4) the upper receivers of some of the newly prohibited firearms (the M16, AR-10, AR-15 and M4 pattern firearms). The accompanying two-year Order Declaring an Amnesty Period (2020) [the Amnesty Order] protects individuals who were in possession of one or more of the firearms or devices prohibited on May 1, 2020, from criminal liability for illegal possession while they take steps to come into compliance with the law. The Amnesty Order expires on April 30, 2022. While the firearms and devices may be legally possessed for the duration of the amnesty period, they cannot be used, sold, or purchased and can only be transported for the purposes set out in the Amnesty Order, such as disposal or export. An exception allows the use (in cases of a previously non-restricted firearm) to hunt for the purposes of sustenance or to exercise a right recognized and affirmed by section 35 of the Constitution Act, 1982.

Following the May 1, 2020, prohibition, the following issues were brought to the attention of the Government with respect to the Amnesty Order:

The amended Amnesty Order addresses these issues and seeks to maintain public safety, facilitate compliance with the law, and support the exercise of rights recognized and affirmed by section 35 of the Constitution Act, 1982. In order to allow further time for individuals to come into compliance with the law, the amended Amnesty Order extends the expiry date to October 30, 2023.

Background

The Regulations and the Amnesty Order came into force on May 1, 2020.

The Regulations reclassified nine types of firearms, by make and model, including their variants (current and future), as well as firearms capable of discharging a projectile with a muzzle energy greater than 10 000 joules or with a bore diameter of 20 mm or greater, as prohibited firearms. The Regulations also prescribed the upper receivers of M16, AR-10, AR-15 and M4 pattern firearms to be prohibited devices.

Accompanying the prohibition was the Amnesty Order that provides a two-year amnesty period to protect affected persons, who were in possession of a prohibited firearm or prohibited device at the time the Regulations came into force, from criminal liability for illegal possession in order to afford these persons time to come into compliance with the law by, for example, disposing of the firearm. The Amnesty Order expires on April 30, 2022.

Permitted activities during the amnesty period for affected owners included having the firearm deactivated; delivering the firearm or device to a police officer; legally exporting the firearm; and, if a business, returning the firearm or device to the manufacturer. The Amnesty Order allows for the transportation of now-prohibited firearms for the permitted purposes.

Subject to one exception, owners are not permitted to use the now-prohibited firearms or sell them in Canada. The Amnesty Order provided an exception that permits previously non-restricted firearms to be used in two situations: (1) to hunt for the purposes of sustenance; or (2) to exercise a right recognized and affirmed by section 35 of the Constitution Act, 1982. No other use exceptions were included in the May 1, 2020, Amnesty Order.

Following the implementation of the Regulations and the Amnesty Order, the Bank of Canada, a Crown entity, determined that its security personnel could no longer use part of its existing inventory of firearms, which it possessed prior to May 1, 2020, to defend its premises, assets, and individuals from an armed attack. This is because its personnel are not currently legally permitted to possess or use prohibited firearms.

Stakeholders also raised concerns that the Amnesty Order did not allow for the transportation of firearms that were previously non-restricted and used for sustenance hunting or to exercise a right under section 35 of the Constitution Act, 1982 for maintenance purposes (for example, for repair or sighting in preparation for hunting).

In addition, some individuals lawfully purchased, or entered into purchase agreements for, formerly restricted firearms up to, and including on, April 30, 2020. However, because the request for a registration certificate was not processed by April 30, 2020, the purchasers do not meet the requirement of the Amnesty Order to be protected from criminal liability: to be a holder of a registration certificate dated prior to May 1, 2020. The Government is of the view that these individuals should be protected from criminal liability by the Amnesty Order.

The Firearms Act allows a Chief Firearms Officer (CFO) to authorize the possession of prohibited firearms at a location other than the owner’s residence. It also provides that a CFO may attach any reasonable condition to a firearms licence that they consider desirable in the particular circumstances and in the interests of safety. If such condition is contravened, it could result in a revocation of the licence. Under the May 1, 2020, Amnesty Order, owners may only possess or store the now-prohibited firearms at their residence. However, some owners require storage for their firearms at a location other than their residence or their business. For example, because they are posted out of the country for work, they are selling their residence and do not want the firearm there during visits from potential buyers, or their residence is undergoing significant renovations. The Amnesty Order did not protect the owner or an individual or business that would alternatively store the firearm at a place other than the owner’s residence, or transportation for this purpose.

Finally, while the Amnesty Order clearly protects persons who choose to deactivate a firearm, it does not clearly protect businesses who might be contracted to undertake the deactivation on behalf of an owner (only businesses deactivate firearms). Deactivation of a prohibited firearm can only be carried out on behalf of a person licensed to possess prohibited firearms. As no individual is currently licensed to possess the now-prohibited firearms, a business would not be in a position to deactivate these prohibited firearms on behalf of the individual owner, as this would expose the business to potential criminal liability.

Upon the expiration of the Amnesty Order, individuals who have not come into compliance with the law would be in illegal possession of prohibited firearms or prohibited devices and could face criminal liability.

Objective

The objective of the amended Amnesty Order is to address the issues that have arisen following the May 1, 2020, prohibition and to provide further time for individuals to come into compliance with the law. The amendments contribute to public safety by allowing (1) the security personnel of the Bank of Canada to resume use of its current inventory of firearms to effectively defend its premises, assets, and individuals from an armed attack; and (2) allow previously non-restricted firearms to be transported to ensure they are in proper working order so they can be used safely for the permitted uses of sustenance hunting or the exercise of rights under section 35 of the Constitution Act, 1982.

Further, the amendments ensure that (1) individuals who lawfully purchased or entered into an agreement to purchase a formerly restricted firearm up to, and including on, April 30, 2020, and who did not become the holder of a registration certificate by that date, are protected from criminal liability for possessing a now-prohibited firearm, if they otherwise meet the requirements of the Amnesty Order (e.g. held a valid firearms licence); (2) owners, as well as businesses or individuals who temporarily store a now-prohibited firearm on the owner’s behalf, at a location other than the owner’s residence and/or transportation for this purpose are protected from criminal liability; and (3) businesses that take possession of the now-prohibited firearms in order to deactivate them are clearly protected from criminal liability.

The Government of Canada has committed to affording owners an opportunity to participate in a mandatory buyback program or to deactivate their affected firearms at Government expense. The amendments would extend the current amnesty for a period of 18 months, until October 30, 2023, to provide affected owners further time to come into compliance with the law.

Description

The Amnesty Order has been amended to address the identified issues and has been extended for a period of 18 months, to October 30, 2023, to allow affected owners further time to come into compliance with the law.

Bank of Canada — Permit security personnel to use its full inventory of firearms

The May 1, 2020, prohibition resulted in the Bank of Canada being unable to use part of its inventory, which it was able to use prior to the prohibition. The Bank of Canada requires these firearms for its security personnel, in the course of their duties, to effectively defend its premises, assets, and the public in the event of an armed attack. The amended Amnesty Order permits the Bank of Canada’s security personnel to use their previously possessed inventory of firearms for these purposes for the duration of the amnesty period.

Allow sustenance hunters and those exercising a right under section 35 of the Constitution Act, 1982 to transport a prohibited firearm that was formerly non-restricted, for safety purposes

The Amnesty Order provides a use exception for sustenance hunting or for exercising a right recognized and affirmed under section 35 of the Constitution Act, 1982, if the firearms were previously non-restricted. However, the Amnesty Order did not permit transportation for safety purposes (for example sighting or repairing) in preparation for hunting, which could affect the ability to use these firearms safely for the permitted purposes. The amended Amnesty Order now allows for the transportation of such firearms to ensure that they are in safe working order for the duration of the amnesty period. For example, in preparation for hunting, the firearm could be transported to a gunsmith to ensure proper sighting or to ensure it is working safely.

Protect individuals who purchased or entered into an agreement to purchase newly prohibited, formerly restricted, firearms on or before April 30, 2020, and who did not become holders of a registration certificate on or before that date

Some purchases and agreements to purchase formerly restricted firearms were made up to, and including on, April 30, 2020. However, as the request for a registration certificate was not processed by April 30, 2020, the purchaser did not hold a registration certificate on April 30, 2020, which is a requirement to be protected under the Amnesty Order. The amended Amnesty Order now protects these individuals from illegal possession of those firearms, if they otherwise meet the requirements of the Amnesty Order (they held a licence under the Firearms Act), for the duration of the amnesty period. Such individuals are now able to dispose of the firearm in the ways permitted by the Amnesty Order up to its expiration on October 30, 2023.

Protect owners, individuals and businesses who either provide alternative storage for newly prohibited firearms or transport these arms for this purpose

Some owners may wish to store their now-prohibited firearm at a location other than their residence, as permitted by the Firearms Act. For example, because they are posted in a different jurisdiction for employment, they are moving to a different residence or they have major renovations and do not want to leave the firearm in their residence. The amended Amnesty Order now protects these individuals, and the individuals or businesses who alternatively store those firearms for the owner if storage by them is a condition of the owner’s licence. It also allows for transportation of the firearm by the owner for the purpose of alternative storage if the owner first notifies the CFO for the province in which they reside of the transport, during the amnesty period, up to its expiration on October 30, 2023.

Protect individuals who deactivate now-prohibited firearms on behalf of owners

One of the permitted purposes of the Amnesty Order is to allow for deactivation of the now-prohibited firearms. Though the Amnesty Order clearly protects individuals or business owners who transport a prohibited firearm to a business for the permitted purpose of deactivation (only businesses can deactivate a firearm), the amended Amnesty Order now clarifies that it also protects those who come into possession of prohibited firearms for the purposes of deactivation.

Regulatory development

Consultation

These amendments are informed by public reactions and communications from impacted stakeholders (for example, the Bank of Canada, firearms associations and owners) following the May 1, 2020, regulatory changes that reclassified as prohibited approximately 1 500 makes and models of assault-style firearms. No formal consultations were conducted.

For example, the Bank of Canada has written to the Department of Public Safety and the Department of Justice to explain how the May 1, 2020, prohibition has impacted on its ability to use part of its existing firearms inventory in defence of bank property.

The changes to allow sustenance hunters and those exercising a right to hunt under section 35 of the Constitution Act, 1982 to transport firearms for safety purposes, such as for repair, are a reasonable corollary to the exception already provided for in the May 1, 2020, Amnesty Order and are consistent with its policy intent, while also seeking to maintain public safety. Since the May 1 Amnesty Order was made, stakeholders (for example, the Canadian Shooting Sports Association) have urged the Government to make a further amendment to allow for hunters to transport their firearms for repairs.

The changes to protect those who obtained prohibited firearms but did not possess a registration certificate on or before April 30, 2020, address an issue that arose following the May 1, 2020, Amnesty Order and was brought to the attention of the Canadian Firearms Program. These changes impact a relatively small number of cases for previously purchased restricted firearms.

A prepublication comment period in the Canada Gazette, Part I, was not undertaken due to the sensitive nature of the amendments and public safety concerns.

Modern treaty obligations and Indigenous engagement and consultation

The Amnesty Order permits the use of any of the now-prohibited firearms, if they were non-restricted on the day before the Amnesty Order came into force, to hunt for the purposes of sustenance or to exercise a right recognized and affirmed by section 35 of the Constitution Act, 1982.

From fall 2018 to spring 2019, the Government of Canada extensively engaged Indigenous groups, provinces, territories, municipalities, law enforcement agencies, academics, victims’ groups and other key stakeholders on limiting access to assault-style firearms and handguns. However, in order to mitigate the risk that some Indigenous and sustenance hunters could be exclusively using a prohibited, but formerly non-restricted firearm for hunting, and because there was no advance notice that the firearms would become prohibited and they could be unable to replace the now-prohibited firearm immediately, the limited use of these firearms for these purposes is included in the Amnesty Order. Following the publication of the Amnesty Order, stakeholders have identified that the ability to transport those firearms for repair to ensure they can continue to be used safely had not been included in the Amnesty Order.

Accordingly, the amended Amnesty Order permits those who hunt for sustenance purposes or who exercise a right recognized and affirmed by section 35 of the Constitution Act, 1982 to transport a previously non-restricted firearm so that they can continue to be used safely for such purposes. The Government of Canada will continue to engage with Indigenous groups, communities and nations to assess whether the prohibition of these firearms will have a continued impact on the exercise of a right recognized and affirmed under section 35 of the Constitution Act, 1982.

Instrument choice

No non-regulatory options were considered, as the most expeditious means of addressing the Bank of Canada’s immediate needs is to amend the Amnesty Order to provide the Bank with the authority to use the impacted part of its current inventory of firearms during the amnesty period. Similarly, amendments to the Amnesty Order are required to address the other identified issues and the extension.

Regulatory analysis

Benefits and costs

The amendments benefit the Bank of Canada by allowing it to use its current inventory of firearms to effectively defend its premises, assets, and individuals in the event of an armed attack.

Those who have been using a previously non-restricted firearm for sustenance hunting or to exercise a right recognized and affirmed by section 35 of the Constitution Act, 1982 will benefit because they will now be able to transport their firearm to seek repairs in order to use the firearm safely for these purposes until the end of the amnesty period.

The amendments will benefit individuals who purchased, or entered into an agreement to purchase, restricted firearms up to, and including on, April 30, 2020, and who did not become the holder of a registration certificate before the prohibition came into force on May 1, 2020, by protecting them from criminal liability while they come into compliance with the law. There are approximately 1 851 affected purchases of formerly restricted firearms.

The amendments would also protect the owner, as well as individuals and businesses who alternatively store affected firearms for the owner, and those businesses who would provide for deactivation of the now-prohibited firearms from criminal liability.

The extension of time would be beneficial to affected owners who have not yet come into compliance and who must either avail themselves of the future buyback program or deactivate their firearm.

Costs would be incurred by the Department of Justice for the preparation and implementation of the Amnesty Order. However, it is anticipated that they would not be significant.

Small business lens

The amendments would provide protection from potential criminal liability to businesses, including small businesses, that store or perform work to deactivate affected firearms on behalf of their clients. This would allow these businesses to legally carry out these services during the amnesty period.

Given the context of the regulation, no additional flexibilities were considered necessary for small businesses.

One-for-one rule

The one-for-one rule does not apply, as there will be no incremental change in administrative burden to business. The amendments do not introduce new administrative requirements for businesses.

Regulatory cooperation and alignment

The amendments to the Amnesty Order do not have any trade implications and are not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

While there is a nominal environmental impact related to the repair of firearms, in accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) assessment was completed to determine whether the amendments to the Amnesty Order have differential impacts on Canadians based on factors such as gender, age, Indigenous identity, geography and other factors. The measures have a gender differential impact, as men are more likely to possess and use firearms, compared to women. Additionally, based on existing surveys which suggest that more people in rural areas own firearms, the initiative is expected to have a disproportionately positive impact on them. Finally, the amendments are expected to have a disproportionate benefit for Indigenous persons, as they likely form the majority of sustenance hunters and/or those exercising a right recognized and affirmed under section 35 of the Constitution Act, 1982.

Rationale

The amended Amnesty Order responds to concerns identified following the implementation of the Regulations and the Amnesty Order on May 1, 2020. The amendments are consistent with the Government’s mandate to ban assault-style firearms and reduce the risk of diversion of firearms to the illegal market with the objective of increasing public safety. The amendments also seek to maintain public safety by permitting security personnel of the Bank of Canada to use their inventory of now-prohibited firearms to defend their premises and protect individuals from an armed attack.

The amendments continue to promote public safety by allowing for firearms to be safely used for sustenance hunters or those exercising a right under section 35 of the Constitution Act, 1982.

The Amnesty Order seeks to facilitate compliance with the law and seeks to protect individuals from criminal liability by protecting those who possess now-prohibited, formerly restricted firearms, but did not become the holder of a registration certificate before the May 1, 2020, prohibition; providing affected owners with further time to divest themselves of the firearms by any of the means set out in the Amnesty Order as well as alternative storage; and protecting businesses who deactivate a firearm on behalf of an owner.

Implementation, compliance and enforcement, and service standards

Implementation

The amended Amnesty Order comes into force on the day on which it is registered, and will expire on October 30, 2023. Those who remain in possession of these firearms at the end of the amnesty period could be subject to criminal liability for unlawful possession.

Compliance and enforcement

As with the Regulations and original Amnesty Order, the disposal of prohibited firearms is dependent on voluntary compliance by affected owners. Calculation of the compliance rate will be complicated by the lack of information about the specific firearms and their owners. The compliance rate for non-restricted firearms will be based on the number of owners who declare themselves to be in possession of one or more affected firearms, the possible compensation through a buyback program and deactivation process.

Contact

By mail:

Public Safety Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8

General enquiries:

Email: ps.firearms-armesafeu.sp@ps-sp.gc.ca

Department of Justice
General enquiries:
Telephone: 613‑957‑4222
Email: webadmin@justice.gc.ca