= new reply since forum marked as read
... but that theory involves accepting the premise that the governments in issue are malicious and/or exceptionally stupid, and I don't buy into that premise as an assumption.
Our current Canadian government is indeed malicious in the extreme (but by no means stupid). Interestingly, of course, malice is something associated with the right wing, and they ain't gonna be banning any guns.
They get around this with the registry because the law on prohibited firearms already exists, they however continually change the scope of it.
That's a bit of an odd way of putting it, and in fact the registry has nothing to do with it. It is possession of a firearm w/o the appropriate licence that is the offence; it just came to light in this case because the individual applied for registration. (I said it can be confusing if you're new to it! I was confused myself for a while when I started delving into it a decade ago here.)
They don't "get around" anything. The legislation allows for delegated legislation -- regulation-making -- and all kinds of things are done by regulation in our societies. New substances are added to lists of toxic substance governed by environmental protection legislation, new species are added to protected species legislation, etc. And those examples alone are analogous to the firearms prohibitions, although one distinction, of course, would be that when the province regulates to ban the sale of Round-Up, for example, it delays the effect for a year so stores can sell the stock they have ... Round-Up being consumable, while firearms are not.
The Firearms Act allows the "Governor in Council", i.e. the federal cabinet, to make regulations for various purposes (as does virtually any piece of legislation). Regulations can themselves be ruled by a court to be ultra vires the regulation-making authority - not covered by the regulation-making power delegated to it.
Now hm, there's a question. Those regs say:
... so what do those subsections say? (Just for clarification again: criminal law is under federal jurisdiction in Canada.)
FIREARMS AND OTHER WEAPONS
Interpretation
Definitions
84. (1) In this Part,
... “prohibited firearm” means
(a) a handgun that
(i) has a barrel equal to or less than 105 mm in length, or
(ii) is designed or adapted to discharge a 25 or 32 calibre cartridge,
but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,
(b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
(i) is less than 660 mm in length, or
(ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,
(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or
(d) any firearm that is prescribed to be a prohibited firearm;
... Regulations
117.15 (1) Subject to subsection (2), the Governor in Council may make regulations prescribing anything that by this Part is to be or may be prescribed.
Restriction
(2) In making regulations, the Governor in Council may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.
Now that last bit strikes me as a little odd. The government (in the sense of the PM and Cabinet, the effective executive branch, acting on the recommendation of the Minister of Justice) may not prescribe something to be a prohibited firearm if in the opinion of the government it is reasonable for use in Canada for hunting or sporting.
Its own opinion controls what it may do? Hm.
A couple of other examples of the kind of language used:
20. The Governor in Council may make regulations, ...
(b) exempting any class of regulation from the application of subsection 5(1) where, in the opinion of the Governor in Council, the registration thereof is not reasonably practicable due to the number of regulations of that class;
Emergencies Act
43. (1) At any time before a declaration of a war emergency would otherwise expire, the Governor in Council, after such consultation as is required by section 44, may, by proclamation, continue the declaration for such period, not exceeding one hundred and twenty days, as is specified in the proclamation if the Governor in Council believes, on reasonable grounds, that the emergency will continue to exist.
The first one mimics the CrCode provision; the second one requires that the government believe on reasonable grounds. That's a little more like it, I'd say. There aren't many examples of either.
Oh look.
And I'll point out that I had reached this point in my post, just copying and commenting as I went along, and then went back to look at my google results for regulations opinion "governor in council" reasonable to see whether I could refine them to find any commentary on the point I raised, and there was this -- coming ahead of any more general scholarly discussions, of course, because of the ways of the internet.
http://www.nfa.ca/resource-items/most-dangerous-thing-firearms-act
That's the National Firearms Association. Take a guess.
"117.15 (1) Subject to subsection (2), the Governor in Council may make regulations prescribing anything that by this Part is to be or may be prescribed."
Translation: The Minister of Justice, acting alone, with minimal oversight by his fellow Cabinet members and without reference to Parliament, can make Orders in Council with force of criminal law -- Orders in Council that "prescribe" many, many things, and that become valid criminal law as they come into force. An Order in Council made under this authority does not have to be "placed before each House of Parliament" for examination before it comes into force. Huge lawmaking power is taken away from Parliament by this section, and given to a single Minister.
"117.15(2) In making regulations, the Governor in Council may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, or prohibited ammunition if, IN THE OPINION OF THE GOVERNOR IN COUNCIL, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes. (Emphasis added -- DAT)"
Translation: The key to understanding this paragraph lies in the words, "IN THE OPINION OF THE GOVERNOR IN COUNCIL." The House and Senate Committees both recommended deleting those words before C-68 was passed, but our Liberal government refused to delete them.
(They do overstate the case about the Minister of Justice; in practice, it is the relevant Minister who directs that regulations be drafted and presents them for making, but it isn't the Minister who makes the regulations, and no Minister is actually going to go off on a frolic of their own making regulations willy-nilly that don't reflect govt policy. These folks just really really really hated Allan Rock. And anyone to the left of Garry Breitkreutz. That doesn't affect the point hugely.)
Because they were NOT taken out, and are still there, no court can even look at any such Order in Council -- because A COURT CANNOT SUBSTITUTE ITS OWN OPINION FOR THE OPINION SPECIFIED IN THE LEGISLATION. Those words, in that place, mean that NO ONE's opinion is of any interest or has any power -- unless that person is the Minister of Justice (thinly disguised as the "Governor in Council"
. He is given the power of a dictator, not subject to any review or to any second opinion, body or method that can be used to override his "opinion."And, apart from the loony hyperbole, here is where we call in the cannon for the 21-gun salute, because the NFA and I agree on something. That regulation-making authority is improper in my quite informed opinion -- although it is not unique to the CrCode by any means. Here's another example:
Regulations
59. The Governor in Council may make regulations ...
(c) exempting any projects or classes of projects from the requirement to conduct an assessment under this Act that
(i) in the opinion of the Governor in Council, ought not to be assessed for reasons of national security,
(ii) in the case of projects in relation to physical works, in the opinion of the Governor in Council, have insignificant environmental effects, ...
Those strike me as considerably more significant and potentially bad than the one in the CrCode.
Google tells me there are some other examples of "in the opinion of the Governor in Council" in regulations (although some appear in the "whereases" prefacing regulations so aren't relevant or of any interest or concern -- whereases are similar to but of far less significance than the often nonsensical and ideology-driven "findings" in your legislation).
Now this is something that, having practised and lectured in administrative law, I really should be more familiar with, but my particular field just didn't involve this particular issue I guess.
I find four SCC decisions where the expression appears. And I find myself wandering down a fascinating semi-tangent into the area of tobacco regulation and the interesting analogy that the tobacco advertising prohibition presents with firearms regulation in terms of the legal issues ... which I shall reluctantly abandon for the moment.
The four cases range from 1952 to 1997, and none seems to address the issue raised here.
So I think the NFA had better beef up its legal defence fund and get to work. Since the issue was never raised in the case at hand, however, they'll just have to find another one.
Now isn't this fun? I actually think it is, tremendously.
Big cylindrical things. Ban 'em.
Personally, I think the ban is dumb.
But, apparently, so is "Solomon Friedman, a lawyer with an expertise in firearms law":
"You can't shoot anything bigger than a squirrel or a rabbit with this," he said. "That's it."
I think a lot of deer have been poached using .22LR. And, a few people have been killed with that round. Even without a silencer, it's a quiet round.
I'd be more worried about a .22LR rifle disguised as a cuddly stuffed panda or a briefcase than one that looks like an AK47 or M16.
Canada has some bad gun laws. But they have good health coverage, and good beer.
in one step.
Cooked, too, if you use a .30-'06 tracer. 
Or, they can use a .22LR cartridge, as long as it's not shot from something that looks scary.
Also, I haven't read 1984 in over a decade, but I'm looking at again now I remain fascinated from this passage near your quotation:
http://orwell.ru/library/novels/1984/english/en_p_1
Good thing we have all these people who want to carry weapons near our elected officials and wage war against government because they don't like democratically agreed decisions.
That's how you get to 1984, a fragmented, stupidly launched, half-ass revolution. That's why the French Revolution failed and ours succeeded, because the French lacked moderation and the Americans *had* it in plenty, and even when anarchy threatened did not bow to such pressures for another revolution i.e. the Jay Treaty debacle.
Good government is great.
I think government has a compelling interest to preserve tranquility and the general welfare, I applaud Canada for its reasoned laws.
...you know that. It was set in stone: "There is an individual right to as many guns as you want, whenever you want wherever you want, and no socialist commie fascist scum liberal is going to tell me how to read my Second Amendment; lock and load, there's tyranny to be fought."
Whereas a true AK variant would use a piston propelled by escaping gases to move the bolt back and chamber the next round, this gun uses a blowback operation, similar to rifles that aren't prohibited. (Such as the Ruger 10/22). The barrel isn't drilled for a gas port, and the 'piston' tube on top is for appearance.
This is what you get when you let the government regulate based on appearance rather than operation. 'Variant' applied as anything that *looks* like another gun, irrespective of actual function.
By that logic, this kit car is a 'variant' of a Lamborghini-
When it's actually the same in function (and based on) this one-
The excerpt I posted here might be enough to clarify.
The courts (other than the first / lowest one) felt they had to show "deference" to the Firearms Officer.
Courts show deference for other courts and tribunals that have some advantage they don't. An appeal court will show deference to a trial judge regarding findings of credibility, for instance, since the trial judge had the opportunity to see and hear the witnesses. They'll show deference to specialized administrative tribunals; for instance, to an immigration tribunal, which has specialized knowledge of conditions in certain countries. And they'll show deference to the legislative branch in cases they determine to be matters of policy within that branch's purview. There being no clear lines in any of those instances, of course. Many of us will say the SC of Canada should have shown a whole lot more deference for Parliament in the case about public health insurance a few years ago than it did.
In this instance, it showed deference for the Firearms Officer because of his expertise in things firearm. It seems to me though, that once the AK-22 was included in the prohibited list, it wouldn't take a lot of expertise to tell whether something else was essentially the same thing.
As for challenging the regulations themselves, certainly regulations can be challenged. Constitutional grounds are about the only thing laws get directly challenged on. The govt of Alberta and other parties challenged the Firearms Act itself, alleging that it infringed provincial powers over "property and civil rights" ("civil rights" doesn't mean what you might think, it's the original meaning, the right to do things like own property). The feds claimed jurisdiction under their criminal law power. The SCC agreed with the feds.
The other type of challenge is of course a Charter challenge, alleging a violation of an individual right or freedom. I'm thinking it would take some hard arguing to persuade a court that putting a firearm on the prohibited list came up to that level.
I dunno. If the fed Cabinet decided to put your grandmama's varmint-shooting shotgun on the list ... or just put all guns everywhere on the list ... that last would undoubtedly be struck down on a Charter challenge, but any particular item, I'd have my doubts.
...it almost makes be want to *tear* request immigration papers.
I'm sorry America, but the idiocracy is getting to be too much; its brought down the economy and its bringing down the culture. Au revior America, bon chance!
Since the Governor General made no decision at all ... well hm, we could hazard a guess at what that makes you.
You seem to have read "His Excellency the Governor General in Council" at the top of the regulations and thought it meant the GG actually made some decision.
"The Governor General in Council" means the federal Cabinet, with the rubber stamp of the GG.
Any GG who refused to put that stamp on any legislation or regulations enacted by Parliament or made by Cabinet (or another regulation-making authority) would provoke a constitutional crisis the likes of which has not been seen since the King-Byng affair.
Now, legislation by fiat ... that IS what the minority Harper government did year after year when it made orders in council (not subject to any parliamentary oversight) exempting long gun owners from the registration requirement that is very clearly mandatory in the legislation/regulations.
That there was legislation by fiat for sure -- and all right-thinking, democratic Canadians were outraged by it. How 'bout you??
...my thanks for this informative tidbit.
BTW, the Merriam-Webster folks are eager to schedule a photo session with the court for inclusion in their new edition under the term "capricious".
Last edited Fri Jan 6, 2012, 04:46 PM - Edit history (1)
Below is the Armi Jager AP80. It is now illegal to own in Canada because it is an AK-47 Variant.
Semi Automatic
.22LR (the bullet on the far right)
Below is the Valmet hunter and the Valmet 78. 100% Legal in Canada even though it is an AK Variant.
Both are Semi Automatic(Same as the AP80)
Both came in the following calibers
.308 (the bullet 3rd from the left)
.223 (2nd from the right)
As well as the Hunter could come in .30-06 and .243(not pictured)
Hunter
78
Only difference I see is that the Hunter comes without a pistol grip. Both of the latter rifles are much more powerful. I still don't get it.
Please explain the difference to to me. Talk slow so I can understand.
Last edited Fri Jan 6, 2012, 06:00 PM - Edit history (1)
edit: hahahaha
The post I replied to here once said:
"Such is anti-gun 'logic.' n/t"
x 1000
I should revise my post to lower the astonishment level, but you can take that as read now.
Yes, you're reading it correctly.
Section 64 of Part 1 of the schedule contains one of the lists of prohibited items that the body of the regulations refers to, and the schedule gives a general description, states the exceptions, and then gives a non-exhaustive list of what the particular prohibition covers.
The byword of all progressive USAmericans.
Sadly, though, it doesn't work that way. You can't just "move out" unless you got someplace to "move in". If y'all could just move in up here when you liked, we'd be eaten out of house and home.
surely you would, surely you should. There's lots of moose to eat up there, or is it meese or is that plural for mouse or mice.
back at ya.
about the freedom you have in your country to criticize it?
the point is: that their threat to leave is just as empty as the threat to say "buh-bye, asshole."
see how that freedom thing works . .
Or, as we call it up here, liberté frites.
Actually, I guess that would more likely be égalité frites.
It's confusing when it's new 2 u.
The person is licensed, to acquire/possess certain classes of firearms:
- non-restricted
- restricted
- prohibited
(they're cumulative - or at least each of restricted and prohibited includes non-restricted; prohibited probably doesn't include restricted since it's a special thing, but I'm not sure)
Firearms are classified in the regulations into one of those three categories.
If you have a non-restricted firearm licence only, you may not acquire/possess a restricted or prohibited firearm.
If you have a restricted firearm licence, you may not acquire/possess a prohibited firearm.
Firearms registration is separate. You have to have the appropriate licence to acquire and possess the firearm. And to register it, you have have the appropriate licence.
This situation arose because the guy in the case owned the firearm before there was a registration requirement for long guns. And I'm assuming that because it wasn't named on the prohibited list, it was just being sold to anybody with a licence -- or, if it was before the licensing requirement, to anybody. (Marc Lépine who killed 14 women at the Montréal Polytechnique in 1989 just bought his Mini-14 over the counter, no licence and no requirement to register.)
Today, any sale at retail has to be registered at time of sale, at least as I understand it; private transfers must be registered but it can be done on line.
The guy in the case didn't have a prohibited firearm licence, and wasn't required to register the AP80 at the time he acquired it. Here's the background.
6 The Firearms Act, S.C. 1995, c. 39 (the Act) was enacted in 1995 as part of the tightening of government control of the possession of firearms. Its purpose is to provide for the issuance of licences, registration certificates and authorizations to permit the possession of firearms in circumstances that would otherwise constitute an offence under the Criminal Code, R.S.C. 1985, c. C-46. A license allows an individual to possess firearms of particular kinds. A registration certificate allows the individual to possess a specific firearm. An authorization allows the individual to do certain things with a firearm, such as importing. In this case we are concerned with a registration certificate.
7 On December 28, 2000, Mr. Henderson applied to the Registrar for a registration certificate for his AP80. The application form required only the model number, serial number, calibre and barrel length of his firearm. He had no further correspondence with the Registrar until he received notice of the Registrar’s refusal to issue the registration certificate on June 2, 2008. This long delay was apparently caused by the volume of registration applications following the introduction of the Act.
At the time he bought it there was no requirement that it be registered, as an ordinary long gun. There was also no requirement that he have a licence, to purchase an ordinary long gun.
The registration requirement for non-restricted long guns was enacted later. He chose to comply by applying for registration. From what I can tell, the classification as prohibited was already in effect by then, but it took 8 years for the firearms officer to reject the registration. Let us recall that these were a tumultuous 8 years for the registry, and it was under attack by people having their dogs register guns, you know how that goes. That's still pretty shoddy performance.
So he finally got the refusal in 2008 and challenged it in court, and the Court of Appeal decision (on appeal from the Superior Court, on appeal from the Provincial Court) upheld the firearms officer's decision in 2011.
So ... it's not his certification that is revoked. He is licensed to posess whatever his licence says (as I say, I'm not seeing whether it was for restricted or just non-restricted). He can't register (legally own) the thing in question because it isn't covered by his licence. His licence subsists intact.
I would just repeat that the ruling isn't "silly" if in fact the AP80 is functionally identical to the AK-22. You might think the AK-22 itself doesn't belong on the list.
I'm a bit confused on this one statement. Are you saying that the AP80 shouldn't be on the prohibited list? Or that the AK-22 should be on the prohibited list?
I'm not expressing any opinion about what should be on the list. I'm just saying that
- if the AK-22 is on the list
- if the AP80 is functionally equivalent to the AK-22
then the court's decision was valid in law, and it's the inclusion of the AK-22 that is in issue (which was outside the purview of the court in that case).
Now actually you may be raising a possibly interesting question, possibly without knowing it.
If it really is demonstrably false to describe the AK-22 as a variant of the AK-47, then trying to bring the AP80 under that rubric could be arguably bad, since it is not expressly named in the list, and what the list says is
"Variant" is not defined. The Ct of Appeal said:
The AP80 is not an AK-22 (although there is apparently no actual difference between them), so if it is not itself a "variant or modified version of" the AK-47, well, you have a law school exam question.
I'll take a stab at why the AP80 is prohibited, but its not very charitable. I think who ever decided this doesn't really know the difference between the AP80 and an AK47.
(And I'll read AP80 as being AK-22.)
I would not make that assumption, or think it a particularly reasonable hypothesis. The RCMP holds the firearms expertise at the federal level here, and I have no reason to think their people in this field are idiots. The regs would not have been drafted by legislative drafters at Justice who just threw some gun names in the air to see where they landed. These are technical regs, and the people with the technical expertise are the ones who tell the drafters what to draft.
Basically, I would guess that it's the fact that it's semi-automatic and was not in common use in Canada for any hunting or pest/predator control purposes (which is how the Mini-14 escapes the fate it deserves, I gather). If you're a bank employee looking at a thing that looks like an AK-47, you're not going to know that it just shoots pellets. And back in the 90s was when Montreal was the bank robbery capital of the world (or more likely that was the 80s; I can't remember and google only wants to tell me how Vancouver was the bank robbery capital of North America until recently). And bank robbers there didn't use handguns, they used big honking long guns. What a gun looks like sometimes does matter.
if you want your head to spin even more.
The Canadian health insurance schemes cover Canadian residents (legal, whether permanent or temporary; citizenship irrelevant).
So if your wife and kids aren't Canadian residents, I hope you aren't counting on our system for any needs that may arise.
Unless your plan for the US is to love it and leave it.
Do they make THC patches and gum?
As I mentioned, I grew up a two hour drive from the US border. Most people actually live closer than that, I just happened to be in the middle of southwestern Ontario between two Great Lakes -- so actually I was closer than that too, there was just no way of getting from here to there except Detroit ... but no, thinking about it, Port Huron was closer, so I was actually within that one-hour drive that most people are from the border.
When I was a kid, we crossed the border to camp in Florida on winter holiday, picnic in Marysville, Michigan, visit cousins in Dearborn, go away for a weekend somewhere new at a motel with an indoor pool in February -- two or three times a year.
We always packed food, and we had to be careful not to take Florida oranges with us. You can't import Florida oranges into the US.
We can buy codeine over the counter here (behind the counter; the pharmacist will sometimes check that you know about side effects). Not in the US. We had to check our purses and suitcases for any legally acquired, legally carried 222s we might have forgotten about.
Some of those forms probably get sent to anybody wanting import/export approval for anything -- although the fruits/vegetables is a bit odd, since it's only the US that controls that, I thought. We had no problem taking Florida oranges into Canada from the US.
The illegal wood is actually an important thing, if a bit odd here -- but when someone saw a picture of something made of wood, that was really the right thing to do. The only means available to control trafficking in protected species of plants and animals, sometimes, is for developed countries to enforce strict import controls on things entering those countries.
If your item had arrived at the border, and somebody had looked at it and said Eek, this crate is made of a protected species of rare South American rainforest maple, this is a serious offence under the International Convention on Trafficking in Protected Species of Rare South American Trees and the domestic legislation that implements that treaty, the Act to Implement the International Convention on Trafficking in Protected Species of Rare South American Trees, and proceeded to charge you and the museum with that offence -- well, you might have said Wait just a minute, nobody told ME about that stuff.
Kinda like that guy trying to check his gun in NYC.
Now some of them, okay. Import papers into the US, serial number ... but those are requirements of the relevant laws, so the explanation was needed. It might be reasonable for the laws to say something like "if the thing was imported into the US / manufactured after 1900" or some such.
Now, Canada does have some cultural heritage legislation that regulates the export of old stuff, but I guess the US doesn't -- because I'm actually surprised you didn't run into some rigamarole about exporting antiques.
