Canada bans .22 rifle because it looks similar to an AK-47

[iverglas]

73. in theory ...

In theory Canada could just simply continue to add makes and models to the list of prohibited firearms forcing the registered owners to turn them in at a complete loss.

... 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:

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to the definitions ... “prohibited firearm”... in subsection 84(1) and to subsection 117.15(1) of the Criminal Code, hereby makes the annexed Regulations ...

... so what do those subsections say? (Just for clarification again: criminal law is under federal jurisdiction in Canada.)

PART III
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:

Statutory Instruments Act

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.

The Most Dangerous thing in the Firearms Act

"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.)

If they had been deleted, as recommended, then any attempt to outlaw, say, all .22 biathlon rifles, muzzle-loading shotguns and/or .30-30 Winchester hunting cartridges could be taken before a court, and the court could rule that such things are "reasonable for use in Canada for hunting or sporting purposes." The Order in Council would then be voided by the court. There would have been access to justice, fairness and a thoughtful second look at bad law.

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&quot . 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:

Canadian Environmental Assessment Act

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.