EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 17, 1995

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[English]

The Chair: I call the meeting to order. The Standing Committee on Justice and Legal Affairs will continue its examination of Bill C-68, An Act respecting firearms and other weapons.

This afternoon we're pleased to have with us two groups of witnesses, the Canadian Bar Association and Le Barreau du Québec, our 65th and 66th witness groups on this bill since April 24 of this year.

From the Canadian Bar Association we have Thomas G. Heintzman, Q.C., the president; Sheldon E. Pinx, Q.C., vice-president, national criminal justice section; and Joan Berkovitch, senior director, legal and governmental affairs.

[Translation]

From the Quebec Bar, Claudette Picard, president of the bar, Michel Marchand, member of the criminal justice committee, Patrick Healy, member of the criminal justice committee and Annie Chapados, secretary of the criminal justice committee.

[English]

According to our custom, you will present your briefs separately. We'll start with the Canadian Bar Association and Le Barreau du Québec will follow. Then we'll have our rounds of questioning, and the rounds of questioning can be addressed to anyone of you or both of you. You're entitled to add, if you wish, to the answers of the other.

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[Translation]

Ms Joan Bercovitch (Executive Director, Legal and Governmental Affairs, Canadian Bar Association): I will start, if I may.

[English]

Good afternoon, ladies and gentlemen. I would like to thank the committee on behalf of the Canadian Bar Association for having invited us to appear before you this afternoon.

[Translation]

The Canadian Bar Association is a national association representing over 34,000 lawyers across Canada.

[English]

The Chair: I'll have to ask our good friends from the media, those with the cameras, at least, to leave the room. The meeting is televised on the Parliamentary Channel and they can pick it up in their offices.

Ms Bercovitch: Central to the mandate of the Canadian Bar is improvement of the law and the administration of justice. We believe our submissions to you this afternoon are consistent with that objective.

The brief will be presented by Mr. Thomas Heintzman, Q.C., of Toronto, who is president of the Canadian Bar Association and by Mr. Sheldon Pinx, Q.C., of Winnipeg, who is a criminal defence lawyer and vice-chair of the bar's national justice section.

Mr. Thomas G. Heintzman (President, Canadian Bar Association): Ladies and gentlemen, I do want to thank the committee for inviting the Canadian Bar Association to make this presentation this afternoon.

You have our brief, and I don't intend to read from it. I intend to highlight what we really want to convey to the committee.

[Translation]

I would first like to congratulate the Minister of Justice for bringing forward this very important bill. The CBA has analyzed the legal implications of gun control and we believe that this bill is a legitimate means of ensuring public safety and minimizing the criminal use of firearms.

[English]

I want to begin by commending the justice minister for bringing forward this important piece of legislation.

The CBA has examined the legal implications of gun control and believes that gun control is a legitimate means of ensuring public safety and minimizing the criminal misuse of firearms.

I want to point out that the Canadian Bar Association has a 20-year history of support for gun control. In 1972 we called for laws against the possession of restricted and unregistered firearms, including handguns, and for a judicial order prohibiting specific persons from owning handguns. We also called for certificates of competence for the registration of firearms.

[Translation]

In 1990, a resolution of the CBA urged the federal government to strengthen the gun control provisions of the Criminal Code, particularly to prohibit the importation of automatic weapons and to enhance public awareness of laws relating to the acquisition, safe storage and handling of firearms.

More recently, in 1993, our Association passed another resolution asking for the prohibition of all hand guns in Canada, except for members of the Canadian Armed Forces or law enforcement officers.

Overall, the CBA supports the gun control bill, but our brief does suggest a number of amendments to Bill C-68.

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[English]

Overall, the CBA supports this gun control legislation. Our brief suggests a number of amendments to Bill C-68. At this time, I would like to comment on six specific aspects raised in our brief.

First, on the registration system, we support a regulatory statute for the registration of guns. As well, we endorse a cost-effective system to register all guns. We believe a registration system aimed at public safety provides a reasonable balance between regulatory mechanisms and the potential for interference with civil rights.

Second, on the decriminalization of gun registration, we support the removal of gun registration from the Criminal Code and its incorporation into a separate regulatory statute.

Third, on importing and trafficking, the CBA supports restrictions on the transfer and sale of firearms within the country to deter illegal trafficking in firearms.

Fourth, on banning certain weapons, the CBA supports the ban on military assault weapons as well as some handguns, crossbows and imitation firearms as contained in Bill C-68. We would go further, according to the resolutions we passed, to ban all restricted weapons, including handguns, by authorized citizens.

Fifth, on the purchase of ammunition, the CBA is of the view that linking the purchase of ammunition to the registration system is a relatively minor inconvenience to gun owners that may increase public safety.

Sixth, on mandatory training, the CBA supports mandatory training programs for gun owners to promote the safe handling and storage of firearms.

Turning to another aspect of the legislation, I would like to spend a few moments on the question of individual rights versus public safety.

[Translation]

Canada's Constitution does not garantee the right to bear arms. Section 7 of the Canadian Charter of Rights and Freedoms garantees the right to life, liberty and security of the person, and that could be invoked to resist restrictions on weapons required, for example, to obtain sustenance. However, section 7 also provides constitutional support for the regulation of weapons which are a potential threat to the life and security of others.

[English]

Canada's Constitution does not guarantee the right to bear arms. Section 7 of the Charter does guarantee the right to life, liberty and the security of the person, which arguably might be invoked to resist restrictions on, for example, weapons required to obtain sustenance. However, section 7 does provide constitutional support for the regulation of weapons that are a potential threat to the life and security of others.

[Translation]

The Canadian Bar Association is committed to working with Paliament to acheive the correct balance between the equally pressing objectives of reducing violence in Canadian society and respecting individual liberties.

Thank you. Merci.

[English]

We'd be pleased to answer any questions you may have.

The Chair: Thank you.

[Translation]

I now ask Ms Picard to make her presentation on behalf of the Quebec's Bar Association. Ms Picard.

Ms Claudette Picard (President, Quebec Bar Association): Thank you, Mr. Chairman.

The Quebec Bar Association is a professional corporation made up of the 16,200 lawyers of Quebec. In fact, no one in Quebec can work as a lawyer without being on the roll of our corporation.

Our mission, as per the Professional Code, is the protection of the public. In this context the Quebec Bar Association through its legislation service reviews all bills, provincial as well as federal.

We thank you, Mr. Chairman, for giving us the opportunity to share our views with you and we intend to appear before you again whenever you wish to know our views on federal bills.

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The Chair: We have received your brief and it has been distributed to all committee members.

Ms Picard: Thank you for distributing to committee members the explanatory guide on the Barreau du Québec «Quebec Bar Association» and our annual report.

First, I would like to point that there is a small change to be made in the French version of our brief, on page 2. There is a typographical error in the second paragraph. In addition, our comments on clause 106 of the Criminal Code should be removed from our presentation. They appear on page 11 of the English version of our brief.

On February 14, after announcing the creation of the National Firearms Registration Program, the Minister of Justice, Allan Rock, tabled Bill C-68. The members of the Standing Criminal Law Committee of the Quebec Bar Association analyzed the bill and its recommendations were approved by our Association's Administrative Committee.

Let me begin by introducing the people with me today: Mr. Patrick Healy, professor, McGill University, Mr. Michel Marchand, a criminal law specialist and member of our committee, and Ms. Annie Chapados, from the Quebec Bar Association's Research Service.

The bill has given rise to much discussion and lively controversy in recent months. The first part of our remarks will focus on the purpose of the bill as such, and the second part will be with improvements or additions that could be made.

I would like to point out that the Quebec Bar has come out in favour of increased and stricter control of all types of weapons. We therefore think of the idea of a computerized system to register all firearms in circulation in Canada as entirely justified: not only with respect to the government's objectives of ensuring better border control and helping, as far as possible to stand up to the tide of criminal behaviour involving firearms, but also with respect to its duty to guarantee peace, order and good government to the people of Canada.

A system of this type would make it possible to better control imports and exports of firearms, chiefly through the identification of firearms' owners, and would provide more information about the use made of the firearms while making it easier to determine where they are from at the time of police seizures.

We think the bill helps achieve a fair balance between individual rights and the protection of society. I do not intend here to go through extensive arguments regarding the appropriate provisions of the Canadian Charter of Rights and Freedoms. I need only say that, with the exception of our comments on the punishment provided for, Bill C-68 should, in our view, be found constitutional by our courts.

Our reservations are of three types: general, specific, and those involving certain provisions of the bill.

Our general reservation concerns the very complex system that will exist in the future. Both firearms owners and legal counsel defending people charged with offences will have to deal with this complex system.

While we in no way challenge the procedures the Minister plans to establish, we would state that they must not only be broadly publicized, but presented in an understandable form to people.

Concerning offences, it should be realized that the decision to divide the provisions creating offences between the new Firearms Act and the Criminal Code will considerably complicate the defence of accused persons, since it will no longer be possible to apply and enforce the Criminal Code separately from this other act.

Subsection 85(2) makes the use of an imitation firearm in the commission of an indictable offence an offence punishable by imprisonment for not less than one year. Although we know that the psychological impact on the victim is the same whether the firearm is real or imitation, and while we agree that using a real, unloaded firearm is not more dangerous than using an imitation firearm, we nevertheless cannot support having the same punishment for these two offences.

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For reasons similar to those we put forward in our analysis of Bill C-7, we recommend that a distinction be made between the use of a real firearm and the use of an imitation firearm.

The most important reservations we would like to express concern inspection rights and the punishment provided for in C-68. The bill provides that police officers have the right to inspect private homes, with a warrant, in order to verify whether an individual is complying with the act and the regulations. The Quebec Bar believes it should be possible to obtain a warrant only if the police officer has reasonable grounds for believing that an offence has been committed. There must absolutely be some limitations placed on this right to inspect private homes.

On a number of previous occasions, the members of our committee have described their reasons for opposing minimum sentences. The problem rises mainly in the fact that minimum sentences prevent cases from being dealt with on their merits. That is, they prevent the consideration of circumstances unique to the case.

As a result, Crown attorneys have to be much more cautious about laying charges. In this context, minimum sentences create a certain imbalance in the parties' negotiating positions and can, in some cases, become a powerful argument in the accused person's eyes for pleading guilty to a lesser charge, rather than running the risk of getting the minimum sentence provided for the real offence.

While they are a more repressive measure, they can also lead Crown attorneys to the less serious charges for which the sentence would be less. For example, a charge of using a firearm in the commission of an offence for which the minimum sentence is one year, could be laid rather than a more serious charge, such as armed sexual assault, for which the minimum sentence is four years.

Moreover, providing for a whole range of minimum sentences demonstrates a lack of confidence in our traditional system. If a trial judge imposes too light a sentence, the Court of Appeal is always there to correct the situation.

We would also like to draw your attention to some sentences which, because they are excessive, may be found unconstitutional. I will refer here to two of the provisions mentioned in this part of our brief.

First of all, there is paragraph 102(2)(b) of the Criminal Code, which is introduced by clause 133 of the bill. It prohibits, in the case of a first conviction for or discharge from the offence, lifetime ownership of a firearm. Since life time orders have already been sharply criticized by the Supreme Court, there is no doubt whatsoever that there will be a constitutional challenge regarding this provision.

We think that some of these punishments are clearly excessive, and the Quebec Bar therefore recommends a shorter period of time during which a person may not own a firearm.

Subsection 117.01(2) of the Criminal Code deals with the failure to surrender certain documents to a peace officer or firearms officer. A ten-year prison term is provided for in such cases. Clearly, this is excessive in our view, because this is merely an administrative offence.

In conclusion, the Quebec Bar is in favour of the objective the Minister is seeking to achieve: namely, stricter gun control. The Quebec Bar supports this initiative, but is mindful of the fact that legislation that is too repressive is not necessarily in the best interest of justice. The Quebec Bar therefore recommends that while Bill C-68 should be passed, the government should amend some of its provisions regarding minimum sentences, excessive sentences and inspection powers. It should endeavour to make the punishment better fit the crime.

Mr. Chairman, ladies and gentlemen, we will be pleased to answer any questions you may have.

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The Chair: Thank you Ms Picard.

[English]

Now we will proceed to the rounds of questioning. According to the rules of the committee, we start with three rounds of ten minutes each, one for each of the three political parties associated with the committee. Then we have five-minute rounds in which we exchange between members of the government party and the opposition parties.

In posing the questions, the members may put their questions to individual members of the panel, either to the Canadian Bar Association or to Le Barreau du Québec, or to both. If there's time, of course, we allow others to add their views if they think they can clarify or add to the discussion in a brief way and help the committee.

[Translation]

Mrs. Venne (Saint-Hubert): Good afternoon, ladies and gentlemen. First of all, to the representatives from the Barreau du Québec, I would like to point out that there is mistake on page 13 of the brief where you mentioned that the lifetime prohibition would cover all firearms. A distinction must be made between restricted weapons and ordinary weapons. You may have seen the mistake, but it should be corrected nevertheless.

I would now like to ask you some questions. In your brief, you highlight the unconstitutionality of certain provisions like paragraph 111(1)b) concerning associates. Can you give us your opinion on police officers' powers to carry out inspections? You do not talk about it in your brief. Do you believe that these powers may violate the provisions of the Charter which protect against abusive searches? That is my first question. My next question is for the other group.

Mr. Michel Marchand (Member, Comité en droit cirminel, Barreau du Québec): First of all, you are correct in pointing out that inspection powers are not mentioned in our brief; this is, however, something we consider important. It was discussed earlier, but consensus was not necessarily reached. Now there is consensus on this issue.

Searches are already permitted when offences are committed. These powers are set out in clause 117.02 and subsequent clauses. These powers already cover searches when offences are committed or when it is believed that offences have been committed and they cover a number of cases which are currently covered by the Criminal Code. That is maybe even a bit too broad. However, this is the first time that there is talk of inspecting dwelling houses.

As everyone here is aware, these new provisions will enable police officers to enter many Canadian homes because people will have to register their firearms. Canadians own more than six million firearms. Therefore, many people's homes may be entered. Considering this fact and that clause 98 and subsequent clauses allow for entry to ensure compliance with the act, we believe that this could be deemed contrary to Section 8 of the Charter, specifically for homes. There is a distinction between homes and businesses. The same is not true for businesses. As regards dwelling houses, we find these powers excessive. Consequently, we recommend that entry into dwelling houses be allowed only if there are reasonable grounds to believe that an offence has been committed and that proof could be provided.

Clause 98 and subsequent clauses contain very broad powers concerning the use of any computer system at the place. Would this be influenced by the beginning of the clause which states that the purpose of it to ensure compliance?

Will this give the police the power to check computer systems in private homes? We know that nowadays, many of us have computer systems at home, with databases. Could this be checked as well? It is a real problem.

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Furthermore, the police officer may look for evidence for other investigations. Let's look at 99(1)(b), for instance:

b) examine any firearm and examine any other thing that the officer finds and takes samples of it; we know about the plain view theory. I think it is legislated here. Under the pretense of an administrative inspection, one may make much wider verifications.

For all these reasons, we think that this could considered as going against section 8. And even if it were not, the Committee should think about this problem and make recommendations so that these inspection powers do not apply to private homes, because they are really too extensive.

Mrs. Venne: Fine. Does the Canadian Bar Association have any comments about the same clauses?

[English]

Mr. Heintzman: I'm going to ask Mr. Pinx to expand on this, but that point is dealt with on page 9 of our brief. We have taken the position that the powers of inspection should be reviewed and should not be in the bill as proposed.

This is criminal law legislation. If it is criminal law legislation, then the normal powers of search and seizure should be dealt with in accordance with criminal law and police officers should not be permitted to enter homes and other dwellings or businesses without the normal search and seizure provisions that pertain to criminal law.

Mr. Pinx, do you want to expand on that?

Mr. Sheldon Pinx (Vice-President, National Criminal Justice Section, Canadian Bar Association): The concern I have expressed on behalf of our organization is that the legislation permits a search, in both a dwelling and non-dwelling scenario, simply on the threshold test that you have reasonable grounds to believe there is a firearm present. The concern the Bar Association has is that in simple terms, although the legislation calls what is going to happen an inspection, for all intents and purposes it will amount to a search and potential seizure.

If it indeed is going to be a search and seizure, then we must step back for a moment and ask the question whether or not it is appropriate to have a standard to permit such a search solely on the basis of belief - reasonable grounds to believe - that a person has a firearm, because if you're not alleging that the person is unlawfully in possession of that firearm, then one must conclude that the person is lawfully in possession of that firearm.

Therefore, you're going to permit the entry into homes and other places that belong to the citizens of this country not based upon a threshold test of assuming there is reasonable or probable cause that a crime has been committed, but rather simply on the threshold test that the gun is there and we want to determine whether it is safely stored or whether or not it is properly licensed and registered.

So the Bar expresses concern that indeed if this is going to be a search and seizure for that purpose, in effect this amounts to a criminal investigation. If it is a criminal investigation, we should go back to section 487 of the Criminal Code, which generally authorizes search warrants for the purposes of criminal investigations providing you can allege and satisfy a justice of the peace that indeed there are reasonable grounds to believe that a crime has been committed and that a search will afford evidence.

The importance of that test is to ensure the protection of the rights of the citizens of this country. It is nothing more and nothing less, because the protection of the privacy in our homes and in other venues is most paramount, in our view.

[Translation]

Mrs. Venne: I would like to ask a question to the Barreau du Québec. The Bloc Québécois tabled this morning some draft amendments. One of them recommends that in paragraph 111(1)(b), the words ``is an associate of'' be taken out, so that we limit ourselves to the evidence. I would like to know if this would, according to you, avoid a constitutional challenge.

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Mr. Marchand: Personally, I think that removing the associates is a step in the right direction.

However, it seems to us that the bill should not have this paragraph which says: ``cohabits with or is an associate of''. ``Is an associate of'' has a very wide meaning. I agree with you and I would take those words out. I feel we should also strike out the words ``cohabits with'' because this can cover a whole range of situations.

Let us think for instance of an 18 year-old man who is under a prohibition order. His father could surely have problems with this provision if his son is still living at home. His father who hunts in a legitimate manner and who stores his firearms in compliance with the act could certainly have problems with this provision. I think that the words ``cohabits with, or is an associate of'' causes a problem, but to remove ``is an associate of'' would be a step in the right direction. It will not be as broad a meaning, although it still covers a lot of situations.

Ms. Venne: Thank you very much. My next question is for the Canadian Bar Association. On page 16, in your first recommendation, you ask that ``Bill C-68 be amended to provide for temporary prohibition orders against possessing weapons to be issued when charges are laid in situations of domestic violence.'' We are only talking about charges. No one has been found guilty. I would like you to explain this recommendation.

[English]

Mr. Heintzman: Again, I would like Mr. Pinx to expand on this; he has had experience with these types of orders.

Mr. Pinx: In essence, the purpose of the recommendation was to attempt to at least bring to the committee's attention the concern the Bar Association has with respect to domestic violence, particularly in those cases where a firearm or weapon has been involved with respect to the allegation made in that particular instance.

However, your current proposals in proposed section 111 may very well address the concerns that have been raised. That section permits the application by a peace officer before a provincial court judge for an application to in essence prevent somebody from being in possession of a firearm because it's not desirable in the interests of the safety of the person or any other person for him to be in possession of the weapon.

So in cases of domestic violence there may very well be already be in place under proposed section 111 a vehicle whereby an application can be made while the matter is before the courts - that is, prior to conviction - to seek an order prohibiting the possession of weapons by the accused while out on judicial interim release.

I can draw to your attention, only from my experience in Manitoba, if that will be of some assistance to you, that it is a fairly routine procedure that is followed in Manitoba. Parallel legislation already exists in the Criminal Code comparable to proposed section 111, which allows for these kinds of applications to be made. So we were simply trying to draw to this committee's attention the importance the Bar Association places on issues relating to domestic violence.

Mr. Ramsay (Crowfoot): I would like to thank the witnesses. I certainly appreciate the briefs that have been presented, particularily those areas where you touch upon proposed sections that may not withstand a Charter challenge or a constitutional challenge. I think it's very important for us to have that type of evidence.

I would like to move to another area. The Canadian Bar Association's brief claims that Bill C-68 is a gun control bill.

With regard to rifles and shotguns, this bill is not going to control them; it's going to register them. We have heard no empirical evidence - just speculative evidence - that the registration of rifles and shotguns will induce the owner to lock them up. That law on safe storage is already on the books. They must keep their firearms safely stored. We have heard that the registration of these firearms will cause the owner to lock them up, although we have not had any evidence to link us with that conclusion.

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We also have heard speculative evidence that if a firearm is locked up, it is going to prevent domestic incidents of shootings and prevent suicides. Again, I have not heard, at least, any empirical evidence to substantiate that. Does either group have any empirical evidence to make that link in either or both of those areas of speculation?

Mr. Heintzman: Mr. Ramsay, we can only approach this matter as lawyers. I'm sure you have all the evidence that has been accumulated by the coalition and by others on the statistics. You can draw the conclusions from those better than I can.

As lawyers, what we have done here is to look at the scheme as a legislative scheme. We've tried to answer for you whether or not the system of registration is a reasonable balance between public safety and civil rights. That's what we've tried to answer for you.

A registration system creates two things. First of all, it creates a responsibility. That's why we have registration of cars and building permits. So you have responsibility before the act, and you have an ability to deal with the situation after the event.

Now, you have to make the political decision, but we're here to say, as lawyers, that we think a registration system addresses the responsibility issue, in dealing with the situation after the event in a reasonable way.

I don't believe you could develop statistics to show that building permits have increased or decreased safety in houses or accidents with houses. I think you could make a strong argument, but I don't know how you'd develop any statistical analysis of that.

We're saying here is a legislative scheme that appears to us to balance those two interests.

Mr. Ramsay: Would you agree that the conclusions drawn, that the registration of rifles and shotguns will, first, enhance the storage, and second, reduce the criminal use of those firearms, are simply based upon speculation without any empirical evidence to support it?

Mr. Heintzman: As a lawyer, I'm not going to get into questions of whether it is speculation or not. That's a matter you have to consider. We're saying if you are trying to develop responsibility in a society and if you are trying to develop a way of tracing something from the act that is complained of, registration is a reasonable system - and we've looked at systems around the world, systems pertaining not just to firearms - to get at those two things.

Mr. Ramsay: I appreciate what you're saying; however, if the firearm and ammunition are duly locked up, and someone uses that firearm in an unlawful way, that means the sense of responsibility has departed from that individual. I ask whether there is a linkage in the registration of rifles and shotguns that will reduce or add to that degree of responsibility. In other words, how are we to protect society from the abuse of firearms when the sense of responsibility departs from the mind of the individual?

Mr. Heintzman: I don't think you can. That's one of the raisons d'être behind a registration system - to increase or impose the sense of responsibility if you do not believe the present level is adequate.

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Mr. Ramsay: Therefore, I guess we can conclude that the registration of rifles and shotguns is not going to enhance or protect society against the individual who loses that sense of responsibility in a fit of anger or depression and uses that firearm against themselves or someone else.

Mr. Heintzman: I think I've answered the question in the sense that it provides the surrounding area of responsibility. If persons are to depart from that, yes, criminal acts are committed in our society.

Mr. Ramsay: I would like to move on to another area.

[Translation]

Ms Picard: I would like to answer Mr. Ramsay's question.

The empirical evidence you're asking for may very well come out of gun registration. We believe that the registration of guns will allow for a better control of imports and exports of firearms, and will help police determine the source of firearms ceased. In that sense, registration of guns is important.

[English]

Mr. Ramsay: Then I would leave you with this suggestion. As we cannot guarantee that the owners of firearms will not lose their sense of responsibility, the only way we can protect society from the misuse of firearms is to remove the firearms from their presence.

Mr. Heintzman, you indicated, if I'm correct, you support the banning of all handguns.

Mr. Heintzman: Our resolution in 1993 went so far. I think a reasonable interpretation of it would say, ``Other than for peace officers, police and in gun clubs'', or something like that. But, yes, that's what the resolution said.

Mr. Ramsay: So is that a modification from what is said here?

Mr. Heintzman: No, it isn't. I'm just saying that you're correct; the resolution says the banning of all handguns.

Mr. Ramsay: Do you support that today?

Mr. Heintzman: That is the way the resolution speaks. Yes, I do.

Mr. Ramsay: Of course, you would be prepared to accept the ramifications of that, which would outlaw all competitive handgun shooting, including our World Cup teams.

Mr. Heintzman: There might be reasonable grounds to have that kind of exclusion from that -

The Chair: Excuse me. That's not in the bill. While it may be the position of the Canadian Bar Association, it's not an issue here, because the bill doesn't propose that.

Mr. Ramsay: Mr. Chairman, I don't know whether that's a proper intervention.

The Chair: I'm trying to keep us relevant to the bill. While it may be an interesting question that the bar is proposing the ban on all handguns, the bill doesn't. Consequently, to discuss something that's not being proposed in the legislation is not relevant to the bill before the committee.

Mr. Ramsay: I think it is relevant.

The Chair: You've already put your question and Mr. Heintzman has answered. But I'm ruling it irrelevant to the discussion. If you want to stick with it, I'll have to bring you to order. You have two minutes left.

Mr. Ramsay: Let me ask my next question.

Have you examined proposed subsection 117.15(2) of Bill C-68?

Mr. Heintzman: Well, I've read it all.

Mr. Ramsay: In this regulation the legal interpretation I've heard for this, and my own reading of it, indicates that this grants the Governor in Council the power to ban, really, any firearm. Would you agree with that?

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Mr. Heintzman: The Governor in Council can prescribe weapons and he then has to lay them before Parliament in the manner set forth in the act.

Mr. Ramsay: Yes, but my question is, in your understanding of that subsection does it, in your mind, grant the Governor in Council the power to prohibit any firearm and of course lay that Order in Council or that regulation before the House in the prescribed manner?

Mr. Pinx: If I can just respond to that, the reading we place on that particular provision would be that the Governor in Council could generate the particular regulation; he can't pass anything on his own. As I understand it, that would have to come before this body.

Mr. Ramsay: It may, but from my understanding, Parliament has no power whatever to deal with this. It can come before the committee - and we can go the section if you want, and look at it - or it need not be laid before the committee. If the committee is on the road, as we're going to be with the Young Offenders Act this fall, and a regulation under this particular subsection comes before the House, it cannot be laid before the committee. All it has to fulfil is that it be laid before the House for 30 clear days, and it becomes law. But that's not the point. I'm asking whether your interpretation of this particular section agrees with mine, that is, that this grants the Governor in Council the power to ban any firearm.

Mr. Heintzman: I can tell you, Mr. Ramsay, that we have not directed our attention to this particular section in our brief -

Mr. Ramsay: That's unfortunate.

Mr. Heintzman: - so that's all I can say. We just haven't addressed it. I didn't come here prepared to answer your question.

Mr. Ramsay: On a point of order, Mr. Chairman, your intervention must be tied in with this section, and you bet it deals with the banning of any firearm. So with all due respect, I think your intervention was out of order.

The Chair: I see.

I would like at this point, then, to ask you - and I was going to bring it to your attention later in the meeting - to look at proposed section 117.15 on page 98 of the bill, which is the proposed section referred to by Mr. Ramsay. Proposed subsection 117.15(2) says:

In making regulations, the Governor in Council may not prescribe...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.

In other words, could the Governor in Council, in accordance with this legislation, ban all guns, including shotguns and rifles, if you consider proposed subsection 117.15(2)? I don't ask you to respond now; you may want to glance at it during the afternoon and maybe answer at the end.

Mr. Wappel (Scarborough West): As always, you prepare for certain questions and then different questions bring up different tangents.

On a point of information, if I may, Mr. Mosley, who is I believe the Associate Deputy Minister, when he appeared before us clearly said proposed subsection 117.15(2) can be and in fact is used to ban or to prohibit specific firearms. I suppose the question as to whether it could prohibit every firearm in Canada is a nice legal issue.

Just for the benefit of my friends, note that subclause 112.(6) of the proposed firearms legislation specifically exempts regulations made under proposed section 117.15 from a review by Parliament. This is rather an interesting technical matter just for your information.

My two initial questions would be for the Barreau du Québec. As always, I thank the bar for its succinct submissions and particularly for the way it always ferrets out apparent problems with the French. This is excellent.

I want to just ask you briefly about the two comments you make in respect of imitation firearms. On page 7 of the English version, you indicate that logic dictates that the using of an imitation firearm is less reprehensible than the using of a real firearm since, at the very least, the offender does not intend actual injury. I have to presume that what you mean is that the offender does not intend actual physical injury. Certainly there could be, of course, actual psychological injury immediately, because the victim would not be able to differentiate between an imitation and a real firearm. Wouldn't you agree with me?

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Ms Picard: Oui.

Mr. Wappel: So then your logic is limited to actual physical injury. Is that correct?

Ms Picard: Correct.

Mr. Wappel: On the next page you indicate that there is no distinction made between using a real firearm and using an imitation firearm, and therefore, criminals might resort to real firearms. I would point out to you, respectfully, that I think there is a distinction, because there's a minimum sentence.

For example, if you used an imitation firearm, you might get a minimum sentence of one year, but if it were a real firearm, you might get more than the minimum sentence of one year. That's how the judges would differentiate between the two. Wouldn't you think that's a reasonable possibility?

[Translation]

Ms Picard: You must relate that part of our brief to the issue of minimum sentences. As we do not agree with minimum sentences, it must be seen in that context. The brief is a whole and our comments must be seen in the light of our position on minimum sentences.

Mr. Marchand: That's it exactly. And that is why we state in our brief that we do not agree with creating an offence or committing a criminal act with an imitation firearm. As the President of the Bar just pointed out, we are against minimum sentences. If a minimum sentence of one year is provided for... Clearly, this makes no difference as regards the victim, except that it is certain that he or she will not be injured. As you mentioned, the victim may suffer psychological injury. However, in terms of the moral turpitude of the person who committed the crime, that is quite a different matter. We are against imposing a minimum sentence, so as to allow the judge, who is appointed for that very purpose, to decide on the sentence. If he decides that the offence merits two years, he will sentence the offender to two years, and if he decides it deserves one year, he will act accordingly. The problem with this piece of legislation is the issue of minimum sentences. That is one example.

[English]

Mr. Wappel: I understand that aspect of both submissions.

Just as a point of clarification, on page 11 of the English version dealing with paragraph 109.(2)(b) of the Criminal Code - that's found on page 80 of the bill - the way the English version is written caused me a little bit of confusion in understanding your submission.

Initially, the way I read it, I understood you to believe that upon first conviction a person would be banned for life from owning any firearm. Upon reading it carefully, I note that you say upon conviction of a first offence a person would be banned for life from possession of a prohibited firearm. There's a difference, because the person would not be banned for life from owning firearms, only from possession of a prohibited firearm on a first offence or a first discharge. So of course a person would be banned for a period of time, on a first conviction, from owning a firearm, but would be banned for life from owning a prohibited firearm. I underscore that it's a prohibited weapon. It's not some weapon that someone's allowed to own, generally speaking. It's prohibited.

So are you saying you think a lifetime prohibition on a person who has been convicted of an offence from possessing a prohibited weapon is excessive and unconstitutional?

[Translation]

Mr. Marchand: The problem may concern prohibited weapons, but the provision is broader than that. It refers to prohibited weapons and also to restricted firearms. Paragraph (2)(b) does not concern just weapon prohibited under (2)(b). I would agree that the brief is not perhaps perfectly clear in this regard. But we must understand that this covers more than just prohibited weapons.

[English]

Mr. Wappel: Well, if you look at the French version on page 80,

[Translation]

(a) any firearm, other than a prohibited firearm or restricted firearm,

[English]

That's in proposed paragraph 109.(2)(a). Then you go to (b):

[Translation]

(b) any prohibited firearm...

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[English]

That's clearly different. There's a different treatment on a first offence for a person who is then barred for life from owning a prohibited weapon, but who could still subsequently own other firearms.

I'd like a clarification. Is it your position as the Barreau du Québec that a lifetime prohibition on a prohibited weapon is excessive and unconstitutional?

[Translation]

Mr. Marchand: Not in the case of prohibited weapons. We see a problem as far as restricted weapons are concerned.

[English]

Mr. Wappel: Yes, and there is no problem in restricted weapons, because proposed paragraph 109.(2)(a) specifically says any firearm other than a prohibited weapon, and then it talks about the prohibition being different from a ban for life.

At any rate, I've made my point.

I'd like to turn to the Canadian Bar Association brief, page 5.

[Translation]

Mr. Marchand: Before concluding, do you allow me one last comment?

You say that it is not provided for in paragraph (b). However, it says:

(b) any prohibited firearms, restricted firearms... for life.

That's why we say that it is included there. It is maybe a problem of interpretation.

[English]

Mr. Wappel: Maybe we do. The way I read it, there is different treatment of firearms that are not prohibited and firearms that are. Otherwise, it wouldn't make much sense to have an (a) and a (b) there.

Let me turn to the CBA. I want to pursue what Madam Venne was talking about. I'm not clear on why you feel we need recommendation one.

Mr. Heintzman: You may not be. I think Mr. Pinx has already outlined that we just wanted to bring to your attention a specific concern of the CBA about domestic violence. It may be covered, as Mr. Pinx said, in proposed section 111. It may already be covered in section 103 of the present Criminal Code.

Does that clear it up?

Mr. Wappel: Okay.

On page 9, you make the important point that the inspection provisions:

open the door to random searches of vehicles, premises and dwelling-houses of firearms owners - even without grounds to suggest they have committed an offence.

You therefore go on to say that these search and inspection powers should be placed in the Criminal Code, and you state the sections. I presume that is because in those sections you require a reasonable ground to believe an offence has been committed.

Mr. Heintzman: Yes. Just on that point, Mr. Wappel, in our recommendation four you should probably add ``and 487'' after ``117.02 through 117.06'', which I think - and Mr. Pinx can correct me - is the general search and seizure section.

Mr. Wappel: Okay.

To my mind, there is a very troubling section in the search and inspection area, and I'd like to turn to it. It's clause 100, on page 43. This is, of course, buried in the search and inspection section, but it places a positive obligation on anyone in the premises to positively render assistance to the police officer, and provides, in clause 107, for a two-year jail term for failure to give the police officer all reasonable assistance.

Don't you see that as a possibility of self-incrimination in the event that what you say occurs, that there would be random searches without grounds?

Mr. Pinx: I think you do make a very valid point. If we begin with the proposition that we have concerns with respect to these clauses to begin with in terms of the powers given, then it would logically follow in our view that your observation is certainly an appropriate one. That is, as you say, engaging this kind of positive responsibility might indeed be a further potential violation under the Charter as well.

I think it could also be added that once again, we can see the concerns you have raised about what sometimes are viewed as powers that simply go too far. That really was the thrust of the concerns we raised when we made our observations about clauses 98 and 101.

The Chair: This is your last question, Mr. Wappel.

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Mr. Wappel: I ask the question because you asked that those clauses, holus-bolus, be put into the Criminal Code. That's why I wanted to bring this clause to your attention. I was hoping you might say to me, ``with the exception of clause 100'', because -

Mr. Pinx: We're not asking that clauses 98 and 101 go into the code. We're simply saying clauses 98 and 101 be taken out of this bill. If you go back to section 487 of the Criminal Code and proposed section 117 of your proposed legislation, those should be where your search powers are derived.

Mr. Wappel: Because your recommendation doesn't say they be removed.

Mr. Pinx: That was the intent. If it's not clear to you, sir, then we apologize. That certainly was the intent of our recommendations to this committee.

Mr. Wappel: Thank you, sir.

[Translation]

Mrs. Venne: I would like to ask you what you think of the sweeping regulatory authority created by the legislation.

Don't you think that under the regulatory authority, the basic rules could be substantially changed on the sole basis of that authority which is rarely seen? I think that up to now we haven't seen that in the bills presented here.

In this regard, you could have a look at clause 110.

Ms Picard: Mrs. Venne, we didn't address that aspect of the legislation.

Mrs. Venne: Thank you. It is unfortunate.

Does the Canadian Bar Association have an opinion on this?

[English]

Mr. Pinx: Perhaps you could assist us; when you speak of ``regulatory authority'', can you clarify what you mean by that term?

[Translation]

Mrs. Venne: I give you the example of clause 110. This is only one example because this legislation often refers to regulatory authority as prescribed. Those are the words which are used.

[English]

Mr. Pinx: It's always been the position of the Canadian Bar Association that as much of the legislation should be in the legislation. That being said, we didn't examine in particular the regulatory powers in clause 110 in any detail.

[Translation]

Ms Picard: Mrs. Venne, our position is that we shouldn't legislate through regulations. We must have as many provisions as possible in a bill. Generally, we don't like too many regulatory powers to be given, because we want the rules of the game to be known to everyone.

As to clause 110 specifically, we haven't any comment to make.

Mrs. Venne: Thank you.

I give the floor to my colleague, Mr. Langlois.

The Chair: Mr. Healy has also asked to answer that question.

[English]

Mr. Patrick Healy (Member, Criminal Law Committee, Barreau du Québec): I'd just like to add a small point on both this question and a previous question, which is to say that while I can see there are concerns that may be raised, it should not be assumed that the provisions we're talking about - either the inspection provisions or the regulatory provisions just mentioned in clause 110 - are unique in the law. They're not being used for the first time.

That doesn't necessarily make them good. It just doesn't make them new. I would suggest there are sweeping regulatory powers that you will find elsewhere in the law. For example, in the Explosives Act there are powers of this kind and there are also powers of inspection that resemble closely some of the powers that have been identified today.

Again, I'm not suggesting that removes all of the concerns, but when the committee reflects on whether the provisions can be sustained in their present form, it should take into account that there are other examples of this kind of legislation already on the books.

[Translation]

Mrs. Venne: However, Mr. Chairman, it should be mentionned that regulations of that scope do not exist in other pieces of legislation. I want to mention it.

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Mr. Langlois (Bellechasse): My first question is for the Barreau du Québec, to whoever wants to answer it.

In the fourth paragraph of your first chapter, you get straight to the point with the constitutional test of Section 7 of the Charter, and farther along, if it were to apply, you would use the Larry Oakes test. You say that it meets the Larry Oakes criteria.

I would like you to run another constitutional test, that of sub-section 92(13). At first sight, we have here a text of a regulatory nature. Is this not clearly an issue of «property and Civil Law»?

My first question is whether or not the Federal Parliament can legislate in these areas.

My second question concerns clause 100 of the bill which forces a person, during an inspection, to give the police officer all reasonable assistance to enable him or her to carry out the inspection and any information relevant to the enforcement of this act. Is this not self-incrimination, since there is already an offence covered by the Criminal Code which deals specifically with obstructing the work of a police officer? This is forcing someone to act.

The Chair: Your time is up, but you have asked two questions so we will allow the witnesses time to answer them.

Mr. Langlois: If you will allow me, Mr. Chairman, my last question complements the first two.

In clause 92, or Part III of the Criminal Code, every person commits an offence who possesses a restricted weapon without the required licences if it is prosecuted by way of indictment. I do not think it can be prosecuted by way of summary conviction.

The maximum sentence is ten years, even for a shotgun or a hunting rifle. We have mentioned proportionality of sentences. A person could end up in a penitentiary if he or she is found guilty of simply having a weapon without the necessary licences, while someone else could be found guilty of manslaughter and end up on parole.

Ms Annie Chapados (Secretary of the Comité en droit criminel, Barreau du Québec): I have not spoken much today. I think this will be the first and last time.

Concerning the obligation to provide assistance, I am probably going to disappoint you, but we did discuss this provision as a committee. Moreover, as you know, the Comité permanent en droit criminel of the Barreau du Québec is made up of lawyers who practice in various areas, defense lawyers, Crown prosecutors and university professors.

It is not always easy to reach consensus, and when there is no consensus, we withold our comments. In this case, we did not reach consensus on a provision.

Mr. Marchand: Just a quick comment on clause 92. I agree with what you said. It illustrates excessive sentences. Morever, in our brief, we discuss excessive sentences without specifically referring to that clause. I think that it illustrates a sentence that could be excessive. We are talking about ten years imprisonment when someone is found guilty of not having a piece of paper. To me, that seems a bit much.

[English]

Mr. Heintzman: If I can answer the first point you made, in our view this is criminal law. The regulation of weapons has been in the Criminal Code for a considerable period of time. A regulatory scheme could be constructed, which is not in the Code, but if the offences for committing violations of that regulatory scheme and of weapons themselves is in the code, or elsewhere, it is still, if it is of an offence nature, criminal law, and in our view supportable as such.

Mrs. Barnes (London West): I welcome our witnesses today. We certainly appreciate your expertise and your assistance.

I want to go over a number of areas. I may need another round to get to all of them, but we'll start anyway.

We had some confusion before the committee with some of our witnesses about the CPIC system and fingerprinting with respect to summary convictions. We've had some evidence that in certain provinces people on summary are fingerprinted, especially when it's a hybrid offence, and we have a lot of hybrid offences in this particular legislation.

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Just with your expertise, because you do cover the country, in your knowledge of hybrid offences, if there's a hybrid offence in the code or in the act is everybody fingerprinted?

Mr. Pinx: My country is Manitoba.

Some hon. members: Oh, oh.

Mr. Pinx: So speaking from Manitoba, because really that is where my experience is derived, yes, in Manitoba if it's a hybrid offence the fingerprinting takes place. In fact, if I'm not mistaken, under the Identification of Criminals Act, I believe it indicates that if it's hybrid and the crown has not made its election, obviously, before the fingerprinting process takes place, it's presumed to be indictable until the election is made.

That having been said, then obviously fingerprinting would probably be mandated -

Mrs. Barnes: Just quickly, there is no fingerprinting on summary in Manitoba?

Mr. Pinx: It varies. I can't say there's a black and white answer.

Mrs. Barnes: Maybe Le Barreau du Québec?

[Translation]

Mr. Marchand: In Quebec, if it is a summary, there is a possibility that it might be an hybrid offence, the fingerprinting usually takes place. No fingerprinting takes place except in the case of an offence wich is only indictable by summary conviction, which happens very rarely.

[English]

The Chair: Is there any other province represented there that might want to answer?

Mrs. Barnes: I hope that's not on my time.

The Chair: I thought that's what you asked.

Mrs. Barnes: Yes, it is. That's fine.

I will go on to just pursue this a little bit further. On an indictable offence - and obviously if you have a hybrid, which we have for most of the offences, there is no limitation on the crown and proceedings - once you're into a summary, what you're recommending for some of these offences, you get into a six-month limitation. I believe it's under section 786 of the code. So we have a six-month period.

I want you to think about the implications where obviously we're going to want to have widespread acceptence of this act and the registration, but there are people advocating not to register. I put your mind to the Ascove decision of a couple of years ago and the implications and all the charges that were thrown out. I think a lot of them in my province of Ontario were related to driving offences where the crown had not had the time to proceed with the cases, and literally hundreds of cases were thrown out.

If we have a reduction to a summary conviction for some of these supposed minor offences that we have right now that are hybrid - so the time limitation wouldn't be there - if we drop it to a summary conviction, do you see that we may end up making a mockery of this law if we have a universal registration system and people repeatedly choose not to follow through and we can't proceed because it's all in summary? Do you see that developing as a potential problem or am I just having too many nightmares about this legislation and thinking up these things?

Mr. Pinx: In my view, and certainly on behalf of the association, I would say I don't think I have that kind of concern. When you're talking about enforcing potential legislation of this kind and if you take a look at the kinds of offences you're dealing with, many of them focus around the category of unlawful possession, which is the way you are possessing it - it might be contrary to the Criminal Code if it's not properly stored, licensed or registered.

The clock would begin ticking upon the finding of the weapon. That is, when you're alleged to be in possession, assuming at this point the police have discovered the weapon, the six months begin ticking. So I don't quite follow what your concern is with respect to the summary proceeding nature because of the fact that the clock begins to tick once the transaction is crystallized. The transaction would be crystallized usually at the time when the search and seizure was made and the weapon found. So, quite frankly, I don't see that being a problem.

Mrs. Barnes: Do you agree with that?

[Translation]

Ms Picard: There is no consensus at the level of the Criminal Law Committee of the Barreau du Québec. So we don't take position on this.

[English]

Mrs. Barnes: Okay. I will pursue it some other way, then.

I just want to go back to the inspection powers, because I know it's certainly caused some investigation. One of my colleagues, Mr. Bodnar, presented a suggestion the other day that if the inspections are really bona fide inspections to ensure compliance - for instance, you may have a landlord-tenant act at a provincial level or some of our utilities where people have to enter dwellings for inspection - what would be your views on giving a notice for the inspection?

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Say I bona fidely wanted to get into the premises for an inspection and I give you 24-hours' notice. What would your reaction be to that?

Mr. Heintzman: I think our concerns would be the same in the sense that this is either criminal law legislation or it's not. If it is criminal law legislation, then we should have criminal law powers attached to it. If it's a regulatory statute, then we get into all sorts of constitutional problems that are very difficult.

On behalf of the association, I would say let's call a spade a spade, this is a criminal law statute, and give to the citizens the protection our criminal law traditionally gives.

[Translation]

Mrs. Barnes: Madam? Is it the same thing?

Mr. Marchand: I have exactly the same view as my colleague. We are against that in a particular case, that of the dwelling which has always been to some extent a person's castle. This was said in many judgements both in the Supreme Court and in England. We are opposed to allowing police forces to enter a dwelling, even with a 24 hour notice, for the purpose of a ``fishing expedition''. We don't think this should be permitted, except when there are reasonable and probable grounds that an offence has been committed. Even with a 24 hours notice, even with policemen who are going to stay at the door to see what's going to happen in the house, we are not much further ahead.

[English]

Ms Meredith (Surrey - White Rock - South Langley): I would like to start by making an observation here. As I understand it, you represent the legal profession across the country and in the province of Quebec. I must say it concerns me that in the presentation of the Canadian Bar Association there was no dealing with part III. You dealt almost exclusively with the registration aspect of this bill.

The Quebec bar seemed to be giving me the impression that they would like the system to remain the status quo, that they did not necessarily support any changes to make part III more severe in the criminal use of firearms.

My question is for both of your organizations. Are you aware of the numbers of cases of charges from the various police forces in your various communities that were brought to the courts with the use of firearms in the commission of crimes, and can you provide those numbers? How many of those charges actually proceeded through the court system? In other words, how many of the charges of the use of firearms were plea-bargained away by your communities?

Mr. Heintzman: I don't believe we have those statistics available to us. When you say, dealt with by way of a plea bargain, that would be a disposition of the offence in accordance with that plea bargain.

[Translation]

Ms Picard: First of all, it should be clear to all the members of the Committee that the Barreau du Québec doesn't belong to the Canadian Bar Association. We are a law society. Some members of the Barreau du Québec are members of the Canadian Bar Association. Consequently, our presentation is the presentation of Québec lawyers on this issue.

Secondly, about what you said, it is impossible to have those statistics. I'm going to ask my colleague to tell you why we can't have this kind of information.

Mr. Marchand: We don't have any statistics on that subject but we see in every day practice that there is always plea bargaining, even with the present legislation, on those famous clauses concerning the use of a firearm in the commission of a crime. As a rule there are agreements to remove the charges or to plead guilty for a given sentence. That is plea bargaining, blackmail in the hands of the prosecution. When I see that the sentence is increased to 4 years, I think of the young person 18 or 19 years old who commits a first offence in a convenience store with an unloaded firearm and who will automatically end up in the penititentiary for at least 4 years.

This frightens me because I don't think and I think that the solution to our problems is to throw people in jail. That's what is going to happen with minimum sentences. There is a lack of trust in the judges who have been appointed for that purpose.

We take away their power and we force them to give us sentences they wouldn't want to give. I am totally against that, and the Barreau du Québec too.

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[English]

Ms Meredith: I would like to pose that there is a lack of confidence by the Canadian public that firearms charges under the present Criminal Code statutes are not enforced. It is a concern of the Canadian public that they see these charges of the use of firearms plea-bargained away.

My concern is that this legislation is not going to change the situation because it doesn't deal with removing the burden of proof as to whether or not a firearm is an actual firearm or a replica. Because the onus is still to prove either that it's a firearm or that it's a replica, it is going to continue to see that any firearms charge is plea-bargained away because it cannot be proved in a court of law.

Do you not see that concern? Do you not have a similar concern with the way this legislation is written?

Mr. Heintzman: I wouldn't agree with you, although I don't do criminal law myself, that the Canadian public does not have confidence in our courts to impose the proper sentence.

The only solution in a criminal justice system is to have the penalty fit the crime, and if you try to impose minimum penalties for other reasons, you will inevitably create injustice. The more you create injustice, the more you will then create a lack of confidence in the justice system.

Sheldon may want to expand on that more since he deals with it.

Ms Meredith: Can I just get a clarification of what you're saying? You don't feel there should be a penalty or a severe penalty for the criminal use of firearms.

Mr. Heintzman: Oh, no, we're not suggesting there shouldn't be a penalty for that, but if you're going to impose a minimum penalty -

Ms Meredith: Of one year.

Mr. Heintzman: - yes, one year, three years or four years; there are various minimums - because you don't have confidence in the judge or the Court of Appeal to do what's right in that situation, I think inevitably you will depreciate the confidence the public has in the justice system.

Ms Meredith: Do I have any more time?

The Chair: You have time for one final question, Ms Meredith.

Ms Meredith: I would like to further this concern I have. You're suggesting, then, that under the existing system where there was a one-year minimum added on - it was supposedly a consecutive sentence - for the use of a firearm, there wasn't a reason for plea-bargaining it away, that most of those charges would have been considered by judges, and that the Canadian public should have faith in the system for determining why they didn't in fact use that one-year minimum under the existing law.

Mr. Heintzman: Or if you are correct that...because you can't prove it's a real as opposed to an imitation weapon, then address that concern and make the change directed at that point rather than minimum penalties.

I think Mr. Pinx wants to add something.

Ms Meredith: Does this address that concern?

The Chair: That was your final question.

Mr. Pinx, you may answer.

Mr. Pinx: The answer I have for you is based only on my experience and what I have observed. I can tell you that in my province, when people are charged with using firearms in the commission of indictable offences and if the crown is able to prove it's indeed a firearm, they proceed on that charge. That seems to be the mandate, at least in my province. They view the use of firearms in the commission of offences extremely seriously and they do seek consecutive sentences.

So this assumption that seems to be being made of plea-bargaining it away, I can tell you, is just simply not my experience.

Ms Meredith: What about my original question as to the numbers?

The Chair: Maybe we'll get back to you.

Ms Phinney (Hamilton Mountain): I'd like to address the Canadian Bar Association and go back to page 9, concerning the inspection section, clauses 98 to 101 of the bill.

Am I correct in assuming - I just want to verify this - that according to your last statement you do not believe these additional search and seizure powers should be included within the firearms act? That's what you're saying, right?

Mr. Heintzman: That's right. I think that's what we intended, yes.

Ms Phinney: That means firearms businesses would then be probably the only businesses in Canada that would not be inspected. Is that what you intend? Did you realize that you would be taking out the inspection of the business?

I think every garage, every grocery store and every store in Canada is under some regulation of being inspected. You are taking out the inspection for businesses. The firearms business would be under no inspection at all.

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Mr. Heintzman: If Parliament believes there should be an inspection power in respect of firearms dealers, then they should propose such legislation, and we would scrutinize it.

Ms Phinney: That is in here.

Mr. Heintzman: It's said to be incorporated in a much broader legislative setting, and our view, as set forth on these pages, is that this setting is just too broad. If it intended to direct a search and seizure towards those carrying on business in firearms, then you might be able to justify a very limited and directed search and seizure power, but it's not this one.

Ms Phinney: Okay, thank you.

[Translation]

Mrs. Venne: What is your position on decriminalization of the failure to register firearms such as shotguns and rifles, but not restricted weapons?

Ms Picard: Again, Mrs. Venne, there is no consensus on that particular issue. There are a number of different views and the Quebec Bar has not yet taken position on that specific point.

Mrs. Venne: Thank you. Does the Canadian Bar Association have a position on it?

[English]

Mr. Heintzman: I think our position is clear that we can justify this as criminal law legislation and it should remain as criminal law legislation. The penalties that are to be imposed are.... In our view, you could attach summary conviction or hybrid offences in some cases, but it should still remain within that regime.

[Translation]

Mrs. Venne: I'd like to ask the representative of the Quebec Bar why their brief makes reference to the fact that it represents a kind of microcosm of the legal world. I wonder why you made that statement. I would agree that you are highly representative of the legal profession, but I really did not see why you felt the need to point it out in your brief. That's only a personal view.

Ms Chapados: Our past experience prompted us to make that point. I know for a fact that when it had appeared in the past before parliamentary committees, there has been some misunderstanding about the make up of the Quebec Bar Association, compared with other so called voluntary associations that are concerned with legal aid issues in Canada. We would like to clear up that misunderstanding once and for all. We hope that by tabling a copy of our annual report with the committee - which I am sure you will want to read - we can put an end to the confusion once and for all. We felt it was quite important to make the point that the Quebe Bar Association Committee included counsel for both the provincial and federal Crowns, defence attorneys, legal aid lawyers and academics. That may explain our silence with respect to certain parts of the bill; we felt that would be preferable to our taking a position that could be biased in favour of either the defence or the Crown.

Mrs. Venne: The only ones missing from your committee are notaries.

Ms Chapados: Well, that's another branch altogether.

Ms Picard: And another debate.

Mrs. Venne: Yes, mine. Does my colleague have any questions?

Mr. Langlois: I want to thank Mr. Heintzman for answering my question on the constitutional test. I was particularly interested in hearing the views of the Quebec Bar on how it would apply to property and civil law, given that this is more a concern in Quebec. If we were to substitute automobiles for firearms here, few would claim that this kind of regulation comes under federal jurisdiction.

I would like to know whether you applied the constitutional test under subsection 92(13) to the first part of the bill.

As for the regulatory power, I fully agree with my colleague, Mrs. Venne. Clause 110 alone sets out 22 separate regulatory powers. There is one I find particularly unacceptable - which is not to say the others necessarily suit me; it is subclause 110(t), and if you don't mind, I would like to read it. It is on page 48.

110. The governor in council may make regulations.

t) respecting the manner in which any provision of this Act or the regulations applies to any of the aboriginal peoples of Canada, and adapting any such provision for the purposes of that application;

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That is what is generally called, in parliamentaray language, the Henry VIII clause granting the executive the right to legislate.

Do you accept the idea that in a lawful society, the Governor in Council should have the right to exempt an entire group of citizens from compliance with the law, and perhaps even bring in different legislation for a specific group? That is my second question.

Ms Picard: Well, we haven't examined that specific issue, although the Criminal Law Committee of the Quebec Bar has indicated, in other presentations before this committee, that legislation should apply equally to all citizens. The Quebec Bar has not taken a position on this specific provision of the bill, but as I just said, it has stated in the past, in presentations on other pieces of proposed legislation, that any laws enacted by government should apply equally to all citizens residing in the country.

Mr. Langlois: And what about my question regarding whether you had applied the constitutional test under subsection 92(13) to the first part of the legislation?

Ms Picard: Well, we did not look at that issue either, which would mean looking at the legislation from a particular perspective. Given the complexity of the bill, we were not able to consider that precise aspect of its implications.

Mr. Langlois: Thank you.

The Chair: Is that all?

[English]

I have certain questions. I want to return to the matter raised by Mr. Ramsay. Mr. Ramsay asked if it would not be possible to ban all weapons under one Criminal Code article, proposed section 117.15, which is at page 98. Some witnesses before the committee have suggested the government could ban all weapons, including ordinary hunting weapons such as shotguns and rifles.

When I look at proposed section 117.15, it appears to me that proposed subsubsection 117.15(2) puts a restriction or a limit on that. Now, it's a fuzzy sort of limit, but in my view it appears to be a limit when it says they cannot prescribe things that are reasonably used for hunting or sporting purposes.

I ask you to take a bit of time in looking at it. How do you see that? In other words, it would seem to me that it would be completely contrary to that section for the government to try to all of a sudden one day issue an Order in Council saying ``All guns in Canada, including shotguns, .22s, rifles, are all banned''. It would seem to me they would be in violation of the spirit, at least, if not the letter, of that proposed subsection.

Mr. Heintzman: I would say, first of all, that we have not specifically addressed our mind to this and none of our bodies have considered this section. I don't want to say anything other than if it is fuzzy, as you suggested, it should be clarified. That's the only thing you could say. But we haven't specifically addressed it.

The Chair: That's fair.

Madam Picard.

[Translation]

Ms Picard: I would make exactly the same comment, Mr. Chairman.

[English]

The Chair: Okay. I move to another point.

This follows up on a previous question about what are the penalties for regulatory deficieny - in other words, if you don't store your guns properly or if you don't fill out the forms properly or you don't register... whether they are better in the firearms act or whether they are better in the Criminal Code sections. The Narcotics Control Act is a Criminal Code statute, although it's not the Criminal Code and there are penalties prescribed in the Narcotics Control Act and they are just as criminal being there as they are in the Criminal Code as such. If we were to transfer those penalties, such as non-registration of a weapon, to the firearms act rather than to keep those penalties in the Criminal Code, would they be at risk constitutionally or would they be any less enforceable or any less serious by doing that?

Mr. Heintzman: I think these sections will be held to be criminal law whether they're in the Criminal Code or not. Whether they should be in the Criminal Code or not I think is much a parliamentary and legislation matter than their history and purpose demonstrates that they are criminal law.

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Whether they should be in the regulatory statute we didn't opine on or give you any assistance on other than to say we think it is well to have the registration part per se in the firearms act. Whether you then put the offences in the Criminal Code or in the firearms act, we have not been specific on. Quite frankly, we didn't look at that matter, so I don't want to speculate.

The Chair: This has been suggested to us by some witnesses because they feel it's not so abusive of their reputation to say they've committed an offence under the firearms act as it is to say they've been convicted of an offence under the Criminal Code. We know it all means the same thing. It's more or less window-dressing.

[Translation]

Ms Picard, do you have any views on that?

Ms Picard: No, Mr. Chairman. I have nothing further to add.

[English]

The Chair: Finallly, there have been charges before this committee that some provisions in this bill will amount to the confiscation of weapons without compensation. For example, restricted weapons will become prohibited weapons, certain types of handguns.

The bill provides that they can be grandfathered in the hands of the person who now holds them, but on the death of that person, if they haven't been sold, in the transmission of the estate of that person those guns might go to a son, a daughter, a nephew. That individual could not hold those guns because they then become prohibited. That would amount to confiscation without compensation.

I wonder if you might wish to comment on that as a violation of our general principles of law that you should have compensation - or is it really a violation of our general principles?

Mr. Heintzman: I would say, first of all, the Charter doesn't contain a protection for property. As well, almost any statute of this nature does contain some interference with property and therefore ultimately justifiable within some reasonable scope.

Again, we haven't addressed this, but I would have thought that kind of consequential impact could be justified in this regulatory and public safety environment.

[Translation]

Ms Picard: The chairman of the Canadian Bar Association has, in his own inimitable style, given a very thorough summary of the issue, and we fully agree with that view.

[English]

Mr. Ramsay: Just to follow up on that, what I understand that you've just said is that if someone owns a firearm legally and he dies, it's quite all right for the state to take possession of that firearm or that property. Do I understand you correctly?

Mr. Heintzman: The individual could destroy it or whatever -

Mr. Ramsay: They're dead.

Mr. Heintzman: Well, all right; it could be destroyed by whoever is the executor of the estate or the appropriate person to do so. Any time you have a change in the characteristics of registration for an automobile, then the automobile that no longer fits within the regulation can't be used. That's the nature of that type of statute.

Mr. Ramsay: So if it can't be passed on to the next of kin or whoever is participating within the estate, then of course it is seized. And you see nothing wrong with that.

Mr. Heintzman: It can't be used any further if it no longer complies with -

Mr. Ramsay: It can't be transferred to the legal heirs. It's going to be seized.

The Chair: You have a prohibited weapon; it wasn't before.

Mr. Heintzman: Right.

Mr. Ramsay: You see nothing wrong with that.

Mr. Heintzman: I think justifying a phase-in period for weapons that are no longer to be usable is a reasonable incident of this type of statute.

Mr. Ramsay: But the bill makes it no longer usable because it's no longer transferable.

Mr. Heintzman: I understand that.

Mr. Ramsay: So the bill in fact does create a situation where private property is taken over by the state at a certain point in time. Is that not confiscation without compensation?

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Mr. Heintzman: As I said, if you want to call it that, yes, but I would suggest to you that any sort of regulatory statute that has this kind of a regime to it necessarily has some articles that fall within it and some that fall without it.

Mr. Ramsay: Of course, I already know what I call it; I'm interested in knowing what you call it.

[Translation]

Ms Picard: Mr. Ramsay, I think the grandfather clause should apply to one generation only rather than ad infinitum. So, there should not be...

[English]

Mr. Ramsay: So you share the opinion of your colleagues.

Mr. Heintzman: I just wonder if Mr. Pinx could add something to that.

The Chair: Another possibility is that the estate could sell it outside the country if they could. In other words, what would be prohibited in Canada may not be prohibited in the United States. If it were a valuable weapon it could be sold in a country where it's not prohibited.

Mr. Pinx: I would think under your current law, for example - we're speaking now of the legislative scheme today - if, Mr. Ramsay, you were found in possession of a weapon you paid for - let's say you paid $500 for it - but didn't appreciate when you bought it that it was a prohibited weapon, you thought it wasn't, and the police came and seized the gun and took it away from you, are you then suggesting that you should be compensated for the $500?

Mr. Ramsay: No, I'm not suggesting that at all.

Mr. Pinx: You would comfortable, then, in that scenario with their taking the gun. Is that correct? I'm not compensating you even though you didn't have a chance to possess it.

Mr. Ramsay: If I purchased something that was illegal -

Mr. Pinx: Without knowing it was illegal.

Mr. Ramsay: - without knowing it was illegal, ignorance of the law is no excuse in this country, I understand, so I would have no argument about that. But that's not the point I was making.

Mr. Pinx: I appreciate that. I'm only raising that because what I think Mr. Heintzman is trying to address, as I understand his position, in very simple terms, is that the law has changed. That is, the law changed while you were in possession of that particular item.

The state is now simply saying, as it would to you in the case where you didn't know it was prohibited, that under this scheme as well we feel it reasonable to not have to compensate but simply allow you a lengthy period of time to keep it in your possession. When it comes time to transfer you'll go to the state or you can deal with it out of the country, as Mr. Allmand has pointed out.

Mr. Ramsay: The point I'm making is that real property within the estate of people is being taken over by the state. That's the point I was asking about, and you both agreed with that.

So I'm happy with your conclusion on that.

Mr. Pinx: It's stating the facts, but the question is whether it's an infringement of the Charter. That's another issue.

Mr. Ramsay: Yes.

I'd like to go back to the point the members from the Bloc made with regard to the regulatory powers in this bill. There are at least 75 different places within this bill that refer to the prescribed method, which of course means a regulation of some type, an Order in Council or whatever.

I was very pleased to hear both of your groups indicate that as much of the legislation as possible ought to be in the legislation. Now, 75 provisions within this bill that allow for the creation of regulations or Orders in Council means we're only seeing a portion of this bill. We don't know what's going to be in the final bill. I ask, with respect, how can we support something when we don't see the entire body? We might see 60% of this bill.

It reminds me a little bit of the Charlottetown accord. We were asked in so many areas of that document to accept a pig in a poke. Do you not feel we're doing the same thing with this bill where the Governor in Council, the Minister of Justice or the cabinet has the power to practically double this bill? Do you not see any danger or any area of concern in that?

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The Chair: Now your question is complete.

Mr. Pinx: I think the Bar Association has expressed its position in our paper, which in simple terms is to put as much as possible in the statute so that we have it defined.

Mr. Ramsay: Yet you still support this.

Mr. Pinx: What we're suggesting is that hopefully the committee will make its appropriate recommendations and that Parliament at the end of the day will hopefully listen to us and agree with the recommendations we're making. That's why we are making the recommendations we are, not on the assumption that the bill will go through based on the way it reads today but that hopefully after hearing from some of us around the table today and from others who have appeared at these hearings, it will be felt that perhaps there are valid concerns being raised -

Mr. Ramsay: I think that's fair.

Mr. Pinx: - and points that should be addressed and considered by the legislature.

Mr. Wappel: For the Canadian Bar Association, on page 13 of your brief you recommend that minor offences be punishable on summary conviction only. The proposed sections you cite are all from the proposed part III of the Criminal Code.

I wonder if I could ask you to turn your attention to page 44 of the bill, clause 105. You will note that it is a punishment clause under the firearms act. You will note that it delineates punishments for 12 specific offences under the firearms act, and what's more, offences that have not yet even been created, because the offences are going to be created by a regulation. Those existing offences and future offences that haven't yet been created will be subject to a five-year indictable offence, or summary conviction.

I have three questions. Have you examined clause 105? If you have, would you consider those delineated sections to be minor offences? If you do, would you then recommend we delete paragraph 105(a)?

Mr. Heintzman: We tried to address this issue on a global basis by saying you should look at those offences that are of a more minor nature and make them into summary conviction offences. We're confident that Canadians will obey the law and that therefore, the kind of legislation and punishment you should have for relatively minor offences should be summary conviction.

Now, we did not go through every clause and analyse them, Mr. Wappel. Mr. Pinx can certainly elaborate, but I don't believe we looked at each of these and indicated which are minor and which are not. We think that's your job.

We just pointed out to you that our position is that you shouldn't have minimum penalties. You should not have some offences solely indictable. They should be both indictable and summary conviction. On those offences that are of a relatively minor nature, they should be summary conviction offences. In that way, we believe the public will be more supportive of the legislation.

Mr. Wappel: I appreciate the answer. However, my point is that we're looking for some help and guidance, and where else would we look when we're drafting legislation than to Canada's lawyers?

For example, you have characterized proposed section 91, which makes possession of a firearm without the necessary licence and registration certificate, to be a minor offence that should be subject to summary conviction. Clause 102 of the firearms portion talks about making a false statement. Clause 103 talks about tampering with a licence. Clause 104 talks about unauthorized possession of ammunition. Would you agree with me that those three clauses would be minor offences similar to the ones you cited?

Mr. Heintzman: I think you have to look at each clause or proposed section. The one we have the most difficulty with is proposed section 91, which is the possession of a firearm without a licence. If that is your threshold offence, you may well decide that has to be more seriously dealt with. But our view is that some of the minimum penalties that are attached to that on subsequent offences are too severe.

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I think this is a legislative matter. Our duty is to bring the issue to your attention and let you grapple with the specifics.

Mr. Wappel: Thank you very much.

[Translation]

Mr. Langlois: First of all, Mr. Chairman, I tabled a motion Monday recommending we hear once again from First Nations Chiefs, given that each political party was only allowed five minutes with them, which strikes me as grossly inadequate given the kinds of concerns they raised. I would like to know whether we will have an opportunity to dispose of that motion today.

The Chair: Where is my clerk? We will address your motion as soon as we have completed the questioning. Do you have another question?

Mr. Langlois: Yes. I would like to address my question to the representatives of both the Quebec Bar and the Canadian Bar Association.

You raised a number of important points in your respective briefs. My understanding is that you support this bill as tabled at second reading. If the Committee decided not to make the amendments you have suggested or most of those amendments, would you continue to support the bill in the form in which it was presented at second reading? In other words, is your support conditional to our incorporating the amendments you have suggested?

Ms Picard: Well, I imagine any piece of legislation can be improved. The question you are asking is really a hypothetical one, because I can hardly believe this consultation process will not result in an improved bill. We obviously hope that amendments will be made to the bill to improve it. That is usually what happens. Now, if I understood you correctly, you are asking whether our continued support of the bill depends on what is in it and what is not, but I'm afraid I really can't give you a precise answer.

Mr. Langlois: Ms Picard, when you say that this is a hypothetical question and you prefer not to answer a question of that kind, I guess you are saying that you feel it's highly unlikely that a bill containing so many errors will not be improved.

Ms Picard: Our view is that this is an important and necessary legislation and we very much hope the suggested corrections we have brought forward will be made so that we can have no hesitation about supporting it.

[English]

Mr. Heintzman: I think that answer is a correct one if you're speaking to lawyers, because we are not legislators. You've asked us our view on legal issues, and we've done our best to answer the legal issues.

The Chair: I want to thank you most sincerely.

I have asked the members to stay so that I can answer the question put by Mr. Langlois on a procedural matter.

I want to thank the Canadian Bar Association -

[Translation]

and the representatives of the Quebec Bar for their presentations this afternoon. You have made some specific recommendations that will certainly prove very useful.

[English]

In many cases your specific proposals supported each other and have assisted the committee. The minister asked us to come up with some alternatives, especially on the inspection provisions. He has recognized that they are not the best possible, and he has asked the committee to come up with something more acceptable. I think you've helped us in that respect and on other matters as well, so I want to thank you.

On Monday afternoon, when the committee heard testimony from the Assembly of First Nations, Mr. Langlois made a motion that - I'm going from memory now, and this is part of the difficulty - we reschedule another meeting, because we didn't have enough time to put all the questions and totally pursue the matters raised by the Assembly of First Nations.

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There's no requirement in our bylaws or in our rules that the motion be made in writing. We often encourage it, but I'm left with a difficulty. The difficulty is, because of the delay in printing the record, I don't have the exact words Mr. Langlois used that day, and he didn't write them out and give them to the clerk.

It's in order that we deal with this today. If Mr. Langlois wants, he could write it out. I don't know if he remembers the exact words. I apologize; the record is nine days late now.

[Translation]

If you write down exactly what you said that day, we can deal with your motion tonight.

Mr. Langlois: I will say it slowly, Mr. Chairman, I move that the Assembly of First Nations, that appeared last Monday, be invited to appear before the committee again so as to complete its testimony before the committee proceeds with clause by clause consideration of the bill.

[English]

The Chair: So we will deal with that this evening.

[Translation]

Could you just confirm that there has been no mistake. I would like to ask the clerk to read the motion out loud so that members can tell me whether we have it right or not.

The clerk of the committee: That the Assembly of First Nations be invited to appear again before the committee to complete its testimony before the committee proceeds with the clause by clause consideration.

Mr. Langlois: Yes, that is right, Mr. Chairman.

[English]

The Chair: Okay. Forty-eight hours have expired.

Mr. Wappel: Mr. Chairman, because of the paucity of members here, and because of the importance of the motion, could we not deal with the motion tomorrow morning when there is a full complement of members?

The Chair: We're not dealing with it now; we're going to deal with it tonight.

Mr. Wappel: I realize that. I'm suggesting that we deal with it tomorrow morning.

The Chair: That would be if Mr. Langlois agrees, because he has a right to ask that the motion be put after 48 hours, and it will be after 48 hours this evening.

Mr. Wappel: I see.

The Chair: If he wants -

[Translation]

We're wondering whether you would prefer to dispose of the motion tomorrow morning or this evening.

Mr. Langlois: Well, if other committee members would prefer, I'm perfectly prepared to agree to our disposing of it tomorrow morning.

[English]

The Chair: The only problem with tomorrow morning is that we have scheduled all these deputies at five-minute intervals. We would have to do it at the end of the morning because if we interrupt that schedule we put some members out of.... It would have to be at the end of the morning.

[Translation]

Good. We will dispose of the motion at the end of the morning. Thank you.

The meeting is adjourned.