Note: This article was written a number of years ago. While a little dated, it does have some application to the question at hand.
THE AR-15 COMPLICATIONS
by David A. Tomlinson, National President (1984-2007)
THE AR-15 COMPLICATIONS
Question: "I hear that the government is planning to convert the Colt AR-15 rifle and all its variants to "prohibited firearm" status. Is that rumor true?"
Answer: Probably not. Converting the AR-15 to "prohibited firearm" status appears, at first glance, to be easy, under CC s. 117.15, which says:
- 117.15 (1) Subject to subsection (2), the Governor in Council (GIC) may make regulations prescribing [by Order in Council (OIC)] anything that by this Part is to be or may be prescribed. (The GIC is really the Minister, but they like to pretend that the Governor General and the Cabinet, who are members of the GIC, have something to do with it.)
- (2) In making regulations, the [GIC] may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the [GIC], the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.
Read that "limitation" in CC s. 117.15(2) very carefully. It is designed to work in reverse to what it seems to be saying. The Minister can outlaw
anything if,
in his own opinion, it is not "reasonable for use in Canada for hunting or sporting purposes." If he outlaws all .30-30 Winchester rifles, for example, no one can stop him – and no court of law can overrule him.
Why can’t a court overrule him? Because the law specifies "in the opinion of the GIC" – and so no court of law can substitute its own opinion for the opinion specified in the
law.
Similarly, he can convert, by OIC, all reloading presses to "prohibited devices" and all cartridges that use expanding bullets to "prohibited ammunition" at the drop of a hat, without warning, and without having to go through Parliament. CC s. 117.15 makes the Minister
very powerful.
That said, the AR-15 looks vulnerable. However, there is no provision in existing law that would work to "grandfather" any AR-15 or AR-15 owner, and "grandfathering" would be needed.
If the AR-15 is simply declared to be a "prohibited firearm" by OIC, that would mean that none of them, and none of their owners, are "grandfathered." Every one in Canada would have to be seized and confiscated, and compensation would have to be paid to its owner.
"Hey, wait a minute. Couldn’t they just add the AR-15 to ‘Prohibited Weapons Order No. 12 or 13’ list, so that people with Firearms Act section 12(4) or 12(5) licences could own them?
No, they cannot do that. If you read FA s. 12(4) and 12(5), you will see that are solid granite. The OIC lists are what they were on "July 23, 1992" for 12(4) and "November 29, 1994" for 12(5). Neither list can be changed in any way without an Act of Parliament, and that would have to go thorough three readings in the House of Commons, plus three readings in the Senate, plus Committee hearings in both. The government does not want to open that barrel of snakes.
Now look at FA s. 12(2) and (3). The AR-15 does not fit in either of those. FA s. 12(6) or 12(7)? Nope. The AR-15 cannot be shoehorned into either of those, either.
Therefore, if the government converts the AR-15 to "prohibited firearm" status by OIC, it must either run a new Act of Parliament through to create a new "grandfathered" subclass in FA s. 12, or seize and confiscate every AR-15 in Canada – paying compensation to each owner. Either way, it would be a
big job to "grandfather" AR-15s and their owners, or, alternatively, hunt the rifles all down and confiscate them.
"But why do you say it would be a big job to find them? They’re all registered, aren’t they?"
The fact that the Registry thinks you have a particular firearm does
not mean that you actually have it. The Registry frequently issues new Registration Certificates to new owners without deleting the old Registration Certificate. It makes that error with monotonous regularity. That leaves the old owner shown in Registry files as still having the firearm – but it is a "ghost gun."
How often that happens is proved by comparing the records of the Registry with the records of an active firearms dealer. It is not at all unusual for a dealer to have more "ghost guns" shown as being "in" his stock than there are real guns in his store. The record for number of identified "ghost guns" is held by an Alberta auctioneer, who discovered, when he retired, that the Registry contained over 3000 "ghost guns" registered in the name of his business.
"That’s interesting, but what does it mean if the government starts confiscating AR-15s?"
It means that the owner can simply tell the confiscating officers that he legally sold and properly transferred his AR-15s some time ago, and the government has no way to prove – beyond a reasonable doubt – that he did not. The Registry’s records are riddled with errors, omissions, duplications, "ghost guns" and "gone guns." They are very untrustworthy – and that can be proved.
"Er – what’s a ‘gone gun’?"
You have fifty registered firearms. The Registry has fifty duplicates of your Registration Certificates, each one showing that
this firearm is in
your possession, and you live at
this address. Let’s say that on the day after tomorrow, you move to Moose Jaw, emigrate to Peru, or get run over by a bus and they bury you.
Unless somebody tells the Registrar what has happened, his files will continue to show those fifty firearms at the old address – where you no longer live. They become "gone guns."
On 09 Jan 2001, the Registry admitted how rotten its records are. They estimated that, of the 1,250,000 green-paper Registration Certificates they had on file – all of which expire on 31 Dec 2002 – only 600,000 would be re-registered as real firearms as required by law. The other 650,000 were "ghost guns" or "gone guns" or the result of some other error. Their estimate was found in an Access to Information file several months ago. The NFA had been estimating, for years, that 20 to 40 per cent of the Registry’s records were meaningless trash. Their own estimate is that over 50 per cent of the Registry’s records are meaningless trash.
With the AR-15s, there is another problem with some of them. Some canny owners bought an AR-15 "frame or receiver" when the AR-15 became a "restricted firearm." Then they transferred all of the parts from their unregistered AR-15 to the registered "receiver," creating a registered whole firearm.
If the government decides to confiscate all AR-15s, those owners probably plan to remove all parts and give up only the "frame or receiver" – which is all that the law requires. Whether or not their parts will be assembled to the old unregistered "receiver" is a question I cannot answer.
When the government decided to rely on firearms bureaucrats to write firearms law, it opted for confrontation instead of communication and cooperation. It also placed all its reliance on bureaucrats who were not the "world-class experts" that they claimed to be. As a result, the firearms control system is overly complex, hyper-expensive, and vulnerable to old Supreme Court of Canada decisions. Those decisions make it likely that certain key portions of the Criminal Code will be struck down as being unconstitutional. The NFA has a file of such defences, and is waiting impatiently to test them, once all the amnesties are over.
All in all, changing the class of the AR-15 is opening a barrel of snakes. It will open both the Firearms Act (by modification of FA s. 12) and the firearms sections of the Criminal Code to proposed amendments by the Opposition, and even by irritated Liberal back-benchers.
With the level of expertise demonstrated so far, it seems likely that any attempt to do it will cause more problems than it will solve. The litigation costs will be astronomical.
