I’m a retired lawyer with a fair bit of experience relevant to this thread. Let me say that I’m a long time firearms owner, and that I don’t at all agree with the OIC here, which will I think, do nothing whatever to advance public safety, and which I think was instead drafted with purely, and coldly, political motives. I also think it less than well thought out, inelegantly drafted, contains some clear mistakes, and shouldn’t have been put in force by the route adopted. I hope the present government pays a political price for it. However the notion that it turns shotguns into prohibited weapons is not, in my view, correct, and advancing that argument does not, in my view, help our cause. At best, it’s a distraction; at worst, it makes us look foolish.
This notion started as a result of an opinion which I have read. I do not know the motives behind the writing of that opinion; I do disagree with the conclusion. While hardly necessary: I am not now a practicing lawyer, and what follows is but my opinion, and not legal advice.
The opinion upon which this whole mess is based has, as its core premise, the following definition: “The bore of a firearm barrel is the largest internal diameter of the barrel tube through which the projectile travels.” (Emphasis added.)This is stated without any authority whatever. The core question is: is this correct? Given that the conclusions of the opinion depend entirely upon the acceptance of the definition, it’s a tad strange that it is presented without giving any authority.
Be that as it may. How do you interpret s. 95 which, subject to some exceptions, makes “(a)ny firearm with a bore diameter of 20 mm or greater...” a prohibited weapon.? Obviously, how you determine the bore diameter is pretty important. Note that ‘bore’ in “bore diameter” doesn’t have the same meaning as ‘bore’ in the definition quoted above. Here ‘bore’ simply means the interior of the barrel, and prohibits barrels whose measured internal diameter is 20mm or more. So the question is: where do you measure it? If the bore is of constant diameter, no problem (leaving aside land to land or grove to grove issues). But if it isn’t, do you measure at the smallest bit, the largest bit, or take some average? The terms ‘bore’ and ‘bore diameter’ aren’t defined in the OIC, the regulations, or Firearms Act. So we have to look at normal usage, and the legislative intent, as shown, among other things, by the relevant bits of the language of the OIC itself.
Let’s do both. To start with legislative intent: is the intent to prohibit weapons with large bores, because they are a danger in and of themselves, or is it to prohibit weapons capable of firing projectiles with certain characteristics? The objectives stated in the OIC are to prohibit firearms “...characterized by their design and their capability of inflicting significant harm....” We can also look to the particularized list, which includes anti-tank rifles, mortars, missile launchers and the like. Not a single firearm on the list fires a projectile less than 20mm in diameter, and all of the intended projectiles are capable of inflicting more damage than your average rifle or shotgun. So the question is: is the intent of the legislation to prohibit weapons capable of firing projectiles larger than 20mm in diameter, which would entail measuring bore diameter at the smallest bit, or is it to ban an Elmer Fudd style .22 rifle, manufactured with a flared muzzle exceeding 20mm, although the rifle is incapable of firing anything other than a .22? That would be a silly result, and isn’t consistent with the stated objectives. There’s a principle of legislative interpretation that you don’t adopt a meaning that gives a silly result when a meaning that doesn’t give a silly result is available. Accordingly, ‘bore diameter’ means as measured at the smallest point if the bore has a varying diameter.
What about normal usage? While hardly precisely defined terms of art, ‘bore’ and ‘calibre’ are sometimes defined such that for a particular barrel ‘bore’ is the inside diameter of the barrel, and ‘calibre’ is the outside diameter of a projectile that barrel will fire, and that calibre roughly equals bore. For obvious reasons, if the barrel is not of constant diameter, the bore is the smallest diameter of the barrel. That usage is common enough that defining ‘bore’ as the “...largest internal diameter of the barrel tube...” is clearly wrong.
Finally, given that the OIC effectively creates a crime, and is therefore to be strictly construed in favour of an accused, there is simply no way on earth given the above, and given other factors - such as whether the language is the section can even be applied to shotguns given their barrels are measured by gauge, not by bore diameter, and given that the Minister responsible says otherwise, that any court would find a 12 gauge shotgun is captured by the language of this OIC, or that any Crown would approve a charge in the first place.
A final point: the language in the OIC which effectively makes some firearms prohibited starts off with “the firearms...” or “any firearm.... ” In other words, if something isn’t a firearm, the language that follows doesn’t apply, and ‘firearm’ does have a legislative definition. So because a flare gun isn’t a firearm, the OIC doesn’t apply however big the bore. So too with air soft guns or the like. Just because it has a name that occurs in a list, it doesn’t become a prohibited firearm, unless it was a firearm in the first place. To put it another way: the OIC only changes the classification of some firearms; it doesn’t make anything a firearm that wasn’t so in the first place. I can name my dog AR-15. The OIC doesn’t thereby make him into a prohibited weapon.
