Honourable senators, I rise today to encourage you to adopt Bill C-71, An Act to amend certain Acts and Regulations in relation to firearms, at second reading. Once that happens, we can refer it to the Legal and Constitutional Affairs Committee, which will thoroughly study its provisions in light of the many comments we have received, including a little book called Stop C-71, and the witnesses we will be hearing from.

My contribution, which I hope will be useful to the debate, pertains to a number of general legal principles as well as specific elements that I believe the Legal Affairs Committee should consider.

In the Supreme Court of Canada’s 2000 reference on the first act governing firearms possession in Canada, the 1995 act, the justices unanimously concluded that the act, whose purpose was protecting public safety, constituted valid criminal law.

The Supreme Court stated in the reference case that guns pose a pressing safety risk in many, if not all, of their uses. The court noted that firearms are often used as weapons in violent crime, including domestic violence. They are also used to commit suicide. Finally, their misuse, for example, by a child, may cause severe harm and even accidental death.

In the reference case, the Supreme Court also said:

Guns cannot be divided neatly into two categories — those that are dangerous and those that are not dangerous. All guns are capable of being used in crime. All guns are capable of killing and maiming. It follows that all guns pose a threat to public safety. As such, their control falls within the criminal law power.

Thus, Parliament has sought to combat that danger by adopting over the years provisions regarding the possession, use, sale, transfer, transportation and storage of firearms.

In fact, gun control is a matter of criminal law that precedes the Criminal Code. Prior to 1892, over 150 years ago, justices of the peace had the authority to impose a jail term on anyone carrying a handgun, if the person did not have reasonable cause to fear assault against life or property. That is the first legal principle.

The second legal principle is that Canadians do not have the constitutional right to bear arms, unlike what was decided in the United States based on a certain interpretation of the second amendment of the United States Constitution. In fact, the right to bear arms was recognized by the United States Supreme Court in District of Columbia v. Heller in 2008.

However, the situation is very different here in Canada. In 2005, in R. v. Wiles, the Supreme Court of Canada stated:

Possession and use of firearms is a heavily regulated privilege . . . .

Many of those who write us letters that perhaps rely too heavily on information pertaining to the United States and who claim to have the right to own or use a firearm need to be reminded of that important point.

One possible exception may be necessary for members of First Nations, who have entered into treaties recognizing their rights in this area, which are protected under section 35 of the Constitution Act, 1982, 100 years later. It is important to note that Bill C-71 does not amend subsection 3 of section 2 of the current legislation, which reads as follows:

(3) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

In other words, the constitutional rights of indigenous peoples should not be affected by the passage of this bill.

Let me now turn to the the key amendments brought forward in Bill C-71. They can be summarized as follows: amend certain eligibility criteria for holding a licence; require that firearms be transferred to individuals in possession of a firearms licence; remove certain automatic authorizations to transport prohibited and restricted firearms; prohibit two categories of semi-automatic weapons.

My review of the proposed amendments contained in Bill C-71 convinces me that the bill in “pith and substance” is directed to regulating access to firearms through restrictions, prohibitions and penalties. This brings it under the federal criminal law power.

I also would like to point out that the bill does not attempt to bring back a Canadian gun registry. On the contrary, an amendment moved by Conservative MP Pierre Paul-Hus in committee and adopted in the House of Commons adds the following text to section 2 of the bill:

For greater certainty, nothing in this Act shall be construed so as to permit or require the registration of non-restricted firearms.

This amendment confirms that Bill C-71 does not allow for the creation of a backdoor gun registry, even in a very roundabout way.

In brief, the bill seems to pass muster regarding its constitutional validity and does not allow for the creation by the government of a gun registry. But it remains that it is up to Parliament, and not to the courts, to determine whether more gun control is good or bad, whether the bill is fair or unfair to current gun owners, or whether it will be effective or ineffective in reducing the various harms that may be caused by the misuse of firearms.

Therefore, I propose that we send, as soon as possible, this bill to the Legal and Constitutional Affairs Committee for a thorough review and analysis.

As part of this analysis, I would suggest that the committee seek to answer the following questions, among other: What issues does the bill seek to resolve? What facts is the government relying on? Who will be affected by this bill? What are the anticipated benefits of the proposed measures? How will these measures affect legal gun owners? How will these measures affect Indigenous peoples? Is there a balance between the anticipated benefits and the obligations? How much will these measures cost Canadian taxpayers and gun owners?

In conclusion, I think that we still have a lot of work to do, and it would be a shame to defer the vote at second reading, preventing us from hearing as soon as possible from those who are determined to testify during the committee’s clause-by-clause consideration and who want to help us answer the questions I just asked, and also from amending the bill, if need be. Thank you.

Hon. Tony Dean: Will the honourable senator take a question, please?

Senator Dalphond: Yes, please.

Senator Dean: Thank you very much for your statement and for helping us and guiding us with the suggestion of a number of questions to ask as we go through the process.

I want to return to the registry. I’m still getting mail — I’m sure many of us are — suggesting that this isn’t really the end of the long-gun registry. You have spoken to the amendment — I’m not going to repeat it — but I do have a couple of additional questions related to the amendment that was passed unanimously in the House of Commons.

Given your judicial experience, honourable senator, would you agree that the amendment is an added layer of security for those concerned about the long-gun registry and that the intention of Parliament is explicit that the Firearms Act is not to contain a registry?

If a court was seized with this question involving backdoor registration of a non-restricted firearm, would it have regard to the new paragraph that has been placed into the interpretation section? Can you tell us about the significance of the interpretation section? Does it mean that the entire act is covered by that?

Senator Dalphond: Thank you, honourable senator, for this question.

Section 2 is called “Interpretation” and “Definitions.” This section is very important; it governs the interpretation of the rest of the legislation.

Even if it wasn’t so clear, the Interpretation Act does provide that the interpretation provisions apply to the whole act unless there is specific language to discard that provision.

Clearly, if a registry was to be set up, the government would have to try to implement it. That would be against what the bill stands for; the bill prevents that.

There is another principle in law that says you cannot do indirectly what you cannot do directly. An indirect register is also prohibited by the text of the legislation, if adopted. I hope that answers the question. Thank you.