Team CSSA Special Report – August 1, 2015: UN Firearms Marking System deferred to June 1, 2017

SOR/2015-195 July 16, 2015  

FIREARMS ACT    

P.C. 2015-1085 July 16, 2015

 

Whereas the Minister of Public Safety and Emergency Preparedness is of the opinion that the change made to the Firearms Marking Regulations (see footnote a) by the annexed Regulations Amending the Firearms Marking Regulations is so immaterial and insubstantial that section 118 of the Firearms Act (see footnote b) should not be applicable in the circumstances;

 

And whereas the Minister of Public Safety and Emergency Preparedness will, in accordance with subsection 119(4) of that Act, have a statement of the reasons why he formed that opinion laid before each House of Parliament;

 

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to section 117 (see footnote c) of the Firearms Act (see footnote d), makes the annexedRegulations Amending the Firearms Marking Regulations.

1. Section 6 of the Firearms Marking Regulations (see footnote 1) is replaced by the following:

6. These Regulations come into force on June 1, 2017.

(This statement is not part of the Regulations.)

The primary stated purpose for marking firearms is to enable law enforcement to trace crime guns, and the trafficking and stockpiling of firearms, in the interests of public safety and national security. Firearms tracing is a best practice undertaken at the outset of an investigation. Tracing is the systematic tracking of the history of recovered or seized firearms from the point of manufacture or importation through the supply chain until they become illicit. Tracing can offer early investigative leads, contribute to cost efficiencies for police by simplifying efforts, focus investigations given that time is critical to solving crimes, and help to build a strong evidentiary case to obtain a conviction.

 

The utility of some marking schemes for tracing, such as the existing Regulations, is diminished by the destruction of the long-gun registry and the absence of business record-keeping requirements, since the efficiencies of tracing are realized when a record of the most recent legal owner can be linked to a specific combination of information (serial number, name of manufacturer, etc.) which is marked on the firearm.

 

The marking of specific information on firearms is one of several requirements of the United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (UN Firearms Protocol) and the Organization of American States (OAS) Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials (CIFTA). These international treaties seek to counter the illegal production and movement of firearms by enabling crime guns to be traced in order to combat terrorism, organized crime and other criminal activities. Canada signed the UN Firearms Protocol in 2002 and the CIFTA in 1997, but has not ratified either of the treaties.

 

In order to comply with these agreements, Canada requires, among other things, a scheme for the marking of firearms. In addition to being treaty imperatives, firearms markings have value for domestic law enforcement, as they can be used to combat the criminal use of firearms and to return a stolen firearm to its rightful owner.

 

The Firearms Marking Regulations, drafted to respond to the international treaties, were made by the Governor in Council in 2004, but not brought into force. They stipulate the markings that need to be permanently stamped or engraved on the frame or receiver of all firearms imported into, or manufactured in, Canada. Domestically manufactured firearms must bear the name of the manufacturer, serial number and “Canada” or “CA;” imported firearms must be marked with “Canada” or “CA” and the last two digits of the year of import, e.g. “15” for 2015. The markings must be of specific dimensions to prevent obliteration of the data and to allow for tracing.

 

In response to requests by firearms businesses for additional preparatory time, the coming into force of the Regulations was amended to April 1, 2006, deferred to December 1, 2007, and deferred again to December 1, 2009. During the 2007–2009 deferral period, an independent study was undertaken by Government Consulting Services to look at the utility of markings from a law enforcement perspective, the various marking technologies available, and the implications for the Canadian firearms industry and users. The study found that markings help to expedite law enforcement tracing efforts by focusing investigations to the last legal owner of the firearm or the most recent country of import, rather than to the manufacturer. The study further determined that the cost to stamp or engrave markings would be low for Canadian manufacturers and large importers (i.e. ranging from zero cost to $25 per firearm depending on when and what markings are applied), although it was not possible to determine the financial impact on individuals and small importers.

 

Some firearms advocates are of the view that the obligation to mark “Canada” (or “CA”) and the last two digits of the year of importation would require Canadian importers to acquire marking technology or make arrangements for another company to apply markings, with an estimated cost of $200 per firearm. However, the independent study commissioned by the Government determined a $21 increase under the same circumstances. Most law enforcement representatives support import marking to expedite domestic and international tracing of crime guns.

 

The Regulations were deferred again until December 1, 2010, to consider a proposal to place the information required by international treaties on adhesive metallic strips. The Regulations were subsequently deferred to December 1, 2012, to permit examination of program design and implementation issues associated with the current (e.g. permanent stamping or engraving) and alternative (e.g. adhesive metallic strip) marking options in order to determine a marking scheme that would contribute to public safety, meet international obligations, minimize costs to the Canadian firearms industry and firearms owners, and facilitate law enforcement tracing efforts. During this deferral period, tests conducted with adhesive metallic strips confirmed that this proposal was not viable for marking firearms.

 

On October 13, 2012, the Government published in the Canada Gazette, Part I, proposed amendments to the existing Regulations. Pursuant to the proposed amended Regulations, a firearm manufactured in, or imported into, Canada would be permanently stamped or engraved, on the frame or receiver, with a serial number, name of manufacturer and any other markings as required to distinguish it from other firearms. There would be no requirement to mark “Canada” (or “CA”) and, in the case of imported firearms, the year of import. The proposed amendments were not advanced.

 

On November 30, 2012, the existing Regulations were deferred for one year, until December 1, 2013, to provide sufficient time for comprehensive consultations to allow for further consideration of possible amendments to the Firearms Marking Regulations.

 

On November 21, 2013, the coming into force of the Regulations was deferred until December 1, 2015. The Government sought the deferral for continued and broader stakeholder consultations, with a view to determining the precise nature of possible amendments to the Firearms Marking Regulations, including their repeal.

Deferral of the coming into force of the Firearms Marking Regulations to June 1, 2017. Additional consultation time is required to allow for the determination of a regime for marking firearms that will be beneficial for law enforcement crime gun investigations, without being too onerous for firearms businesses.

The deferral of the coming into force of the Regulations permits the Government to continue in depth consultations with a broad range of stakeholders. During the deferral period, a marking scheme could be determined that will enable law enforcement to trace crime guns and permit Canada to assist international investigations, without imposing unnecessary administrative burdens on firearms businesses.

The deferral amends the coming into force date of the Firearms Marking Regulations from December 1, 2015, to June 1, 2017, amounting to an extension of 18 months.

The Firearms Marking Regulations were made by Governor in Council in 2004, although they have not been brought into force. Potential regulatory options would be determined after the con-clusion of consultations and further consideration by the Government.

The proposal to mark firearms with adhesive metallic strips is not considered to be a regulatory option. In 2011, the Royal Canadian Mounted Police (RCMP) conducted tests examining this proposal. Working with the adhesives and sealant industry, adhesive technologies known to be among the strongest binding agents available were identified for testing. The RCMP subjected these adhesives to various conditions (e.g. extreme temperature variations) and elements (e.g. cleaning solvents) to which firearms are commonly exposed. It was concluded that the marking of firearms with adhesive metallic strips is not practically viable given the challenges of ensuring adequate adhesion under a range of conditions.

There are no costs associated with the deferral of the coming into force of the Regulations. By seeking the extension, the Government could continue to consult to determine a marking regime which will be beneficial for domestic and international law enforcement and manageable for firearms businesses.

The “One-for-One” Rule does not apply to this proposal, since there is no change in the administrative costs to business.

The small business lens does not apply to this proposal, since there are no costs to small businesses.

In 2013, the coming into force of existing Regulations was deferred until December 1, 2015, to allow for continued and broader stakeholder consultations.

The Minister of Public Safety has consulted with the Minister’s Canadian Firearms Advisory Committee, on potential amendments to the existing Regulations. There are 10 individuals on this Committee who have backgrounds as civilian firearms users and firearms advocates, with some having experience in non-governmental organizations and law enforcement. The Committee expressed support for having fewer marking requirements in the existing Regulations.

Law enforcement representatives, such as the Canadian Association of Chiefs of Police, have supported the coming into force of the existing Regulations, from the perspective of public safety and national security. Given the value of markings for firearms tracing, they have consistently stressed the importance of having sufficient markings on firearms to render them individually identifiable from each other, for instance, using a serial number with the name of the manufacturer and other specific markings, and for the Regulations to have rigour (e.g. penalties and definitions). They consider these aspects important to ensure law enforcement tracing capability, in order to expedite investigations into specific gun crimes and to help detect firearms trafficking, smuggling and stockpiling. Law enforcement representatives further note the value of import marks, which increase the effectiveness of tracing technology by instantly identifying the most recent country of import to submit a trace request, and by directing investigators on whether to focus on a smuggling operation or domestic trafficking.

In addition to the consultations held to date with the Canadian Firearms Advisory Committee, the Government could seek the views of other stakeholders, including law enforcement, industry, victims’ representatives and the international tracing centres of Interpol and the United States Bureau of Alcohol, Tobacco, Firearms and Explosives.

The multilateral agreements to which Canada is a signatory, namely the United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (UN Firearms Protocol) and the Organization of American States (OAS) Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials (CIFTA) require, among other things, member states to adopt specific firearms markings, record retention and information sharing systems to counter the illegal production and illicit movement of firearms. The requirements facilitate police crime gun tracing in order to combat terrorism, organized crime and other criminal activities.

The existing Regulations were drafted to respond to the firearm marking requirements of the UN Firearms Protocol and the CIFTA. With the deferral of the Regulations, Canada would not be in a position to ratify these treaties, since the treaties require firearms markings. Apart from the marking of firearms, the treaties require the maintenance of records to allow for international law enforcement collaboration on tracing. Canada does not meet this imperative given the termination of registration and business record-keeping requirements with regard to non-restricted firearms.

With the deferral of the coming into force of the Regulations, the Government could consult extensively with a range of stakeholders about possible regulatory changes, in order to implement a marking regime that will be beneficial to domestic and international law enforcement, and not onerous for firearms businesses.

The Regulations will come into force on June 1, 2017.

The amendment defers the coming-into-force date of a measure that has not yet been implemented. Consequently, no other implementation, enforcement or service standard issues have been identified.

Communication efforts of the RCMP Canadian Firearms Program will focus on informing firearms businesses and law enforcement stakeholders of the deferral via the Web. Otherwise, communications will be handled reactively.

Lyndon Murdock

Director

269 Laurier Avenue West

Law Enforcement and Policing Branch

Public Safety Canada

Ottawa, Ontario

K1A 0P8

General inquiries: 613-944-4875

Fax: 613-954-4808

Email: firearms@ps-sp.gc.ca