Canada’s Firearms Act monitors licensed firearms owners, those willing to jump through every bureaucratic hoop, pass every safety test, and an RCMP background check.
There is no provision to track those prohibited from possessing firearms and other weapons.
The fundamental flaw with Canada’s Firearms Prohibition Order (FPO) system is that there is no enforcement component to the system.
No public safety agency is tasked with making sure those people who are prohibited from possessing weapons comply with their prohibition orders.
When a judge orders a person to be prohibited from possessing firearms or other weapons, the only government agency the Court is required to notify ‘without delay’ (Firearms Act Section 89) is the Canadian Firearms Program.
The Canadian Firearms Program deals only with licensed firearms owners. The purpose of the notification is to revoke the licence of the individual who is subject to the FPO. That individual is not found in the Canadian Firearms Program database, because it monitors law-abiding citizens.
The Cycle of Recidivism
The only way a criminal is charged with violating their Prohibition Order is after they are arrested for committing other offences.
At that point, police discover the individual is already prohibited from possessing weapons, so they lay new charges for violating those existing orders.
Judges, upon convicting the individual for that violation, issues a new Firearms Prohibition Order against the criminal, and the cycle repeats.[i]
Every month, news reports chronicle the hundreds of people charged with violating their FPOs. In every case, they are arrested because they committed new crimes and, in processing those arrests, police discover they are also violating their prohibitions.
A New Approach to Public Safety
Two countries down under are taking a different approach to protecting the public.
New Zealand
In New Zealand, Firearms Prohibition Orders Legislation Amendment Bill[ii] 24-1 “proposes to prevent people whose behaviour and actions represent a high risk of violence from being able to access firearms or restricted weapons in order to improve public safety.”
“It would also prohibit a high-risk person from associating with people in physical possession of firearms or reside at or visit locations where firearms are held, including gun shops, arms fairs or gun clubs. The FPOs would continue to be enforced for 10 years and would take effect either on the date on which the order was made or the date on which the offender is released from custody after having served a term of imprisonment.”
Under the proposed legislation, the Commissioner may make a prohibition order if the Commissioner is satisfied:[iii]
- The person is not a fit and proper person; or
- Possession would likely result in an unlawful use; or
- The person is a member of a disqualifying organisation; or
- It is otherwise in the public interest.
This change allows courts to make FPOs against gang and organised criminal offenders who have been convicted of a wider range of offences, and who pose a risk to public safety.
The Bill amends the Search and Surveillance Act 2012 to introduce a new “without cause” search power that enables the New Zealand Police to search a person who the police suspect, on reasonable grounds, is subject to an FPO.
That new search power could be conducted at any time, at any place or vehicle the person is present or that the person owns or has access to.
Australia
Australia’s legal system is different, in that each of its 6 states and 7 territories have their own constitution, legislature, executive government, judiciary and law-enforcement agency.
This makes creating a national firearms prohibition order system challenging, as each state or territory must pass legislation to create the tools required to build and enforce the FPO system.
That work is well underway, as some states already have an FPO system and others introduced legislation to create their own.
New South Wales introduced Firearms Prohibition Order measures that include warrantless searches in 2017.
In 2019, the Northern Territories passed legislation which introduced a Firearm Prohibition Order, as well as increased maximum penalties for a range of firearms offences.[iv]
The State of Victoria recently (Feb 2024) introduced legislation to strengthen their existing Firearms Prohibition Order system to make it easier for police to “crack down on crime.”[v]
Changes include removing loopholes that “allow serious criminals to avoid being served with FPO – even if they are already in custody.”
Under the current FPO system, an individual can avoid being served an FPO simply by refusing to open the door when police show up to serve it. Criminals already in police custody can refuse to be served with an FPO simply by saying they refuse service.
The State of Victoria recently proposed a system that will allow police to search the homes and vehicles of anyone subject to a Firearms Prohibition Order to remain consistent with other states and territories.
The State of Western Australia proposes to add the same policies as New South Wales, the Northern Territories and Victoria to their Firearms Prohibition Order system.[vi]
Opposition to the new legislation
The New Zealand Law Society (NZLS) is concerned about the search provisions.[vii]
“As drafted, the new search power, confers an unlimited power of search of a person
solely on the grounds of suspicion that the person is subject to an FPO. A monitoring power not tied to the underlying purpose of monitoring whether a person subject to an FPO is accessing firearms, is unreasonable.”
“The creation of a warrantless search of any premises in which the person is present,
or that the person owns, occupies, or controls is unreasonably broad and
inconsistent with the right to be free of unreasonable search and seizure.”
New Zealand Council for Civil Liberties “condemns this bill in the strongest terms.”[viii]
“The Council believes neither that the limiting measure is rationally connected to the bill’s purpose. The Council further does not believe that there is any chance that the search and seizure amendments from subpart 2 have any chance of surviving a New Zealand Bill of Rights Act 1990 (BORA) challenge in our Supreme Court.”
In Australia, similar opposition exists to the warrantless search provisions.
“This isn’t really about firearms, it’s about giving police the powers for warrantless search and seizure on anyone that they choose,” said MP David Limbrick of the Libertarian Party.
“I don’t think that undermining the rights of Victorians is the way that we want to be tackling organized crime.”
In both nations, whether these search provisions stand may boil down to how their Supreme Courts weighs in on the definition of “unreasonable”.
When an individual proves repeatedly, by their actions, that they’re willing to violate a Firearms Prohibition Order, is it “reasonable” to search them and their properties without a warrant?
We believe the answer is a resounding “YES” because actions must have consequences.
Canadian Government Complacency Reigns
While much lip service is paid to “keeping Canadians safe” very little actual work is done to ensure we are protected from violent, repeat offenders.
Successive Liberal Public Safety Ministers all refuse to address the glaring hole on Canada’s broken Firearms Prohibition Order system.
- No police agency in Canada tracks individuals with Firearm Prohibition Orders registered against them.
- There is no legal requirement for police to track individuals with Firearm Prohibition Orders registered against them or routinely check on them to ensure compliance.
- There is no legal requirement for individuals with Firearm Prohibition Orders to notify police when they move to a new residence. Police have no idea where these people are.
The only way repeat offenders with Firearms Prohibition Orders are discovered is when police arrest them for some other crime. After their arrest on other charges, police realize the offender is the subject of a Firearms Prohibition Order and charge them with that offence as well.
CSSA believes there is a legal argument to be made that will withstand a Charter challenge. All we require is a government willing to put true public safety over its own re-election ambitions.
Will that day come in 2025?
We hope so, and we urge you to continue to work diligently at your local level to elect a candidate who will take your family’s safety seriously, something the current Liberal government does not.
[i] https://christopherdiarmani.com/firearm-prohibition-order-violators/
[ii] https://www.parliament.nz/en/pb/sc/make-a-submission/document/54SCJUST_SCF_D11CAB7C-84E1-4E37-1DBB-08DC38A90C66/firearms-prohibition-orders-legislation-amendment-bill
[iii] https://hhg.com.au/articles/firearm-bill-2024/
[iv] https://www.abc.net.au/news/2024-05-06/gun-laws-in-the-northern-territory-need-reform/103015292
[v] https://www.skynews.com.au/australia-news/new-victorian-weapons-laws-give-police-greater-powers-in-latest-crime-crackdown-but-the-opposition-wants-more/news-story/1ddbabc7c62b25b855777dd113b81db8
[vi] https://www.news.com.au/national/western-australia/how-west-australias-planned-firearm-prohibition-orders-imitate-laws-in-nsw-vic/news-story/eca643416b61454c510117f569544c5d
[vii] https://www.lawsociety.org.nz/assets/Law-Reform-Submissions/Firearms-Prohibition-Orders-Legislation.pdf
[viii] https://nzccl.org.nz/submission-firearms-prohibition-orders-legislation-amendment-bill/
