The red flag measures in Bill C-21 will lead to secret hearings where false accusations may be easily made and the accused is not provided an opportunity to refute the claims against him or her. Once the judge has ruled that the firearms are to be confiscated, the accused is not allowed to appeal. The judge’s decision is final. Moreover, the person making the accusation can be hidden from the accused. Arguably, these provisions violate the Charter of Rights and Freedoms, so Bill C-21 is likely to lead to significant Charter litigation surrounding the accused’s right to legal due process.
Now before the Senate, Bill C-21, has been assigned to the Standing Senate Committee on National Security, Defence and Veterans Affairs for examination. The government’s latest attempt to “curb gun violence,” is a grab bag of measures, including a variety of gun bans that primarily impact law-abiding Canadians as well as the new “red flag” provisions that allow police to seize firearms.
Bill C-21 violates our Charter Rights
The “red flag” provisions introduced in this legislation are particularly egregious and deserve greater attention but they have been overshadowed by amendments that banned many popular semi-automatic firearms that were introduced at last minute in the House of Commons.
For obvious reasons, the public has focused on the controversial gun bans. When the bill was before the Standing Committee on Public Safety and National Security in the House, the government at the last minute introduced amendments banning hundreds of thousands of popular semi-automatic firearms. These bans included firearms that were widely used by hunters, ranchers and sport shooters. The outcry from the public and the police, even from Indigenous groups, led the government to hastily drop these amendments and substitute a “technical amendment.”
The new amendment prohibits:
“[any] firearm that is not a handgun and that; discharges centre-fire ammunition in a semi-automatic manner, was originally designed with a detachable cartridge magazine with a capacity of six cartridges or more, and is designed and manufactured on or after the day after the Bill comes into force.”
The government postponed announcing which firearms will be prohibited by assigning that task to the Canadian Firearms Advisory Committee (CFAC) which will be appointed by the Minister of Public Safety at a later date. The government admitted they plan to confiscate more guns from government-licensed firearm owners through an “order in council” (OIC).
The red flag measures are open to abuse.
Not only do the “red flag” provisions carry great potential for abuse, they are redundant and unnecessary. The government falsely claims that red flag provisions are needed to allow weapons to be seized from dangerous individuals in an emergency. The police already have the authority to act immediately with or without a warrant to seize firearms when there is a genuine concern about public safety. Section 117.04 of the current Canadian Criminal Code permits disarming anyone who poses “an imminent threat to themselves or others.” The police also have the power at present to seek a warrant to seize firearms. The current powers are sufficient and preferable.
Moreover, red flag provisions open the door to abuse. On the basis of accusations alone, the red flag legislation allows firearms to be confiscated from anyone who “may pose a danger to themselves or others.” As written, Canadians subject to the seizure will not have the opportunity to protest or appeal. Thus, false accusations may be easily made and no opportunity is provided for an individual to refute the claims.
Bill C-21 violates our Charter Rights
The new red flag measures proposed by Bill C-21 are not supported by any Canadian women’s organization. These provisions require complainants to make an application to a court for an order to remove a firearm. Since the court system is already under resourced and backlogged, this means that the red flag provisions would be ineffective in an emergency, as there would be a considerable delay in appearing before a judge to get a prohibition order.
New language lowers the bar for confiscating firearms from legal owners. The proposed red flag measures allow firearms to be confiscated from anyone who “may pose a danger to themselves or others” rather than the present standard, which is anyone who poses “an imminent threat to themselves or others.”
Divorces can result in bitter battles. Nasty criminal charges can come from claims made by angry spouses. Even if eventually exonerated, the legal process is the punishment. The proposed “Red Flag” provisions of Bill C-21 will only make the current situation worse. If Bill C-21 becomes law, an irate spouse could falsely claim a defendant “may pose a danger to themselves or others” before a court. Not only could that result in the confiscation of the defendant’s firearms, but, under Bill C-21, the firearms owner is denied an opportunity to defend himself in court and can even be denied learning who his accuser is. Even worse, the proposed legislation does not provide a way to appeal a confiscation afterwards.
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