Vol. 147, No. 25 — December 4, 2013

Registration

SOR/2013-203 November 22, 2013

FIREARMS ACT

Regulations Amending the Firearms Marking Regulations

P.C. 2013-1250 November 21, 2013

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 annexed Regulations Amending the Firearms Marking Regulations.

REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

AMENDMENT

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

6. These Regulations come into force on December 1, 2015.

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Background

Canada has signed, but not ratified, the United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (UN Firearms Protocol) [2002] 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) [1997]. The marking of firearms is one of several requirements of these international treaties. In order to comply with these agreements, Canada requires a scheme for the marking of firearms. In addition to being treaty imperatives, firearms markings have value for domestic and international law enforcement as, when coupled with records identifying the last legal owner, they can be used to trace crime guns.

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. “13” for 2013.

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 Canada 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 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.

The Regulations were deferred again until December 1, 2010, to consider a proposal from the firearms industry 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.

Consequently, in 2011, the Royal Canadian Mounted Police (RCMP) conducted tests examining the industry proposal to mark firearms with adhesive metallic strips. 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.

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. Exempted from the proposed requirements of the amended Regulations would be rare firearms or firearms that are of a value that is unusually high for that type of firearm. Markings would only need to be visible without disassembly using tools or implements. The proposed amendments were never tabled in both Houses of Parliament as required by the Firearms Act,nor published in the Canada Gazette, Part II.

Reaction to the proposed amendments has been mixed. Some respondents are in favour of fewer markings (e.g. only a serial number), being of the view that this would be adequate for tracing. Others stress the importance of firearms having sufficient markings to render them unique from each other and for the Regulations to have rigour (e.g. penalties and definitions), in order to assist police in tracing crime guns and detecting the illegal movement of firearms in the absence of registration and business record-keeping requirements.

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

The primary 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. Tracing is the systematic tracking of the history of recovered or seized firearms, whereby the markings found on a firearm are matched to available records. Trace results help focus investigations to the point of last legal ownership, which can help to expedite investigations and minimize expenditure of resources. However, with the repeal of the registration of non-restricted firearms and the absence of business record-keeping requirements, minimal markings would provide limited use in tracing non-restricted firearms used in crimes.

In the United States, stringent requirements are in place for domestically manufactured and imported firearms, which includes marking the name and location of the manufacturer and importer, make, model, serial number and calibre/gauge. Imports must be marked within 15 days of importation, such that they will often be marked by the exporting firm. Unlike Canada, individuals cannot import firearms into the United States. All markings must be engraved, cast or stamped so as to be legible, of specified dimensions and always conspicuous.

To allow the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to trace the ownership of crime guns using the markings on the firearm, the United States have instituted record- keeping requirements of manufacturers, importers and retailers, including the need for some to keep records indefinitely, a limitation of 24 hours to respond to ATF tracing requests, and offences and penalties.

While the United States have not ratified the UN Firearms Protocol and CIFTA of the Organization of American States, they are compliant with both, given their robust marking requirements.

Issue

The deferral of the Firearms Marking Regulations is required to allow the Government to continue to consult broadly with a wide range of stakeholders.

Objectives

The deferral provides the opportunity for continued and broader stakeholder consultations, with a view to determining the precise nature of possible amendments to the Firearms Marking Regulations. The markings scheme should assist law enforcement in tracing crime guns, without imposing unnecessary administrative burdens on individuals importing firearms and firearms businesses. Possible amendments to the Regulations, including their repeal, will be explored during the deferral period.

Description

The proposed deferral would amend the coming-into-force date of the Firearms Marking Regulations, from December 1, 2013, to December 1, 2015.

Regulatory and non-regulatory options considered

The Firearms Marking Regulations were made by the Governor in Council in 2004, although they have not been brought into force. Any additional regulatory actions await the conclusion of consultations and further consideration by the Government.

Benefits and costs

The deferral of the Regulations would not entail any costs. By delaying their coming into force, consultations can continue to be conducted. In so doing, the Government could determine a marking regime that will benefit police investigations and not place an adverse strain on Canadian firearms businesses and individuals importing firearms. Possible amendments to the Regulations, including their repeal, will be explored during the deferral period.

“One-for-One” Rule

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

Small business lens

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

Consultation

Some firearms advocates are of the view that the marking requirements of the Regulations, particularly the import mark (i.e. country and year of import), would add significant cost for Canadian importers. They anticipate that manufacturers exporting firearms to Canada would be unwilling to introduce the Canada specific markings (i.e. “CA” and year of import) based on Canada’s small share of the global firearms import market. As a result, they anticipate Canadian importers will be responsible for ensuring that the markings are applied, requiring these businesses to either acquire marking technology or make arrangements for another company to apply markings, resulting in increases to the retail price of the firearms. Also, since individuals in Canada are allowed to import firearms, they would need to determine a means to appropriately mark their firearms and to pay the associated costs.

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. They are of the view that the markings, in conjunction with the availability of records identifying the last legal transaction relating to the firearm, could expedite investigations by utilizing firearms tracing to assist in solving a specific gun crime or to detect firearms trafficking, smuggling and stockpiling. They note the value of import marks to facilitate domestic and international tracing of crime guns.

During the proposed deferral period, consultations will build on those held to date, which have included those with the Minister’s Canadian Firearms Advisory Committee and representatives of international law enforcement.

Regulatory cooperation

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 facilitate police crime gun investigations.

The existing Regulations were drafted to respond to the marking requirements of the UN Firearms Protocol and CIFTA. They were made by the Governor in Council in 2004 but not brought into force. With the subsequent deferral of the Regulations and the absence of a record-keeping framework for non-restricted firearms, Canada would not be in a position to ratify these treaties, since the treaties require firearms markings and the maintenance of records. In October 2012, following the Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice and Public Safety, the Minister of Public Safety confirmed that Canada has no immediate plans to ratify the UN Firearms Protocol.

Rationale

The proposed deferral of the Regulations permits the Government to continue its consultations in order to determine the need for possible amendments to the Firearms Marking Regulations, including their repeal.

Implementation, enforcement and service standards

The Regulations are scheduled to come into force on December 1, 2013.

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

Communication efforts will focus on informing firearms businesses and law enforcement stakeholders of their deferral, with a news release and information provided by the RCMP Canadian Firearms Program. Other media relations will be handled on a responsive basis.

Contact

Lyndon Murdock
Director
Law Enforcement and Policing Branch
Public Safety Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
General Inquiries: 613-944-4875
Fax: 613-954-4808
Email: firearms/armesafeu@ps-sp.gc.ca

• Footnote a
  SOR/2004-275
• Footnote b
  S.C. 1995, c. 39
• Footnote c
  S.C. 2003, c. 22, par. 224(z.38)
• Footnote d
  S.C. 1995, c. 39
• Footnote 1
  SOR/2004-275