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Bill C-21: Amendment Resentment

On May 1, 2020, Prime Minister Justin Trudeau issued an Order in Council immediately banning the use, sale and transport of approximately 1,500 “assault” style firearms.  This action was met with criticism from firearm owners, retailers and pro-gun advocates from across the country. A two-year amnesty period for restricted firearm owners will expire on April 30, 2022, which is around the time when Bill C-21 could come into effect.


At its first reading in the House of Commons on February 16, 2021, details about Bill C-21 emerged that created further frustration and confusion among Canadian firearm owners and retailers. Described as “an Act to amend certain Acts and to make consequential amendments (firearms)”, Bill C-21 will make substantive changes to both the Criminal Code and the Firearms Act, both of which are Federal legislation, thus impacting Canadians from coast to coast. It will also amend the Immigration and Refugee Act and the Nuclear Safety and Control Act.

Proposed amendments to the Criminal Code include:

  1. Increasing the maximum penalty of imprisonment for offences under Sections 95, 96, 99, 100 and 103 of the Criminal Code from 10 years to 14 years;
  2. Establishing a procedure that would allow any person to apply for an emergency prohibition order, or an emergency limitations on access order;
  3. Deem certain firearms to be prohibited devices for certain provisions;
  4. Create a new offence for altering a cartridge magazine to exceed its lawful capacity;
  5. Authorize employees of certain federal entities who are responsible for security to be considered as public officers for the purpose of section 117.‍07

One of the most concerning amendments, and the focus of today’s blog, involves establishing a procedure that would allow for any person to apply for an emergency prohibition order, or an emergency limitations on access order. The proposed amendment reads as follows:

Application for emergency prohibition order

110.‍1 (1) Any person may make an ex parte application to a provincial court judge for an order prohibiting another person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, if the person believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

An ex parte application does not require notice to be given to the adverse party. This means that any person can make an application to a judge seeking the immediate prohibition (and subsequent seizure) of any of the items described in section 110.1(1).  Success on the application is discussed next:

Emergency prohibition order

(2) If, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist and that an order should be made without delay to ensure the immediate protection of any person, the judge shall make an order prohibiting the person against whom the order is sought from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for a period not exceeding 30 days, as is specified in the order, beginning on the day on which the order is made.

The seizure process will unfold one of two ways:

Warrant to search and seize

(4) If a provincial court judge is satisfied by information on oath that there are reasonable grounds to believe that a person who is subject to an order made under subsection (2) possesses, in a building, receptacle or place, any thing the possession of which is prohibited by the order, and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the thing, the judge may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and every authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

OR:

Search and seizure without warrant

(5) If, in respect of a person who is subject to an order made under subsection (2), a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person, or of any other person, for the person to possess any thing the possession of which is prohibited by the order, the peace officer may, where the grounds for obtaining a warrant under subsection (4) exist but, by reason of a possible danger to the safety of the person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

The seized items will remain in police custody for 30 days. When the Order expires, the seizing agency (police) must make an application for a Prohibition Order under Section 111(1) of the Criminal Code. This Application requires that the subject of the Order (the firearms/weapons owner) be given notice of the application, and the opportunity to respond in court. At this juncture, there are three ways the seized items can be returned to their owner:

  1. No application is made for a Prohibition Order under Section 111(1);
  2. If the hearing does not result in a Prohibition Order being made under Section 111(5);
  3. If the Order issued at the ex parte application is revoked

While this legislation seeks to establish an alternative procedure that gives the public power to seek protection from violence involving firearms and other weapons, it fails to address the possibility that this power could be abused. Currently, the law requires that an individual report their concerns to the police, who would then engage in an investigation to determine whether a seizure is necessary. When citizens assume this authority, there are a myriad of complications that could pose negative consequences not only to the potential subject of the Order, but to whomever makes the ex parte application. It requires that they take the law into their own hands – something that law enforcement regularly counsels against.

Bill C-21 is still in the early stages of the legislative process, but has garnered both support and criticism from those it will protect, and those it will harm.

 

Mission Impossible: Managing COVID-19 in the Canadian Correctional System

On March 18, 2020, the BC court system responded to the coronavirus pandemic swiftly and without hesitation, reducing operations by the likes of which criminal counsel simply hasn’t seen before. Once it was confirmed how rapidly COVID19 spreads, the crowded confines of publicly accessed courtrooms were immediately deemed inappropriate – dangerous even. Since courtrooms often yield a congregation of some of society’s most vulnerable people, it made perfect sense to act defensively. These decisions, and many others effecting the justice system, were made only one week after the World Health Organization declared a global pandemic on March 11, 2020.

Unfortunately, there was a noticeable absence of urgency when it came time to protect the vulnerable inmate population overcrowded and totally confined within the walls of Mission Institution.


“In the worst-case scenario, CSC will need to order more body bags and find cold storage to stack up the bodies of those whose lives will be lost that could have been saved”Justin Piche, criminologist, Criminalization and Punishment Project at the University of Ottawa

On March 31, 2020, federal Public Safety Minister Bill Blair recommended that the Correctional Service of Canada (“CSC”) immediately consider the release of non-violent inmates to mitigate the unavoidable reality that the virus could, and would, devastate the wellbeing of prison populations. His recommendation came on the heels of the CSC announcing the first two positive COVID-19 cases in federal institutions in Quebec.

On April 4, 2020, the CSC announced 4 confirmed cases at Mission Institution, leading to a lockdown of the facility.  

By April 8, 2020, there were 11 confirmed cases, all inmates. Nearly one month had passed since the WHO declared a global pandemic.

By April 18, 60 inmates and 10 staff tested positive, and the CSC marked its first coronavirus related inmate death, exactly one month after the courts effectively shut down.

By April 25, 2020, 106 inmates and 12 correctional officers were confirmed to be infected, representing the largest outbreak in the Canadian Correctional System. On this date, the CSC advised that all inmates at Mission Medium Institution had been tested, but in any event, new cases were continuing to be discovered.

While disturbing, none of these developments are surprising. The largest incidence of outbreaks has been at long-term care homes – combining close quarters, limited mobility, and care-workers employed at more than one facility is a recipe for disaster when it comes to COVID-19, a pathogen that spreads and infects without discrimination. The same vulnerabilities exist within the correctional system, where they are intensified. Inmates and corrections staff are simply unable to practice crucial social distancing. Personal protective equipment for inmates has not been prioritized as it has in other sectors, despite these individuals being at a much higher risk of getting sick.

The CSC responded to COVID-19 by prohibiting visits to inmates, temporary absences, work releases, and inmate transfers between correctional facilities. While these steps likely helped to curb the spread of the virus, as a whole, they are grossly inadequate. Without a vaccine, social distancing remains our greatest defence against the virus. For the inmates at Mission Institution and those incarcerated at facilities across Canada, proper protective equipment is hard to come by, but hope is even harder.