On January 27th, 2021, Liberal, Green and NDP MPs defeated Conservative MP Bob Soroya’s Private Members Bill C-238 – intended to increase penalties for anyone possessing a smuggled firearm – by a vote of 171 to 150.
At best, it was a well-intentioned but poorly-drafted solution to the problem of smuggled guns.
At worst, it was an abject failure to comprehend Section 96 of the Criminal Code is unconstitutional.
C-238 was the legal equivalent of placing a dirty Band-Aid on an infected cut, then pretending the pus oozing from the wound is not an issue.
Why play with Band-Aids when there is a seriously infected cut to clean and disinfect? Great question.
Conservatives naturally framed the loss as ‘Liberals, Greens and NDP are against increased penalties for gun smugglers’ while ‘only the Conservatives will stand up for Canadians.’
Right-of-centre pundits framed the issue as “the Liberal government doesn’t care about ‘gun crime’ while it confiscates legally-owned firearms from licensed Canadians.”
Both groups miss the point.
Bill C-238 has nothing to do with the government’s lack of concern with stopping violent criminals who use illegal guns.
So why did the Liberal government, aided by the NDP, vote down the idea of raising penalties for gun smugglers and those who possess smuggled firearms?
It comes down to this pesky thing called the Charter of Rights and Freedoms.
During the January 25th debate on Bill C-238, parliamentarians jockeyed for political points but said little beyond the well-known talking points of their individual parties.
Kristina Michaud (Bloc Québecois) said, “It goes without saying that the Bloc Québécois supports stricter gun control, especially for handguns.” She spent the rest of her time ranting about the Quebec Mosque shooting.
Kerry-Lynne Findlay (CPC) parroted the Conservative Party line, stating, “this bill would raise the minimum sentence for possessing an unlawfully imported firearm that the person knows was obtained by the commission of a crime from one to three years, and the maximum sentence from 10 years to 14 years.”
Rachel Blaney (NDP) correctly said, “I am very curious about why the member has brought forward legislation that is unconstitutional, when the need to bring forward laws to improve this gap is so very important. I am not interested in supporting legislation that will be defeated in the Supreme Court of Canada, cost a lot of taxpayer dollars and not support the safety of communities.”
Arif Virani (Liberal), Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, spouted his Party’s line as well, stating, “That is why the mandate letters of the Minister of Justice and the Minister of Public Safety have committed to the implementation of a robust set of firearms amendments, including the imposition of stronger penalties for gun smuggling.”
I’m unaware of the government doing anything to increase penalties for gun smuggling.
Regardless, after that quip Virani spent the rest of his time lauding the May 1st gun ban by Order in Council, as if confiscating legally-owned firearms can miraculously solve the issue of criminals committing violence with illegal handguns smuggled from America.
Bill C-238’s Unintended Consequences
The changes to Criminal Code Sections 96, 103 and 515 that were proposed by Bob Saroya’s private member’s bill also introduce some unintended consequences.
I’ll address Sections 96 and 103 here, and Section 515 under ‘Reverse Onus Bail Conditions’ later in this article.
Section 96 currently states “every person commits an offence who possesses a firearm” of any kind and “the person knows [the firearm] was obtained by the commission… of an offence…”
If the Crown proceeds by indictment the maximum penalty for possessing a firearm obtained by crime is ten years and the mandatory minimum sentence is one year.
If the Crown proceeds by summary conviction there is no mandatory minimum sentence.
Bill C-238 sought to increase this mandatory minimum for a first offence from one to three years, and the minimum for second and subsequent offences to five years and removed the option to proceed by Summary conviction.
Section 103 (1) currently states, “Every person commits an offence who imports or exports… a firearm… knowing that the person is not authorized to do so…”
“Every person who commits an offence under subsection (1) … is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.”
The maximum sentence for ‘importing a firearm knowing they are not authorized to do so’ (smuggling guns) is a crime punishable by a maximum sentence of 10 years.
C-238’s Irrational and Unconstitutional Penalties
Bill C-238 would make it a greater offence to possess a smuggled firearm in Canada (14 years) than to actually smuggle the firearm into Canada (10 years).
Why would the smuggler of illegal guns face a lesser maximum sentence than the person who possessed it after it was smuggled?
This is irrational, unconstitutional and the unintended consequence of a poorly drafted Bill.
Reverse Onus Bail Provision
Section 515 of the Criminal Code essentially states a judge must grant bail for an accused except when the defendant is charged with one of a series of specific criminal offences.
Depending upon the charge, the Crown can ask for conditions to be attached to the release order.
Section 515(6)(a) states the accused must “show cause” why they should be released, they will be held without bail when charged with one of a long list of criminal offences.
Bill C-238 would add accused charged under Section 96(1) “and that involves an object that is alleged to have been obtained by the commission of an offence under subsection 103(1)”.
Why Section 96 is Unconstitutional
The Supreme Court is no fan of mandatory minimum sentences and, except for a small number of very specific cases, they rule these sentences are unconstitutional.
From the majority Supreme Court decision in R. v. Nur:
 To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.
Section 96 of the Criminal Code will eventually be challenged on constitutional grounds and, when that day comes, the mandatory minimums specified in s. 96 will be ruled unconstitutional, just as a similar provision in Section 95(1) was ruled unconstitutional in R. v. Nur.
Added to this is the issue of possessing a firearm stolen from a home or business in Canada vs. possession of a firearm smuggled into Canada from the United States.
Why would the latter be punished more harshly than the former? Another great question. It’s also more evidence of poorly-drafted legislation.
The Overlooked Problem: Lack of Border Enforcement
All this debate over Bill C-239 completely misses the point, of course. Lack of border enforcement to stop the flow of illegal guns into Canada is a vastly bigger problem than increasing the maximum penalty for being caught with a smuggled gun.
Criminals aren’t deterred by the maximum penalties spelled out in the Criminal Code. They’re afraid of getting caught. Raising the maximum penalty from 10 to 14 years won’t change a thing. Nobody ever receives the maximum sentence for this crime anyway.
When the chances of being caught smuggling guns into Canada are 1 in 10 (or less), criminals will take that bet all year long. Why not? The odds are clearly in their favour.
We need a government that will take border security seriously.
We don’t have one.
Sadly, we won’t get one after the next election either.