On June 11, 2012, Ottawa defence lawyer Solomon Friedman appeared before the House of Commons Standing Committee on Foreign Affairs and International Development to testify about the proposed UN Arms Trade Treaty.
Here is the text of Solomon’s opening statement:
1. Introduction
Good afternoon Honourable Members.
Thank you very much for inviting me to address you today.
My name is Solomon Friedman. I am a criminal defence lawyer in private practice in Ottawa. Although I maintain a comprehensive defence practice, a significant portion of my work is focused on firearms law – representing law-abiding hunters, target shooters, sportsmen – and women – and firearms businesses in Criminal Code and related Firearms Act matters.
As Canada considers its position on a United Nations Arms Trade Treaty, it is important that Parliament be aware of the potential domestic implications of the Treaty in general, and in particular, of certain more problematic provisions.
I preface my remarks by simply noting that there is, as of yet, no final draft of the Treaty before this Committee for consideration. Accordingly, issues highlighted today may become moot and new ones may arise. I base my comments, therefore, on suggested model texts which have been circulated by the United Nations and various NGO’s and by Canada’s official policy statements concerning the proposed Treaty.
2. Three areas of concern
In my view, there are three distinct areas of concern with regard to the proposed Treaty.
First, does the Treaty signify a step backwards in firearms regulation and a change of direction for this government?
Second, will the Treaty adversely affect law-abiding gun owners and businesses by influencing domestic criminal and regulatory law and by unduly hampering law reform in Canada?
Third, are certain key Treaty provisions overbroad in their scope and reach?
With your kind permission, I will address each in turn.
3. A step backwards
First, the government should be careful that this Treaty not signify a regression, a step backwards, in how firearms and gun owners are regulated in Canada and abroad.
Since 2006, the Canadian government has demonstrated a shift – exemplified in policy, regulation and most recently, in legislation – in how Canadian gun owners are treated under our law.
Instead of punishing the law-abiding for the acts of the lawless, the government has consistently signalled that the regulation of firearms should target those who wilfully and unlawfully misuse firearms in a criminal manner.
It is imperative that Canada’s involvement with the Arms Trade Treaty not signify either a condemnation of responsible, civilian firearms ownership or a step backwards to a time when it was thought – based on ideological speculation not empirical evidence – that somehow, the criminal misuse of guns could be addressed by more onerous and stringent regulation of law-abiding civilian gun owners – be they farmers, hunters or target shooters.
4. Domestic implications
Aside from the potential for symbolic repercussions, Parliament should be aware that international law – despite being conceived of and legislated thousands of miles away – can potentially have very real implications, here at home.
Of course, in Canada, unless a treaty is implemented by domestic legislation, it is not, strictly speaking, a part of Canadian law.
However, courts are increasingly turning to international law – be it in the form of binding treaties or normative principles – when interpreting domestic law.
For example, a court may consider the Arms Trade Treaty when wrestling with an unclear provision in the Firearms Act or Criminal Code – despite Parliament’s best intentions, legislators do not always say what they mean and mean what they say. For that reason, Parliament should be particularly concerned with broad over-reaching purposive clauses and preamble-like statements; if these are in conflict with our own domestic approach to regulating firearms, we do not want to put a court in the position of having to square domestic statutory interpretation with Canada’s statements on the international stage.
Of course, such a discussion, is by its very nature, entirely speculative. We do not know which provisions of the Firearms Act or Criminal Code will be litigated and require interpretation by our courts. Similarly, we do not know how a court may choose to use the Arms Trade Treaty as the basis of statutory interpretation. Accordingly, when crafting any Treaty provisions, Canada should proceed with caution.
Aside from the courtrooms of this country, the effects of the Arms Trade Treaty may also be felt in the chambers of Parliament as well.
To illustrate this point, let me turn to the long gun registry for a moment.
I had the opportunity to testify before the parliamentary committees which reviewed, and ultimately passed Bill C-19, both in the House of Commons and the Senate.
At both those sessions, proponents of the long-gun registry repeatedly cited Canada’s international commitments – in the UN and other global forums – as a purported reason for maintaining the wasteful and ineffective registry.
It is important that the government assess this Treaty – not just with an eye to the current state of firearms regulation in Canada, but also to how the law may develop in the future.
Make no mistake about it: the Firearms Act is desperately in need of rewrite, revision and reform.
Parliament should not bind itself through Treaty commitments or other international instruments – and thereby prevent the meaningful reform that is required to restore equity and fairness to the treatment of nearly 2 million law-abiding Canadian gun owners.
5. Problematic provisions
Finally, I would like to point outs two particularly problematic provisions which appear in numerous draft texts and proposals for the Arms Trade Treaty.
First, it is essential that any final Treaty protect Canada’s sovereignty and national discretion in the regulation of civilian-owned firearms. I would therefore commend the government for the approach it has taken to propose the introduction of a paragraph “acknowledging and respecting “responsible and accountable trans-national use of firearms for recreational purposes, such as sport shooting, hunting and other forms of similar lawful activities.” This is a good first step.
Also, many states have argued for a ban on firearms transfers to “non-state actors.” The use of this term is overbroad and inconsistent with Canadian domestic law. I would agree therefore with Canada’s recent proposal that the phrase “illegal armed groups” be used instead.
While no one would argue that armed guerrilla groups and insurrectionist insurgents should be denied firearms, the term “non-state actors” on its face, connotes any non-government entity or individual – including it would seem, responsible and law-abiding civilian gun owners.
6. Conclusion
In closing, I think the most important issue for this Committee in considering the Arms Trade Treaty is one of focus.
It is clear that Canada should support measures that keep firearms out of the hands of those who seek to do ill, whether it is to terrorize their own people or to topple democratically elected governments.
At the same time, however, Canada must expressly recognize – on the international stage, as it has done at home – that the lawful use and ownership of firearms is consistent with both international and domestic peace and security.
For that reason, the Arms Trade Treaty should not focus on compliant and law-abiding civilian gun owners – as I have seen, time and time again, in my firearms law practice – such an approach is ineffective, unworkable and fundamentally unjust.
