Civilian or military firearms? The Canadian Criminal Code makes no distinction, but Canada has proposed one for the ATT

Kenneth Epps

Author
Kenneth Epps

The Ploughshares Monitor Winter 2011 Volume 32 Issue 4

At the July 2011 Arms Trade Treaty (ATT) Preparatory Committee meeting in New York, the Canadian delegation caused a stir when it called for additional language in the chair’s draft paper to recognize that “there is a legal trade in small arms for civilian uses, including for sporting, hunting and collecting purposes” (Canada 2011). The Canadian statement continued, “with regard to the inclusion of small arms and light weapons, Canada supports the proposal made by Japan and Italy in March to exclude sporting and hunting firearms for recreational use from the treaty.”

This was the first occasion when Canada called for weapons exemptions within the scope of the treaty. It marked a significant change from earlier statements in which Canada supported the inclusion of all small arms and light weapons (SALW) in the treaty scope without exceptions.1

Many states raised objections to Canada’s statement. Mexico quickly responded by noting that “different interpretations for military and recreational use of firearms open gaps for subjective interpretation” of the treaty. Mexico was worried that the proposed Canadian exemptions would create transfer loopholes for many of the weapons that are contributing to the current criminal carnage in that state.

Mexico’s concerns are justified. There are no internationally accepted definitions to differentiate civilian from military firearms, nor is there agreement on what defines shooting and hunting firearms and their recreational use. Different national interpretations of what constitutes a hunting rifle, for example, could facilitate breaches of UN arms embargoes and lead to other illicit or irresponsible weapons transfers.

International and national law
Multilateral agreements to reduce and prevent illicit transfers of firearms and small arms contain inclusive definitions in recognition of the inherent danger posed by all illicit arms. For example, the UN Firearms Protocol2 defines a firearm as:
any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive.

Other multilateral treaties use even broader definitions.3 Many national laws define firearms similarly. Canada’s Criminal Code, for example, states that a firearm is:

a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

The Canadian Criminal Code classifies firearms as automatic, imitation, prohibited, restricted, or replica, and defines a handgun as “a firearm that is designed, altered or intended to be aimed and fired by the action of one hand.” Automatic firearms designed for military use and many handguns are prohibited, while many hunting rifles and shotguns used by civilians are non-restricted, that is, they fall outside the definitions of the Criminal Code. Some handguns that may be used in international sporting competitions are restricted, not prohibited.

Criminal Code classifications are based on physical characteristics of firearms, such as barrel length, cartridge calibre, or operating aspects. Definitions and classifications of firearms in Canadian law, as in international conventions, do not reference the use of firearms or their users, whether civilian, police, or military.

This is also the case for the multilateral instruments combatting illicit SALW. Since the end of the Cold War the SALW class of weapons has been recognized as a major global threat to human security. States have agreed to several regional and global instruments to combat the proliferation and misuse of SALW, most notably the 2001 UN Programme of Action on small arms and light weapons. A 1997 UN panel of governmental experts has loosely defined “small arms” as those weapons designed for personal use and “light weapons” as those designed for use by several persons serving as a crew.

Although the SALW of “main concern” in the panel’s report were those “manufactured to military specifications for use as lethal instruments of war,” the panel proposed definitions based on inclusive subcategories. For small arms these are: revolvers and self-loading pistols, rifles and carbines, submachine guns, assault rifles, and light machine guns. The subcategories of light weapons are: heavy machine guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns and recoilless rifles, portable launchers of anti-aircraft missile systems, and mortars of a calibre less than 100 mm (UNGA 1997, para 25). The small arms subcategories are the weapons of greatest concern to many states, especially those in the Global South that suffer from endemic armed violence.

The Economic Community of West African States (ECOWAS) 2006 Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials includes firearms in the category of small arms. The Convention uses the five small arms subcategories of the UN panel, but in its first Article adds a sixth, defined as “firearms and other destructive arms or devices such as an exploding bomb, an incendiary bomb or a gas bomb, a grenade, a rocket launcher, a missile, a missile system or landmine.” By combining firearms and small arms the ECOWAS Convention is responding to West African experience. In the wrong hands any firearm or small arm can be, and has been, destructive or deadly. The ECOWAS Convention, like the UN Programme of Action, does not distinguish between civilian and military small arms.
Canada’s export controls
Meanwhile, Canada’s existing export controls neither define shooting and hunting firearms, nor do they exclude transfers of these firearms from the control process. Export Control List (ECL) Items 2-1 and 2-2 within Group 2 military goods are defined as “smooth-bore weapons” and “other arms” less or greater than specified calibres. Canadian export regulations and instructions to exporters state clearly that all firearms covered by Canada’s Criminal Code are included in these ECL categories. The small arms of the UN panel generally correspond to ECL Item 2-1 goods. In contrast, ECL Item 2-2 goods include light weapons, but also firearms of larger calibre. Moreover, unlike most other ECL goods, Item 2-1 and 2-2 weapons are not defined as “specially designed for military use” (DFAIT 2011, Table 3, p. 14). All relevant firearms are included, regardless of their design.

The Export Controls Bureau of the Department of Foreign Affairs provides instructions for individuals and businesses intending to export “firearms.” In reports on exports of military goods the Bureau pointedly notes that exports of sporting and recreational firearms are controlled and diversion risks investigated:

Most firearms exports from Canada are intended for sporting or other recreational use and not for military use. Since a large volume of Canadian firearms exports go to private end-users, steps are taken to ensure items are not diverted into the illegal arms trade or used to fuel local violence. As part of this process, the bona fides of the end-users are thoroughly investigated. Canadian diplomatic missions and other sources may provide information about destination countries’ firearms control laws, procedures and enforcement practices. (DFAIT 2011, p. 3)

Proposal could block negotiations
The proposal by Canada to exclude sporting and hunting firearms for recreational use from the scope of an Arms Trade Treaty flies in the face of Canada’s commitments to international treaties and agreements. It even contradicts existing Canadian laws and regulations, especially the Export and Imports Permit Act, which governs all firearms transfers from and to Canada. Canada is calling for weapons category exemptions that are not recognized by international or Canadian law and, as a result, stand little to no chance of being adopted.

Indeed, Canada’s proposal could condemn ATT negotiations to lengthy exchanges about firearms categories and consume precious time required for more substantive issues. The four-week period for treaty negotiations in July 2012 will attend to all aspects of a major global convention. A great deal of work must be done quickly to create a robust and meaningful treaty. Those states that want a weak ATT—or no treaty at all—will seek such opportunities as that presented by the Canadian proposal to block or disrupt negotiations. If Canada is to remain aligned with the majority of states that support a strong Arms Trade Treaty, it must withdraw its proposed weapons exclusions.

Notes

1. For example, “Canada continues to support efforts towards the negotiation of a comprehensive, legally binding Arms Trade Treaty that would regulate the trade in
conventional arms, including small arms and light weapons.” Statement by Ambassador Marius Grinius to the UN First Committee, October 8, 2009.

2. Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, entered into force 2005.

3. In the 1997 Inter-American Convention against the Illicit Manufacturing of and
Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, commonly known by the Spanish acronym CIFTA, firearms include the barreled weapons of the Criminal Code definition and also “any other weapon or destructive device such as any explosive, incendiary or gas bomb, grenade, rocket, rocket launcher, missile,
missile system, or mine.”

References

Canada 2011. Statement by the delegation of Canada, Arms Trade Treaty Prepcom, July 14, 2011.
Foreign Affairs and International Trade Canada (DFAIT). 2011. Report on Export of Military Goods from Canada 2007-2009.
United Nations General Assembly. 1997. Report of the Panel of Governmental
Experts on Small Arms. A/52/298.
 

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