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Alberta taking over firearms prosecutions in pushback against federal gun ban

Federal justice minister says decision not to prosecute would offend rule of law

The Alberta government is taking over prosecutions of federal firearm charges, and may even decide not to take offenders to court, in its fight over Ottawa’s proposed amendments to Bill C-21.

The federal legislation has been criticized for impacting guns used by hunters. 

Alberta Justice Minister Tyler Shandro announced Thursday that the province’s Crown prosecution service would assume responsibility for prosecutions as of Jan. 1. He said federal lawyers currently handle those cases. 

Shandro also issued an advisory document for Alberta prosecutors to use when deciding whether to pursue a firearms charge. 

The protocol says it isn’t in the public interest to prosecute someone who isn’t facing any other charges and obtained their gun legally before it became prohibited on May 1, 2020. Nine types of firearms became prohibited on that date, including the AR-15 and its variants.

Shandro said the ban targets hunters, farmers and sport shooters who legally own their guns. He said the federal government is targeting western Canadians and sowing division.

“This is about shoring up their own political support,” Shandro said during a news conference in Edmonton Thursday. “So today we are taking action.”

Shandro said the protocol is advice only. He denied he was ordering prosecutors not to proceed on such charges. 

“There is no direction and there should be no direction,” he said.

“There should be no political intervention in prosecution decisions. That is left to our prosecutors. It’s an important part of our democracy.”

Hours later, Federal Justice Minister David Lametti confirmed he had received Shandro’s “uncharacteristically short letter” and said he would need more time to understand what Alberta is trying to do. 

As for the issue of Crown prosecutors not prosecuting gun possession charges, Lametti said that he expected police to lay charges and prosecutors to pursue those cases through the courts.

“It would be extraordinary if they made a unilateral decision not to enforce the law,” Lametti said. “That would not only offend the Constitution, but would also offend the rule of law.”

Constitutional conflict

Jesse Hartery, a commercial, regulatory and constitutional litigator at McCarthy Tétrault in Toronto, said provinces have declined to prosecute federal laws before. Quebec declining to prosecute abortion cases in the 1970s and 1980s is the most well-known example, he said. 

But Hartery said a province deciding to not prosecute charges laid under a federal legislation can’t stop the federal government from doing it itself.

“If… the minister means that he is taking over, or that the government of Alberta, is taking over prosecutions to the exclusion of the federal government, then that creates a constitutional problem,” Hartery said. 

“Certainly the province can decline to enforce federal laws…but there’s a limit on how far they can go and they can’t prevent the federal government from doing that work.”

This isn’t the first time Shandro has pushed back against the federal gun ban. 

In September, Shandro said Alberta would not allow RCMP officers assigned to local policing to participate in the gun confiscation program. The federal government is allowing owners of prohibited firearms to turn them in without any penalty by Oct. 30, 2023. 

Shandro said he thinks the federal government will extend the amnesty period because they don’t have the resources to confiscate hundreds of thousands of guns. 

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