- D. Tomcej (law student)
Reclassification of Non Prohibited Weapons in Canada (A Student’s Perspective)
Items that can be viewed as weapons in Canada fall into four categories: Uncategorized, Non- restricted weapons, Restricted weapons, and Prohibited weapons. Prohibited weapons are those that you would expect, such as military firearms, switchblades, stun guns, and other weapons that no citizen should have any reason to own. Prohibited weapons are defined in the Criminal Code of Canada in section 84(1),1 and there is a set of regulations that can extend the list without amending the Criminal Code.2 Penalties for possession of these prohibited weapons are quite severe, with the potential for up to five years of incarceration for merely possessing these weapons.3
Restricted weapons mostly include firearms that have potential to be concealed, and those that cannot be used for hunting purposes (handguns and many semi-automatic rifles). Non- restricted weapons mostly include large firearms and hunting rifles. Restricted and non- restricted weapons require licensing, but only restricted weapons require registration with the RCMP.
The last section is uncategorized, which is where everything else falls. Technically a coffee mug can be used as a weapon, if it is used to inflict bodily harm, so the uncategorized section is left broadly defined as:
weapon means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person4
Now that it has been broadly outlined how weapons are classified, we are able to understand where folding knives fit into the scheme. Folding knives or pocket knives are quite prevalent in today’s society. Folding knives became popular during the industrial revolution, as they were easily able to be mass-produced cheaply. They became a part of modern society, and viewed as tools, such as a screwdriver or hand saw. Folding knives are an essential tool for camping, hiking, or even construction work.
The section of the Criminal Code that applies here is section 84(1):
prohibited weapon means
(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife5
This section states that knives that open automatically with gravity (also known as gravity knives), knives that can be opened by centrifugal force (also known as butterfly knives), and spring-loaded knives (also known as switchblades) are classified as prohibited weapons. This is understandable, due to the risk that these styles of knives pose to the public and law enforcement officers.
All folding knives that are sold or imported into Canada are void of those features as to not fall into the prohibited classification. Folding knives now often have two features that have come under fire. The first is called a “flipper”. A flipper is a protrusion (like a knob or a hook) on the back of the knife blade that can be pulled on to open the blade. Because the flipper is attached to the blade of the knife, it avoids the prohibited status. The second is “assisted opening”. This is a bearing system that makes opening the knife easier, but does not move the blade on its own, and therefore cannot be used to open the knife alone.
This allows assisted-opening knives to avoid being classified as switchblades. These features have been used on folding knives for decades, and have not run into issues with their classification.
Once any type of knife is used in a crime, it is considered a weapon regardless, so the classification is really to prevent ownership of dangerous knives. To sum this up, as long as the folding knife does not open automatically via gravity or centrifugal force, or via spring loading, the knife is not classified as a prohibited weapon, and possession is not an offence. This means that grandpa’s buck knife is legal, as is the Swiss army knife that a girl scout has in her backpack.
In December 2017, the Canadian International Trade Tribunal denied the importation of a popular folding knife citing that it fell under the prohibited weapon classification.6 These knives had a flipper on the back of the blade, and the tribunal had two questions about the classification:
(a) How should the test for determining whether a knife opens automatically by centrifugal force be conducted? And
(b) Based on that test and the Tribunal’s own observations about the goods in issue, should the five knives be classified as prohibited weapons?7
The Tribunal found that the Supreme Court’s method of determining if the knife can be opened via a “flick of the wrist” was acceptable (as it has been used for over twenty years), however they went a step further, and this extra step is what the case hinged on:
(29) The Tribunal closely examined and tested the goods in issue at the file hearing of this matter. This included reviewing their packaging material and instructions, as well as opening and closing the knives repeatedly. When fully closed, the knives have a tendency to stay closed and do not open automatically with a mere flick of the wrist. However, they do open automatically when a flick of the wrist is accompanied with minimal manipulation by the thumb of either the flipper or other non-edged parts of the blade, such as the nail nick, to overcome the initial resistance. In fact, the instructions include directions on opening the blade without using the flipper, requiring only that the user “push gently outwards on the thumbstud”, referring to a part of the blade directlyunder the thumb when held in the closed position.8
(30) Once the blade is barely ajar, it easily, swiftly and readily swings into a fully opened and locked position with a simple, “slight flip of the wrist” as the instructions themselves confirm. All of this can be accomplished in one simultaneous, single-handed movement with the wrist, thumb and forefinger.9
While this may seem logical, it is a test that has not been applied in the last 20 years. I personally used this updated test on the few folding knives that I own, and every single one of them would fail this test. All of my knives were purchased legally, from stores in Canada.
The ruling from this tribunal is not a re-working of the Criminal Code, it is just an interpretation. Whether that same interpretation is used in any criminal cases is yet to be seen. If it does, it has the potential to make grandpa’s buck knife a prohibited weapon, and mere possession a criminal oﬀence. It also would mean that any store found selling folding knives with flippers would be guilty of commercial trafficking, and prosecuted.
I do not agree that a private tribunal should have the right to reinterpret the Criminal Code using a different test, when one has been in place in case law for over 20 years. This reinterpretation has the possibility to turn innocent people into criminals overnight, without any warning, or justification. I think that although the tribunal may have had the right goal, they should have made a recommendation to Parliament to update the regulations, instead of just “changing the rules”, due to the large scale of people that may be affected by its change.
1 Criminal Code, RSC 1985, c C-46, s 84(1).
3 Supra note 1, s 91(2).
4 Supra note 1.
5 Supra note 1, s Prohibited Weapons(a).
6 T Laplante v President of the Canada Border Services Agency (16 November 2017), AP-2017-012, online: CITT <http://www.citt-tcce.gc.ca/en/node/8176>.
7 Ibid at para 24.