Rebuttal - Just Use Different Toys
Updated: Mar 20, 2021
When airsoft players talk about how Bill C-21 will ruin their sport, one of the arguments they hear is about the definition of replica in the criminal code and the proposed legislation.
"Air guns that aren't duplicates of actual firearms are still permitted."
"Just create new ones that don't look like existing firearms."
"Toy guns should look like toys."
Bill Blair conducted an interview with Kitchener Today where he spoke to this point.
Honestly, this isn't the worst idea. It's a reasonable response to our plea to change the Bill. After all. These toy airguns are just shells for a machine that compresses or regulates air to push a BB down a tube. It's possible to make a new shell.
Unfortunately, there are three reasons why this isn't a real solution.
No one knows what 'exactly resemble' really means
It won't fulfill the intended objective of community safety
Industry changes take time, and it won't address the millions of dollars businesses will lose
You'll be surprised by why these three points exist. We break them out down below.
The Proposed Legislation
Let's look at what is being proposed.
(3.2) For the purposes of sections 99 to 101, 103 to 107 and 117.03, a firearm is deemed to be a prohibited device if
(a) it is proved that the firearm is not designed or adapted to discharge a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules; and
(b) the firearm is designed or intended to exactly resemble, or to resemble with near precision, a firearm, other than an antique firearm, that is designed or adapted to discharge a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second and at a muzzle energy exceeding 5.7 Joules.
Quick breakdown? If it looks like a real firearm and shoots a shot that can't result in death, it's a prohibited device. Response? Use something else that doesn't "resemble with near precision, a firearm".
1) How closely does something need to resemble a real firearm to be prohibited?
What does 'resemble with near precision' mean? To demonstrate the problem, look through the pictures below. Which ones do you feel meet the definition and, therefore, should be prohibited?
None of these have a 'real firearm' counterpart. Some of these examples are flare guns, which are (and still will be) completely legal for sale. Yet another is a fictional gun from the movie "Alien".
The law will not prevent flare guns or other similar types of devices from being purchased or used in a crime - they are already legal according to the criminal code. Their classification won't change with this new legislation. For the rest of these toys, the question remains: will they be prohibited? Bill C-21 doesn't say. It is ambiguous on what 'exactly resemble' means. The only way to find out is to break the new law, fight it in court, and have the courts decide what that means. It's not affordable for most people, and it's definitely not something that a law-abiding citizen wants to do.
2) A negligible impact on public safety
One of the reasons for this prohibition is a request from the Canadian Association of the Chiefs of Police (CACP). The challenge is that when police receive a call about a gun, they'll have to respond as if it's a real one, AND THAT'S A GOOD THING! However, the general public are the ones that call the police. Despite citizens' best intentions, the public can be wrong.
In the classic case of mistaken identity, a woman in full stormtrooper armour outside of a Star Wars themed cafe was arrested for possession of a non-functioning sci-fi laser blaster. Even more harmless objects have resulted in gun calls. In Toronto, the police were called to a rooftop for a report of a group of people with a gun. This turned out to be friends playing with a watergun. A similar incident occurred in Vancouver with Nerf dart-firing toys. A bassoon was the source of a gun call. In fact, the author of this article was held at gunpoint by police in 2013 when a member of the public mistook his camera tripod for a gun.
Creating a class of brightly coloured toys could maybe reduce the number of public gun calls, but there are documented cases of criminals painting real guns in order to hide their true purpose. Even real gun manufacturers and professional finishers paint firearms in bright colours; a popular way to customize and individualize someone's hobby. Requiring airsoft to be brightly coloured also eliminates it's use in the film industry as a completely safe alternative to real firearms.
There is even precedent in Canadian case law that colouring a toy is not sufficient to differentiate it from a real firearm. In 2003, the case of Arthur v. Canada, an importer challenged a toys seizure as a replica. The decision was that a coloured tip was not enough to differentiate it from a real firearm. Criminal lawyer Ian Runkle breaks down this argument well in his video on the subject.
The police have a hard job, and many of us don't want the responsibility of having to make life and death decisions in a crisis situation. Anyone threatening a police officer with ANY object takes their life into their own hands - whether it's a real gun, an airsoft gun, a knife, or a cellphone.
The other challenge is that airsoft is less dangerous than other items used by criminals. More harm can be done to a person by a knife, a hammer, or a fist than can be done by one of these toys.
Bill Blair stated in his interview that the trauma victims experience if intimidated by a replica gun is impactful because "because there's no way to know if the gun being pointed at you isn't real". That's a fair point, but do people held up with knives or threatened with bats feel less trauma? Any crime using any object as a weapon is a traumatic experience, and in the cases of knives and bats, the victim is in actual danger whether they know it or not.
Realistic guns will still be available for purchase by criminals, and even brightly coloured toys or innocuous items used by regular people will draw a police response. Prohibiting airsoft will not positively impact public safety or prevent individuals from using tools to commit crime.
3) Industry can adapt, but not quickly and not without consequences
You'll find some airsoft players are open to using new types of toys for their games. Why not just make a less 'realistic' shell for these toys?
Companies in Canada have not been able to produce airsoft guns because of the existing laws around airsoft. Internationally, the market for these is low or non-existent. Could Canadian business create a new industry? It would be a great way to create new jobs and contribute to the economy. Unfortunately, it's not practical.
We've already discussed how challenging the ambiguous definition of 'realistic firearm' is inside the bill. Additionally, the same government proposing C-21 introduced Bill C-71 last year, arbitrarily listing over 1500 devices as newly prohibited firearms. Regardless of the merits of that decision, it's the method that poses the challenge.
No company or individual wants to invest their money into something the courts may determine is prohibited, or that the government will simply list as illegal at any time and without any recourse.
Existing inventory is a huge problem. Items inbound to the country or in the stockroom become impossible to sell. Millions of dollars of dead inventory will be an unrecoverable financial burden. A new industry does nothing to address this problem and the hundreds of small businesses that have invested their life savings into airsoft.
Building an industry to support this sport overnight is extremely complicated, and one that is at risk of sudden elimination. It's a huge risk at best, and it still wouldn't save the businesses involved in it today.
So Where Do We Go From Here?
If real guns can be painted to look like toys, if police have to treat all gun calls as a threat, if industry can't pivot fast enough, if the bill isn't clear about what 'realistic' is, and if other realistic guns will still be available... what should we do?
We should find a way to ensure the safe and responsible use of these devices, while also protecting small businesses, jobs, and the communities that have formed around airsoft. We can do that without prohibition.
Educate the users - Parents that buy these for their kids or adults that purchase these for themselves should be made aware that there's a real risk in using them anywhere. The police justifiably need to respond to any gun call as if there's a real threat, and that can be dangerous for those that don't understand that risk. Should purchasers sign a declaration of understanding? Should these toys include an educational booklet or warning label?
Craft legislation informed by stakeholder consultation - Requiring you to be 18 years of age to purchase one of these toys seems to be an excellent rule to put in place. Surprisingly, these aren't universal across the country. Laws that promote responsible use should be investigated before outright prohibition.
Address the source of the problem - No criminal wakes up in the morning and decides to cancel their plans because they don't have a fake gun. They just grab the nearest object to threaten or intimidate their victims. Using a weapon is already a crime, and we should be looking for ways to prevent the crime from happening in the first place.