Jay Nathwani: Why does Canada allow better protection for money than children?

It's time for our firearms laws to permit armed guards at schools and synagogues

Photo by Thomas Tucker on Unsplash

By: Jay Nathwani

On March 12, a man intent on murdering Jews drove a truck laden with fireworks and gasoline into the Temple Israel synagogue in a suburb of Detroit. The truck rammed through the front doors, injuring a security guard, before becoming stuck in the narrow hallway. At the time, more than 100 students were present in the synagogue’s school, and about 50 other staff were on site.

The attacker was armed with a rifle. But before he could get out of the cab of the truck to start shooting students, or blow up the fireworks and gasoline, he was confronted by the synagogue’s armed security. The exchange of gunfire pinned down the attacker in the cab of the truck. Unable to carry out his plan, and with the cab of the truck on fire, he shot himself. No one else was killed.

Consider that last fact for a minute: a man armed with a rifle, and driving an improvised truck bomb, failed to kill anyone in an attack on a building full of children. It’s extraordinary. And it’s explicable only because of one salient fact: the security guards were armed. They were able to shoot at the attacker, thereby preventing him from getting out of the truck, and making him realize in his last, miserable moments, as the truck burned around him, that he would not be able to fulfil his final wish — to murder children for the crime of being Jewish.

I regret to say that if a similar attack took place in Canada today, the outcome would likely be very different. That’s because Canadian law permits armed guards to protect shipments of cash, but not human life; armoured cars, but not schools or synagogues.

As with many of Canada’s more nonsensical firearms rules, the details are buried in regulations to the federal Firearms Act. In order to be able to legally carry a restricted rifle or a handgun in public, you need to obtain an Authorization to Carry (ATC). There are two categories under which a person can obtain an ATC: first, a lawful profession or occupation; and, second, protection of life. So far, so good.

But the requirements for each of these categories are vastly different. Under the “Lawful Profession or Occupation” category found in section 3 of the regulation, individuals may be issued an ATC in three different sets of circumstances:

• First, if their “principal activity is the handling, transportation or protection of cash, negotiable instruments or other goods of substantial value”, and they require the firearm for the purpose of protecting their lives or the lives of others in the course of that activity;

• Second, if they work in a remote wilderness area and need firearms for protection from wild animals; or

• Third, if they are licensed trappers.

Did you catch that word “or”? Individuals do not need to satisfy all three of these requirements to obtain an ATC (though it is perhaps worth exploring the comedic potential of requiring armoured car guards to spend part of their working hours trapping coyotes while they fend off bear attacks). No, this is what lawyers, who spend their evenings dreaming up Latinate pomposities, like to call a disjunctive test. Meet any of the elements, and you’re eligible for an ATC.

In contrast, the requirements to be issued an ATC under section 2 of the regulation — “Protection of Life” — are prohibitive. To be issued an ATC, individuals must show:

• First, that their life is in imminent danger from another person;

• Second, that police protection is insufficient; and

• Third, that possession of a restricted or prohibited firearm can reasonably be justified for protection.

If you caught the “or” in the earlier list, you may have noticed the “and” in this one. This, the lawyers will tell you, is a conjunctive test: you must satisfy all three branches in order to qualify.

The result is that ATCs to protect life are virtually impossible to obtain. In 2018, in response to an access-to-information request, the RCMP said that a grand total of two were then issued in all of Canada.

For the purpose of destroying any possibility of armed guards at a school or place of worship, the first branch is all that you need. The whole point of armed security is to protect against potential dangers, not imminent dangers. You can call the police if your life is in imminent danger, but by the time the terrorist has driven his truck through the front door, it’s too late.

Like too much of Canadian law, this is a rule that has never made sense, but that we’ve been lucky enough to get away with. There is simply no moral universe in which it makes sense to permit the use of armed force to protect cash, but prohibit it to protect innocent life.

It is, however, a rule that emerges with a certain elegance from the politics of Canada’s governing class. Because to large swathes of the Laurentian elite, the idea of having armed guards at schools or synagogues is unspeakably … American. The people who make these regulations would not consciously assert that they value negotiable instruments over human life. But the idea of permitting armed guards in our communities is contrary to how we like to think about ourselves. We don’t do it here because it’s not the done thing.

In the Canada of not long ago, we could perhaps afford to indulge these politico-aesthetic preferences. Since Oct. 7, 2023, those days are over.

Canada is now a country in which virulent antisemites feel social license to parade through Jewish neighbourhoods, and to gather in mass marches calling for the elimination of the Jewish state — by which they mean, of course, all the Jews in it. We are a country in which synagogues are firebombed and shot at with alarming regularity. We are a country in which, like something out of 1930s Europe, antisemites draw up lists of Jewish summer camps and synagogues, without facing charges. And we are a country whose legal system routinely drops any charges that are laid against those responsible for antisemitic incitement. Do we see yet where this is going?

Darker days are ahead. If our politicians want to avoid the kind of violence that we have seen in the U.S., UK and Australia, there are two choices. The first is to provide police protection to every Jewish school and synagogue, at the very least during opening hours if not 24/7. It is a rather damning indictment of Canada’s atrophied state capacity that this has not been in effect over the last three years, but there is no sign of that changing.

If governments are unwilling or unable to provide police protection for their citizens, then the obvious alternative is to permit citizens to arrange for their own protection. And, no, I’m not suggesting anything so declassé as permitting people to arm themselves in public. I’m suggesting that licensed, regulated, professional security guards should be permitted to carry guns as they currently do, but for the purpose not only of protecting “goods of substantial value”, but for protecting human life.

This is not the only law that would need to change. Provincial regulation of security guards would need to be adjusted. Well-intentioned but fundamentally useless laws that ban firearms in schools would need to provide for exceptions. The officials responsible for issuing ATCs would need to actually issue them to newly-licensed security guards.

But laws are, as they say, downstream of culture. Our national culture is one of complacency. It’s the same culture that has resulted in us having fewer MRIs per capita than Turkey, and a per capita GDP lower than Alabama.

Our culture needs to change, and our political leaders need to lead that change. Mark Carney was rightly applauded for his Davos speech in which he said the present times call “for honesty about the world as it is.” “Nostalgia,” he said, “is not a strategy.” The Prime Minister was right.

We have been incredibly lucky to have avoided a mass-casualty terrorist attack since Oct. 7. Eventually, luck runs out. We need to face our new reality honestly. Permitting Jewish institutions to arrange for their own protection is not just a matter of good policy, it is a matter of morality. If we are serious about protecting Canadian Jews, let’s start here.

Jay Nathwani is a lawyer in Toronto

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