Legal darts keep flying over blowgun souvenir
A prohibited weapon or not?
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Hey there, time traveller!
This article was published 24/03/2012 (3899 days ago), so information in it may no longer be current.
OTTAWA — An old Amazonian blowgun once used to hunt monkeys and other rainforest creatures has become a captive of Ottawa’s legal and bureaucratic jungle.
At issue is whether the peculiar antique is a prohibited weapon or a harmless souvenir from an ancient Ecuadorean Indian tribe.
In the labyrinth of federal entities inhabiting the capital, the answer has proved as elusive as a two-toed sloth. Lawyers and bureaucrats have been arguing the point on and off for almost three years, with no end in sight.
The latest shot was fired this month by the Federal Court of Appeal.
It overturned a 2011 decision by the Canadian International Trade Tribunal that would have returned the Waorani Indian relic to Mike Miner, a Toronto journalist who lived in the rainforest with the reclusive indigenous tribe for a week in 2009.
As a memento of his passage, a tribal elder gave him the 260-centimetre-long hollow wooden tube, once used to hunt spider monkeys and other small prey with arrows and poison-tipped darts.
But when Miner returned to Canada in July 2009, the Canada Border Services Agency confiscated the 2.3-kilogram gift, along with a much shorter “toy” blowgun Miner said he purchased at an Ecuadorean market.
The agency said the blowguns were prohibited weapons and banned from importation. Miner appealed the determination under the Customs Act to the federal trade tribunal.
At a 2010 hearing, the tribunal was told of a Criminal Code regulation banning “a device commonly known as ‘Yaqua blowgun,’ being a tube or pipe designed for the purpose of shooting arrows or darts by the breath, and any similar device.”
Problem is, the Yaqua Indians are an Amazonian tribe in neighbouring Peru and the trade tribunal applied a strict interpretation to what Canadian lawmakers intended when the regulation was enacted in 1977.
“The tribunal presumes that Parliament chooses its words carefully, and therefore that it intended to identify the very specific ‘Yaqua’ type of blowgun when it adopted the provision; if not, it would have simply used the word ‘blowgun’ without any other qualifier,” the panel wrote in its statement of reasons.
“As for the term ‘blowgun’ itself, the tribunal consulted various dictionary definitions in order to attempt to ascertain, on its own, what actually defines such a device, but none of these inquiries were particularly conclusive in reason of so many variances.
“What they did reveal, however, was a requirement that a certain functionality had to be demonstrated: the ability for a projectile to be propelled by the force of breath… (but) no such demonstration was made (by CBSA) in the present case.”
The tribunal appeared to agree with Miner’s assessment that the old tube was unable to shoot projectiles because it was slightly warped and one end of the shaft’s bore was damaged, according to the reasons for its decision. Miner said he’d been advised the blowgun could not be restored to operational condition.
The CBSA appealed the tribunal decision to the Federal Court of Appeal, which heard the case in January. Miner did not make a submission to the federal court and declined to comment for this story.
Justice Eleanor Dawson ruled this month the trade tribunal’s decision was “unreasonable” and set it aside.
Among her reasons, Dawson said the tribunal should have placed the onus on Miner to prove the blowgun was not a prohibited weapon. Instead, it erred by placing that burden on the CBSA to prove the goods were designed for the purpose of shooting arrows and darts by breath.
She also found the tribunal failed to take into account information presented at the hearing about the Yaqua blowgun and the law banning importation of “any similar device.”
Dawson referred the case back to the tribunal “for redetermination in a manner consistent with these reasons.”
— Postmedia News