14. In order to determine whether the rifles in issue are properly classified under tariff item No. 9898.00.00, the Tribunal must determine if they meet the definition of “replica firearm” under subsection 84(1) of the Criminal Code. For the rifles in issue to meet this definition, each one must fulfil three conditions: (1) it must be designed or intended to exactly resemble, or to resemble with near precision, a firearm; (2) it must not itself be a firearm; and (3) it must not be designed or intended to exactly resemble, or to resemble with near precision, an antique firearm.
15. The CBSA submitted that the rifles in issue resemble the M4A1 carbine assault rifle with near precision. The M4A1 is used by U.S. military forces, such as the Delta Force, the Navy SEALs and the Marine Corps. The M4 family follows the M16. The sale of M4 rifles made by Colt’s Manufacturing Company LLC is restricted to military forces and to the police. The rifles in issue are equipped with the same accessories as the authentic M4A1.
16. The CBSA submitted that the rifles in issue are not firearms,
since the projectiles that they discharge are unlikely to cause serious bodily injury or death to a person, as required by the definition of “firearm” pursuant to section 2 of the Criminal Code. The Tribunal agrees with the CBSA that, to be considered a firearm, an airsoft rifle must have a muzzle velocity that exceeds 124 metres (407 feet) per second
. Because the rifles in issue have muzzle velocities that are below this threshold,6 the Tribunal agrees with the CBSA that they are not firearms.
Based on the definition of “firearm” found in section 2, the Tribunal is satisfied that the second condition of the definition of “replica firearm” is fulfilled, i.e. each rifle in issue itself is not a firearm.
17. The CBSA submitted that the rifles in issue replicate the M4A1 carbine assault rifle, which is derived from the M16 rifle, manufactured between 1958 and 1964. Therefore, the M4A1 was not manufactured prior to 1898, the year before which a firearm must have been manufactured to be considered an antique firearm, pursuant to the Criminal Code. Thus, the Tribunal is satisfied that the third condition of the definition of “replica firearm” is fulfilled, i.e. each rifle in issue was not designed or intended to exactly resemble, or to resemble with near precision, an antique firearm.
18. Accordingly, because the rifles in issue fulfil the three conditions that make them replica firearms under the Criminal Code, the Tribunal finds that they are prohibited devices. Consequently, it finds that the rifles in issue are properly classified under tariff item No. 9898.00.00 and, as such, prohibited from importation into Canada under subsection 84(1) of the Criminal Code and subsection 136(1) of the Customs Tariff.
19. For the foregoing reasons, the appeal is dismissed.
1 . R.S.C. 1985 (2d Supp.), c. 1 [Act].
2 . S.C. 1997, c. 36.
3 . S.O.R./91-499.
4 . C. Gaz. 2006.I.3701.
5 . R.S.C. 1985, c. C-46.
6 . Ms. Hind’s report indicated that the Neonfire Delta Force M4A1 RIS spring airsoft rifle and the Neonfire M733 Commando RIS spring airsoft rifle have maximum velocities of 72 and 77 metres per second respectively."
If the tribunal would have found in this case that the gun only met two of the three criteria, it would have been released!