Firearms Owners Association
COURT FILE NO.: CR-05-024 & CR-05-026
HER MAJESTY THE QUEEN,
WILLIAM BRUCE MONTAGUE and DONNA JEAN MONTAGUE,
Calvin Martin, Q.C. and Douglas Christie, for the Applicants
HEARD: September 25, 2006; October 16, 2006; March 12, 13, 14, 15, 19, 20, 2007; April 24, 2007; September 6, 2007; and October 22, 23, 24, 25, 2007, at Kenora, Ontario
 The defendants, through counsel, argue that Canadians do not appreciate how much our law molds their attitudes.
 They argue that today, in our country, firearms are disparaged. That today, in our country, this legislation brands those who own firearms as people on the edge of the law, as people whose privacy may be violated with impunity, as people whose possession of firearms may be instantly criminalized.
 The defendants argue that today, thousands of decent, hard working Canadians find themselves beset by bureaucracy and shunned by their neighbours simply because they own firearms. They find this situation ridiculous.
 The defendants move under the Canadian Charter of Rights and Freedoms to strike out ss. 86, 88, 91, 92, 95,100, 102, 108, and the authorizing sections in Bill C-68 and the Firearms Act.
 At the opening of the hearing a request for intervener status was made by a large delegation of citizens speaking through Dr. Hudson. This request was denied as being more appropriate at the appellate stage of proceedings.
 From the beginning a great deal of argument was focused upon the system of universal firearm registration. It was argued that the nature of the registration process and the nature of the item being registered invites errors which can have serious legal repercussions. It was argued that universal firearm registration does not contribute to the stated purpose of the legislation, that is the enhancement of public safety, and that this legislation goes far beyond any valid criminal purpose. It was argued that parliament was led to pass this legislation by the executive branch through the use of improper statistics which were given to Members of parliament. It was argued that there must always be a direct nexus between the public purpose goal and the legislation, in the absence of that nexus the court may strike down the legislation and in this case there is such an absence of nexus. It was argued that the cost of the universal registration scheme was out of all proportion to the benefit to be gained from that scheme, an issue to be considered when determining whether legislation which violates Canadians rights might be saved under s.1 of the Charter.
 The fact is, however, that the registration scheme is not an issue before the court in this case. This is a criminal prosecution and the court should focus upon the elements that make up the basis for the prosecution. While the courts have sometimes used a criminal prosecution to strike down irrelevant but related legislation, generally speaking a criminal prosecution is not an appropriate vehicle for challenging such collateral legislation.
 The defendants argue that the rights of Canadians predate the passage of the Charter in 1982. They agree with Mr. Justice Scollin who said in Thwaites v. Health Sciences Centre Psychiatric Facility, reflex,  1 W.W.R.468 @ 476 "Oppression did not stalk the land until midnight on April 16, 1982, . . .”
 The defendants argue that they have a constitutionally protected right to possess firearms free from excessive regulation by the state. They argue that this right has been unnecessarily infringed and that this prosecution should be dismissed as a result.
 The defendants argue that the right of Canadians to possess firearms has its origin in the law Canadians received from England, that this right is recognized by s. 26 of the Charter and is protected by s. 7.
 Canadians did not suddenly create a body of law to govern them at Confederation in 1867. The early settlers brought with them the law of their mother country. For those in Ontario, this is the law of England as it stood on October 15, 1792.
 The defendants say that a citizen’s right to possess firearms can be traced to two sources: the English Common Law and to the English Bill of Rights of 1689.
 The defendants point to the English Bill of Rights of 1689 which recognized the Englishman’s right to possess firearms for self defence in these words:
 The defendants submit that the English Bill of Rights is part of the constitutional heritage of Canadians having been incorporated by the preamble to the Constitution Act which stated that Canada was to have a Constitution "similar in principle to that of the United Kingdom”.
 Notwithstanding that in 1973 the federal government argued before the Joint Committee on Regulations and Other Statutory Instruments that the Bill of Rights of 1689 was not part of the law of Canada I agree that the English Bill of Rights of 1689 is indeed part of the rich constitutional heritage Canadians have received from the mother country. I take some quibble with the mechanism for its reception, however.
 As the constitutional expert, Dr. Eugene Forsey said in his autobiography “A Life On The Fringe: The Memoirs of Eugene Forsey” (1990, Oxford University Press) p. 182-3:
 As noted, in Ontario, the effective date for the reception of English law is October 15, 1792.
 The defendants also rely upon the Common Law. They cite Blackstone’s masterful commentary on the Common Law which states:
 The defendants submit that this longstanding right to possess firearms is recognized by the Canadian Charter of Rights and Freedoms, s. 26 which states:
 The defendants argue that the Charter of Rights and Freedoms entrenches the right to life liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
 The defendants argue, and the Crown concedes:
 The defendants submit, specifically, that s. 86(2) of the Criminal Code and the Firearm Storage Regulations found in s. 5 of the Storage Display Transportation And Handling Of Firearms Regulations have the practical effect of depriving Canadians of the right to use firearms for self defence, and, in those cases where only firearms would provide self defence, the state has thereby deprived those Canadians of their Charter right of security of the person.
 The defendants argue that the storage regulations for firearms and ammunition are so stringent that, effectively, firearms are not available to a person who is faced with the sort of emergency where only firearms could provide a defence.
 The defendants argue that the mandatory minimum sentence provisions of ss 86(2), 92, 95, 100, 102, and 108 violate the Charter right not to be subject to cruel and unusual punishment. This issue may be academic in this case. If the defendants are acquitted then it is academic. If the defendants are convicted but the appropriate sentence exceeds the minimum penalty then the issue is also academic. I recognize that I may rule on a constitutional issue that arises in a case even if it is academic but I also recognize that the better practice is to restrict oneself to issues that are relevant. I reserve this issue.
 Canada has inherited a Westminster-style Parliamentary government. In theory such a government is omnipotent. Hence the old saying “No man’s property or liberty is safe so long as Parliament is in session.” It is said that such a parliament can turn a man into a woman. In fact the Canadian Parliament is legally restrained by two factors: The subject matter of Parliament’s enactments must be within those reserved to the federal government under what used to be called the British North America Act but which is now called the Constitution Act, and the enactment may impair the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms only to the extent of such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
 Reference re. Firearms Act 2000 SCC 31 (CanLII),  1 S.C.R. 783 confirmed that firearms registration and regulation is subject matter within the competence of the Federal government.
 While Canadians have many rights, not all of them are fundamental rights which are guaranteed by the Charter. Even Blackstone noted that at Common Law the right to possess firearms was not an absolute right but an auxiliary right.
 It appears, even from the authorities relied upon by the defendant, that the Englishman’s right to possess firearms for defence which Canadians inherited was not an absolute right but was one “as allowed by law”. It is clear that Parliament has always legislated to regulate that right and that this is not a fundamental right which is protected by the Charter.
 In the case of R. v. Thompson,  OJ No. 565, the Ontario Court of Appeal said:
 In the case of R. v. Simmermon,  A.J. No. 76 the Alberta Court of Appeal said, amongst other things, at ¶23:
 In the case of R. v. Wiles 2005 SCC 84 (CanLII), (2000), 203 C.C.C. (3d) 161 the Supreme Court of Canada said at ¶ 9:
 Now one might quibble with the language used. It seems to suggest that the only rights Canadians have are the fundamental rights guaranteed by the Charter. Surely this is not the case. s. 26 stands for that. The casual downgrading of a right held dear by many right thinking Canadians to a “privilege” without any principled analysis of the situation has done much to heat the debate before me. However, as much as I might deplore that wording, the fact still remains that this right is not guaranteed under the Charter and it remains subject to the power of Parliament to regulate it. But it is unfortunate that Parliamentarians have been told that in so doing they are not interfering with a right but with a privilege.
 In the result the Application of the defendants is dismissed subject to a possible decision on the mandatory minimum sentences.
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