Almost exactly two years ago, I blogged about a challenge by an Ontario couple whose immense firearms collection was confiscated after they failed to convince the courts that the Criminal Code‘s firearms provisions were unconstitutional. This time, they argue that the Code‘s provision requiring the forfeiture of the guns and ammunition involved in the firearms offences of which they were convicted ― after deliberately letting their firearms licenses and registration certificates expire ― is itself unconstitutional or inoperative. At trial, their argument was mostly based on paragraph 1(a) of the Canadian Bill of Rights, which provides that deprivations of property require “due process of law.” On appeal, the main argument was rather that the forfeiture was a form of “cruel and unusual treatment or punishment” prohibited by section 12 of the Canadian Charter of Rights and Freedoms. Last week, in R. v. Montague, 2014 ONCA 439, the Ontario Court of Appeal rejected that claim.

The Court began by disposing of some preliminary objections by the Crown to its jurisdiction to hear the appeal, of which it is perhaps interesting to note the claim that the Crown was prejudiced by the s. 12 issue being raised for the first time on appeal. Not so, the Court found,

in the particular circumstances of this case because of the way in which s. 12 challenges must be addressed: by using the facts of the case as well as reasonable hypotheticals. If the high value of the appellants’ firearms could not be established, that high value could still form the basis of a reasonable hypothetical on which the court could assess the constitutionality of the provision.

In effect, the Supreme Court’s approach to s. 12 renders the facts of the case superfluous. If they can bring out the disproportionate character of the sentence, so much the better, but if not, that doesn’t matter. Since s. 12 cases are mostly decided on “hypotheticals”, the absence of a debate about the facts at first instance doesn’t matter for the appeal. (Par. 31)

On the merits, the Court concluded that the weapons forfeiture order is not grossly disproportionate, either in the case of the appellants or in any of the hypotheticals they came up with, and thus not “cruel” in the meaning of s. 12. Fundamentally, the impact on the person whose weapons are confiscated is proportional to the severity of his or her offence, since the weapons in question are the object of the offence, rather than some extraneous property. The appellants lose a great deal of property ― their life savings, they say ― because they chose to involve all of it in their civil disobedience. In the Court’s view,

it is most unfortunate for the appellants that they chose to challenge the firearms licensing laws by putting all their firearms at risk. However … the fact that it was their deliberate action that put so much property at risk is not the full reason why its forfeiture does not constitute cruel and unusual punishment. It is because the forfeiture consequences cannot be viewed as grossly disproportionate or even disproportionate at all. The forfeiture of any one firearm is not going to be an overly serious consequence in comparison to the gravity of any one offence. What the appellants deliberately did in this case was put a large number of firearms constituting a significant amount of their property at risk. That choice does not affect the constitutionality of the forfeiture consequence. (Par. 51)

By contrast, a farmer whose gun is taken away because he is unfamiliar with the licensing requirements (one of the appellants’ hypotheticals) will only lose that one weapon. The impact of the forfeiture provision on him will hardly be shocking by its magnitude.

I think that this makes perfect sense. Although their sincerity in wishing to challenge what they they took to be an unconstitutional firearms law seems to be unquestioned, the appellants chose a very high-risk strategy for doing so. They should have known what the consequences of this strategy’s failure were going to be. These consequences were easily avoidable. They might be harsh, but not cruel.

Even worse for them, the Court of Appeal allowed the Crown’s cross-appeal against the trial judge’s decision that their ammunition was not to be forfeited. Not only their overall litigation strategy, but also their decision to appeal the forfeiture order ended up misfiring badly.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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