A Right to Bear Arms? Canadian Cases

Here’s something I should have done yesterday, before launching into my analysis of the Charter‘s protection of liberty and of the right to bear arms: read some actual cases! Well, better late than never.

In R. v. Hasselwander, [1993] 2 S.C.R. 398, Justice Cory, writing for a 3-2 majority, opined,  at p. 414, that “Canadians, unlike Americans do not have a constitutional right to bear arms.  Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.” However, the issue in that case was not the right to bear arms itself, but rather the definition of the Criminal Code‘s provision banning automatic weapons. There had been, in all likelihood, no argument on the right to bear arms, and there was no detailed analysis of the Charter.

The Supreme Court upheld the federal licensing and registration requirements for long guns in the Reference re Firearms Ac (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, which has subsequently been cited for the proposition that possession and use of firearms is heavily regulated in Canada. But the Charter was not at issue in this case – it was only about division of powers between Parliament and the provinces. And of course something being heavily regulated does not mean that it is not also a constitutionally protected right – electoral campaign speech is heavily regulated by Parliament and provincial legislatures, but there is a right to engage in it, and at least some regulations will be unconstitutional, as those struck down in Libman v. Québec (A.G.), [1997] 3 S.C.R. 569.

The Supreme Court’s last engagement with the right to bear arms came in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, a brief decision holding that a mandatory prohibition on firearms ownership attaching to a conviction for some (non-violent) drug offences is not “cruel and unusual punishment” contrary to s. 12 of the Charter. Again, a general right to bear arms, or s. 7 of the Charter, was not at issue.

In my view, the Supreme Court has not conclusively pronounced on the possibility that s.7 of the Charter protects a right to bear arms. The question was never directly put to it. The Ontario Court of Appeal, however, took a contrary view in a recent decision. But that decision, as well one by the Saskatchewan Court of Appeal, rejected a challenge based on the English Bill of Rights of 1689. The Bill of Rights was variously said to have been made part of the Canadian constitution by the preamble to the Constitution Act, 1867, or by s. 26 of the Charter, but those arguments were very weak. Again, s. 7 of the Charter, although mentioned in passing, was not the object of a full argument by the parties or analysis by the courts.

So it seems to me that in theory, a well-developed argument based on s. 7 could yet be brought. But as I wrote yesterday, I think that the chances of such an argument, if based on the s. 7 guarantee of liberty, would not be good. What’s left to explore is an argument based on the s. 7 guarantee of the “security of the person.” I hope to get to it next week.

Student Protests and Election Law

Cyberpresse (La Presse’s website) has published my op-ed (en français) on the effects a possible spring election in Québec would have on the student protests against tuition fee hikes. In a nutshell, I argue that, given their explicit opposition to the Liberal government, any expenses the protesters would engage in during an election campaign would count as third-party electoral expenses, and would therefore be illegal under Québec’s extremely restrictive electoral spending legislation, which prohibits third-party expenses in support of or in opposition to a political party or candidate. The law was intended to prevent the rich from capturing the democratic process, but operates to silence not only the rich, but also those who are not well-off.

A Charter Right to Bear Arms?

My friend Michael Cust makes an interesting suggestion in a blog post asking whether there is a right to bear arms in Canada: while there is no self-standing right to bear arms, “a case could be made that it’s part of our right to liberty” protected by section 7 of the Charter, because history suggests that, in the last resort, weapons are necessary for citizens to protect their freedom from the government’s oppression.  Michael believes, however, that section 1 of the Charter would allow limits to be imposed on the scope of the right to bear arms read into s. 7, although the controls it would sanction would be less strict than those which could otherwise be imposed. Although I am profoundly sceptical of the underlying claim that weapons are an essential, or even an effective protection for our rights and freedoms, I put this problem to one side, in order to address the less philosophical and more technically legal difficulties with Michael’s claim.

The s. 7 liberty protection, as the Supreme Court has interpreted it, extends to freedom from physical restraints and also to “important and fundamental life choices.” (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, par. 49). I strongly doubt that the courts would accept that a decision to own a weapon is such a choice. And I doubt that they would extend the scope of s. 7 to a sort of collective freedom guarantee protecting the Lockean right of rebellion. So I think that an attempt to read a right to bear arms directly into the s.7 right to liberty, as Michael suggests, could not succeed. But there are at least two more ways to go about try to have the right to bear arms read into s. 7.

The first one is to argue that the right to bear arms, or at least some form of it, is a principle of fundamental justice  and Parliament or the provincial legislatures cannot subject people to the threat of imprisonment (thus uncontroversially engaging the right to liberty) in contravention to this principle. The difficulty of course would be to show that the right to bear arms is a principle of fundamental justice in Canada. As restated in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at par. 46,  a principle of fundamental justice

(1)   … must be a legal principle.

(2)   There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.

(3)   It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

Can the right to bear arms fit those conditions? I don’t think so, if only because there is surely little consensus about its status or importance in the Canadian legal system. One could try to argue, persuasively enough, that the right to defend one’s rights is in fact a principle of fundamental justice, operating for example to render unconstitutional  a law preventing citizens from suing the government or asserting the unconstitutionality of a statute. (These examples are not entirely imaginary either, as cases such as Amax Potash and Air Canada v. BC demonstrate.) But could such a principle be extended to a right to vindicate ones rights, not in a court of law, but by force of arms? I very much doubt it.

The final possibility would be to link the right to bear arms not to liberty, but to security of the person, which s. 7 also protects. Arguably, a restriction on one’s ability to own a weapon for self-defence impairs one’s “security of the person.” But this post is getting out of hand, and since it is not directly related to Michael’s argument, I will discuss this possibility later on.

Further Gun-Registry Litigation Update

Radio-Canada reports that the safeguard order preventing the destruction of the long-gun registry data relative to Québec has been extended, presumably until the merits hearings now due to be held in June. The federal government had claimed that the safeguard order was not necessary because no data would be destroyed before August – yet both Radio-Canada’s report and the CBC indicate that the process has already started, except for Québec.

This raises an interesting issue, which I already referred to. Québec argues that the unilateral destruction of the gun-registry data by the federal government is unconstitutional. If it prevails at the merits hearings (and eventually on appeal, if any), then it will turn “turn out” that the federal government acted unconstitutionally in destroying the data. Would this have any legal consequences? Perhaps not. For now, it seems that no one, except the Québec government, is very interested in the data. But suppose a newly elected government in an other province wants to create a provincial registry. Because of the destruction of the data, this is going to be complicated and expensive. Could it sue the federal government for acting unconstitutionally (and recklessly so, since Québec’s suit ought to have alerted it to the dubious constitutionality of its actions), and try to recover damages to pay some of the costs? Would the federal government argue that the province is estopped, not having itself raised the issue (and joined Québec’s suit)? Off the top of my head, I do not recall any remotely similar cases, but this could get interesting.

Emergency Wiretaps and Privacy Rights

Well, the Supreme Court of Canada has great timing. Or maybe I do, but saying that would be immodest, right? In any case, the day after I wrote that the Court latest privacy decision was a mess, it has released its decision in R. v. Tse, 2012 SCC 16, addressing the conflict bewteen the right to privacy protected by s. 8 of the Charter and s. 184.4 of the Criminal Code authorizing warrantless interception of private communications by a peace officer if

(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained … ;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The Court’s decision is unanimous, and authored by its two newest members, Justices Karakatsanis and Moldaver. The Court holds s. 184.4 unconstitutional, because it does not create any mechanisms by which the peace officers engaging in warrantless wiretapping can be held accountable. Parliament now has a year to re-write the legislation to bring it in conformity with the Charter.

Generally speaking, warrantless searches (including interceptions of private communications) are contrary to the Charter. But they can be justified in emergencies. The question in this case, says the Court, is whether s. 184.4 “strike[s] a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm?” The Court spends a considerable time on clarifying the interpretation of s. 184.4, ensuring that it remains a narrow and exceptional source of authority, to be used only in circumstances of “dire emergency.” It also expresses concern at the fact that this authority might be conferred on too many people – not only police officers but other “peace officers”, including mayors and prison guards. But since this case implicates police officers, there is no record on the basis of which to conclude that this renders s. 184.4 over-broad.

The trouble with s. 184.4, says the Court, is that, unlike other provisions allowing interception of private communications, its use is subject to no after-the-fact accountability measures. At least one such measure, disclosure to the parties whose communications were intercepted, is constitutionally required. Others, such as reporting to Parliament and record-keeping would be welcome, but are not necessary. In its present form, s. 184.4 does not meet the requirements of s.8 Charter. Furthermore, it cannot be saved under s. 1, since a less restrictive measure – a similar provision incorporating after-the-fact notice requirements – is easily available to Parliament.

Seems like a good decision to me. Interestingly, expectations of privacy do not feature at all in the Court’s analysis. It does not ask itself whether it is generally expected that infringements of our privacy will be reported to us. It simply holds that that the Charter requires that they be. Perhaps this is one way out of the problem which so bothered Judge Kozinski and about which I wrote yesterday. Still, courts cannot operate in a vacuum. When they ask themselves whether a search of seizure is “unreasonable,” they bring their, and society’s, expectations to the table. We cannot count on courts to protect our privacy to a much greater extent than we want it protected.

Privacy in the Past, Present, and Future

Our own actions – individual and collective – set the upper limit of our privacy rights. We will never have more privacy rights than we care to have, although we often have fewer. One stark illustration of this idea comes in Isaac Asimov’s short story “The Dead Past,” in which a group of scientists build and, despite the government’s best efforts, thoughtlessly disseminate the instructions for building a “chronoscope” – a machine for viewing any events in the (recent) past. Their original purpose was historical research, but the chronoscope is not very useful for that; what it is very good for is snooping and voyeurism. The story ends with the government official who tried and failed to stop the protagonists wishing “[h]appy goldfish bowl to you, to me, to everyone.”

The internet, especially Web 2.0, is (almost) as good as the chronoscope, argues Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit, in a short essay published in the Stanford Law Review Online. It also allows everyone to learn all about anyone, provided that the person – or indeed someone else – posted the information on the internet at some point. And the fact that people share their every thought and deed online shapes society’s expectations of privacy, which are the key to what constitutional protections we have in this area. Those parts of our lives which we do not expect to be private are not protected from observation at will by the government. And if we do not expect anything to be private, then nothing will be.

“Reasonable expectations of privacy” are also key to defining privacy rights under the Canadian Charter of Rights and Freedoms. The Supreme Court’s latest engagement with the question of just what expectations of privacy are reasonable, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, produced something of a mess. The issue was whether the installation without a warrant of a device that measures the electricity consumption of a house breached the owner’s reasonable expectation of privacy. Four judges said no, because general information about electricity consumption does not reveal enough to make it private. Three said no because the law entitled to owner to ask the utility not to hand over such information to the police, and he had not exercised this right. Two said that the information was private. But what seems clear is that for Canadian law too, what we think about our privacy and what we do about it, individually and collectively, matters.

Are we then doomed, as Judge Kozinski suggests we might be? Perhaps not. With respect, his claims are a little too pessimistic. Judge Kozinski collects a great many frightening anecdotes about people’s willingness to wash their – and others’ – dirty laundry in public. But anecdotes seldom justify sweeping conclusions. And some studies at least seem to show that people do care about their privacy more than the pessimists assume,  if not always in ways or to an extent that would satisfy the pessimists. Old expectations of privacy might be fading, but new ones could emerge, along different lines. Judge Kozinski is right that the law cannot do much to protect people who do not care. But we must hope that he and his colleagues, as well as legislators on both sides of the 49th parallel, will be mindful of the possibility that changes in privacy expectations can go in both directions.

Gun Registry Litigation Update

There is news regarding Québec’s attempt to obtain “its” long-gun registry data before it is destroyed by the federal government, about which I wrote here and here. The merits hearing was supposed to take place today. However, Radio-Canada reports that  the judge was concerned that the matter is too complex and there is not enough time to deal with it now. The La Presse story seems to confirm that the merits hearing will now take place in June.

The question now is what happens to the safeguard order, which prevents the federal government from destroying the gun-registry data until tomorrow (when the merits hearing was originally scheduled to end). The federal government asks that it not be extended, and claims that it is not necessary because no data destruction will take place before August. The news reports do not make Québec’s position clear, but it is safe to assume that it is opposed. Indeed, if the federal government is right that it is not going to do anything before August, one may wonder why they oppose the extension of the safeguard order.

There is no news of the judge’s decision yet, but I will update or have a new post when it comes out.

UPDATE: The hearing will continue tomorrow.