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.

Living Next to You

Despite living so close, and despite our constitution (not only the main documents, but also the Supreme Court’s constitutional jurisprudence) being substantially influenced (including a negative influence ― attempts not to repeat perceived mistakes) by the American experience, Canadians tend not to know, or not to understand, American constitutional law and theory as well as we sometimes think. Two of the most puzzling, misunderstood, and caricatured elements of that law and theory are originalism and the constitutionally protected right to bear arms. In Canadian legal discourse, both tend to be peremptorily dismissed not only as utterly alien to our constitutional tradition, but also as dangerous, and ― sotto voce anyway ― rather stupid.

Yet peremptory dismissals of ideas, especially ideas in which many intelligent people actually believe, are usually unwise. We don’t need to agree with them, but if we disagree, we should at least try to ensure that our disagreement is somewhat informed. So, if you have a few of hours to spend on learning more about these strange American ideas, here are a couple of links:

About the right to bear arms, an Intelligence Squared debate involving professors Sandy Levinson and Alan Dershowitz (arguing that it has outlived its usefulness), and David Kopel and Eugene Volokh (arguing that it has not).

And about originalism, a discussion between professors Randy Barnett, Mitchell Berman, John McGinnis, and Richard Primus.



Drop That Gun! (But Keep the Bullets)

The Superior Court of Ontario has recently delivered its decision in The Queen v. Montague, 2012 ONSC 2300, an interesting case at the intersection of the topics property rights, and gun rights, about which I wrote here and here. In fact, in the latter post, I had mentioned a previous decision in this case, by the Ontario Court of Appeal, rejecting a challenge to the constitutionality of Canadian firearms law based mostly on the English Bill of Rights, 1689. The accused, William and Donna Montague (William, mostly), had been found guilty of a variety of firearms-related offences; they had deliberately let their licences and registration for their firearms lapse. Hundreds of weapons and tens of thousands of rounds of ammunition had been be seized at their residence. Following their convictions, the Crown applied for forfeiture of the weapons and ammunition, worth over $100,000, pursuant to par. 491(1)(b) of the Criminal Code, which provides that firearms and ammunition (inter alia) involved in or which are the subject matter of an offence, if it has been seized, “is for forfeited to Her Majesty and shall be disposed of as the Attorney General directs.”

The Montagues argued that the application of this provision, at least in their circumstances, would infringe their property rights protected by the par. 1(a) of the Canadian Bill of Rights. In their view, forfeiture – that is, a form of expropriation without compensation – should not be imposed automatically and for an offence which is a malum prohibitum rather than a malum in se. In such cases, “due process of law” – which the Canadian Bill of Rights makes a condition on any deprivation of property – requires a judge to have discretion to order that the property subject to par. 491(1)(b) of the Criminal Code be disposed of otherwise than by forfeiture (for example by transferring legal title to it to a trustee who would sell it for the former owners’ benefit). They also raised, in passing it would seem, ss. 7 and 12 of the Charter.

Justice Wright’s reasons are somewhat muddled―indeed it is not quite clear where he is summarizing the Crown’s position and where he is giving his own analysis of the issue. However, his conclusion is that “in a proper case s. 491(1)(b) of the Criminal Code might well be ‘construed and applied as not to abrogate, abridge, or infringe or to authorize the abrogation, abridgement or infringement’  of the accused’s right to enjoyment of property,” as s. 2 of the Canadian Bill of Rights requires. What this seems to mean is not that courts should only apply the Canadian Bill of Rights “in a proper case”―it’s a law after all, and must always be applied―but rather that “in a proper case” a court might exercise its discretion in the way suggested by the Montagues.

I doubt the soundness of this conclusion as a matter of black-letter law. As either Justice Wright or the Crown – unfortunately it is not clear which – notes, a notion of “substantive due process” has not, so far, been recognized in Canadian law. (Though of course “principles of fundamental justice” in s. 7 of the Charter are very substantive indeed. Yet the Supreme Court, in deciding, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that they were so, made much of the fact that the Charter‘s drafters did not use the expression “due process”.)

As a matter of legal philosophy things are a bit more complicated. Jeremy Waldron argues persuasively that hearings and an opportunity to make submissions are a necessary part of any legal regime worth the name. Yet I do not think that this condemns automatic sanctions, be they forfeitures or―in different cases – mandatory prison sentences (such as the mandatory term of life imprisonment which the Criminal Code imposes for murder), on the basis that such sanctions are not properly legal. I do not think that every legal consequence of every fact need be up for argument, so long as the actual existence of the fact is required to be established in accordance with a good legal procedure. Such sanctions might be too harsh, but that is a different story. The claim that the concept of law or the Rule of Law has substantive (and not only formal and procedural) qualifications is very controversial; I, for one, do not buy it.

Be that as it may, Justice Wright refuses to exercise his new-found discretion to save the Montagues from the forfeiture of their firearms:

[41]      The firearms do not present a case where a citizen has unwittingly become embroiled in bureaucratic “red tape”.  They do not present a case where the forfeiture is so overwhelmingly disproportional to the offense that justice cries out for a remedy.

[42]      The firearms present a case where a knowledgeable individual cold bloodedly and with knowledge of the potential consequences deliberately and publicly broke the law. Courts cannot stand by and appear to condone such behavior. Civil Society is entitled to defend itself. Civil disobedience as a political technique is only morally justifiable and thus eligible for the protection of the court where the perpetrator has been denied access to the political institutions of the nation. This was the case at the time of Gandhi. This was the case at the time of Martin Luther King, Jr. They had no alternative other than violence which they both eschewed. Notwithstanding this, both of these individuals understood the needs of society and accepted the consequences of their civil disobedience.

He does exercise it, however, to reject the forfeiture of some of the ammunition, on the ground that it was not actually illegally stored. The jury found otherwise – but that, he says, is because they were not informed of the relevant regulations at trial. I’m not sure about the propriety of this intervention, even assuming that Justice Wright is correct about having the necessary discretion. I do not know enough, really, to form an opinion on this point. If you do, I would love to hear yours.

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.

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.