HOW THE FIREARMS ACT (BILL-68) VIOLATES
THE CHARTER OF RIGHTS AND FREEDOMS
Study directed by:
Dr. F.L. (Ted) Morton
University of Calgary
Research costs funded by:
The Responsible Firearm Owners Coalition of British
The Responsible Firearm Owners of Alberta
The Recreational Firearms Community Of Saskatchewan
First Presented In Saskatoon, SK
October 5, 2002
Table Of Contents
1: Rights Limited Only By Demonstrably Justifiable Reasonable Limits
Right To Freedom Of Expression
Section 7: Right To Liberty
Section 7: Right to Security Of
Section 7: Right To
8: Right Against Unreasonable Search Or Seizure
Section 8: Search and Seizure -
Relating To Right To Privacy
Section 11: Right
To Presumption Of Innocence
Section 9: Right
Against Arbitrary Detention
Section 10(b): Right To Counsel
Section 26: Right To Bear Arms
Section 26: Right To Property
Section 15: Equality Rights
Section 27: Multicultural
In Reference Re Firearms Act (Canada)
, 1 S.C.R. 783, where the Supreme Court rejected Alberta’s (and
seven other government’s) constitutional challenge that Bill C-68 was
outside of the federal government’s jurisdiction, the Supreme Court
began by declaring that:
issue before this Court is not whether gun control is good or bad, whether the law is fair or unfair to gun owners, or whether it will
be effective or ineffective in reducing the harm caused by the misuse
That was true for
the law of federalism. It is not true under the Charter
If a law
is found to violate a Charter right, the Supreme Court has ruled that the
burden of proof shifts to the government to prove that the law is
“rationally connected” to its purpose; that it impairs the right
involved “as little as possible”; and that there is a proportionality
between the harm done and the good achieved. No impartial judge could find
that the Firearms Act licensing and registration requirements
satisfy these criteria.
The purpose of Bill
C-68—to reduce the use of firearms in violent crime—was laudable and
shared by all law-abiding Canadians. However, its' licensing and
registration requirements do nothing to achieve this end. There is no
credible evidence that the new licensing or registration requirements will
have any effect on the criminal use of firearms or the incidence of
firearms in domestic disputes or accidents. Former Justice Minister Allan
Rock has conceded the obvious: criminals
will never register their guns. (Indeed, there is credible evidence from
the US and now the UK that civilian firearm ownership deters the
criminal use of firearms.) Registered firearms are just as dangerous as
As summarized below,
the Firearms Act contains as many as 28 distinct Charter violations. If
the Supreme Court applies the same Charter rules to law-abiding
firearm owners as it has to impaired drivers, drug dealers, prostitutes,
pimps, single parent welfare recipients, abortion providers, murderers,
refugee claimants and owners of child pornography, that is—if it applies
the law of the land with an even hand—then it will be forced by its own
precedents to declare the Firearms Act unconstitutional and thus of
no force or effect.
Rather than force
hundreds of law-abiding firearm owners to defend themselves against this
unfair law, the same provincial and territorial governments that
challenged Bill C-68 on division of powers grounds in 1997 should use
their power of reference to initiate a second constitutional
challenge—this one based on the Charter of Rights. This would be
more fair and efficient. Instead of thousands of different cases winding
their way through different provincial courts over the next several years,
at great public expense, the issue of C-68’s Charter violations
should be referred to a provincial Court of Appeal as soon as possible.
challenge by a provincial government—Alberta or Saskatchewan, for
example—would prevent thousands of law-abiding firearm owners from
facing criminal charges and potentially ruinous legal costs.
It would also give an expedited answer to the question of the
act’s constitutional validity—saving time and money for both
governments and firearm owners.
The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.
Section 1 of the Canadian
Charter of Rights and Freedoms establishes that the rights and
liberties guaranteed therein are not absolute but are subject to
“reasonable limits.” In one of its most important Charter precedents, R. v. Oakes,
S.C.R. 103, the Supreme Court set out an operational definition of
what criteria must be met for a government to “demonstrably justify”
that a rights limitation is “reasonable.” The “Oakes test”
requires a government to demonstrate that the impugned act:
important public policy objective.
connected to that objective.
right in issue as little as possible (minimal impairment)
does more good
than harm (proportionality).
In subsequent Charter
rulings, the Court has conceded that in practice the Oakes test is
more an art than a science, and is subject to more and less strict
applications. To clarify the issue, the Court has developed rules to guide
judges in applying strict and less strict (i.e. less deferential and more
deferential) versions of Oakes.1
The Court has emphasized that the more strict application of Oakes
is indicated for cases in which the state is the “singular antagonist”
against an individual citizen. This is always the case in criminal law
prosecutions, because it is in the criminal context that the lone
citizen/accused faces the full prosecutorial power and resources of the
Crown. Criminal prosecutions are thus distinguished from other federal and
provincial laws that mediate disagreements between individuals or
competing social or economic interests and in which the penalties are less
severe and lack the social stigma of a criminal conviction. In these
cases, judges may adopt a more deferential view of the Section 1
arguments and evidence advanced by the state to defend its challenged law.
challenges to the Firearms Act (as well as those sections of the Criminal
Code that deal with firearms) trigger the more strict version of the Oakes
test. Despite the regulatory nature of the Firearms Act
licensing and registration requirements, the Supreme Court ruled
unanimously in its Reference re Firearms Act decision that the
entire Act is criminal in nature. Indeed, only as criminal law could the
Act qualify as falling under federal jurisdiction.
Thus, in the “sliding scale” of Oakes test applications,
all provisions of the Firearms Act attract the most strict application of
these four criteria.2
While the purpose of
the Firearms Act—the reduction of illegal use of firearms—easily
qualifies as an important public policy objective, the means used to
achieve this objective utterly fail the last three rules of the Oakes
In 1995 when C-68
was enacted, there was no demonstrable need for new restrictions on
firearm owners. According to the Canadian Firearms Centre’s own data, in
1995, the rate of homicides per 100,000 people in Canada was 0.60, a 25
year low. Likewise, the use of firearms in suicides was at a 24 year low
That data also shows
the rate of 3.0 hospitalizations due to all firearms-related causes per
100,000 people was at an eight year low, as was the rate of 1.2 firearms
accident hospitalizations per 100,000 people. (This second figure excludes
hospitalizations due to intentional use of firearms, which are included in
the first figure.). This data
suggests that levels of firearms-related accidents and deaths had been
decreasing for a number of years prior to 1995, and thus there was no
demonstrable need for a new policy of universal gun registration.4
gun-control mechanisms already in place prior 1995 were having a positive
impact on homicides, they were having limited effects on other
firearms-related crime, in spite of the fact that some types of firearms
have been registered since 1934.5
After the classification of “restricted weapon” was created in
1969 and accompanied by more stringent registration demands, the number of
robberies increased from 74 per 100,000 people in 1974 to 99 per 100,000
people in 1995.6
The number of restricted weapons offences also increased during
this period from 1,812 offences in 1974 to 2,290 in 1994.7
Similarly, while firearms-related homicides have decreased in
recent years in Canada, they have increased since the registration of
firearms was initially enacted. In 1919, when there was no registration of firearms in
Canada, the homicide rate in this country was 0.69.
In 1986, when stringent registration provisions were firmly in
place, the homicide rate in Canada was 2.6.8
Thus Canada’s homicide rate, like robbery and all restricted
weapons offences, has actually increased with increased firearms
registration. These data all
contradict the underlying assumption behind Bill C-68: that more stringent
licensing and registration laws decreases firearms related crime.
There is other
empirical evidence to suggest that the registration of firearms is not the
best solution to firearms related violence.
Liberal MP Allan Rock (the person responsible for shepherding Bill
C-68 through Parliament in 1995) conceded in the debate over the Firearms
“[l]ast year , of the 1,400 people who died by firearms in
Canada, 1,100 were suicides. I know there are those who say that suicide
by its nature will result in death no matter what controls are in place if
the person is determined to take his or her life.
No doubt that point has some force.”9
Three-quarters of firearm-related violence (1994) was in the form
of suicide, in which firearms users are hurting no one other than
themselves, and using only one of several possible methods to bring about
their own death. firearms registration and tighter licensing will not
prevent suicides. As
Professor Gary Mauser has pointed out: “there is no convincing evidence
showing that stricter gun laws can help reduce suicide rates….
Despite the lower rates of firearm ownership in Canada than in the
United States, Canada has a higher suicide rate than the United States.”10
There is also data
showing that the registration of firearms will have little effect on
violent crime in Canada. The
vast majority of firearms-related violence occurs with the use of illegal
handguns. In 1996 for example, non-restricted firearms (long guns) such
as rifles and shot guns were used in just 6.9% of all firearms-related
violence. Indeed, firearms of
all types were used in just 3.34% of violent crimes in Canada in 1996, and
non-restricted shotguns and rifles were used in 0.3% of violent crimes
The vast majority of the remaining violent crimes were committed
with knives, fists and hockey sticks.
firearm-related crimes are most often committed by younger, urban
residents with criminal records, many involved in the drug trade,
as opposed to the older, rural-dwelling citizens who tend to legally own
Compelling those who legally and safely own firearms to register their
possessions is not likely to effect a great deal of change in the criminal
use of firearms. The Firearms Act simply targets the wrong demographic group. An Act that mainly
has had the effect of punishing law abiding Canadians, stigmatising their legitimate
behavior and activity, forcing them to pay for licensing and registration, and threatening them with criminal punishment, can be
said to be arbitrary and unfair, and not rationally connected to the
objective of reducing the criminal use of firearms.
abandonment of an earlier long-gun registry is further evidence of the
marginal utility the new registry. Beginning in the early 1970s, new
firearms legislation required that every firearm sold by a dealer be
registered to the FAC of the purchaser and a copy of this record be sent
to the RCMP in Ottawa. By 1991, the year of the Montreal Massacre, this
meant there should have been a registry of every long-gun sold by a dealer
over the preceding 20 years—including the Ruger Mini-14 used in the École
Polytechnique shootings. But, as recounted by a former Justice Department
official when he requested these records, he discovered that “the RCMP
had stopped accepting FAC records and had actually destroyed those it
already had.” Why? “Because the police thought that it was useless and
refused to waste their limited budgets maintaining it. They also wanted to
ensure that their political masters could not resurrect it.”13
Research from other
jurisdictions suggests that tighter controls on firearms might actually
have the reverse effect on violent crime.
This hypothesis has been supported by the respected study by John
Lott, whose book, More Guns, Less Crime, was published by the
prestigious University of Chicago Press.
Lott’s examination of non-discretionary concealed handgun laws in
the United States reveals that while levels of firearms ownership are
increasing (by about 10% between 1988 and 1996),
violent crime rates have been decreasing (since 1991).
Lott found that 31 American states have laws permitting citizens to
carry concealed handguns for self-defence, and that states without such
laws have substantially higher violent crime rates.14
Indeed, violent crime rates are 81% higher in states without such
laws, while the murder rate is 127% higher.
England tells a similar story. In
her recent study, Guns and Violence: The English Perspective
(published by the equally prestigious Harvard University Press),15
Joyce Lee Malcolm reports that after the introduction of strict firearms
laws in 1953, “the use of guns increased a hundredfold” between 1957
and 1967. She adds that in
1904, there were only four armed robberies in London.
In 1991, there were 1,600 cases of armed robbery, which is now
among England’s most serious crime problems.
After a ban was issued on all handguns in England in 1997, Firearms
related crimes rose 10% in 1998. Violent
crime more than doubled in England between 1996 and 2000.16
In 1983, the New
Zealand government discontinued universal registration of firearms after
that country’s national police deemed the program to be completely
unsuccessful. Some police
agencies are calling for the same steps to be taken in the United Kingdom,
where firearms registration has proven similarly fruitless.
Other studies from
abroad demonstrate the same phenomenon.
As Mauser points out: “Firearms have been banned in Jamaica, Hong
Kong, New York City, and Washington, DC, without leading to decreases in
In Australia, stringent gun-control laws, including a ban on all
military-style handguns, were introduced in 1997.
Homicides involving firearms doubled between 1996 and 2001, and
armed robbery increased 166% between 1996 and 1999.
In Australia: “more than 40 percent of firearms have not been registered
even after decades of requirements that they be so.”18
These examples from
other countries attest that stricter gun-control laws do not equate to
lower crime rates or higher public safety. Indeed, there is more evidence
for the opposite conclusion. As Gary Kleck succinctly states in his
analysis of gun registration in the United States: “there appears to be
no violence reduction benefit to be derived from restricting gun ownership
in the general population.”19
In 1995 when Bill
C-68 was before Parliament, Allan Rock, the entire Justice Department, and
the federal cabinet all relied heavily on the report of the “Firearms
Control Task Group.” This
group, using RCMP data, reported that in 1993, there were 623 firearms
involved in violent crime in Canada.
A subsequent RCMP analysis of the data upon which this
conclusion was based revealed that only 73 firearms were involved in
violent crimes that year. Also,
the Commissioner of the RCMP. stated in a letter to the Department of
Justice Canada that “a cursory review of the remaining 909 firearm cases
revealed that only a very small percentage of these would meet the
definition of a firearm involved in a crime.”20
Department tried to downplay the significance of these discrepancies as
being due to differences in methodological approach, but failed to
convince critics. The statistics cited by the RCMP reflect crimes in
which firearms were used directly, while Justice Canada’s statistics
involved any crime in which a firearm was recovered, whether the gun was
used in the commission of the crime or not.
Justice Canada’s numbers would have the effect of including,
hypothetically, a criminal investigation of a drug transaction at a house
in which a duck hunting shotgun which was safely and legally stored in the basement,
and not used or involved in the drug deal in any way, was noticed and
recovered by the police in the investigation.21
consider the RCMP’s methodologies to provide a much more accurate
picture of firearms use in violent crime in Canada.
The Commissioner of the RCMP stated that this “incorrect
reporting of RCMP statistics could cause the wrong public policy or laws
to be developed and cause researchers to draw erroneous conclusions.”22
Parliament’s reliance on such misleading data further undermines
the “rational connection” between the Firearms Act's purpose and its
means—universal firearm registration.
Another way of
gauging the lack of proportionality between the costs and benefits of the Firearms
Act has been its' soaring costs. The
program was originally targeted to cost $85 million over five years. By
2000, costs exceeded $500 million.23
In December, 2002, Auditor General Sheila Fraser released a report
indicating that costs would reach $1 billion dollars by 2005.During this
same period, there has been no measurable reduction in firearm-related
violence. This money has been spent primarily on hiring bureaucrats to run
the new registry, not on law-enforcement officers. This money could be
more effectively spent on longer incarceration of those convicted of using
firearms to commit crimes and cracking down on gun smuggling—the primary
source of firearms used in crime in Canada.24
A properly designed Firearms Act would target gun smugglers as
opposed to recreational users as does the current Act.
There has been no
systematic verification of the accuracy of the information reported on
registrations. The RCMP has said that it would take another 8.8
years to verify the accuracy of registration information on all shotguns
and rifles. Despite this backlog, as this is written in 2002, eight firearm officers
responsible for verification have resigned.
In 2002 it was
recently disclosed that one out of every six firearms registered has no
serial number. This missing information will defeat one of the stated
purposes of the Firearms Act: assisting police in tracing stolen firearms and firearms
used in crimes.
claim that the Firearms Act would deliver more effective screening of
firearm owners has been contradicted by recently disclosed CFC
information. Between 1979 and 1999 under the old FAC system, the
“rejection rate” for applicants was .76 percent. Since 1999, the
rejection rate for license applications under the new system is .38
percent, only half of the old rate. It is twice as easy for marginal
applicants to become licensed under the new law.
In Reference Re Firearms
Act, 1998 ABCA 305,
these and similar data, Justice Conrad
“These statistics also confirm that firearm ownership is not dangerous, per se, and that many Canadians possess firearms for legitimate reasons and use them in a safe and responsible manner... It follows that the impact of this legislation will be borne substantially by those who use firearms safely for legitimate purposes...
places conditions on the use, ownership and possession of property that go far beyond any dangerous use or misuse of
“There must always be a direct nexus between the public purpose goal and the act, or in some cases the person. While a law prohibiting dangerous use of a firearm is valid it is not valid to make a law-abiding citizen a criminal for mere failure to possess a registration certificate. In the latter case, the connection to misuse or serious risk of harm is not there.”
While these findings
were not conclusive of the jurisdictional/division of powers issue before
her in that earlier case, Justice Conrad’s findings indicate why the Firearms
Act will be found unconstitutional in the context of a Charter or
challenge. The Firearms Act violates multiple sections of the Charter of
Rights and fails all three components of the Section 1 Oakes
rational connection, minimal impairment, and proportionality. Fair-minded
judges will have no choice but to declare the Firearms Act
unconstitutional and to dismiss any criminal charges brought against
law-abiding Canadian citizens for alleged violations of the Act. No
Canadian can be convicted or punished for violating a law that is itself
might wonder how a government could design a policy that has cost so much
but achieved so little. The answer was recently provided by John Dixon, a
lawyer and President of the B.C. Civil Liberties Association, who, from
1991 to 1992, served as advisor to then Deputy Minister of Justice, John
Tait. “The policy wasn’t meant to control guns,” Dixon wrote in the
January 8 (2003) Globe and Mail. “It was designed to control Kim
Dixon relates how in
the run-up to the 1993 federal election, Jean Chretien and the Liberal
Party were keen to make then Tory Prime Minister Kim Campbell look “soft
on guns.” As Justice Minister, Campbell had championed tough new gun
control legislation in the wake of the Montreal massacre. Worried that
this would boost her electoral appeal, the Liberals decided to outbid her
by proposing a much more draconian system. The key to this political
strategy was “to find a policy that would provoke legitimate gun-owners
to outrage.” The Liberals’ answer was a policy of universal
Dixon relates how
Justice Department officials warned the Liberals that universal
registration would be ineffective, wildly expensive and incite strong
opposition from firearm users. They did not care, Dixon writes, because
effective policy was secondary to their primary political purpose. “The
fact that it was bad policy was crucial to the specific political effect
it was supposed to deliver,” explained Dixon. “Nothing would better
convince the Liberals’ urban constituency that Jean Chretien and Allan
Rock were taking a tough line on guns that the spectacle of angry old men
spouting fury on Parliament hill.” And so Bill C-68 was conceived and
passed into law.
If the Supreme Court
were still not persuaded by the evidence reviewed above to rule that the Firearms
Act fails the Section 1 “reasonable limitations” test, then surely
they would be persuaded by John Dixon’s account. Dixon’s reveals that
the Firearms Registry was never intended to have a “rational
connection” to its purpose; that indeed the government chose the most
restrictive—not the least restrictive—means, because these would
deliver the desired political boost for the 1993 election. Whatever its
political efficacy in 1993, the Firearms Act's dismal policy inefficiency gives it
little chance of surviving Section 1 scrutiny by an impartial judge in
Everyone has the following fundamental freedoms
freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication;
Section 2(b) of the
Canadian Charter of Rights and Freedoms protects freedom of expression.
Grouped under ‘Fundamental Freedoms,’ this right is among the
most important in a free society. As MacIntyre J. stated in RWDSU v. Dolphin Delivery
Ltd.,  2 S.C.R. 573: “[t]he principle of freedom of speech and expression has
been firmly accepted as a necessary feature of modern democracy.”
Indeed, a generation before the adoption of the Charter, Rand J.
eloquently declared in Switzman v. Elbling,  S.C.R. 285 that
free speech is “little less vital to man's
mind and spirit than breathing is to his physical existence.” Notwithstanding the pre-eminence of freedom of expression in all
democratic societies, the
Firearms Act limits this right in two ways, neither of which pass the
“reasonable limitations” clause.
first of these violations is technical and falls in the area of
enforcement. Section 103 of the Act coerces suspects to provide information against their will.
Section 103 states:
owner or person in charge of a place that is inspected by an inspector
under section 102 and every person found in the place shall:
(a) give the
inspector all reasonable assistance to enable him or her to carry out the
inspection and exercise any power conferred by section 102; and
provide the inspector with any information relevant to the enforcement of
this Act or the regulations that he or she may reasonably require.”
the case of Slaight Communications Inc. v. Davidson,  1 S.C.R.
1038, Lamer J. indicated that: “freedom of expression necessarily
entails the right to say nothing or the right not to say certain
things.” The Court upheld this provision later in RJR-MacDonald Inc.
v. Canada (Attorney General)  3 S.C.R.
199. In the case of Lavigne v. Ontario Public Service Employees
Union  2 S.C.R.
211, Wilson J., commenting on forced expression,
stated: “[i]f the government's purpose was to put a particular message
into the mouth of the plaintiff…the action giving effect to that purpose
will run afoul of s. 2(b).” Forcing
firearm owners and those found inside their house or business to assist
inspectors violates the right to say nothing which the Supreme Court has
upheld as an aspect of the freedom of expression.27
light of these precedents, the coercive elements of section 102 of the
Firearms Act must be found to
violate section 2(b) of the Charter, unless such coercion can be
justified as a “reasonable limitation” under section 1 of the Charter.
The Firearm Act’s
second violation of the right to freedom of expression is broader. While
conventional expression usually takes the form of written or spoken word,
engaging in an activity has also been deemed expressive
For example, the activity of marching in a political rally is a
form of expression. As
the Supreme Court stated in Irwin Toy Ltd. v. Québec (Attorney
General)  1 S.C.R.
“[a]ctivity is expressive if it
attempts to convey meaning. That
meaning is its' content. Freedom
of expression was entrenched in our Constitution…so as to ensure that
everyone can manifest their thoughts, opinions, beliefs, indeed all
expressions of the heart and mind, however unpopular, distasteful or
contrary to the mainstream.”
the same case, the Court also linked expression with “individual self-fulfillment.”
In the more recent child pornography case, R. v. Sharpe 
B.C.J. No. 54, the
courts re-affirmed the link between a person’s possessions and their
ability freely to express themselves. In Sharpe, Shaw J. wrote that “[t]he
personal belongings of an individual are an expression of that person's
essential self. His or
her…personal things are intertwined with that person's beliefs,
opinions, thoughts and conscience.”
these precedents, the ownership of firearms qualifies as a form of
expression protected by section 2(b) of the Charter. This is especially true for the many collectors
of antique and rare firearms, and for those families that keep firearms as
family heirlooms. In both cases, the keeping and displaying of firearms
(privately at family gatherings or publicly at gun shows) is a form of
self-fulfillment. The keeping and displaying of such firearms may signify
the owner’s interest or pride in the past military achievements of
an ancestor or of our nation. For others it may signify pride or
interest in Canada’s pioneer history or the deeply rooted traditions of
hunting, trapping, farming or ranching. All of these firearm related
activities are part of Canada’s multicultural mosaic (itself a
constitutionally protected principle) and their expressive content enjoys
the full protection of section 2(b) of the Charter.
fact that most gun collections are private and not normally displayed in
public does not diminish their entitlement to Charter protection. The
Supreme Court has recognized an important connection between freedom of
expression and the constitutional right to privacy.
Private activity which is expressive but not intended for public
consumption, explains Dickson C.J. in Canada (Human Rights Commission)
v. Taylor  3 S.C.R.
892, is protected by s. 2(b) to an even
greater degree than public expression.
determining in Keegstra that the criminal prohibition of hate propaganda
in s. 319(2) of the Criminal Code is not constitutionally overbroad, I
relied to an extent upon the fact that private communications were not
affected. The connection between s. 2(b) and privacy is thus not to be
rashly dismissed, and I am open to the view that justifications for
abrogating the freedom of expression are less easily envisioned where
expressive activity is not intended to be public, in large part
because the harms which might arise from the dissemination of meaning are
usually minimized when communication takes place in private, but perhaps
also because the freedoms of conscience, thought and belief are
particularly engaged in a private setting. (emphasis added)
this standard, the possession or collection of firearms is clearly a
protected form of private expression.
but not least, the Supreme Court has given freedom of expression a broad
definition encompassing a wide variety of activity, some of which is
offensive to the values and beliefs of a majority of Canadians.
The Supreme Court has found the private possession of racial hate
propaganda as well as child pornography to both fall within the ambit of
protected expression, despite the fact that the vast majority of Canadians
find both activities to be offensive.
If the Charter protects possession of child pornography and racist propaganda,
surely it protects the lawful possession Firearms. By making mere possession of these firearms illegal unless the owner is
licensed and each individual gun is registered, the Firearms Act clearly
restricts freedom of expression and can only be saved if it can pass the
“reasonable limitations” test set out in Section 1 of the Charter.
has 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
7 of the Charter protects the essential rights of life, liberty and
personal security, rights that are fundamental to all democratic
societies. While these rights
are subject to reasonable limitations under Section 1, Section 7 confers
additional protection by ensuring that these rights cannot be taken away
except “in accordance with the principles of fundamental justice”.
In Re B.C. Motor Vehicle
Act,  2 S.C.R. 486, the Supreme Court interpreted this latter phrase
to allow both procedural
and substantive scrutiny of legislation.
This means that for a law to meet the requirements of section 7, it
must respect the principles of procedural fairness—both in the way that
it is written and in the manner in which it is administered—while also
being a fair law. The
Firearms Act fails to meet either of these tests.
Supreme Court of Canada has interpreted the Section 7 right to liberty
broadly. As Wilson J. stated
in R. v. Morgentaler
 1 S.C.R.
30: “the right to liberty
contained in s. 7 guarantees to every individual a degree of personal
autonomy over important decisions intimately affecting their private
lives.” Similarly, in the case of Godbout v. Longueuil (City),
 3 S.C.R. 844, La Forest J. stated: “the right to liberty
enshrined in s. 7 of the Charter protects within its' ambit the right to
an irreducible sphere of personal autonomy wherein individuals may make
inherently private choices free from state interference.”
Firearms Act violates this protected sphere of personal privacy. It forces Canadian firearm owners to become licenced and to
register their firearms simply in order to own them. The state has legitimate reasons to regulate who purchases firearms
(covered by the previous “Firearms Acquisition Certificate”) and who
legally uses firearms (covered by mandatory firearm safety courses). But
the Firearms Act goes far beyond these legitimate objects of state regulation and
strikes at the mere act of possessing a firearm inside one’s own home.
This is done in the absence of any evidence of harm to others or threat of
such harm—the primary justifications in a liberal democracy for the
state to interfere with the personal liberty of its' citizens. The Firearms
an intrusive and stigmatizing regulatory regime on the lawful activity of
merely possessing a firearm in the privacy of one’s own home. As noted
by Justice Conrad of the Alberta Court of Appeal in the first
constitutional challenge to C-68:
evidence was presented to this Court to show that the mere possession of
an ordinary firearm without a licence or registration certificate is a
significant social problem, let alone one leading to an increase in
firearm-related crime, suicide or accidents.”28
thus violates the personal autonomy protected by Section 7 and the Supreme
Court’s jurisprudence on liberty.
respect to the Section 7 right to personal autonomy, C-68 is analogous to
other sections of the Criminal Code that create “victimless
crimes”—gambling, drugs, physician-assisted suicide, child pornography
and prostitution (solicitation). As these analogous crimes suggest, the
state may exercise the police power to limit personal freedom in the name
of public safety, public health and public morality. But litigation
arising from these analogous exercises of the police power demonstrate
that such attempts constitute prima facie violations of Charter-protected
freedoms (primarily section 7) and can only be sustained if they meet the
requirements of being a “reasonable limitation” as prescribed by
Section 1 of the Charter.
As Justice McLachlin noted in her dissent in the
doctor-assisted suicide case of Rodriguez v. British Columbia (Attorney
General),  3
S.C.R. 519: “s. 7 was enacted for the purpose of
ensuring human dignity and individual control, so long as it harms no one
else.” The Firearms Act
undermines the dignity and individual control of thousands of
law-abiding hunters and farmers who have not harmed anyone, and is thus in
violation of section 7 of the Charter.
Firearms Act also limits the Section 7 right to security of the person.
In the English speaking common law jurisdictions of the world, it has long
been recognized that the primary purpose of the state is to protect the
life, liberty and property of its citizens against both foreign and
domestic threats. As John
Locke declared in his justly famous justification of the Glorious
Revolution of 1688, “‘tis not without reason that [Man] seeks out and
is willing to join in society with others…for the mutual preservation of
their lives, liberties, and estates, which I call by the general name,
were echoed by Sir William Blackstone in his Commentaries who said :
These, therefore, were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England.
And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private
the normal course of events, it is the function of the criminal law and
the police to protect the lives and properties of the citizenry against
the domestic criminal elements of society. But the police have never been
given a monopoly in this effort. Blackstone again, said:
“When a man quits the state of nature, and enters into a state of society, he resigns into the hands of society the right of punishing an offender, for an injury already done him, the society by the terms of the social compact, having engaged to punish every such offender for him.
But he retains the right of repelling force by force; because that may be absolutely necessary for self-preservation, and the intervention of the society in his behalf, may be too late to prevent an injury.”30
common law has always recognised that
citizens themselves enjoy a right of self defence against attacks on
either their persons or and possessions. Contrary to regular claims by
Canadian journalists, special interest groups, and former Minister of
Justice Allan Rock, this common law also includes the right to own
and to bear arms for purposes of defending one’s home and family.31
Firearms Act deprives Canadians of this right of
self defence against crimes of violence such as home invasions by making them wholly dependent upon police response for
protection. In an era of rising property crimes and decreased police
presence, we know that police response is almost always too late to
protect the victims of home invasions.
Ironically, this situation has been
aggravated by the hundreds of million dollars that have been diverted from
increasing police presence to building the bureaucracy required to
administer the Firearms Act. For the millions of Canadians who live in rural
areas, police response is even slower—often hours after a 911 emergency
call is made. For these Canadians, the criminalization of mere possession
of a firearm inside your own home is a prima facie violation of their
Section 7 right to security of the person.
Supreme Court has interpreted Section 7 to protect more than just physical
security. The Court has extended this right to include a right to be free
from government induced emotional and psychological stress.
As Dickson C.J. stated in R. v.
Morgentaler,  1
S.C.R. 30: “The case law leads me to the conclusion that state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person.”
Firearms Act violates this broader concept of security of the
person because it imposes significant psychological stress on firearms
owners. By imposing criminal
sanctions for violations of the Act and its regulations, the Firearms
Act has potential to bring thousands of otherwise law-abiding farmers,
hunters, target-shooters and collectors into contact with the criminal
law, through charges where the penalty for violations include jail sentences.
Justice Dickson, in R. v.
Oakes,  1
S.C.R. 103, accurately captured the
consequences of being charged with a criminal offense:
individual charged with a criminal offence faces grave social and personal
consequences, including potential loss of physical liberty, subjection to
social stigma and ostracism from the community, as well as other social,
psychological and economic harms.”
is even worse for Canadians whose only firearms consist of one or two
family heirlooms, because they typically are ignorant of the detailed
information—caliber, action, barrel length—required to register
firearms under the Firearms Act. These effects are contrary to the right
to security of the person protected by Section 7 of the Charter.
103 of the Firearms Act violates Section 7 of the Charter; it
requires a person to actively assist officers searching their home during
police efforts to enforce the Firearms Act, and further requires
them to provide the officer with "any information relevant to the enforcement of this Act or the regulations that he or she may reasonably require".
105 of the Firearms Act also violates Section 7 (and 8) of the Charter.32
Section 105 requires a person to bring in a firearm for inspection when
requested to do so by a government official. Section 113 makes it a
criminal offence (punishable on summary conviction) to refuse to comply
with a request made under section 105.
sections violate the “principles of
fundamental justice,” which the Supreme Court has interpreted to mean
that a person cannot be coerced into providing police with
self-incriminating evidence. There are several Charter precedents that
stand for the rule that the police cannot force a suspect to assist them
or other government officials in the investigation of that person for
possible criminal activity. If a person is being investigated for having
committed a criminal offence, the Supreme Court has ruled in R. v. Hebert
 2 S.C.R.
they have a
right to silence
and in R. v. Manninen
 1 S.C.R.
a right not to be asked questions until
their lawyer is present.
course, if police have reasonable and probable grounds to suspect that a
person has an unregistered or otherwise illegal firearm, they can apply to
a judge for a search warrant, and a suspect cannot legally resist a
properly executed search warrant. Indeed, section 8 of the Charter
requires the police to first obtain a search warrant. However, as Wicklum
has pointed out, section 105 is an attempt to circumvent the search
warrant requirement. When drafting Bill C-68, the government anticipated
that it would be wildly impractical, inefficient and costly to have to
apply for a search warrant for every suspected unregistered firearm.
Section 105 provides a much more efficient and less expensive way to
achieve the same end: just tell the suspect to bring the evidence to the
station “for inspection,” and make it a crime not to comply.
notes that “inspection” demands similar to section 105 are an
acceptable, standard practice in non-criminal regulatory schemes, since
they enhance efficiency. However, the Government has barred itself from
using such instruments to enforce the Firearms Act, since they have
already argued—successfully before the Supreme Court of Canada—that it
is exclusively a matter of criminal law. The Government cannot have it
both ways. By its decision to characterize the Firearms Act as
exclusively criminal law, it subjects police investigations to the
requirements of Sections 7 and 8 of the Charter. Section 103 and 105
violate both these sections, and can only be salvaged if they can pass the
Section 1 Oakes test.
7: Procedural fairness
manner in which the Firearms Act is being administered and enforced violates the
rules of procedural fairness mandated by the Section 7 guarantee of the
principles of fundamental justice. Effective January 1, 2003, the firearm
registration requirements take effect, and anyone with unregistered
firearms will be liable for prosecution. At the current rate of
registration, however, on January 1 there will be a huge back log of
registration applications that have been received but not yet processed.
As a result, thousands of applicants will be liable to criminal
prosecution because of administrative inefficiency. The will be subject to
criminal prosecution, not because they have done anything wrong, but
because the government has failed to process their applications in a
timely manner. This administrative back-log will violate the principles of
procedural fairness that the Supreme Court has established.
the first two years of registering firearms, the Canadian Firearms Centre
(CFC) has registered 4.2 million guns. If one accepts the government’s
estimate of the total number of guns in Canada (and there is strong
evidence that this number is much too low), then the CFC will have to
register another 3.5 million between September, 2002 and the end of this
year. At the current average of 40,000 registrations processed per week,
there will still be a backlog of almost 3 million firearms on January 1.
This assumes that the system will not crash again as it did in July, 2002,
when registrations slowed to 10,000 per week.
the 1986 Re B.C. Motor Vehicle Act,
S.C.R. 486, Justice
Lamer wrote that, "A law that has the potential to convict a person
who has not really done anything wrong offends the principles of
fundamental justice and, if imprisonment is available as a penalty, such a
law then violates a person's right to liberty under Section 7 of the Charter."
In the 1988 Morgentaler
abortion case, Justice Dickson ruled that
of the basic tenets of our system of criminal justice is that when
Parliament creates a defense to a criminal charge, the defense should not
be illusory or so difficult to obtain as to be practically illusory."
system] contains so many potential barriers to its own operation that the
defence it creates will in many circumstances be practically unavailable
[to those] who would prima facie qualify for the defence . .
if the purpose of legislation is unobjectionable, the administrative procedures to bring that purpose into operation may produce
unconstitutional effects, and the legislation should then be struck
precedents mean that Section 7 of the Charter does not allow the
government to provide an administrative defence to a criminal charge
(i.e., a registration certificate for a firearm), but then not have that
defence available in practice. As
of Julyy 1, 2003, this will be precisely what will occur under the
Firearms Act. Accordingly, the first legal step in challenging the Act
be to launch an injunction against enforcement effective July 1, 2003.
related procedural violation arises from the uneven application of the
Firearms Act in different provinces. The licensing and registering
provisions are being applied differently in different parts of
Canada—much like the old abortion provisions (section 251) of the
Criminal Code. This pattern
of administration violates the rule laid down by Dickson C.J. in
Morgentaler that the criminal law must be uniformly applied in each
province across Canada. The Chief Justice stipulated that defences to (and by
extension, charges under) the Criminal Code must be equal across the
country, or they will be deemed to violate the principles of fundamental
Firearms Act, which is a criminal law, is not applied evenly
throughout the country. Only
six provinces agreed to administer the Act in their own jurisdictions.
Seven other provinces and territories have refused to enforce what their
governments consider an unconstitutional law, thus forcing the federal
government to administer the Act. This “checker-board” approach to enforcement means that
owners are subject to different administrative procedures and practices
depending on where they live in Canada.
Act as enforced—or rather, not enforced—violates the principles of
fundamental justice in a second way. Since the licensing provisions of the
Act came into effect January 1, 2001, they have been enforced in a highly
irregular and discriminatory manner. There have been no charges laid
except as an additional charge in cases where firearms have been used in
the commission of a separate criminal act. This double-standard also
violates the uniform application of the law principle mandated by the Morgentaler
precedent. A criminal law
that is enacted by Parliament and forms part of Canada’s criminal law
but which is not applied even-handedly violates the principles of
well it has a discriminatory effect. The law has been applied in different
ways for different classes of people.
While firearms owners who have not broken any other laws and are
thus not charged tend to be older, more educated and middle class, the
criminals who commit other offences and are then charged with licensing
violations tend to be younger, less educated individuals who are often
from the lower socio-economic backgrounds, and are in many cases members
of ethnic or racial minorities. This
unequal application of the law violates the oldest and still most basic
meaning of the guarantee of “equality before the law.” In 1690, John
Locke stated it thus:
they are to govern, by promulgated established Laws, not to be varied in
particular Cases, but to have one Rule for the Rich and Poor, for the
Favourite at Court and the Countryman at Plough.”33
200 years later, the recognized English constitutional authority and
academic Albert Venn Dicey restated it as a core meaning of the Rule Of
“We mean in the second
place, when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”34
the Canadian context, the constitutional lawyer and theorist F.R. Scott has articulated the same rule:
always a triumph for the law to show that it is applied equally to all
without fear or favour. This is what we mean when we say that all are
equal before the law.”
However the rule is articulated, the systematic,
selective enforcement of C-68 has violated the Section 7 right of those
charged under it.
widespread none enforcement of a law creates confusion in the community.
Understandably, some firearm owners have interpreted none enforcement as signaling
that they need not apply for a license. If any of these persons are prosecuted in the future for not
having a license, this too would violate the principles of fundamental
justice. The rule of law does
not permit the state to force citizens into the precarious condition of
guessing whether or when a criminal law is going to be enforced.
excessive discretion exercised by the Chief Firearms Officer in each
province also violates the norms of procedural fairness. As Justice Conrad
of the Alberta Court of Appeal observed in
Constitutionality of Bill C-68: “The entire licensing scheme is
at the discretion of the Chief Firearms Officer. It is a discretion
without minimum standards, or any absolute standards for that matter.”
This unfettered discretion violates the norms of the Rule Of Law that date
back to the Magna Carta (1215). Dicey’s articulation of this principle still
mean, in the first place, that no man is punishable or can be lawfully
made to suffer in body or in goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the
land. In this sense the rule of law is contrasted with every system of
government based on the exercise by persons in authority of wide,
arbitrary, or discretionary powers of constraint.”35
rule of law principle was recognized in Canadian courts prior to the Charter
in the famous case of Roncarelli v.
S.C.R. 121, and is
strengthened by Section 7 of the Charter.
further violation of Section 7 occurs because of the government’s
attempt to pay for the firearms registry by imposing registration fees on
firearm owners. Charging fees is a standard and acceptable practice in
government regulation of individual private property, but “property and
civil rights” is an exclusive provincial jurisdiction. The Federal
government has successfully argued (before the Supreme Court of Canada)
that the Firearms Act is not a regulatory regime for property but rather a
valid exercise of its' criminal law jurisdiction. This position resolves
the Federal government’s jurisdictional problem but creates a new
Charter problem. Because criminal law is by definition in the “public
interest,” the government cannot impose registration fees on individual
property owners to pay for restrictions that are in the “public
interest.” If such restrictions are required for reasons of “public
safety” (or morals or health), then the public must pay for this public
relevant precedent again is the 1969 abortion law. Former Section 251 of
the Criminal Code made abortions illegal, but then provided a legal
defense—an approval certificate issued by a therapeutic abortion
committee (TAC) certifying that continuation of the pregnancy constituted
“a threat to the health” of the woman. The TACs were staffed by
doctors and thus expensive to run. However, there was never any question
of trying to recover the TAC’s administrative costs by charging a fee to
the pregnant women and doctors who came before the TAC to request the
approval certificate. The purpose of the TAC was public health and public
morals—balancing the life of the unborn child against the health of her
mother—and so the public paid the administrative costs. In the case of
the Firearm Registry, the government’s attempt to transfer public
enforcement costs to affected private citizens is unprecedented in
Canadian criminal law. It also violates the principles of fundamental
justice required by Section 7 of the Charter.
the right to property is not explicitly enumerated in Section 7, it is
implied in the rights to “liberty” and “security of the person,”
which are explicitly protected. As explained in detail below, in the
evolution of the British
constitution, the concepts of “liberty” and “property” are often
used interchangeably. For John Locke, William Blackstone and the
Canadian Founders, it would have been impossible to conceive of one
without the other.
In keeping with this tradition, Section 1(a) of the 1960 Canadian Bill
of Rights, after which Section 7 of the Charter is modeled, provides:
is hereby recognized and declared that in Canada there have existed and
shall continue to exist…the following human rights and fundamental
freedoms, namely, (a) the right of the individual to life, liberty,
security of the person and enjoyment of property, and the right not to be
deprived thereof except by due process of law.”
Singh v. Minister of Employment and
Immigration,  1
S.C.R. 177, the Supreme Court established that courts can incorporate more specific rights
protections from the Canadian Bill of Rights into the more broadly
worded language of the Charter. In
Singh, the Court used the Bill of Rights to incorporate a right to
a fair hearing into Section 7 of the Charter. In a similar manner, the
Court can and should expand the scope of the freedoms protected by Section
7 to include the right to the enjoyment of property.
will be deemed to be protected by Section 7, the Firearms Act violates that right. As Justice
Conrad of the Alberta Court of Appeal has noted: “It [C-68] places
conditions on the use, ownership and possession of property that go far
beyond any dangerous use or misuse of guns.”
addition, to the rights to “life, liberty and security of the person”,
Section 7 also creates an additional, free-standing right not to be
deprived of any of these substantive rights “except according to the
principles of fundamental justice.” In her Rodriguez dissenting
opinion McLachlin J. indicated that:
“[a law] may violate the principles of
fundamental justice under s. 7 of the Charter if the limit [upon the s. 7
right] is arbitrary. A particular limit will be arbitrary if it bears no
relation to, or is inconsistent with, the objective that lies behind the
Firearms Act constitutes precisely such an arbitrary limit, because it
bears little relation to the objective of reducing violent crime. The
majority of violent crimes involving firearms are committed by unlicensed
owners using unregistered handguns, and thus would not be affected by the
Similarly, the vast majority of firearms related deaths in Canada—three
out of every four—are from suicides, which cannot be stopped by the
registration of firearms. As
Justice Conrad noted in her Alberta Court of Appeal opinion:
statistics also confirm that firearm ownership is not dangerous, per se,
and that many Canadians possess firearms for legitimate reasons and use
them in a safe and responsible manner . . . . the impact of this
legislation will be borne substantially by those who use firearms safely
for legitimate purposes.
she concludes, “It is not valid to make a law-abiding citizens a
criminal for mere failure to possess a registration certificate. In the
latter case, the connection to misuse or serous risk of harm is not
conclude, there are as many as 13 distinct violations of the rights to
liberty and security of the person, and the principles of fundamental
justice, under the Section 7 right. As
the Firearms Act was not enacted under the Section 33
notwithstanding clause, the only way that these limitations can be
constitutionally upheld is if they are determined to be reasonable under
the Oakes test in a section 1 analysis.
Everyone has the right to be secure against unreasonable search or
Section 8 of the
Charter prohibits unreasonable searches or seizures by the police. The
courts have interpreted this to require the police to procure a search
warrant from a judge before conducting a search, except in narrowly
defined circumstances ( e.g., “hot pursuit” or probable loss of
evidence). The importance of the warrant requirement is heightened when
the premises being searched are a home.
The lax requirements for
obtaining a search warrant under sec.
104(2) of the Firearms Act do not meet the strict
criteria laid down by the Supreme Court of Canada in Hunter
v. Southam Inc.
 2 S.C.R. 145. In Hunter, Dickson J., as he was then,
"A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.
I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals' expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure."
Court also said: “[t]he state's interest in detecting and preventing
crime begins to prevail over the individual's interest in being left alone
at the point where credibly-based probability replaces suspicion.”
The Firearms Act demands only that the inspector believes on
reasonable grounds that firearms or records of firearms exist in the
dwelling or business. This
falls short of the Hunter requirement.
the case of R. v.
Hurrell, (2002-07-19) ONCA C36968, the Ontario Court of Appeal recently
struck down s. 117.04(1) of the Criminal Code for violating a similar
A unanimous three judge panel ruled that the lower burden of proof for
obtaining a search warrant “allows for wholesale fishing expeditions in
which the police are permitted to invade an individual’s privacy in
circumstances where they may have no reason to even suspect, let alone
believe, that the person of concern has any weapons or other dangerous
items in his or her possession.” The Ontario Court of Appeal declared
that section 8 of the Charter requires the higher standard of
proof—evidence that provides reasonable and probable grounds—for
police to obtain a valid search warrant. In February, 2003, the Supreme
Court of Canada granted leave to hear the Hurrell appeal.
In addition to
prescribing procedures to obtain a search warrant, sections 102-105 of the
Firearms Act authorize warrantless searches in two instances: if the
inspector has the consent of the occupant or has given the occupant
“reasonable notice.” Since these two exceptions allow the police to
conduct searches and seizures—in private homes--without prior judicial
approval, they are prima facie
violations of section 8 of the Charter. Neither of these criteria meet the
requirements spelled out by the Court for warrantless searches.
appear to assume, wrongly, that by “giving consent,” a target of a
Firearms Act search effectively waives his Section 8 rights. Receiving the
consent of the occupant of the premises to be searched is not sufficient
to conduct a warrantless search, at least not in a private home. Because
of the principle of “psychological coercion” established by the
Supreme Court in R. v.
Therens,  1
S.C.R. 613, a Section 8 right cannot be waived in a
cursory manner. As Justice LeDain declared in Therens, it is not
sufficient that a suspect simply complies with a police request.
my opinion, it is not realistic, as a general rule, to regard compliance
with a demand or direction by a police officer as truly voluntary, in the
sense that the citizen feels that he or she has the choice to obey or not,
even where there is…an absence of criminal liability for failure to
comply with it. Most citizens are not aware of the precise legal limits of
police authority. Rather than risk the application of physical force or
prosecution for willful obstruction, the reasonable person is likely to err
on the side of caution, assume lawful authority and comply with the
demand. The element of psychological compulsion, in the form of a
reasonable perception of suspension of freedom of choice, is enough to
make the restraint of liberty involuntary. Detention may be effected
without the application or threat of application of physical restraint if
the person concerned submits or acquiesces in the deprivation of liberty
and reasonably believes that the choice to do otherwise does not exist.
failing to account for the element of psychological compulsion in
voluntarily agreeing to demands made under sections
102-105, the Firearms Act
violates the constitutional standard established in Therens.
8 of the Charter protects the ancient common law right of citizens to not
be subjected to unnecessarily intrusive state searches and seizures.
While at first this right was designed to protect private property
from the state37, it has evolved to be primarily a protection of privacy.
privacy is not explicitly protected in the Charter, it has been recognised
as existing in the Charter through s. 8 since some of the earliest Charter
cases. According to Hunter v. Southam
Inc, Section 8 can be seen: “negatively as freedom from
''unreasonable'' search and seizure, or positively as an entitlement to a
''reasonable'' expectation of privacy”.
Similarly, in R. v.
Plant  3 S.C.R.
Sopinka J. said “The purpose of s. 8 is to protect against intrusion of the state on an individual's privacy.”
Lastly, and perhaps most persuasively in refuting the argument that
privacy is not in the Charter, in R. v. Sharpe
 1 S.C.R.
McLachlin C.J. stated: “Privacy, while not expressly protected by the
Charter, is an important value underlying the s. 8 guarantees against
unreasonable search and seizure.” These
cases demonstrate that privacy is fully protected by Section 8 of the Charter.
landmark case of Hunter v. Southam Inc. is probably the most
definitive case in this respect. In it, the Supreme Court emphasized
that a major purpose of the constitutional protection against unreasonable search and seizure under
Section 8 is the protection of the privacy of the individual. And that right,
just as other Charter rights, must be interpreted in a broad and liberal manner so as to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments.
Indeed, Dickson J, as he was then, stated very clearly the
purpose of Section 8:
“...with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy...
That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place.”
The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that
the individual's right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior.
the Firearms Act in general and sections 102-105 in particular
deliberately subvert the intent of Section 8 to protect and prevent
individuals from unjustified searches and intrusions on their privacy.
While Canadians have
a right to protection only against ‘unreasonable’ intrusions upon
their privacy, the provisions of the Firearms Act go beyond the bounds of
reasonableness. The search
and seizure powers granted by the Firearms Act are unconstitutionally
broad. They authorize police to enter into private homes “at any
reasonable time” and to search “any place where the inspector believes
. . . there is a gun collection or a record [of a gun collection]” and
“may open any container . . . examine any other thing that the inspector
finds and take samples of it”; and “require any person to produce for
examination or copying any records books of account or other documents.”38
Such sweeping search powers violate the prohibition against police
“fishing expeditions” imposed by the courts’ interpretation of the
102(2) of the Firearms Act specifically allows police to violate
the privacy of Canadians by authorizing them to "inspect"
without warrant the entire contents of an individuals' home computer
system, even though it is physically impossible to hide firearms or their
parts on a floppy drive or hard disk, and licenses and registrations are
not issued in electronic format:
102(2) In carrying out an inspection of a place under subsection (1), an inspector may
(a) use or cause to be used any data processing system at the place to examine any data contained in or available to the system;
(b) reproduce any record or cause it to be reproduced from the data in the form of a print-out or other intelligible output and remove the print-out or other output for examination or copying; and
In R. v.
Plant, McLachlin J observed:
Computers may and should be private places, where the information they contain is subject to the legal protection arising from a reasonable expectation of privacy. Computers may contain a wealth of personal information. Depending on its character, that information may be as private as any found in a dwelling house or hotel room.
intrusions into the privacy of individuals are counter to a number of
important Supreme Court precedents. In
R. v. Dyment  2 S.C.R.
417, La Forest J. commented on the
essential importance of privacy:
“It should also be noted that
Section. 8 does not merely prohibit unreasonable searches and seizures. As Pratte J.A. observed in Minister of National Revenue v. Kruger Inc.,  2 F.C. 535 (C.A.), at p. 548, it goes further and guarantees the right to be secure against unreasonable search and seizure.
The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349-50. Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual.”
on the importance of privacy in criminal investigations in Thomson
Newspapers Ltd. v. Canada (Director of Investigation and Research,
Restrictive Trade Practices Commission)  1 S.C.R. 425,
La Forest J. wrote:
"For reasons that go to the very core of our legal
tradition, it is generally accepted that the citizen has a very high expectation of privacy in respect of such investigations. The suspicion cast on persons who are made the subject of a criminal investigation can seriously, and perhaps permanently, lower their standing in the community. This alone would entitle the citizen to expect that his or her privacy would be invaded only when the state has shown that it has serious grounds to suspect guilt. This expectation is strengthened by virtue of the central position of the presumption of innocence in our criminal law. The stigma inherent in a criminal investigation requires that those who are innocent of wrongdoing be protected against overzealous or reckless use of the powers of search and seizure by those responsible for the enforcement of the criminal law.
The ultimate justification for a constitutional guarantee of the right to privacy is our belief, consistent with so many of our legal and political traditions, that it is for the individual to determine the manner in which he or she will order his or her private life."
A further violation
of a firearms owner’s privacy rights is inflicted by the form that
applicants must fill out in order to obtain a firearms licence (POL or
PAL). This form asks
questions about such things as the applicant’s mental and emotional
history, personal bankruptcy, job loss, and relationship breakdowns.39
The demand for the
disclosure of such highly personal information is inconsistent with
Charter jurisprudence. In Dyment, La Forest J., speaking on the
privacy of information stated:
Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force40 put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important.
J., in R. v. Plant went further:
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the
Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
In accordance with
this precedent, the Ontario Court of Appeal recently struck down part of
Ontario’s “spouse in the house” provision for social assistance
recipients in Falkiner
v. Director, Income Maintenance Branch
212 D.L.R. (4th) 633. The Court cited
the intrusive nature of the application:
The administration of the
definition is highly intrusive of the privacy of single persons on social
assistance. They are subjected to heightened scrutiny of their personal
relationships. They are
required to complete a detailed questionnaire on their personal living
arrangements…. [The] questions on the questionnaire touch on highly
personal matters….. Requiring social assistance recipients to complete
this questionnaire further suggests that the definition undermines human
information required by the Firearms Act is even more intrusive than that
struck down by the Ontario Court of Appeal. There is also greater
justification for the impugned "spouse in the house" rules than
for the personal information required for a firearms license. A welfare
applicant is trying to avail herself of state financial assistance. No one
questions the state’s right to target such benefits to a specified
class, and this targeting necessitates requesting information from
would-be recipients to determine if they qualify for the benefits. In the
case of the Firearms Act, the affected citizen is not applying for a government
benefit. Rather, the state is pursuing and burdening the citizen with a
regulatory regime and user tax. Unlike
the welfare applicant, the firearm owner would prefer just to be left
alone. In this context, there is a higher burden of justification on the
state for asking intrusive questions of a personal nature.
chief civil servant responsible for Canada’s Privacy Act has voiced a
number of concerns about the Firearms Act and the Firearms
In his review of the Act40,
the Commissioner expressed reservations about the ability of Canadians to
access and correct information about them in the registry: “Canadians
are finding it difficult and time-consuming to exercise their access and
correction rights because of the multi-jurisdictional nature of the
Program.” He was also concerned with the ability of
firearms inspectors to
access police information that is not necessarily relevant to their
inspections: “Firearms Officers have very broad powers and discretion to
investigate and gather personal information about applicants. Access to
police information should be tightened. Firearms Officers should only have
access to information that is relevant to their duties.”
Perhaps most importantly under Section 8 of the Charter, the
Commissioner was disturbed by the questions on the licence application
of the information collected in the application process—about mental
health, job losses, bankruptcies, substance abuse, etc.—is highly
intrusive. We have concerns about the breadth of the information captured
as well as its usefulness in the decision-making process. In our view, the
Program has not provided a "demonstrable need" for some of the
personal information being collected on the firearms licence application
Commissioner went on to recommend that two of the three personal history
questions be deleted from the application form, and that the other should
be modified. That Canada’s top privacy watchdog had significant concerns with
the privacy ramifications of Bill C-68 is also indicative that the law is
are even higher legal barriers against the PAL/POL applications in Quebec.
Sections 5 and 9 of the Québec Charter of Human Rights and Freedoms
mandate, respectively, that “Every person has a right to respect for his
private life”; and “Every person has a right to non-disclosure of
confidential information.” Even if the Firearms Act were to be upheld in the
rest of Canada, it could still be declared invalid in Quebec.
To conclude, the
Supreme Court has interpreted Section 8 to impose a “reasonable
expectation of privacy” from government, and applied this principle to
protect impaired drivers, marijuana growers, and single parent welfare
recipients. An applicant for a firearms license (POL or PAL) under C-68 is
forced to answer personal questions about his or her mental health
history, personal finance, bankruptcy, drug use, job loss, and
relationship breakdowns. The use of similar—indeed, LESS
intrusive—questions about welfare applicants’ personal lives has
been declared unconstitutional by an Ontario court. The use of
these highly intrusive questions in C-68 has already been condemned by the
federal Privacy Commissioner. The Firearms Act thus violates
Section 8 of the
Charter in as many as five distinct ways.
has the right not to be arbitrarily detained or imprisoned.
Section 9 of the
Charter protects the right against arbitrary detention. The courts have
interpreted detention to include being detained by police investigators to
be asked questions (Therens). Sections 102-105 of the
Firearms Act authorize police to demand of any person in a house being
searched to provide them with assistance. The Act’s use of phrases such
as “cause to be used,” “cause to be reproduced,” “shall,” and
“require” indicate the coercive nature of the “request” for
assistance and therefore constitute a detention as defined in earlier
cases. These detentions must be deemed arbitrary when they occur in the
context of the two kinds of warrantless searches authorized by the Act.
(See Right against unreasonable search and
seizure above.) The
detention is also arbitrary in the context of a warrantless search because,
as the Supreme Court pointed out in R.
 1 S.C.R. 621 it is “at the absolute discretion of the police officer.
A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.”
Everyone has the right on arrest or detention
to be informed promptly for the reasons therefore;
to retain and instruct counsel without delay and to be informed of
that right; and
to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Section 10(b) of the
Charter protects the right to counsel “upon arrest or detention.” The
courts have interpreted this to mean that police cannot elicit evidence
from suspects until or unless the suspect’s lawyer is present or the
suspect has knowingly waived that right. Those sections of the Firearms
Act (ss.102-105) that allow an inspector to demand ANY person in the house
to provide assistance are prima facie violations of section 10(b) of the Charter, and their
reasonableness will have to be determined under the section 1 Oakes
Any person charged with an offence has the right
to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial
11(d) of the Charter protects (among other things) the ancient right to be
presumed innocent until proven guilty.
This right is one of the oldest and most fundamental tenets of the
criminal law in common law jurisdictions. It is also guaranteed in Article
11(1) of the
United Nations Declaration of Human Rights.
The Firearms Act limits the right to be presumed innocent through its use
of reverse onus provisions.
Firearms Act (and similar sections in the Criminal Code e.g..
117.11) contains two provisions that place the onus of proving
innocence on the accused in criminal matters, both prima facie violations
of s. 11(d).
Section 112.4 of the Act places the onus on the defendant to prove
that he has a firearms licence, rather than placing the onus upon the
Crown to prove that the defendant does not have such a licence.
Likewise, s. 107 of the Act places upon the defendant the burden to
prove that he or she did not tamper with or deface a license or
certificate, rather than placing the onus upon the Crown to prove that
Supreme Court of Canada has been unequivocal in its Charter rulings on
reverse onus provisions. The Court has consistently ruled that reverse onus clauses
violate s. 11(d) and have then subjected these clauses to Section 1 scrutiny.
The most significant of these cases is R. v. Oakes. In this case
(best known for the Court’s establishment of criteria for deciding
Section 1 violations, the "Oakes Test"), Chief Justice Dickson explained the reasons behind the
presumption against the use of reverse onus provisions:
presumption of innocence protects the fundamental liberty and human
dignity of any and every person accused by the State of criminal conduct.
An individual charged with a criminal offence faces grave social and
personal consequences, including potential loss of physical liberty,
subjection to social stigma and ostracism from the community, as well as
other social, psychological and economic harms. In light of the gravity of
these consequences, the presumption of innocence is crucial. It ensures
that until the State proves an accused's guilt beyond all reasonable
doubt, he or she is innocent. This is essential in a society committed to
fairness and social justice. The presumption of innocence confirms our
faith in humankind; it reflects our belief that individuals are decent and
law-abiding members of the community until proven otherwise.
The Chief Justice
In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt.
The Supreme Court
has also found similar reverse onus clauses that do not relate to
essential elements of the offence (as was the case in Oakes) to
violate s. 11(d). In the case
of R. v. Whyte  2 S.C.R.
3, the Supreme Court held that a
reverse onus provision which related to “a fact collateral to the
substantive offence” violated s. 11(d) (in this case, the issue was
whether an impaired accused who was asleep at the wheel of his car had “care
and control” of the vehicle). In R. v. Downey  2 S.C.R.
the Court held that an evidentiary presumption that forces an
accused to point to evidence to disprove his guilt is unconstitutional.
The section of the Criminal Code challenged in Downey forced the
accused to point to evidence to prove that he did not live off the avails
of prostitution. In a
related case, the Court held that a reverse onus clause that relates to
defences or excuses is unconstitutional. In R. v. Chaulk  3
S.C.R. 1303, the Court forced the Crown to prove that a defence does not
exist. Even for the defence
of insanity, the Crown must now prove that the accused was sufficiently
sane to commit the crime.41
In Re: B.C. Motor Vehicle Act
the Court afforded the same treatment
to an absolute liability offences (an offense in which an accused is
liable despite acting under reasonable mistake of fact, with no intention
to commit a crime).
As these examples
attest, the Supreme Court has been strict in protecting the right to be
presumed innocent until proven otherwise throughout its Charter
jurisprudence. The demands
made in sections 107 and 112(4), that the defendant assume the burden of
proof that he has a firearms licence, or did not tamper with a licence,
violate the principle of innocent until guilt is proven.
As such, these sections must face further Charter scrutiny in which
the Crown bears the burden of proof that the limitation is reasonable.
precedents, the Crown would likely concede that the reverse onus
provisions of the Firearms Act violate section 11(d), and rest their
defence on section 1 “reasonable limitations” grounds. While this
strategy has worked with certain other reverse onus clauses of the
it is not likely to pass judicial muster in this case, given the weak
means/ends linkage of the Firearms Act as discussed at the
beginning of this paper.
The guarantee in this Charter of certain rights and freedoms shall not be
construed as denying the existence of any other rights or freedoms that
exist in Canada.
26 of the Charter confirms the continuing enjoyment of common law and
statutory rights not enumerated in the Charter, but recognised in
Anglo-Canadian law and jurisprudence.
Two such rights are the right to bear arms and the right to own
property. The Firearms Act sharply restricts both of these ancient rights.
The Canadian Right
to Bear Arms
The common law right
to bear arms has existed for at least 300 years in Anglo-Canadian law.
Although it may have had its origins even earlier,42
the first explicit recognition
of this right appears in the English Bill of Rights (1689), designed by
Parliament to constrain the power of the new King after the Glorious
Revolution of 1688. Article
VII of this document states:
the subjects which are Protestant may have arms for their defence,
suitable to their conditions, and as allowed by law.
VII thus indicates that Protestants in Great Britain enjoyed the right to
bear arms, subject to certain restrictions placed upon the right by
Parliament, restrictions that were usually related to class. The right to
bear arms was so fundamental to the British constitutional system that in
the next century Sir William Blackstone, the celebrated author of the Commentaries
on the Laws of England, included this right among the five most
fundamental auxiliary rights of British subjects, including such
fundamental tenets as Parliamentary supremacy and the right of subjects to
seek redress for grievances in courts of law. Blackstone laid out
the right to bear arms as follows:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their
defence suitable to their condition and degree, and such as are allowed by
law. Which is also declared by the same statute 1 W. & M. st. 2. c. 2
(the English Bill Of Rights), and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
Although this right
has been regulated in various ways since its promulgation, it remains part
of one of the most important legal instruments in British constitutional
history. This right was
passed down to Canada through the preamble of the British North America
Act (1867) which grants Canada “a Constitution similar in Principle to
that of the United Kingdom,” a phrase which transfers to and entrenches
the British common law legacy in Canada - including the right to keep
counter argument has been made to the claim that there is a right to own
firearms in Canada by Lois G. Schwoerer. Schwoerer argues that Article VII
in the 1688 English Bill of Rights did nothing more than grant Britons a
communal right to self-defence; the right of the British to have an armed
militia for the common defence
of their territory. According to
Schwoerer, Article VII did not grant individuals a right to own firearms for
self-protection, and there is no common law
foundation for such a right.43
Malcolm effectively rebuts Schwoerer’s evidence. Malcolm points out
that many of the drafters of the English Bill of Rights were lawyers who
knew the importance of draftsmanship and statutory interpretation.
Such people would undoubtedly have included a reference to a common
or communal right to bear
arms if they had intended it not to apply strictly to individuals. As well, framers of the American Bill of
Rights, basing their
document on its British ancestor, included a right for individuals to bear
arms in their document, so sure were they that their citizens had enjoyed
a right to bear arms under British rule:
regulated militia being necessary to the security of a free state, the
right of the people to keep and bear arms shall not be infringed.
buttresses her position with several British precedents. In R. v.
Gardner 93 E.R. 1056, it was ruled that the keeping of a gun for self-defence
was a legal and permissible act in England, provided that it was not used
for unlawful purposes (in this case, for hunting, an activity prohibited
to members of the lower class such as the accused).
In Wingfield v. Stratford and Osman 96 E.R. 787, a similar
ruling was made confirming the right of individuals to bear arms for their
The right to bear
arms is not absolute, and has been subject to regulation by law since at
least the time of the Glorious Revolution. Regulation, however, does not
extinguish this right. In R.
 1 S.C.R. 1075 the
Supreme Court affirmed that regulation of an aboriginal right does not
automatically extinguish the right. Mutatis mutandi, the same logic
applies to section 26 rights such as the right to bear arms.
historical right of the descendants of European settlers to bear arms can
be no less than the right of Aboriginal Canadians to possess firearms, since the
latter only acquired firearms with the arrival of the former. It can
hardly be maintained that there is an Aboriginal right to bear arms but
not a similar right for non-Aboriginals, when it was European settlers who
first brought firearms to North American and its Aboriginal inhabitants.
The right to bear arms is thus a historical right of all Canadians, and
this right is affirmed and extended by section 26 of the Charter.
A right that has
been entrenched in constitutional and quasi-constitutional documents for
three centuries, recognized in judicial interpretation, and accorded
constitutional pre-eminence by one of the most renowned commentators on
British law, is protected in Canada through section 26 of the Charter.
Since the Firearms Act prohibits the mere possession of a firearm—even for
purposes of self-defense in one’s own home—it restricts this right.
Given the intimate connection between the right of self-defense and to
rights to life, liberty and security of the person protected by section 7
of the Charter, the state must justify its restriction of this right
according to the strict tests mandated by the Oakes precedent.
have inherited the right to own property from England.
The right of British subjects to own and do as they wish with
property is a cornerstone of British democracy, and property protections
exist in such key constitutional documents as the Magna Carta
the Bill of Rights (1689). Property
rights were further entrenched in the British constitution through such
instruments as parliamentary representation and enfranchisement for
This right enjoys constitutional protection in Canada by virtue of
our inheritance of British law through the preamble to the Constitution
Canada, the Fathers of Confederation also sought to protect property
rights when they drafted the British North America Act, 1868.
One of the prime objectives of the Canadian founders was to promote
the economic development of British North America. For them, the primary
means to this end was to ensure the protection of property rights in the
They did this through several different provisions.
section 92(13) declared
‘Property and Civil Rights’ an area of exclusive provincial
jurisdiction (a political necessity given Quebec’s distinctive system of
civil law), the Founders were not content to leave the protection of
property rights at the whim of provincial majorities. Key provisions in
the enumeration of “exclusive” federal powers—banking, credit,
currency, and bankruptcy were intended to pre-empt any provincial abuse of
Additional security was added in section 94 of the Act, which
allowed the federal Parliament to provide for the uniformity of the
Property and Civil Rights Laws in the (then) three English speaking
safeguards for property rights were backed up by the federal powers of
reservation and disallowance. One of the four grounds Sir John A.
MacDonald gave for using disallowance to strike down provincial
legislation was when it was “unconstitutional,” by which he meant that
it violated “the traditional rights of British subjects. In the context
of the times, this meant the kind of ‘unsound’ or ‘unreasonable’
legislation which affected the rights of contract.”48
In his classic study of federal disallowance, Mallory reports that, “The
disallowances between 1876 and 1890 were in most cases attempts to
safeguard a conception of property and contract which the federal
government considered vital to the success of its national policies.”49
Mallory summarized his findings as follows:
rigid exclusion of the provinces from this field [banking, credit,
currency, and bankruptcy] and the use of the power of disallowance to
protect the sanctity of contract in the years before 1890 show how
important this step was. Its effect was to exclude the provinces from
interfering with the direction, control and operation of the economy.”50
the federal level, the Canadian founders built in additional protection
for property rights in the form of the Senate. The design of the Canadian
Senate—property qualifications,51 appointment rather than
election, and tenure for life—was intended to emulate the British House
of Lords, not the more democratic model offered by the U.S. Senate.
According to John A. Macdonald, the Senate reflected the unanimous
consensus of the Founders that “classes and property should be
represented as well as numbers.”52 As Alvaro accurately
summarizes, “Appointment and the property minimum were meant to ensure
that those who had the veto power over Commons legislation held a vested
interest in property rather than a loyalty to constituent voters.”53
The right to
property was enshrined in Canada’s first stand-alone rights document,
John Diefenbaker’s 1960 Canadian Bill of Rights.
This precursor to the constitutionally entrenched Charter of Rights
was described in
Hogan v. The Queen
 2 S.C.R. 574 by former Supreme Court Chief Justice Bora Laskin as a “quasi-constitutional instrument.”
Section 1 of the Bill of Rights stipulates:
is hereby recognised and declared that in Canada there have existed and
shall continue to exist…the following human rights and fundamental
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property.”
This right was not
extinguished by the adoption of the Charter of Rights in 1982. As Wilson J
stated in Singh “[t]here can be no doubt that [the
of Rights] continues in full force and effect and that the rights
conferred in it are expressly preserved by s. 26 of the Charter.”
strongest argument against judicial recognition of a right to property
under section 26 is that property rights were intentionally omitted from
the Charter during the framing process.
While the right to property can be found in the 1960 Bill of
Rights, and was included in early drafts of the Charter, the provision was
deleted by the federal Liberal government due to provincial opposition and
in an effort to court the support of the federal NDP and the Saskatchewan
It can be argued that if the framers intended not to provide a
right to property in the Charter, then judicial recognition of such a
right under s. 26 would be wrong.
second argument against recognizing a right to property under the Charter
is the precedent of R. v. Bryan 170 D.L.R. (4th) 487. In this case,
the Manitoba Court of Appeal ruled that:
“[s]ince the Bill of Rights is
not a true constitutional document, there is no mandate to set aside the
will of Parliament through judicial review. Section 1(a) of the Canadian
Bill of Rights, which protects property rights through a "due
process" clause, was not replicated in the Charter, and the right to
"enjoyment of property" is not a constitutionally protected,
fundamental part of Canadian society.”
of these arguments is conclusive. The Manitoba Court of Appeal erred in
ruling that the Bill of Rights provides no mandate for the courts to
strike down legislation. The
Bill of Rights was a statute deemed to have supremacy over regular
legislation, and while it did not explicitly grant the power of judicial
review (as the Constitution Act, 1982 does), it still gave courts the
power to strike down legislation. While
it did not exercise this power frequently, the Supreme Court had the power
to strike down legislation found to run afoul of the Bill of Rights, as it
did in the case of R. v. Drybones, 
a plain reading of the Bill of Rights
reveals that the section does not grant or create rights, but rather
recognises and affirms rights. This
recognition suggests that whether it is written in a statute or
constitutional document, the right exists in Canada, and cannot be
overridden except by special provision. Put another way, the distinction between the statutory
basis and the constitutional basis of rights affects only the judicial
authority in interpreting these rights (end even then in only a limited
capacity, as is explained above), not the scope of the rights themselves.
That the right to property is not found in the Charter affects only
the status of the courts’ interpretation of these rights, not the
existence or scope of the right. Moreover, the Bryan
precedent is not binding on the Supreme Court of Canada.
respect to the “framers’ intent” argument, the Supreme Court
declared in Re: B.C. Motor Vehicle Act
that Framers’ intent should be given only “minimal weight” in
interpreting the Charter.55
The Court has not hesitated to disregard the intentions of the
Framers in a number of cases in the past when protecting citizens’
rights. In Re: B.C. Motor Vehicle Act,
the Court ruled that Section 7 of the Charter allowed judicial
consideration of the substantive fairness of challenged legislation,
despite clear evidence of a contrary Framers’ intent. Likewise in Vriend
 1 S.C.R. 493, the Supreme Court read sexual orientation into
section. 15 of the Charter, notwithstanding that the framers intentionally
excluded it. Following the Vriend
and B.C. Motor Vehicle
precedents, the Court can and should recognise the right to own property
under s. 26 as a matter of constitutional interpretation.
argument for updating the meaning of the Charter to include property
rights is reinforced by the “living tree” approach to constitutional
interpretation. First articulated by the Privy Council in the celebrated Persons
the contemporary Supreme Court has endorsed giving a “large and
liberal” interpretation to the Charter in order to keep the meaning of
constitutional rights in tune with the times. As disclosed by Alvaro’s
research referred to above, the deletion of property rights from the final
draft of the Charter was an last-minute concession, based on short-term
political considerations rather than long-term, constitutional principles.
Subsequently, two provinces—Ontario and British Columbia—have passed
resolutions endorsing the addition of property rights to the Charter.
contributing factor to the omission of property rights were the now
discredited Keynsian economic theories.
With the benefit of hindsight, the Keynesian economic models of
that era have now been discredited in the academy and abandoned by
Canadian governments. With
globalization and free trade, the emphasis on lower taxes and smaller
government, the demand for balanced budgets and reduced public debt, a new
economic model has gained acceptance in Canada. The Supreme Court would be well within the boundaries of its
own jurisprudence to apply the “living tree” approach to update the
Charter to include property rights. Indeed, it would only be restoring one
of Canadians’ oldest and most important rights to the constitutional
status it has historically enjoyed.
is a third supplementary argument for judicial incorporation of property
rights into the constitution: judicial recognition of “foundational
principles” of the Canadian constitution. This approach could be used in
conjunction with section 26 or independently. In Reference
re Remuneration of Provincial Judges
 3 S.C.R. 3, the Supreme Court declared that judicial independence qualified as
such a “foundational principle.” A year later in Reference re Secession of Québec
 2 S.C.R. 217, the Supreme Court recognised four additional
“foundational principles” - federalism, democracy, constitutionalism
and the rule of law and
minority rights - in considering the case at hand. The court also
stated very clearly:
"Constitution of Canada" certainly includes the constitutional
texts enumerated in s. 52(2) of the Constitution Act, 1982.
Although these texts have a primary place in determining constitutional
rules, they are not exhaustive. The Constitution also "embraces
unwritten, as well as written rules"
the reasons outlined above, no principle is more fundamental to the
foundations of Anglo-Canadian democracy than the right to own property.
John Locke, long considered the “official philosopher” of the
Glorious Revolution of 1688, stated that: “[t]he great and chief end
…of men’s uniting into commonwealths, and putting themselves under
government, is the preservation of their property.”56
Locke conceived of property broadly to include people’s “lives, liberties, and estates.”57
In the 1750s, Blackstone reiterated its pre-eminent status by
declaring that private property (along with personal liberty and security)
is one of the three great primary rights of the individual in England.58
A century later, the Canadian Founders constructed multiple constitutional
safeguards to protect the rights of private property. For four centuries,
all the English-speaking democracies have recognized that economic freedom
is a prerequisite for political freedom, that political democracy and free
enterprise economics complement one another. The constitutional keystone
to this edifice of freedom is property rights. This surely qualifies
property rights to be added to the five other unwritten but judicially
enforceable constitutional principles recognized thus far by the Supreme
Court of Canada.
To conclude, the
right to property is one of the oldest and most fundamental rights in
British-Canadian legal history. The protection of private property against
state deprivation can be traced to the Magna Carta (1215); the 1688 Bill
of Rights; Locke’s Second Treatise (1690), and Blackstone’s Commentaries.
Like the right to bear arms, the right to property is imported into
Canadian law by the preamble to the BNA Act, 1867. The protection of
private property rights was one of the highest priorities of the Canadian
founders. Canadian citizens’ right to private property was confirmed by
the 1960 Canadian Bill of Rights. In its 1986 Singh ruling, the
Supreme Court affirmed that the rights protected by the Bill of Rights
continue in force even if they are not explicitly mentioned in the
Charter—which property is not. However, the Supreme Court has
established that it may confer judicially enforceable constitutional
protection on “unwritten constitutional principles” that are essential
to Canada’s unique form of democracy. The Court should add the right to
private property to the five principles to which it has already given this
protection. Indeed, without respect for the right to private property,
these others would gradually fade into irrelevancy as the peoples’
financial dependency on the all powerful state sapped their ability and
will to challenge it.
(1) Every individual is equal before and under the law and has the right
to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or
Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or
groups including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical
Section 15 of the
Charter prohibits the government from discriminating against Canadians on
the basis of irrelevant personal characteristics, particularly members of
minority groups that have been historically disadvantaged. While some of
the prohibited grounds of discrimination are enumerated in section 15, the
Court can add new groups if it deems them to be “analogous” to the
The Firearms Act
discriminates unfairly and unreasonably against three non-enumerated
minorities in Canada: rural Canadians, non-aboriginals who depend upon
firearms for their livelihood, and couples (married or unmarried) who
choose to own their firearms in joint tenancy.
Canadians—farmers, ranchers, trappers, hunters—regularly and lawfully
employ firearms to make their living. The effect of the Firearms Act
is to impose
de facto “tax” and a heavy
regulatory burden on the tools of their trade. The Act also forces them
to disclose sensitive personal and financial information, and threatens
them with fines and/or incarceration if they fail to comply. It also has the effect of stigmatizing rural Canadians as somehow responsible
for the increase in the illegal use of firearms, when in fact illegal
gun-related violence is predominately an urban trend. This is precisely
the type of unfair stereotyping of a politically vulnerable minority that
section 15 prohibits. As McLachlin and Bastarache JJ. stated in Corbiere
v. Canada (Minister of Indian and Northern Affairs)  2.
S.C.R. 203: “the general purpose of s. 15(1), [is] to prevent the violation of human dignity through the
imposition of disadvantage based on stereotyping and social prejudice, and
to promote a society where all persons are considered worthy of respect
That Parliament and
the government of the day ignored or underestimated The Firearms Act's
discriminatory impact on rural Canadians is not surprising. Rural
Canadians are represented by less that 31% of MPs in Parliament,59 and
consequently their legitimate interests are prone to systematic neglect by
the majority of MPs who come from urban and suburban constituencies.60
That this is the
effect, not the purpose, of the Firearms Act is irrelevant. The
Supreme Court has clearly stated that discriminatory effects are just as
unconstitutional as a discriminatory purpose.
for Aboriginals discriminates against similarly situated non-aboriginals
on the basis of their race. Parliament realized that many Aboriginals
farm, ranch, trap, or hunt for their living and therefore provided
exemptions for this sub-group of Aboriginals. While this exemption is
reasonable, it is under-inclusive because it excludes non-Aboriginals who
farm, ranch, trap, or hunt for their living.
Firearms Act has a number of accompanying regulations that provide the
administrative framework for its implementation.
Among these regulations are the “Aboriginal Peoples of Canada
Adaptations Regulations (Firearms),” which set out a number of special
circumstances for current and prospective Aboriginals who make use of
firearms for their livelihood or traditional cultural practices.
Among these regulations are the allowance of an Aboriginal elder to
submit a statement testifying to the importance of the use of a firearm
for the traditional hunting practices of a prospective firearm-applicant,
which the Chief Firearms Officer is obliged to consider, special
allowances for younger Aboriginals to own firearms, and some circumstances
in which it is easier for Aboriginals to be exempted from taking a
firearms safety course. However, similarly-situated non-Aboriginals are not entitled
to the same exemptions under these regulations.
Aboriginal regulations are potentially both over-inclusive and
under-inclusive in terms of the people affected by them.
They can be over-inclusive by catching a number of Aboriginals who
do not engage in occupations or cultural practices involving firearms, and
under-inclusive by excluding non-Aboriginal Canadians who do.
The drafters of the regulations had the foresight to anticipate the
former, and thus limited the scope of the regulations to include only
those Aboriginals whose occupation depends upon the use of firearms.
However, the drafters forgot the latter when they failed to extend
similar provisions to non-Aboriginal Canadians who depend upon firearms
for their livelihood. While
it is important that Aboriginal Canadians have such special allowances in
order to maintain their livelihoods, the Act discriminates against
similarly situated non-Aboriginal hunters, trappers, farmers and ranchers
for whom firearms are equally important in the pursuit of their
livelihood. The Supreme Court
has declared in Vriend (1998) and
Law (1999) that a statute that confers a benefit but does
not extend the benefit to a similarly-situated minority (enumerated or
analogous) violates Section 15.61
are several precedents62
and authorities63 that suggest that
preferential treatment of Aboriginals over none Aboriginals are permitted
by section 15(2) and Section 25 of the Charter. However, these deal
primarily with treaty rights and provisions of the Indian Act, not laws of
general application such as Bill C-68. Moreover, the Supreme Court has not
yet laid down a definitive ruling on this point of law.64
The Firearms Act
violates Section 15 in a third way: it irrationally discriminates against couples
(married or unmarried) who chose to own their firearms in joint tenancy.
Many Canadian couples choose to own shared property (including firearms)
as “joint tenants” rather than as “tenants in common” so that if
one dies, the survivor automatically assumes sole possession of the
designated property. Many
financial planners and lawyers advise couples that “joint tenancy” is
the preferred way to own shared property as it avoids the costs and
problems associated with the death of a partner, such as probate, taxation
and legal fees, to name just the most obvious. However, the administrative
guidelines developed to administer the Act do not permit firearms to be
registered as being owned in “joint tenancy.”65
There is no compelling justification for this clear discrimination against
couples who choose to own their personal property jointly. The only
justification is the administrative convenience of those who enforce the
Firearms Registry. However, the
Supreme Court has declared that “administrative convenience” is not
sufficient to justify a Charter violation.66
conclude, there are three instances of Section 15 discrimination in the Firearms
Act; two against rural, non-Aboriginal firearm owners in Canada and one
against couples who choose to own their personal property jointly.
These limitations can only be justified if they pass the
“reasonableness” test under Section 1 of the Charter as prescribed by the Oakes
This Charter shall be interpreted in a manner consistent with the
preservation and enhancement of the multicultural heritage of Canadians.
Section 27 is an interpretive
guide to judges, and cannot be used alone to create rights or strike down
legislation. According to Roach
v. Canada (Minister of State for Multiculturalism and Culture) 
113 D.L.R. (4th) 67: “s. 27
does not protect a particular right or freedom, it being relevant only as
an aid to interpretation.” Section
27 is thus relevant to Section 15 arguments about the under-inclusiveness
of the Bill C-68 with regards to the livelihood and culture of rural
Canadians. Ironically, the
government of Canada vowed to respect the importance that firearms play in
Canada’s cultural mosaic. Then
Justice Minister Allan Rock said in a speech to Parliament in defence of
must acknowledge and respect the legitimate uses of firearms. We
should acknowledge and respect the history and tradition of hunting, not
only as a favourite pastime in many parts of Canada but as a very
important economic activity contributing directly to the prosperity of a
number of regions throughout Canada. We must acknowledge and respect the
use of firearms for ranching or hunting purposes where firearms are a
tool, an implement used by the proprietor of business to get by. We must
allow for that. We must not interfere with that unduly.
I say as well that we must acknowledge that some people enjoy collecting
firearms. Some people enjoy the shooting sports. Indeed, Canada has
achieved distinction internationally through the skill of those athletes
who train and excel at sport. We
must acknowledge and respect that interest and that skill.67
the Minister’s personal intentions,
the Firearms Act has failed to protect and respect the “legitimate uses of
Firearms” in Canada and has created a legislative scheme that is not
consistent with the enhancement and preservation of Canada’s
multicultural heritage. This
is further evidence of the Act's limitation on Charter rights.
||See Quebec v. Irwin
1 S.C.R. 927
important legal distinction is taken from a paper by Mike
Wicklum, “Is s. 105 of the Firearms Act
Constitutional?” (January, 2003), unpublished.
Updated Tables. Canadian
Firearms Centre. Tables
8 and 15 respectively. Available
||Gary Mauser, Misfire: Firearm Registration in
Canada, Public Policy Sources No. 48, March 2000, Fraser Institute, 4th Floor 1770 Burrard Street, Vancouver, BC, V6J 3G7, (604) 688-0221
Table 12. However, the evidence on this issue is mixed,
as the number of firearms-related robberies was slightly lower in
1995 than in 1974
Blank: Guns and
Violence in America. New
York: Aldine De
Gruyter, 1991, 394.
of Commons Debates, Vol. 133, No. 154
(16 February 1995) at p. 9708-9.
Centre for Justice Statistics (December 1997), p. 43. As reported
in Letter from Larry Whitmore,
Executive Manager of Ontario Handgun Association to J.P.R. Murray,
Commissioner of the R.C.M.P.,
Michale Muirhead, and Pamela Lefaive, “An Inmate
Survey: A Profile
of Violent and Non-Violent Offenders,” in Forum on Corrections
Research. Vol. 9, no.
2. (May 1997), pp 52-56
||John Dixon, “A
gang that couldn’t shoot straight,” Globe and Mail,
January 8, 2003 http://www.coha.net/news/Gang.html
R. Lott Jr.,
More Guns, Less Crime:
Understanding Crime and Gun-Control Laws.
The University of Chicago Press, 1998,
||That both Lott
and Malcolm’s books are published by these highly respected
publishers suggests that their books passed a rigorous screening
process through which the accuracy and academic worth of their
work was evaluated and validated.
Lee Malcolm, Guns and Violence: The
English Perspective. Cambridge,
University Press, 2002, 209-212.
is not Crime Control,”
Fraser Institute: Critical Issues Bulletin.
Vancouver: The Fraser Institute, 1995
“More Guns, Less Crime?:
What Canada can Learn from Gun-control Around the World,”
in Fraser Forum. July,
2002. 29-31. p. 31.
Guns and Violence in America.
New York: Aldine
De Gruyter, 1991, 430
Acting Commissioner of the R.C.M.P. Beaulac to George Thompson,
Deputy Minister of Justice Canada and Deputy Attorney General,
p. 2. Presumably these remaining 909
cases were not included in Justice Canada’s initial 623
cases, because this data was from a different year than that
examined by the Task Group.
Ferguson. “A Justifiable Lack of Confidence: Ottawa’s Embarrassment Grows as Police Continue to
Challenge its Gun-Crime Statistics.”
Alberta Report, vol. 25, no. 18 (April 20, 1998), p.
Acting Commissioner of the R.C.M.P. Beaulac
to George Thompson, Deputy Minister of Justice Canada and Deputy
Attorney General, p.
Misfire: Firearm Registration in Canada.
Public Policy Sources.
Institute Occasional Paper, 2001,
C. Thompson, “Misfire: The
Black Market and Gun Control” (The Mackenzie
Institute, May 1995), p. 26 and 39
Conrad, Reference re Constitutionality of Bill C-68, pp. 511,
547, 578. http://www.canlii.org/ab/cas/abca/1998/1998abca305.html
Dixon, “A gang that couldn’t shoot
straight,” Globe and Mail, January 8, 2003 http://www.coha.net/news/Gang.html
to not be forced to provide
incriminating evidence against oneself is not relevant in
inspection, as it is only made applicable when someone is charged
with an offence, which is not necessary for an inspection under s.
102 to occur.
Conrad, Reference re
Constitutionality of Bill C-68, pp. 511, 547, 578
|| Sir William Blackstone.
Commentaries on the Laws of England in Four Books. Book I, Part II, 1803, p. 138, in St. George Tucker,
Blackstone’s Commentaries: 5 Volumes: Vol. II, New York: Angus M. Kelly Publishers, 1969.
|| Sir William Blackstone.
Commentaries on the Laws of England in Four Books. Book I, Part II, 1803, p. 138, in St. George Tucker,
Blackstone’s Commentaries: 5 Volumes: Vol. II, New York: Angus M. Kelly Publishers, 1969.
|| Cf. R. v. Gardner 93 E.R. 1056;
Wingfield v. Stratford and Asman 96 E.R. 787. See discussion of section 26 of the Charter, below.
|| This Charter violation was brought to my attention by a research paper done by Mike
Wicklum, Is s. 105 of the Firearms Act Constitutional? (January, 2003), unpublished.
Locke, Second Treatise on Government, Chapter 11,
Dicey, Introduction To The Study Of The Law Of The
Constitution, Part II, Chapter IV http://www.constitution.org/cmt/avd/law_con.htm
Dicey, Introduction To The Study Of The Law Of The
Constitution, Part II, Chapter IV http://www.constitution.org/cmt/avd/law_con.htm
1997 and 2001, there were 476 homicides committed with
handguns. Among the cases in which the gun was recovered, 74% were
not registered. Of the accused in these 476 cases, 81 percent did
not possess a valid FAC or Firearms license.
||Entick v. Carrington (1765), 19 St. Tr. 1029, 1
Wils. K.B. 275 Lord Camden prefaced his discussion of the rights in question by saying, at p. 1066 [19 St. Tr. 1029]:
"The great end, for which men entered into society, was to preserve their property."
Lord Camden could find no exception from this principle for the benefit of
servents of the Crown. See also the comments by Locke and
Blackstone concerning one of the primary rights of man being the supremacy
of their right to, and protection of, their property.
ss. 102-104 of the Firearms Act.
Section 102 in particular states:
“102. (1) Subject to section 104, for the purpose of
ensuring compliance with this Act and the regulations, an
inspector may at any reasonable time enter and inspect any place
where the inspector believes on reasonable grounds a business is
being carried on or there is a record of a business, any place in
which the inspector believes on reasonable grounds there is a gun
collection or a record in relation to a gun collection or any
place in which the inspector believes on reasonable grounds there
is a prohibited firearm or there are more than 10 firearms and
open any container that the inspector believes on reasonable
grounds contains a firearm or other thing in respect of which this
Act or the regulations apply;
examine any firearm and examine any other thing that the inspector
finds and take samples of it;
conduct any tests or analyses or take any measurements; and
require any person to produce for examination or copying any
records, books of account or other documents that the inspector
believes on reasonable grounds contain information that is
relevant to the enforcement of this Act or the regulations.”
Licence Application form, Questions 19 (d), (e), and (f):
Question 19(d): During the past five years, have you threatened or
attempted suicide, or have you been diagnosed or treated by a
medical practitioner for: depression; alcohol, drug or substance
abuse; behavioral problems; or emotional problems?
19(e): During the past five years, do you know if you have been
reported to the police or social services for violence, threatened
or attempted violence, or other conflict in your home or
19(f): During the past two years, have you experienced a divorce,
separation, a breakdown of a significant relationship, job
loss or bankruptcy?
Justice La Forest is quoting the Task Force
on Privacy and Computers (Communications/
Department of Justice. Privacy and Computers. Ottawa: Information
|| Information Canada. Department of Justice Canada and the Royal Canadian Mounted Police.
Review of the Personal Information Handling Practices of the Canadian Firearms
Program, Ottawa: 2001.
|| For a more detailed discussion of each of these reverse onus findings, see
Constitutional Law of Canada. Loose Leaf Edition vol. II. Scarborough: Carswell Thomson Professional Publishing, 1997, pp. 48-13—48-18.
|| As Joyce Lee Malcolm indicates, in the absence of police forces, citizens in England have had the right and indeed the responsibility to bear arms for their defence and in order to maintain a militia since the middle ages. Joyce Lee Malcolm.
To Keep and Bear Arms: The Origins of an Anglo-American
Right. Cambridge, Massachusetts: Harvard University Press, 1994, p. 1.
G. Schwoerer. To Hold and Bear Arms:
The English Perspective, in Chicago-Kent Law Review,
vol. 76. no. 1 (2000) 27-60.
Why Property Rights
Were Excluded from the Canadian Charter of Rights and Freedoms,
in Canadian Journal of Political Science. Vol. 24 (1991), no. 2,
309-329. pp. 311-12.
|| Peter J. Smith.
The Ideological Origins of Canadian Confederation, in Janet Ajzenstat and Peter J. Smith (eds.)
Canada’s Origins: Liberal, Tory, or Republican. Ottawa: Carleton University Press, 1995.
|| In this regard, Peter Hogg points to the following subsections of section 91of the
BNA Act, 1867: 2, 15,16,18, 19, 2, 22, 23, 28.
Mallory, Social Credit and the Federal Power in Canada (University of Toronto Press, 1954), p.
Social Credit and the Federal Power in
Social Credit and the
Federal Power in
thousand dollars over and above his debts and liabilities.”
Debates, p.39, as cited by Alvaro, “The Exclusion of
Property Right from the Charter,” p.313.
of Property Right from the Charter,” p.313-314.
of Property Right from the Charter,” p.321.
of Property Right from the Charter,” p.509
The Second Treatise of
Government (An Essay Concerning the True Original, Extend and End
of Civil Government), and A Letter Concerning Toleration.
2, Chapt. 9, s. 124
|| Sir William Blackstone.
Commentaries on the Laws of England in Four Books. Book I, Part II, 1803, p. 138, in St. George Tucker,
Commentaries: 5 Volumes: Vol. II, New York: Angus M. Kelly Publishers, 1969.
||According to a methodology
which defines any Federal Electoral District with no municipality
(Census Sub-Division) greater than or equal to 35,000 people
living within it as Rural.
case of Rural Dignity of Canada v.
Canada Post Corp. 78 D.L.R. (4th) 211, the Federal Court,
Trial Division rejected the claim that rural Canadians are a
minority analogous to those groups contemplated by s. 15.
The court reasoned that: “[counsel for Rural Dignity of
Canada] says that the residents of rural communities…constitute
a discrete and insular minority….
These submissions by counsel for the applicants do not, in
my view, accord with the evidence….
[T]he fact of living in a Canadian rural community is not a
personal characteristic analogous to the characteristics set out
in s. 15(1).” However,
no evidence was submitted of rural Canadians’ chronic minority
status in Parliament. Moreover,
this ruling is not binding on the Supreme Court.
Justices Cory and Iacobucci observed
in Vriend v. Alberta:
“The mere fact that the challenged aspect of the Act is
its underinclusiveness should not necessarily render the Charter
this position was accepted, the form, rather than the substance,
of the legislation would determine whether it was open to
challenge. This result would be illogical and more importantly
the Corbiere case, L’Heuruex-Dube
J. indicated that: “the rights included in s. 25…may include
statutory rights.” Therefore,
it is possible that the Aboriginal regulations may be saved from
Charter scrutiny under s. 15 by s. 25.
L’Heuruex-Dube went on to emphasise in Corbiere:
“the contextual approach to s. 15 requires that the equality
analysis of provisions relating to Aboriginal people must
always proceed with consideration of and respect for Aboriginal
heritage and distinctiveness, recognition of Aboriginal and treaty
rights, and with emphasis on the importance for Aboriginal
Canadians of their values and history.” A judge with the New
Brunswick Court of Queen’s Bench went further stating: “[i]n
my view what Parliament was saying in enacting s. 25 was that,
even though aboriginal and treaty rights…might offend against,
say, s.15(1) of the Charter…, s.15(1) cannot serve to abrogate
or derogate from such rights….
In one sense the purpose of s.25 was to supplement and
extend explicitly to the aboriginal people of Canada s.15(2) of
the Charter.” (R. v. Nicholas and Bear et al. , 91 N.B.R.
||Peter Hogg, in his Constitutional
Law of Canada, argues that “a law enacted by the federal
Parliament under s. 91(24) for the benefit of Indian people…
[is] not affected by s. 15 of the Charter.” (52-50.1--52-50.2)
He lists the Charter’s affirmative action clause (s. 15(2)), the
general limitation clause (s. 1) and the ‘Aboriginal
treaty or other rights’ clause (s. 25) as sections in which
the Courts could find Charter protection for federal acts which
have possibly discriminatory effects on non-Aboriginals (27-7)
Corbiere, L’Heuruex-Dube J. stated: “I will not
decide how the words "shall not be construed so as to abrogate
or derogate" affect the analysis under other Charter provisions [i.e.. s. 15] when the section is triggered, or
whether s. 25 "shields" the rights it includes from the
application of the Charter.”
||Form “JUS 998 E Application
to register firearms (for individuals)”
||See Justice Wilson’s
concurring judgment in Singh
v. Minister of Immigration.
of Commons Debates, Vol. 133, No. 154 (16
February 1995) at p. 9707.