Join Date: October 21, 2009
Location: Quadling Country
(I did not see this posted, if it is please delete)
In all the hoopla for the Olympic Games we missed something. This recent court ruling is disappointing the many I am sure.
In oral argument before this court, the Montagues argue that whatever the course of Canada’s legislative history in relation to firearms regulation, the world changed in 1982 with the advent of the Charter. From that date forward, they submit, Parliament was precluded from abrogating existing fundamental rights and freedoms. They maintain that the right to possess firearms in the home for self defence without state intervention was one of those fundamental rights. Accordingly, as a result of the Charter, the existing firearms legislation, which regulates the right to possess and use firearms, is constitutionally invalid as an unwarranted intrusion on the Montagues’ pre-existing common law right to possess and use firearms.
 In support of this argument, the Montagues submit that Article 7 of the Bill of Rights, 1689, 1 Will & Mary, sess. 2, c. 2, is “the entrenchment and verbalization of the inherent right to possess firearms for self-defence”. There are several difficulties with this submission.
 First, Article 7 of the Bill of Rights, 1689 reads: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” (emphasis added). Thus, the plain language of Article 7 of the Bill of Rights, 1689 recognized that the right to possess arms for the purpose of defence was subject to allowance by law. In other words, Article 7 recognized Parliament’s jurisdiction to constrain the right to possess firearms.
 Second, although the Montagues contend that the right envisaged by Article 7 of the Bill of Rights, 1689 comes within the ambit of s. 7 of the Charter, Article 7 has neither directly nor indirectly been incorporated into Canada’s constitution. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),  1 S.C.R. 319, at para. 54, McLachlin J. (as she then was) clearly stated that provisions of the Bill of Rights, 1689 “cannot be directly transported without specific reference” and, further, “I do not think that the wording of the preamble to the Constitution Act, 1867 can be taken to refer to [a] specific article of the Constitution of the United Kingdom.”
 Moreover, contrary to the Montagues’ contention, the Supreme Court of Canada has addressed the question of whether the possession and use of firearms is a constitutionally protected right and has rejected the notion that Canadians have an absolute constitutional right to possess and use firearms. See R. v. Wiles,  3 S.C.R. 895, at para. 9; R. v. Hasselwander,  2 S.C.R. 398, at para. 414. Although s. 7 of the Charter does not appear to have been expressly invoked in those cases, the Supreme Court stated in Hasselwander at para. 414 that, “Canadians, unlike Americans, do not have a constitutional right to bear arms.” In Wiles at para. 9, the Supreme Court said: “[P]ossession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.”
 The Montagues submit that the above-quoted comments are obiter, as ss. 7 and 26 of the Charter were not engaged in Hasselwander and Wiles or any related jurisprudence.
 We disagree. The Supreme Court’s comments in Hasselwander and Wiles apply with equal force to s. 7 of the Charter.
 The Supreme Court has also recognized that the possession and use of firearms is a heavily regulated activity aimed at ensuring peace, order and public safety: see Wiles, at para. 9; Reference re Firearms Act (Can.),  1 S.C.R. 783.
 Importantly, even assuming that a right to possess and use firearms comes within the reach of s. 7 of the Charter, that right, like all other fundamental rights and freedoms, is not absolute. The impugned firearms legislation does not prohibit the right to possess and use firearms for self-defence – in the home or elsewhere. Rather, it simply regulates the circumstances under which such possession and use are permissible.
 Finally, we note that the trial judge considered in detail the Montagues’ constitutional challenge to the impugned firearms provisions of the Code, the Firearms Act and associated regulations enacted under the latter statute. His reasons in support of his ruling dismissing that challenge are thoughtful and comprehensive. He essentially held that there is no protected constitutional right in Canada to possess or use firearms. We agree with this conclusion and see no basis on which to interfere with his ruling.
...Although s. 7 of the Charter does not appear to have been expressly invoked in those cases, the Supreme Court stated in Hasselwander at para. 414 that, “Canadians, unlike Americans, do not have a constitutional right to bear arms.” In Wiles at para. 9, the Supreme Court said: “[P]ossession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.”
Proxima est Mors, Malum Nullum adhibit Misericordiam