May 6, 2020

Constitutional Basis for Firearm Ownership

R. v. Hasselwander, [1993] 2 SCR 398

On May 1, 2020, the Prime Minister of Canada announced that semi-automatic, assault-style weapons, would be banned,

These weapons were designed for one purpose and one purpose only: to kill the largest number of people in the shortest amount of time. There is no use and no place for such weapons in Canada. Effective immediately, it is no longer permitted to buy, sell, transport, import or use military-grade assault weapons in this country.
The full list of the over 1,500 weapons was published in the Canada Gazette, as a regulation to the Criminal Code provisions regarding the terms “non restricted firearm”, “prohibited device”, “prohibited firearm”, and “restricted firearm” in subsection 84(1).

The implications of this expansion of guns included in this list can be gleaned from the restrictions imposed under the Common Sense Firearms Licensing Act for weapons meeting these definitions, and include possession, transportation, and trafficking.

The announcement came soon after the worst mass shooting in Canadian history, on April 18-19, 2020, when 22 people died in Nova Scotia. The case originated in a domestic violence incident, with a shooter who purchased his weapons illegally.

At least one of the shooter's guns was purchased domestically, without a possession and acquisition license, but many appear to have originated from the U.S. This has led many to ask why legal owners of firearms are targeted by the new legislation, and why resources aren't diverted instead to the Canada-U.S. border to prevent further gun smuggling.

The answers to these are complex, but reflect a shift in trends observed in the Canadian guns black market. Although the U.S. has historically been the primary origin for illegal guns, this has changed in recent years. Approximately half of all of illegal firearms now originate from domestic sources, with some legal gun owners selling them to criminals to turn a profit.

Although some have questioned this conclusion as anecdotal and without an evidentiary basis, the reality is that this has more to do with the lack of consistent documentation between law enforcement across Canada. The Globe attempted to collect this data in 2019 from 36 municipal level police tracing information, and found that when it did exist it was all in disorganized paper format. It would cost many hundreds of thousands of hours to collect this information, and many thousands of dollars, likely more than the costs of implementing a ban.

In other words, anecdotal information is all we have available at this time, to make decisions that would very likely save lives.

The ArmaLite AR-15 style rifles [and similar semi-automatic guns] included in the prohibition have been used in other Canadian mass shootings, such as the École Polytechnique massacre, the Dawson College shooting, and Quebec City mosque shooting.

A more useful exercise is to examine the ability of the government to implement such a prohibition, keeping in mind that there will be numerous exceptions and retention or compensation schemes that will be rolled out in the future.

The Supreme Court of Canada reviewed this in 1989 in R. v. Zeolkowski,

While firearms have been regulated in some form in Canada since 1892, the amendments of 1977 were intended as a more comprehensive approach to protecting the public from firearm misuse (Hawley, Canadian Firearms Law, at p. 2).

While this comment was made in the context of pre-emptive prohibition provisions under the Code that no longer exist, the Court noted that prohibitions can be particularly useful in recurring domestic or neighbourhood confrontations.

This statement was cited favourable by the Court in 1993 in R. v. Hasselwander, reviewing a firearm that was readily convertible from semi-automatic to fully automatic, thereby rendering it a "prohibited weapon" under the Code. The majority employed a more expansive definition of the terms in the Code, making a statement that mirrored in many ways the recent announcement by the Prime Minister,

These guns are designed to kill and maim a large number of people rapidly and effectively. They serve no other purpose. They are not designed for hunting any animal but man. They are not designed to test the skill and accuracy of a marksman. Their sole function is to kill people. These weapons are of no value for the hunter, or the marksman. They should then be used only by the Armed Forces and, in some circumstances, by the police forces. There can be no doubt that they pose such a threat that they constitute a real and present danger to all Canadians. There is good reason to prohibit their use in light of the threat which they pose and the limited use to which they can be put. Their prohibition ensures a safer society.

The American authorities should not be considered in this case. Canadians, unlike Americans do not have a constitutional right to bear arms. Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.[emphasis added]

A more direct challenge to Canadian gun laws was unsuccessfully advanced before the Ontario Court of Appeal in R. v. Montague, where the accused was a firearms dealer and manufacturer who allowed his license to expire, and brought a motion challenging the constitutional validity of the firearm provisions in the Code, the Firearms Act, and related regulations. He professed a supposed right to the security of the person, based on Article 7 of the English Bill of Rights, 1689,
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.[emphasis added by the Court]
The fact that this provision itself contains limits, and that England has itself enacted numerous statutes limiting the purchase, possession and use of firearms, did not bolster this argument. This Bill was created by William of Orange in response to King James II, a Catholic who had disarmed Protestants in England while arming Catholics in his country, and was more informed by an interest in removing preferential treatment towards arms than it was any inalienable right.

Although the preambular statement in the Constitution Act, 1867, expresses a desire to confederate under "a Constitution similar in Principle to that of the United Kingdom," the Court in New Brunswick Broadcasting Co. v. Nova Scotia clearly rejected a specific import of any particular articles of them Constitution of the United Kingdom. The departure from the American approach appears to have occurred as early as in 1875 in United States v. Cruikshank, which involved Federal charges emerging out of the Colfax massacre, often referred to as one of the worst incidents of racial violence after the Civil War.

The SCOTUS concluded that the right to keep and bear arms exists separately and independent from the Constitution, based on pre-existing rights in common law. Although this decision was subsequently constrained by other decisions, for nearly a century it empowered groups like the Ku Klux Klan to engage in domestic terrorism, especially in vote suppression of Blacks.

The Court of Appeal in Montague also heavily relied on the Supreme Court of Canada's decision in the sentencing appeal in R. v. Wiles, where the Court stated,

9 ...possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege. It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one. In Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power...

A similar argument was raised before the Saskatchewan Court of Appeal in Hudson v. Canada (Attorney General), including an argument that the right to armed self-defence is a "natural right," entitling a citizen to defend themselves against criminals or the government. The applicant was born in the United States and immigrated to Canada in 1977.

The Chambers judge rejected this application, stating,

[11] Accordingly, it is my opinion that the preamble to the British North America Act, 1867 did not incorporate into Canada’s statutes the right of certain persons to bear firearms which was contained in the Bill of Rights 1689.

[12] Furthermore, it is clear that even in England, under the Bill of Rights 1689, the right to bear arms was not unqualified. The qualifications were:(1) its application was to the subjects who were Protestants; and(2) armed for their defence; and(3) suitable to their conditions; and(4) as allowed by law.The first three conditions relate to the political situation at the time the declaration was passed. A previous king, who was Catholic, had for a time prohibited other religions from bearing arms. As a result, people of those other religions felt that they were unable to appropriately defend themselves. As well, suitable to their conditions would also have been a reference to the political situation at that time which favoured landed gentlemen.The fourth condition was according to law which would have made the right to bear arms would be subject to the power of Parliament to make laws concerning the said firearms.

...

[15] In my opinion, Dr. Hudson has not established that there is an unfettered right to bear arms in Canada. Rather, there is a privilege to own and use firearms, which privilege is subject to licensing requirements which may be established from time to time by Parliament. While firearms may have been a part of the heritage of Canada as described in the affidavits filed by Dr. Hudson in support of this application, it never was intended to be an unfettered right that was not subject to parliamentary limitations. Some of these limitations include the licensing of individual firearms owners and the licensing or prohibition of certain types of firearms.[emphasis added]

The Saskatchewan Court of Appeal affirmed this decision, but noted the limits of of any conclusions given the deficient evidentiary record in an application rather than a full trial.

Leave to appeal to the Supreme Court of Canada was denied in both the Ontario and Saskatchewan cases. In "Arming and Disarming: A History of Gun Control in Canada," R. Blake Brown indicates that early debates in 1845 (pre-Confederation) and 1885 (post-Confederation) in Parliament did express a concern of excessive gun regulation violating the spirit of the English Bill of Rights, but this would also be at a time when many of the citizens would still be British citizens.

Even at this time, Canadian politicians were searching for ways to avoid the wave of gun violence observed in the U.S. Several civilian riots over the next few decades, many along sectarian and religious lines, would appear to be the impetus for the change in Canada along with one other important consideration,

In 1885, the federal government would override the right because it deemed Aboriginal Peoples incapable of full citizenship (and thus unable to claim all the rights British justice afforded)...
Canada was reluctant to create a full standing right to bear arms, because it would effectively arm minorities in Canada as well. This departure from American constitutional principles though appears to have occurred at the very inception of Canada.

Implementation of even broader firearm restrictions were thwarted due to the inability of the government to disarm Aboriginal People, or prevent them from procuring arms across the long border of the U.S. That border is not only porous to weapons, but also conceptions that do not have the same basis in Canadian law.

Many of the objections to these new regulations have their basis in the laws and the values of another country. They are worthy of close scrutiny before providing them weight as to the appropriate level of firearms restrictions in this nation, one that has never had a constitutional right to bear arms, and that has sought from the outset to differentiate ourselves from our neighbours, specifically as it relates to firearm violence.