HOW THE FIREARMS ACT (BILL C-68) VIOLATES
THE CHARTER OF RIGHT AND FREEDOMS
of the study prepared by Dr. Ted Morton for:
the Responsible Firearm Owners of Alberta,
Responsible Firearm Owners Coalition of British Columbia
and the Recreational Firearms Community of Saskatchewan.
presented in Saskatoon, October 5, 2002
In 1995 the federal government introduced Bill C-68, a bill to
change firearms legislation in Canada. After
passage it is correctly identified as "Statutes of Canada 1995, Chapter
39". It incorporates two parts: the new Firearms
Act and changes to the existing Criminal
Code. Throughout this paper the
legislation will be referred to by it's short title The
In 1999 when the Supreme Court rejected Alberta’s (and seven other
government’s) constitutional challenge that the Firearms Act was outside of
the federal government’s jurisdiction, the Supreme Court began by declaring
“The 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 of
That was true for the law of federalism. It is not true under the Charter of Rights.
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 and that it impairs the rights
involved “as little as possible”. While
the purpose of the Firearms Act - to reduce the use of firearms in violent crime
- is laudable and shared by all law-abiding Canadians, its licensing and
registration requirements do nothing to achieve this end.
As summarized below, the Firearms Act violates the Charter in many ways.
If the Supreme Court applies the same Charter rules to law-abiding
firearm owners as it has to drunk-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 even handedly - then it will be forced by its own precedents to declare
the Firearms Act unconstitutional.
The Supreme Court has broadly interpreted the right to liberty (section
7 of the Charter) to protect “an irreducible sphere of personal autonomy
wherein individuals may make inherently private choices free from state
interference”. The Firearms Act
interferes with this liberty by making illegal the mere act of owning a firearm
inside one’s own home. It does so
without any evidence of harm to others, the prerequisite for limiting a
to Security of the Person
The Firearms Act violates the right to security of the person (section
7) by taking away the ability of citizens to defend their own homes and
property. The right to bear arms
for the protection of one’s home, family and property has been recognized in
English common law for over 200 hundred years.
It is affirmed in the writings of Locke and Blackstone. This right is
imported into Canadian law by the preamble to the BNA Act (1867) and by section
26 of the Charter. The Firearms Act
deprives Canadians of this right by making them completely dependent upon prompt
police response in the case of home invasion and robbery.
This deprivation is especially harsh for the thousands of Canadians who
live in rural areas where police response is often hours after a 911 call has
to Procedural Fairness
The manner in which the Firearms Act is administered and enforced
violates the rules of procedural fairness mandated by section 7 of the Charter
(“principles of fundamental justice”).
In the context of their abortion ruling, the Supreme Court ruled that
criminal law must be enforced evenly in all parts of Canada.
Seven provinces and territories have refused to administer the Firearms
Act, creating a “checker-board” pattern of enforcement.
What is legal in one part of Canada is illegal in another, and vice
versa. The Charter does not permit this.
The selective enforcement of the Firearms Act also violates procedural
fairness. Since the licensing
requirements came into effect in 2000, no charges have been laid except as an
additional charge in cases where a firearm has been used in the commission of a
separate crime. This double
standard violates the principle of uniform enforcement established in the
Court’s abortion ruling. It also
discriminates against individuals who are younger, poorer, less educated, urban
and members of visible minorities - the groups more prone to use firearms in the
commission of a crime - and in favour of unlicensed collectors, farmers,
ranchers and hunters, who are generally older, more educated, more affluent and
rural/small town. This double
standard violates one of the oldest principles of Canada’s rule of law
tradition: “equality in the application and administration of the law”.
The Firearms Act violates the section 7 principle prohibiting unlimited
administrative discretion. As
Justice Conrad observed in her judgment in the Alberta Court of Appeal: “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 violates the rule
of law requirement that, in the words of Dicey, prohibit “government based on
the exercise by persons in authority of wide, arbitrary, or discretionary powers
against unreasonable search and seizure
Section 8 of the Charter prohibits unreasonable search and seizure 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. 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 violate section 8 of the
The search and seizure powers granted by the Firearms Act are also
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.” Such
sweeping search powers violate the prohibition against police “fishing
expeditions” imposed by the section 8 right against unreasonable search and
The Supreme Court has also 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 the Firearms Act 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 was recently declared unconstitutional by
an Ontario court. The use of these
highly intrusive questions in the Firearms Act has already been condemned by the
federal Privacy Commissioner.
to be presumed innocent
Two sections of the Firearms Act (ss.112.4 and107) place the burden of
proof on the accused to prove his innocence. This violates the right to be
presumed innocent until proven guilty. In
Canada, this ancient right in all English-speaking democracies is given new
constitutional protection by section 11(d) of the Charter.
The Supreme Court has used the right to the presumption of innocence to
overturn other sections of the Criminal Code that punish drug-dealers (Oakes,
1986), impaired drivers (Whyte, 1988), pimps (Downey, 1992) and murderers (Chaulk,
1990). The courts will be obliged
to extend the same constitutional right to law-abiding firearm owners.
against arbitrary detention
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, 1985)
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 it is “at the absolute discretion of the police officer.” (Hufsky,
to freedom of expression
Section 2(b) of the Charter protects freedom of expression. The courts
have interpreted this to protect not just written or spoken words, but also
“expressive” activity such as marching in a protest rally. (Irwin Toy, 1989)
The courts have also identified “individual self-fulfillment” as a
core good advanced by freedom of expression.
Linking these two, the BC Court of Appeal has ruled that “the personal
belongings of an individual are an expression of that person’s essential
self” and that the possession of child pornography is therefore protected by
section 2(b) of the Charter. (Sharpe, 1999) Under these precedents, ownership of
firearms qualifies as a form of expression protected by the Charter.
This is doubly true for collectors of antique or rare firearms.
It is also true for those who keep a firearm as a family heirloom to
commemorate an ancestor’s military service or pioneer roots.
These activities are all forms of self-fulfillment.
In Keegstra (1990), a case involving hate propaganda, the Supreme Court
ruled that the fact that an expressive activity is private and not intended for
public consumption confers even greater protection on it.
If possession of child pornography and racist propaganda are protected by
section 2(b), then certainly possession of firearms enjoy the same or greater
to bear arms
The right to bear arms has existed in English common law for at least
300 years and is imported into Canadian law by the preamble of the BNA Act, 1867
and section 26 of the Charter. Section
26 declares that traditional rights not listed in the Charter continue to have
force and effect in Canada. The
first explicit recognition of the right to bear arms in British-Canadian law
occurs in the 1689 Bill of Rights. It
is re-affirmed by the celebrated Blackstone in his Commentaries as one of the
five most important rights of British subjects; and confirmed in several 18th
and 19th century precedents. Although
this right is subject to regulation by parliament, in Sparrow (1990), the
Supreme Court affirmed that regulation of a right does not automatically
extinguish the right. The right to
bear arms is thus an historical right of all Canadians; affirmed by 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 violates 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 violation of this right according to the strict tests mandated by
the Oakes precedent.
to counsel upon arrest or detention
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 counsel (a 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 therefore in violation of section 10(b) of
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 fundamental to Canadians’ historical
sense of justice. The Court should
be encouraged to add the right to private property to the five principles to
which it has already given this protection: judicial independence, federalism,
democracy, rule of law and minority rights.
Indeed, without respect for the right to private property, these others
would quickly become irrelevant.
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 enumerated groups.
The Firearms Act discriminates unfairly and unreasonably against the following
non-enumerated minorities in Canada: rural Canadians and non-aboriginals who
depend upon firearms for their livelihood.
Rural Canadians are represented by less than 31% of MPs in Parliament,
and consequently their legitimate interests are systematically neglected by the
majority of MPs who come from urban and suburban constituencies.
Rural Canadians - farmers, ranchers, trappers, and hunters - regularly
and lawfully employ firearms to make their living.
The effect of the Firearms Act is to impose taxes and a heavy regulatory
burden on the tools of their trade. The Firearms Act also forces them to
disclose sensitive personal and financial information, and threaten 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 this
is predominately an urban trend. This
is precisely the type of unfair stereotyping of a politically vulnerable
minority that section 15 prohibits.
The Firearms Act’s exemptions for Aboriginals discriminate 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.
The Supreme Court has declared in Vriend (1998) and Law (1999) that
statutes that confer a benefit but do not extend the benefit to a similarly
situated minority (enumerated or analogous) violate section 15.
Section 27 directs the courts to interpret the rights protected in the
Charter in a manner that is consistent with the protection and preservation of
Canada’s multicultural heritage. The lawful and legitimate use of firearms -
during the early years of settlement and still today by ranchers, farmers,
trappers and hunters - is an integral part of Canada’s multicultural heritage.
Section 27 thus enhances all of the preceding rights of Canadian firearm owners.
To the extent that the Firearms Act restricts any of the rights listed
above, the burden of proof shifts to the government to prove that such
restrictions are “reasonable”. To
do this, the Supreme Court has developed the “Oakes test”, which requires
the government to demonstrate that the Act:
While the purpose of the Firearms Act - the reduction of illegal use of
firearm violence - easily qualifies as an important public policy objective, the
means used to achieve this objective utterly fail the last three rules of the
In 1995 when the Firearms Act was enacted, there was no demonstrable
need for new restrictions on firearm owners:
The Firearms Act goes much further than just creating a screening
process for those who wish to acquire firearms. It criminalizes the very possession of a firearm in the
absence of any wrongdoing or threat of harm to others.
Despite the mandatory registration of “restricted” weapons since
1969 robbery rates increased over next 20 years, as did the number of restricted
weapons offenses. Handguns have
required registration since 1934.
Three-quarters of all firearms-related deaths are suicide.
Suicide is not a crime; does not threaten public safety; and would not be
affected by registration requirements.
Over 90 percent of firearms-related violence involves handguns (mostly
unregistered). Registering long-guns (shotguns and rifles) will have no effect
In all violent crimes in Canada in 1996, only 3 percent involved any
type of firearms. Knives and hockey
sticks are a more prevalent form of assault weapon.
The Firearms Act targets the wrong demographic group.
Most firearm-related crimes are committed by younger, urban residents
with criminal records. The legal use of firearms is concentrated in older, rural and
small town residents. Requiring the latter to register their firearms will have
no effect on the former.
Evidence presented by the Justice Department to Parliament to justify
the need for C-68 in 1995 has since been repudiated as inaccurate by the RCMP.
The RCMP stated that the Justice statistics overstated the number of
firearms used in violent crimes in 1993 by a factor of 9 (623 compared to 73 in
Costs of implementing the Firearms Act have soared from the
government’s initial estimate of $85 million dollars over five years to over
$670* million by July, 2002 - with 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.
(* The Auditor General said in December of 2002 that the costs would be
$1 BILLION by 2005)
There is 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. In 2002, eight firearm officers responsible for verification
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 Act: assisting police
in tracing stolen firearms and firearms used in crimes.
The government’s 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.
Recent studies indicate that tougher gun control laws do not result in
reduced crime rates or increased public safety. Indeed, they suggest the
In the United States, state attempts to regulate the ownership of guns
by law-abiding citizens have resulted in higher violent crime (81%) and murder
(127%) rates than in states without such laws. (Lott)
Since Great Britain banned all private ownership of handguns in 1997,
violent crime rose 10 percent the next year and more than doubled from 1996 to
In Australia, since stringent new gun control laws were introduced in
1997, homicides involving firearms have doubled and armed robberies have
increased 166 percent. (Mauser)
In 1983, New Zealand discontinued universal registration of firearms
after that country’s police declared that the policy was a complete failure.
In sum, there is no rational connection between the objectives of the
Firearms Act and the means used to implement it. It violates multiple sections
of the Charter of Rights and is having no effect on reducing the use of firearms
in crime or better protecting public safety
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
study of the Firearms Act was directed by Dr. Ted Morton of the University of
Calgary and financed by:
RESPONSIBLE FIREARMS OWNERS OF ALBERTA
74, Amisk, AB T0B 0B0
RESPONSIBLE FIREARMS OWNERS COALITION OF BC
Box 93052, Langley, BC V3A 8H2 www.rfocbc.com
RECREATIONAL FIREARMS COMMUNITY OF SASKATCHEWAN
462, Moose Jaw, SK S6H 4P1 www.rfcsask