File: Charter Challenge 2.0

Introduction

In 1999 when 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:

“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 firearms.”

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; 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 Bill C-68’s licensing and registration requirements satisfy these criteria.

The purpose of Bill C-68—to reduce the use of firearms in violent crime--is 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 unregistered ones.

As summarized below, Bill C-68 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 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 with an even hand—then it will be forced by its own precedents to declare Bill-68 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.

A Charter 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.

Section 7:

Everyone 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 fundamental justice.

Section 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 s. 1, section 7 confers additional protection by ensuring that these rights cannot be taken away except “in accordance with the principles of fundamental justice.  This latter phrase has been interpreted to allow both procedural and substantive scrutiny of legislation.[i]  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.  Bill C-68 fails to meet either of these tests.

Section 7: Substantive Fairness

The Supreme Court of Canada has interpreted the section 7 right to liberty broadly.  As Wilson J. stated in R. v. Morgentaler [1988] 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), [1997] 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.”

C-68 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 provincial firearm safety courses). But C-68 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. C-68 imposes an intrusive and stigmatising 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 constitutuional challenge to C-68:

“No 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.”[ii]

C-68 thus violates the personal autonomy protected by s. 7 and the Supreme Court’s jurisprudence on liberty.

With 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: “s. 7 was enacted for the purpose of ensuring human dignity and individual control, so long as it harms no one else.”[iii]  C-68 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.

The Firearms Act also limits the s. 7 right to security of the person. In the English-speaking common law jurisdictions of the world, it has long been recognised 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, property.”  These sentiments were echoed by Sir William Blackstone who said “[t]he third absolute right, inherent in every Englishman, is that of property.”[iv]

In 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. The common law has always recognised that citizens themselves enjoy a right of self-defence against attacks on either their persons or and possessions. This includes the right to own and to bear arms for purposes of defending one’s home and family.[v] Billl C-68 deprives Canadians of this right of self-defence against home-invaders, 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 Bill C-68. 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 criminalisation 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.

The 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 Morgentaler: “[t]he case law leads me to the conclusion that…state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person.”  Similarly, Sopinka J. in the case of Rodriguez v. British Columbia (Attorney General)  [1993] 3 S.C.R. 519 declared: “[s]ecurity of the person in s. 7 encompasses notions of personal autonomy…control over one's physical and psychological integrity which is free from state interference, and basic human dignity.” 

Chief Justice Dickson, in R. v. Oakes [1986], accurately captured the consequences of being charged with a criminal offense:

 “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.”[vi]

The Firearms Act violates this broader concept of security of the person because it imposes significant psychological stress on Firearm 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, where the penalty for violations include jail sentences. The stress is even worse for Canadians whose only firearms consist of one or two family heirlooms, because they typically are ignorant of the detailed information—calibre, action, barrel length--required to register firearms under C-68. These effects of Bill C-68 are contrary to the right to security of the person protected by section 7 of the Charter.

Section 105 of the Firearms Act also violates section 7 (and 8) of the Charter.[vii] 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. This violates 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 that he has a right to silence[viii] and a right not to be asked questions until his lawyer is present.[ix]

Of 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. Wicklum 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 the Act is exclusively a matter of criminal law.[x] 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 105 is a prima violates both these sections, and can only be salvaged if it can pass the section 1 Oakes test.

Section 7: Procedural fairness

            The manner in which Bill C-68 is being administered and enforced violates the rules of procedural fairness mandated by the s. 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.

In 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.[xi]

In the 1986 B.C. Motor Vehicle Reference, [xii] 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, [xiii] Justice Dickson ruled that

"One 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."

"[The 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 . .

"Even 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 down."

These Charter 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 January 1, 2003, this will be precisely what will occur under the Firearms Act. Accordingly, the first legal step in challenging C-68 should be to launch an injunction against enforcement effective January 1, 2003.

[Note: Since the Federal government extended the deadline for registration from Dec. 31, 2002 to June 30, 2003, the effective date for this issue now becomes July 1, 2003.]

A related procedural violation arises from the uneven application of the Firearms Act in different provinces. The licensing and registering provisions of C-68 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 justice. 

The 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.[xiv] This “checker-board” approach to enforcement means that Firearms owners are subject to different administrative procedures and practices depending on where they live in Canada.

The 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 fundamental justice.

 As 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:

 “First, 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.”[xv]

Almost 200 years later, Dicey restated it as a core meaning of the rule of law:

 “It means again equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; the ‘rule of law’ in this sense excluded the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts.”

In the Canadian context, F.R. Scott has articulated the same rule: “It is 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 of right of those charged under it.

The widespread non- enforcement of a law creates confusion in the community. Understandably, some Firearm owners have interpreted non-enforcement as signalling 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.

The 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 oberved: “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.”[xvi] This unfettered discretion violates the norms of the rule of law that date back to the Magna Carta (1215). Dicey’s articulated this principle still stands:

“We 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.”

This rule of law principle was enforced in Canadian courts prior to the Charter in the famous case of Roncarelli v. Duplessis (1959), and is strengthened by section 7 of the Charter.

A 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 benefit.

The 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.

While 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.[xvii] 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:

“It 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.” 

In 1986, the Supreme Court’s Singh[xviii] precedent 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. Once property is deemed to be protected by section 7, C-68 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.”[xix]

In 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 dissent 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 legislation.” 

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 Firearms Registry.[xx] 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:

“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 . . . . the impact of this legislation will be borne substantially by those who use firearms safely for legitimate purposes.[xxi]

Accordingly 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 there.”[xxii]

To 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 section right 7.  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. (This is the subject of the last section of this study.)

Section 8:

8. Everyone has the right to be secure against unreasonable search or seizure.

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 requirements for obtaining a search warrant under the Firearms Act do not meet the strict criteria laid down by the Supreme Court of Canada in R. v. Hunter. In Hunter, the Supreme Court mandated that for a warrant to be issued, a judge must be led on “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search.” The 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. 

In the case of R. v. Hurrell, the Ontario Court of Appeal recently struck down s. 117.04(1) of the Criminal Code for violating a similar standard.[xxiii] 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.

Sections 102-105 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 Therens, 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.

In 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 wilful 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.

By failing to account for the element of psychological compulsion, sections 102-105 of the Firearms Act violate the constitutional standard established in Therens.

Section 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 state, it has evolved to be primarily a protection of privacy.  As former Chief Justice Brian Dickson stated in the landmark case of Hunter v. Southam Inc. [1984] 2. S.C.R. 145, the purpose of s. 8 is: “to protect individuals from unjustified state intrusions upon their privacy.”  Likewise in the same case, La Forest J. stated: 

“[t]he 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.” 

While 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 (1984), 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 Plant, Sopinka J. said “[t]he 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 [2001] 1 S.C.R. 45, McLachlin C.J. stated: “[p]rivacy, 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 s. 8 of the Charter.

While Canadians have a right to protection only against ‘unreasonable’ intrusions upon their privacy, the provisions of Bill C-68 go beyond the bounds of reasonableness.  The search and seizure powers granted by C-68 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.” Such sweeping search powers violate the prohibition against police “fishing expeditions” imposed by the courts’ interpretation of the section 8.[xxiv] 

These intrusions into the privacy of individuals are counter to a number of important Supreme Court precedents.  In R. v. Dyment [1988] 2 S.C.R. 417, La Forest J. commented on the essential importance of privacy:

“[P]rivacy is at the heart of liberty in a modern state….  Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual….  The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.” 

Reflecting on the importance of privacy in criminal investigations in the Thompson case[xxv], 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 [criminal] 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.

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.[xxvi] 

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:

“[t]his too is based on the notion of the dignity and integrity of the individual. As the Task Force[xxvii] 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.” 

Sopinka J., in R. v. Plant [1993] 3 S.C.R. 281 went further:

“Section 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.  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 dignity.”[xxviii]

The personal 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 C-68, 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.

The chief civil servant responsible for Canada’s Privacy Act has voiced a number of concerns about Bill C-68 and the Firearms registry.  In his review of the Act[xxix], 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.”[xxx]  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.”[xxxi]  Perhaps most importantly under s. 8 of the Charter, the Commissioner was disturbed by the questions on the licence application form:

Much 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 form.[xxxii]

The 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.[xxxiii]  That Canada’s top privacy watchdog had significant concerns with the privacy ramifications of Bill C-68 is also indicative that the law is legally suspect.

There 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 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. Bill C-68 thus violates section 8 of the Charter in as many as five distinct ways.

Section 11:

11. Any person charged with an offence has the right

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Section 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 the United Nations Declaration of Human Rights.[xxxiv] The Firearms Act limits the right to be presumed innocent through its use of reverse onus provisions.

The Firearms Act contains two provisions that place the onus of proving innocence on the accused in criminal matters, both prima facie violations of s. 11(d).[xxxv]  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 licence or certificate, rather than placing the onus upon the Crown to prove that they did.

The Supreme Court of Canada has been unequivocal in its Charater 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 s. 1 scrutiny.  The most significant of these cases was R. v. Oakes [1986] 1 S.C.R. 103.  In this case (better known for the Court’s establishment of criteria for deciding s. 1 violations), Chief Justice Dickson explained the reasons behind the presumption against the use of reverse onus provisions:

The 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 concluded: “[i]n general one must, I think, conclude that a provision which requires an accused to disprove…the existence of a presumed fact [a reverse onus provision], which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). If an accused bears [this] burden…, it would be possible for a conviction to occur despite the existence of a reasonable doubt.”[xxxvi] 

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 [1988] 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 a drunk accused who was asleep at the wheel of his car had “care and control” of the vehicle). In R. v. Downey [1992] 2 S.C.R. 10,  the Court held that an evidentiary presumptions 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 [1990] 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.[xxxvii] 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).[xxxviii] 

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.

Given these 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 Criminal Code,[xxxix] it is not likely to pass judicial muster in this case, given the weak means/ends linkage of the Firearms Act. These section 1 issues are dealt with in the final section of this study.

Section 9

 Everyone 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, 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, 1988).

Section 10:

10.  Everyone has the right on arrest or detention

a)      to be informed promptly for the reasons therefore;

b)      to retain and instruct counsel without delay and to be informed of that right; and

c)      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’ 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 test.

Section 2(b):

2. Everyone has the following fundamental freedoms:

b) 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 Dolphin Delivery:  “[t]he principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy.” [xl]  Indeed, a generation before the adoption of the Charter, Rand J. eloquently declared that free speech was “little less vital to man's mind and spirit than breathing is to his physical existence.”[xli] 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 s. 1 “reasonable limitations” clause.

The 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:

“[t]he 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 (b) provide the inspector with any information relevant to the enforcement of this Act or the regulations that he or she may reasonably require.”

In the case of Slaight Communications Inc. v. Davidson, [1989] 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) [1995] 3 S.C.R. 199.  In the case of Lavigne v. Ontario Public Service Employees Union [1991] 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.[xlii]

In 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) [1989] 1 S.C.R. 927: “[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.”  In the same case, the Court also linked expression with “individual self-fulfillment.”[xliii]  In the more recent child pornography case, R. v. Sharpe, the courts re-affirmed the link between a person’s possessions and their ability freely to express themselves. In R. v. Sharpe [1999] B.C.J. No. 54, a B.C. Supreme Court judge 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.”

Under these precedents, the ownership of firearms qualifies as a form of expression protected by section 2(b) of the Charter. Certainly if the ownership of child pornography is protected by the Charter, then so too is the ownership of firearms. 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.

The 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 [1990] 3 S.C.R. 892:, is protected by s. 2(b) to an even greater degree than public expression. 

…in 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)

Under this standard, the possession or collection of firearms is clearly a protected form of private expression.  

Last 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 dissemination 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 child pornography and racist propaganda, surely it protects the lawful possession Firearms.    In light of the Keegstra[xliv] and Sharpe precedents, section 2(b) of the Charter protects the private possession of Firearms.[xlv] 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.

Section 26:

26. 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.

Section 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 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,[xlvi] 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:

“That the subjects which are protestant may have arms for their defence, suitable to their conditions, and as allowed by law.” 

Article 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 (see Appendix).[xlvii]

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.

A 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.[xlviii]  Article VII did not grant individuals a right to own firearms for self-protection, according to Schwoerer, and there is no common law foundation for such a right.

Joyce Malcolm effectively rebutts 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.[xlix]  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.[l]

Malcolm 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 self-defence.

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 its landmark 1990 Sparrow decision, 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. Indeed, the historical right of the descendants of European settlers to bear arms can be no less than the right of aboriginal Canadians to bear arms, 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, recognised 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 Bill C-68 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.

The Right to Own Property

Canadians 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 (1215) and the Bill of Rights (1689).  Property rights were further entrenched in the British constitution through such instruments as parliamentary representation and enfranchisement for voting.[li]  This right enjoys constitutional protection in Canada by virtue of our inheritance of British law through the preamble to the Constitution Act, 1867, 

In 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 new Dominion.[lii]  They did this through several different provisions.

While 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 property rights.[liii]  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 provinces.[liv] 

These 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.”[lv] 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.”[lvi] Mallory summarized his findings as follows:

“The 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.”[lvii]

At 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,[lviii] 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.”[lix] 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.”[lx]

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 by former Supreme Court Chief Justice Bora Laskin as a “quasi-constitutional instrument.”[lxi]  Section 1 of the Bill of Rights stipulates:

“It is hereby recognised 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.” 

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 Canadian Bill of Rights] continues in full force and effect and that the rights conferred in it are expressly preserved by s. 26 of the Charter.” 

The 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 government.[lxii]  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.

A 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.”

Neither 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, [1970] S.C.R. 282.

Furthermore, 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.

With 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.[lxiii]  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 v. Alberta [1998] 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.

The 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 Case (1928), 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.

A 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.

There 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 (1997), the Supreme Court declared that judicial independence qualified as such a “foundational princ