------------------------------ Date: Tue, 9 Sep 1997 11:31:58 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law The first day of court: An application from Clayton Ruby (the Coalition For Gun Control Lawyer [CFGC]) to have a paper by one Professor Killias admitted waas denied. The CFGC had submitted it, then fiddled around to prevent cross-examination of Prof. Killias. An earlier judge had then ruled the paper inadmissible because there was no opportunity for cross-examination. The Court ruled 3 to 2 to exclude the paper. Rod McLennan, acting for Alberta, then put Alberta's case. It quickly became evident that Chief Justice of Alberta Catherine Fraser had carefully studied the federal government's case. She mousetrapped McLennan into a swamp by asking him why registration of handguns was legitimate, and registration of rifles and shotguns was not. Instead of pointing out that the matter of registration of handguns was not before the court, that the question of the legitimacy of registration of handguns was an issue that might appear someday before some other court, that only the opinion of the judge in such a case could settle the legitimacy or otherwise of handgun registration, and that he could only give his personal opinion on the matter, McLennan tried to answer her. He assumed that handguns are intrinsically evil, that registration of handguns is legal and proper and constitutional. Those were dubious assumptions, and only his personal opinions. He characterized handguns as having no legitimate purpose, as being used primarily by criminals, and as legitimate targets for regulation within the criminal law. The judge then demanded to know why the arguments for registration of handguns should not apply to rifles and shotguns. McLennan was reduced to arguing that the difference between a rifle/shotgun and a handgun was "one of degree." He had been mousetrapped into fighting from a bad position that he could have -- and should have -- refused to move into. McLennan then recouped his losses by reading into the record a prepared statement (NOT something uttered in the heat of debate) made by Alan Rock during his introduction of Bill C-68. In that statement, he made it very clear that C-68 is not aimed at criminals, is expected to have no effect on crime or criminals, but is designed to make our society more "orderly," and to control property. In short, he gave a convincing presentation to tell Parliament that C-68 is REGULATORY law, dealing with PROPERTY issues, and equating it with automobile registration laws. Why is that important? Law is divided into regulatory law and criminal law. Broadly speaking, Criminal law prohibits behavior that is evil and damaging to the rights of others. Violation of a criminal law is, almost always, punishable by a term of imprisonment. Criminal law and its severe punishments are reserved for the worst evils found in society. The consitution allocates the power to make criminal law to the federal Parliament. Broadly speaking, regulatory law is law that regulates society, prohibiting behavior that normally will not -- but MIGHT -- have evil or damaging effects on the rights of others. Regulatory law is usually NOT punishable by a term of imprisonment. Regulatory law and its gentler punishments are reserved for REGULATION of our society, with the intent to make life easier and more orderly, and to deal with property issues (e.g., should you be allowed to own pesticides, or store pesticides where rain can corrode the containers). The Constitution allocates the power to make regulatory law -- in fields that existed before Confederation (1867) -- to the provincial legislatures. (In fields that did not exist prior to 1867 (e.g., air transport) and fields that straddle provinces (e.g., marine transport), the Constitution allocates the power to make regulatory law to the federal government. Firearms clearly existed before 1867, and their ownership, possession and use is local. Firearms are property.) Rock's equation of firearms registration with motor vehicle registration is useful. Motor vehicle registration is only required for motor vehicles that travel public roads, not for POSSESSION of motor vehicles. It is PROVINCIAL REGULATORY law, not FEDERAL CRIMINAL law. Imprisonment is NOT a punishment that can be imposed for violation of a motor vehicle registration law. When Rock equated the two in his prepared statement, he largely made the provincial case. Registration of firearms may be imposed by government in a law, but it is fundamentally REGULATORY in nature, not CRIMINAL. One question that has not been raised yet -- and should be -- is the question of licensing within the CRIMINAL law. Bill C-68 criminalizes simple possession of any firearm. If a person has possession of any firearm, that is a crime, and his or her behavior is criminal behavior -- according to Bill C-68. In Bill C-68, the federal government then offers to SELL the person a license to commit that crime. If that concept is worthy of inclusion in the criminal law, one wonders how far such a precedent may take us. Will our government someday be selling licenses to burgle? To murder? Obviously, those two suggestions are laughable -- today. We must, however, recognize how much laws change over a term of years. It was not that long ago that we prosecuted Mafia hirelings for their activities in selling gambling tickets that gave people chances to win money through the "numbers racket." Today, the "numbers racket" has been taken away from the Mafia. We buy our tickets legally -- from the federal government -- and the renamed "numbers racket" is called Lotto 6/49. Oddly enough, the Mafia used to give us better odds than the federal government does today. When one looks at licensing the commission of crimes, the problems become clear. If the criminal law is reserved for dealing with crimes and criminal behavior -- the sort of evils that have major damaging effects on the rights of others -- then how can such bad behavior be legitimized by selling a license to commit the crime to any applicant? Either the behavior is not that evil -- in fact, is perfectly acceptable in our society -- or the selling of the license to engage in the behavior is wrong. True, the C-68 system contains ways to deny the license; but it is unequivocal that the license is available, that the behavior is NOT intrinsically evil, and that the government expects huge numbers of Canadians to buy the license. The "evil" behavior is acceptable -- yet it is a crime. There is something wrong here. There is something very disturbing about the selling of licenses to commit crimes. One cannot help but feel that either the behavior is not truly criminal behavior, or, alternatively, the law is actually REGULATORY law that should NOT be embedded in the criminal law. And what happens when the applicant cannot afford to buy the license? Some of the licenses offered in Bill C-68 will cost over $1000. Is it fair or reasonable that a person should be criminalized by poverty -- or alternatively, denied the right to participate in a business, sport or recreational activity by government avarice? The more one looks at the regulatory nature of Bill C-68 -- as was so ably described by then Minister of Justice Rock -- the more one is disturbed to find it embedded within the criminal law, laced about with penalties of multiple years of imprisonment, and defective in its principles. For example, Bill C-68 makes it a criminal offence to be in possession of any firearm. Then it offers to sell a license commit that crime, to engage in that criminal activity. A Canadian buys the license, and engages in the behavior. Five years later, the license expires. If the person does not notice that his license has expired, the expiry criminalizes the individual without his knowledge. The penalty is multiple years of imprisonment. There have already been laws on the books that were struck down for that defect. The principles of our laws make it impossible to have a law that imposes imprisonment for an offence where the accused did nothing wrong, but merely did not notice that an expiring document was about to criminalize him or her. One hopes that those aspects of Bill C-68 will be brought out in future days of the Alberta Court of Appeal hearing. Dave Tomllinson, NFA ------------------------------ ------------------------------ Date: Tue, 9 Sep 1997 12:30:20 -0600 (CST) From: "Skeeter Abell-Smith" Subject: the C-68 court challenge in the news Long guns are chattels, lawyer argues A lawyer challenging Canada's new gun law on behalf of the Alberta government argued yesterday that it is unconstitutional to require federal registration of shotguns and rifles because they are private property like cars. Judges of the Alberta Court of Appeal asked him why the Province of Alberta is not opposed to registration of handguns in the same way. source: http://www.theglobeandmail.com/ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ I was afraid of this. "Judges...asked him why the Province of Alberta is not opposed to registration of handguns in the same way." Well, they should be! But Ralph doesn't act on principle. Alberta should be offering to take over pistol registration (which they could then scrap) even if it costs a few dollars. Then we have the Alberta lawyer arguing "The use of handguns is inherently criminal. The use of ordinary weapons is not." We need to go after the CfGC, gov't and CACP argument that they need C-68 for "crime control". Everything is resting on them being able to demonstrate that registration can reduce crime. We must show there is no connexion so they are left to prove one. Here are some excerpts I found on the 'net today... ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Updated at: 12:26 ET Tue, Sep 09 Alberta's principal lawyer in the gun control challenge says cars are more dangerous than firearms. The province is contesting the federal government's gun legislation, Bill C-68. The province has the support of Saskatchewan, Manitoba, Ontario and the two territories. They are taking part as intervenors and are likely to present their arguments today. source: http://www.radio.cbc.ca/radio/programs/news/headline-news/ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Clayton Ruby represents police chiefs Rick Boguski reports for CBC TV Cars pose more of a danger to society than gun owners, the lawyer leading Alberta's challenge of the new federal gun law said Monday. "If you are talking about inherently dangerous, cars kill 20 times more people than guns," Rod McLennan told Alberta's Court of Appeal. "An inert firearm is harmless." The challenge also comes from Saskatchewan, Manitoba, Ontario and the two territories. McLennan is one of more than a dozen lawyers to be heard during a week-long hearing before the five-judge appeal panel. Alberta is arguing that Ottawa's 1995 Firearms Act "over-reached" the federal goverment's jurisdiction. The province says forcing all current and future gun owners to get a licence and register their weapons is "a naked invasion" of provincial authority over property and civil rights. The federal government, bolstered by the Coalition for Gun Control, Canada's police chiefs and Alberta's women's shelters, will argue this week that gun control is aimed at crime prevention, a federal responsibility. source: http://www.newsworld.cbc.ca/news/newscdn.html#Story5 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Tuesday, September 9, 1997 Showdown over federal gun law begins in Alberta By EOIN KENNY -- CP with The Daily News staff EDMONTON - Cars pose more of a danger to society than gun owners, the lawyer leading Alberta's challenge of new federal gun controls said yesterday. "If you are talking about inherently dangerous, cars kill 20 times more people than guns," Rod McLennan told Alberta's Court of Appeal. "An inert firearm is harmless." [snip] But McLennan appeared to have trouble convincing the five-member appeal panel that licensing and registration of guns by the federal government is unconstitutional. Chief Justice Catherine Fraser said the car argument wouldn't get him far. "Motor vehicles are designed to do something other than kill," Fraser said. "Guns are designed to kill something - or someone - if they are used improperly." McLennan also argued the gun control law was outside the federal government's jurisdiction. Forcing all current and future gun owners to get a licence and register their weapons is "a naked invasion" of provincial authority over property and civil rights, he said. But the justices questioned his logic. "Why is it constitutional for the federal government to regulate ownership and use of handguns and not ordinary weapons (shotguns and rifles)?" asked Justice Ronald Berger. "It's a question of degree," McLennan replied. "The use of handguns is inherently criminal. The use of ordinary weapons is not. "The difference is the use to which they are put." The federal government, bolstered by the Coalition for Gun Control and Alberta Council of Women's Shelters, will argue this week that gun control is aimed at crime prevention, a federal responsibility. [snip] In Nova Scotia yesterday, Tory opposition leader John Hamm called on Premier Russell MacLellan to join the fight against the gun-control law. Many Nova Scotians, especially those in rural areas, believe the bill is "an unwarranted intrusion into people's lives," Hamm said. [snip] source: http://www.hfxnews.com/NatStory.html ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ and I also found this... Tuesday, September 9, 1997 Firearms education the answer, says mother of gunshot victim BON ACCORD, Alta. (CP) - It was just three months ago that volunteer ambulance attendant Vivian Davie arrived at an accident call to find her 11-year-old son dying from a shotgun blast to the chest. Despite the tragedy, Davie refuses to get behind the federal government's new gun registration law. "Registering them is not going to stop this, only education will. It wouldn't have saved my son anyway. "Albertans supplement their food line with hunting, and you just can't take their weapons away." Davie says anger over Gregory's death will accomplish little and is instead turning her sorrow into action. The mother of two is working to educate residents of her small town, 50 kilometres north of Edmonton, about the need for gun safety. [snip] source: http://www.hfxnews.com/NatStory2.html ------------------------------ ------------------------------ Date: Wed, 10 Sep 1997 10:06:54 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 2 Day 2 of the provincial-federal court battle over Bill C-68. A key precedent in this case is the RJR tobacco advertising case. Using their criminal law power, the feds outlawed tobacco advertising, and RJR claimed that was regulatory law belonging to provincial governments. The courts OK'ed it, saying that the legislation was designed to eradicate the "evil" of tobacco smoking, and therefore was a legitimate indirect way of prohibiting in small stages. The legislation in that case was made up mostly of prohibitions, with a few narrow exemptions and regulations. McLennan (for AB) pointed out that C-68 does NOT criminalize the ownership or acquisition of "ordinary firearms" (rifles and shotguns [R&S}). Instead, the Bill imposes a scheme of licensing and registration -- regulation rather than prohibition. He quoted several high govt spokespeople as saying that there was no intention to criminalize R&S. [Balderdash! Firearms Act section 117 gives the Governor in Council [Minister of Justice, in reality] the authority to convert every firearm in Canada to "prohibited" status -- on the basis of her PERSONAL opinions -- in language that prevents the courts from reversing anything she does. The intent to prohibit every firearm in Canada is inherent in the LANGUAGE of FA s. 117(w) combined with CC s. 84(1) "prohibited weapon" (d). That language would not give the Minister such broad powers if Parliament intended to protect firearms owners from Minsterial abuse.] That distinguishes the attempt to license and register R&S from the "prohibitory" tobacco advertising ploy. He also dismissed any idea that "reducing" the number of firearms was a government aim -- from the mouths of the government's Ministers. He quoted Alan Rock as saying that the new law would have no effect on crime. And, in the written material, he supplied graphs showing the effect of Britain's severe 1988 gun law. It reduced private firearms ownership by 22 per cent within five years (1988-93) -- and INCREASED robberies by firearms-equipped robbers by 113 per cent! It even shifted the criminals TOWARD gun use, because the OVERALL increase in robberies (of all types) only rose by 80 per cent during those five years. He demolished the idea that Bill C-68 contained anything to reduce smuggling, and pointed out that the MAJORITY of handguns used in crime are SMUGGLED, and thus totally unaffected by the control system. He pointed out that there was NO evidence -- from ANYWHERE -- that firearms control laws could reduce crime. Ontario's lawyers were up next. They resisted ONLY registration, NOT licensing. They claimed that "prohibited" and "restricted" firearms were so classified because someone felt they did more social harm than social good. They pointed out that Parliament's intent was not to criminalize R&S, but to make them "traceable." That is a provincial area of jurisdiction, not federal. They said that Parliament could, if it wished, criminalize and confiscate ANY type of firearm (they apparently did not realize that that power is no longer Parliament's. It has now been delegated to the Governor in Council [Minister of Justice] by Bill C-68). They entered statistics showing that only 10 to 12 per cent of registration-requiring firearms seized by police had EVER been entered into the registration system, and that very few of those were in the hands of the registered owner when seized. They explained that the registration system is useless for solving crimes and that tracing firearms is useless for any purpose. MB's Donna Miller had a much easier ride than her predecessors. Almost all of the questioning had come, to that point, from the three female Justices, with Chief Justice Catherine Fraser always seeming to argue the federal case for the feds. (one wonders if they will have anything to say that she has not already argued for them!) They listened to Donna Miller politely and quietly, not interrupting. MB asked that the entire Firearms Act be thrown out, or, failing that, all the regulatory law parts of it. Bill C-68, she said, comes under provincial powers [Constitution 92(12), property and civil rights], not the federal 91(27) criminal law power. C-68 is "not rationally connected to or necessary for the achievement of any valid federal criminal law purpose." She quoted Boggs v. R to good effect: "...there can be no readily discernible community interest in the criminalization of the administration of a wholesale or retail licensing system." (Boggs was nailed for diriving with a suspended driver's license, an offence punishable by 6 months imprisonment. He proved that a license COULD be suspended without the knowledge of the holder, and that, combined with the POSSIBILITY of prison, resulted in the law being struck down. It is wrong to imprison someone who has done nothing wrong, and forgetting to renew your driver's license or your car insurance do not qualify as "doing something wrong.") SK's Graeme Mitchell also made a telling point: The structure of C-68 is not typical of proper criminal law. Criminal law consists, mostly, of prohibitions -- with a few regulatory provisions granting narrow exemptions, expecting a few people to operate within the "prohibited" zone through exemption or licensing provisions. C-68 is typical of regulatory law -- it is mostly regulatory, grants wide exemptions, and expects many people to operate within the "prohibited" zone, primarily through licensing. It is designed to REGULATE the lives of ordinary citizens, not to PROHIBIT the acts of criminals, and therefore it is REGULATORY law. SK also pointed out that allowing the feds to move in on any area they liked under their "peace, order and good government" [POGG] power would quickly result in the loss of ALL provincial government powers -- a bad thing in a FEDERATION. He pointed out that C-68 does not prohibit evil behavior. It prohibits normal and expected behavior, and then uses those prohibitions (and their imprisonment penalties) to COERCE the people into accepting registration and licensing. Again, that is CHARACTERISTIC of REGULATORY law. Finally, he pointed out the dangers of C-68, specifically pointing to Firearms Act section 117, which authorizes the Governor in Council (actually, that is a thin disguise for the Minister of Justice acting practically alone) to make "regulations" under 23 different heads in 23 different areas. Dave Tomlinson, NFA FOCUS: You may thank my 5-pound cat, Schatzi, for this timely reporting. She digs me out of bed at 6:00 AM by punching my shoulder and singing in my ear. Once I am up, and have served her breakfast, I might as well report to you. ------------------------------ ------------------------------ Date: Thu, 11 Sep 1997 10:43:35 -0600 From: "David A. Tomlinson" Subject: Re: What on earth is Alberta doing in challenge ? >For this I thank you. My question is how to put a more cohesive effort >together. Surely the anti side has orchestrated a better coordinated >effort than what we've seen from McLennan. Don't bet on that. Dave... ------------------------------ ------------------------------ Date: Thu, 11 Sep 1997 20:57:31 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 3 Day 3 opened with SK's Graeme Mitchell continuing his presentation. He pointed out that Firearms Act section 4, most unusually, states the "purpose" of the Act. "4. The purpose of this Act is (a) to provide... (i) licences, registration certificates and authorizations under which people may possess firearms... (ii) licences and authorizations [for] prohibited firearms, restricted firearms...and (iii) licences [for] cross-bows; (b) to authorize...firearms, prohibited weapons, prohibited devices, ammunition and prohibited ammunition...and (c) to authorize...the importation or exportation of firearms..." There is no mention of criminal prohibitions except to state that those "licenses, registration certificates, and authorizations" authorize behavior that "would otherwise constitute and offence." Clearly, the Firearms Act is not CRIMINAL law, it is REGULATORY law -- or Parliament is lying about the "purpose" of the Act. Mitchell advanced the idea that the court should look no further than the "purpose" so clearly stated by Parliament. CJA Fraser tried to find a way out of that, by asking if the court should also have taken a statement that the FA was "criminal law" at face value, and not looked further -- setting the stage for ignoring the plain statement of "purpose" written by Parliament. in favor of delving into abstruse arguments provided by the lawyers. Mitchell, I think, made a good point. While one might question an attempt by Parliament to say that an Act IS within the vires of Parliament (something that Parliament legitimately CAN do), one cannot similarly dismiss Parliament's statement that Parliament IS acting ultra vires (legislating in an area that Parliament, under the Constitution, has no authority to touch). He pointed out that the FA is a collection of regulatory rules, providing licensing documents to ordinary people doing ordinary things. Where such people run afoul of the complex procedures, C-68's Criminal Code [CC] provisions impose multiple years of imprisonment on them as a method of ensuring compliance with the regulatory sections of the FA. Therefore, while C-68's CC provisions may be proper criminal law, C-68's FA provisions clearly are not. Mitchell was struck by the DEGREE of regulatory power in the FA. Much of what the FA imposes as regulatory law is as yet unknown. It is ENABLING legislation, giving the Governor in Council (actually, that is a thin disguise for the Minister of Justice) authority to make all sorts of FURTHER laws -- by Order in Council. FA s. 117 authorizes the making of such "regulations with force of law" under 23 different headings. What the Minister will do with all that power is unknown, but she is given the authority to make Orders in Council that can outlaw every firearm, cartridge, shooting range, or firearms accessory in Canada. NOTHING is exempt. Under current law, a firearm "of a type or kind commonly used in Canada for hunting or sporting purposes" CANNOT be outlawed by Order in Council. Under C-68, it CAN. ALL protections are stripped away by C-68. That point was NOT brought out by anyone. Mitchell pointed out that the FA cannot be legitimized under the "preventative branch" of the federal criminal law power, either. R v. Swain [1991] 1 SCR 933 makes the point that an accused must bring HIMSELF within the area of criminal law. A demented person, found innocent by virtue of insanity, is a fit subject for criminal law disposition of such a person because it is by his own actions that he entered the area where criminal laws apply. It is NECESSARY that FACTS indicate there is some danger to public safety before the federal criminal law power legitimizes the law. Firearms control of long arms as set forth in the FA shows no such link, unless one accepts the Coalition for Gun Control idea that ANY possession of ANY firearm is criminal behavior. (Continued in Part 2 of 2) ------------------------------ ------------------------------ Date: Thu, 11 Sep 1997 21:00:57 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 3+ (Part 2 of 2) Elizabeth Stewart was up next, representing the NWT. She brought up the matter of cultural heritage, and was sniped at by CJA Fraser. Personally, I was quite appalled by CJA Fraser's apparently contemptuous dismissal of Inuit ways and traditions, and by her references to the small population of the NWT -- as if those matters were so petty as to be unworthy of her consideration. The problem of the legitimacy of the FAC came up again, and CJA Fraser seemed to be trying to make the argument that because no one has challenged the legitimacy of the FAC in the courts, it is therefore legitimate. That is a hopelessly naive idea. Many things have not been challenged for YEARS after they first appeared -- and then have been struck down when challenged. The abortion law is one example that springs to mind. Longevity is NOT the same thing as legitimacy. YT's H Kushner pointed out that firearms, while they may be seen as "weapons" in Montreal and Toronto, are merely daily tools of survival in the Yukon. He brought up the "double-aspect" doctrine that some things fall partly into the federal area, and ALSO into the provincial area of legislative responsibility. He used the contrast between firearms in large Eastern cities versus firearms in the Yukon to point out that Canada is huge, diverse -- and that diversity is the REASON we are a federation. It is NECESSARY to make allowances for that diversity, so we have LOCAL (provincial, territorial) governments as well as the central government. Firearms are clearly used and viewed differntly in different parts of Canada. Therefore, firearms control laws should be LOCAL, not some monolithic outpouring dominated by the ideas from big Eastern cities. It was a good point. He advanced the usual ideas on jurisdiction, and the court attempted to throw him a curve. A Justice pointed out that in his factum (the written statement of his case) he had referred to the FAC as a legitimate use of the federal criminal law power, and that his arguments would tend to prove that the FAC is also an illegitimate use of the federal criminal power. He looked that one over for a moment, then cheerfully admitted that he had not looked at the FAC in that light before, and the Justice was quite correct. It DID appear that the FAC is also an illegitimate use of the federal criminal law power, and therefore his factum was WRONG. It is most refreshing to see any honest admission of error in this complex case. His case included the concept that to use the criminal law power, Parliament would have to find some SERIOUS harm to public safety, health or security, then enact laws prohibiting such behavior in the CRIMINAL law. LESSER threats should be dealt with by the provincial/territorial governments in REGULATORY law. The Alberta Fish & Game presentation again pushed the FA s. 4 argument, that Parliament had DEFINED the FA as regulatory law outside Parliament's jurisdiction. The question of a remedy came up. Should the court strike down the entire FA, or only some sections of it? Parliament can legislate if it is criminal law, but can also legislate under the "peace, order and good government" [POGG] clause. He expalined that the POGG power has traditionally been interpreted narrowly, because of its potential to allow federal takeovers of any and all provincial jurisdictions. POGG can be used in a national emergency. There is no national emergency. POGG can be used where the provinces have tried to deal with something and failed. That is not the case here. POGG can be used where the provinces cannot act. The motor vehicle system proves that provinces, using PROVINCIAL legislation, can deal with co-ordinated licencing and registration systems that work nationwide. The Shooting federation of Canada came on last, reiterating the point that Parliament can only use the federal criminal law power to deal with people who have brought THEMSELVES into the criminal justice arena. There has to be a particular connection, or a "likely" connection between the person and the criminal law system, or the law is outside federal jurisdiction and within provincial jurisdiction. He made a suggestion that, failing the general win we all want, the court may choose to cut C-68 up, eliminating the registration sections and allowing the licensing sections. He thought that was "doable." Tomorrow, we get 8 solid hours from the feds. C-68's Criminal Code section 91(1) is one of three sections [CC s. 91(1), 91(2) and FA s. 125] that can be chosen as the charge when you are caught with a license that covers an unregistered firearm, or with a registered firearm and without a license to cover it. CC s. 91(1) is the simplest to prove, and therefore the most likely to be used in almost all cases. It says: "91. (1) Subject to subsections (4) [technical exemptions] and (5) [guns borrowed for survival hunting] and section 98 [temporarily "grandfathered" person], (That is the first set of exemptions.) "EVERY PERSON COMMITS AN OFFENCE WHO POSSESSES A FIREARM (THAT is the offence. POSSESSES a firearm. ANY firearm. The penalty is up to 5 years imprisonment.) "UNLESS the person is the holder of (a) a licence under which the person may possess it AND (b) a registration certificate for the firearm." (THAT is the second set of exemptions.) Clearly, that criminalizes ANY possession of ANY firearm, under ANY circumstances, by ANY person -- except for those exempted by one or more of the exemptions. The possession of any firearm is a crime. Possessing it is criminal behavior. BUT -- the government will SELL you a "license" to commit that crime. It will also SELL you a registration certificate -- the second document that you MUST have -- as a second "licence" to commit the same crime. Dave Tomlinson, NFA FOCUS: Is it just me, or is there something REALLY WRONG about my government saying to me, "Possession of a firearm is a crime, and possessing it is criminal behavior. That criminal behavior is so evil that your government will imprison you for 5 years if you behave that way. AT THE SAME TIME, that behavior is so ordinary -- so acceptable -- that your government will SELL you a licence (and Black's Law Dictionary defines a 'licence' as 'a document that gives permission') and a registration certificate. Those two documents licence you to commit that crime, to engage in that evil behavior." It rather reminds me of the middle ages, when the Popes used to SELL "indulgences" -- which were documents that forgave your sins before you committed them. ------------------------------ ---------------------------------------------------------------------- Date: Thu, 11 Sep 1997 21:05:22 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 4 Day 4, Part 1 of 2: The feds began their arguments. Peter Martin began by claiming that, unless his side wins, much of the existing law will be destroyed as also being unconstitutional, including the FAC, concealed weapon prohibition, possession of "prohibited weapons," etc., etc. He follows by characterizing handguns as evil devices with no social purpose whatever. Amazing. According to his side, there are 1.25 million legally-owned "restricted weapons" (mostly handguns) in our hands. What does he think we DO with them? Shoot at each other -- very quietly, and out of sight? According to him, and referring to Hogg's 'Constitutional Law of Canada," he claims that a "rational belief" in such an opinion is enough to throw total power over handguns -- and therefore ALL firearms -- into Ottawa's hands. Once legislation has been passed, there is a "presumption" of "Constitutional validity," so it is HARD to get it thrown out. He pointed to the over-100-year history of federal gun control, as if longevity is the same thing as legality. He blustered that C-68 is merely a "logical extension" of legislation already on the books. Then he really blew it. He told the Justices that they could not sever. Sever? Well, all the provinces/territories are asking for is the striking down of licensing and registration of long arms. He said they could not dump licensing and keep registration -- or vice versa. ALL or nothing! That, combined with his opening claims that his losing would destroy EXISTING laws, was apparently an attempt to bully the court into ruling in his favor by upping the ante and hoping that they would not have the guts to make a big mess. He claimed that the Firearms Act section [FA s.] 4 definition of the "purpose of this Act" is NOT the purpose of the Act. It is only the "means" to attain the "purpose" which is -- you guessed it! -- public safety. The court was baffled by that argument. As they pointed out, in every other case, it has been the other side claiming that the attacked legislation was not what it claimed to be -- and here is the government claiming that its OWN legislation is not what the government ITSELF claims it to be -- in writing, in the Act! They asked if they should ignore the Act and just listen to him. He said they should look at the "purpose" of existing legislation, and apply that purpose to C-68. They asked if he was serious about not "severing" the Act, and how far he wanted to take that idea. He replied that everything in it was "inextricably linked." He demanded that they should not sever anything, but examine the Act as a whole, and OK it as a whole. That is impossible. It is only certain parts of C-68 that are in question here. The court HAS to consider those parts separately. The provinces/territories are only attacking a part of the Firearms Act, have only questioned a PART of it, and the court is free to do what it wants to do. The sheer arrogance of the federal position is breathtaking. Chief Justice of Alberta Catherine Fraser asked if it was an intention of the legislation to reduce the numbers of "ordinary firearms" [rifles and shotguns or R&S] in our hands, and he replied that it was not. Pressed, he admitted that while it was not a "purpose," it might be an "effect." She them pointed out that the AB position is that licensing and registration is the PURPOSE of the legislation, and "public safety" is the intended effect. Martin is now saying that "public safety" is the PURPOSE, while licencing and registration are merely "effects" intended to attain that purpose. She asked him which end of the telescope the court should look through. He insisted that "there can be no other purpose!" than "public safety." She looked rather doubtful. My impression of CJA Fraser improved as the day wore (literally!) on. She now strikes me as a teacher who asks questions intended to make everyone THINK about what they are saying. A real troublemaker! Martin took up a fallback position. If BOTH governments have a legitimate interest in legislating on firearms, federal law is binding and provincial law gets thrown out by the "doctrine of paramountcy." (That says where both have interests, the feds win.) He said that "tracing" firearms requires registration of everything in sight. The court seriously questioned that registration was of much use, pointing out that criminals do not register guns, and that guns used in crime are VERY rarely registered to the criminal who uses them. Martin tried to claim that registration would make firearms owners more responsible, and prevent them from giving or selling firearms to those who should not have them. Justice Irving found that idea "farfetched," and asked how many times owners loaned their firearms to unreliable or criminal people. (Cont'd in Part 2 of 2) ------------------------------ ------------------------------ Date: Thu, 11 Sep 1997 21:14:07 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 4+ Day 4+, Part 2 of 2: Martin pointed out that the feds DO regulate -- aircraft, certain boats, and explosives. He failed to mention that the Constitution lists those areas as being in federal jurisdiction -- but NOT firearms. Then Justice Berger dropped a bomb. He asked about discretion. In normal criminal law, a class of persons is prohibited, and another is not. In THIS mess, a person is appointed with "discretion" to say he gets a permit/licence/ registration/authorization -- but YOU do not. It does not seem to FIT in criminal law. Martin invoked Morgentaler 1, a case dealing with abortion, which ruled that it was OK to give someone the power of "discretion" because the regulations told him when to issue, and when to refuse. That opens a BIG can of worms. Morgentaler 2 ruled that the Supreme Court of Canada had to strike down the abortion law, because the issuers were not issuing. The SCC rules that the document to be issued was "a specifically-tailored defence to a particular criminal charge." It rules that where such a "defence" was "offered in the law," it had to be "available." It could not be "illusory or so difficult to obtain as to be practically illusory," or the law could not be allowed to stand. Ever tried to get a permit to carry a handgun in the wilderness? In the city? Do it without a permit, and you go to jail -- but the permit you need is there in the law, and COMPLETELY "illusory" because the issuers WILL NOT ISSUE. He launched a personal attack on Professor Gary Mauser, calling his work "unreliable" and claiming that he brought a "certain attitude" to his work. I find that abominable, particularly in the light of some of the very questionable "scientific" papers HE has entered as "evidence." CJA Fraser ased him to explain the link between registration and socially evil conduct. C-68 makes mere possession of ANY firearm a crime, with no intent or bad conduct. Why is possession criminalized? He claimed that any association with firearms has an injurious effect. CJA remarked that the "injurious effect" was obviously not enough to justify prohibition of the firearm. Justice Conrad noted that Parliament had said - -- and Martin had reiterated -- that there WAS an intent to "maintain use of rifles and shotguns," indicating a recognition of their use in socially good areas. CJA asked if the risk that a few might transfer or use firearms illegally is ENOUGH justification to criminalize behavior of everyone who does NOT do illegal things. She thought it might not be proper criminal law because no evil is done to the community by not honoring a registration requirement. Martin replied that he does not think there HAS to be an evil. (After all, why NOT punish the good? They have had it too easy for too long! -- DAT) CJA suggested that it might be possible to demand registration only of those who might be a problem. That was rejected. She proposed licensing without registration. THAT was rejected. All or nothing! Noon. We shifted, and began to listen to Shielah Martin. Dave Tomlinson, NFA ---------------------------------------------------------------------- Date: Sun, 14 Sep 1997 11:26:03 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 4++ Day 4, afternoon. Peter Martin gave up the floor to Sheilah Martin, another federal government lawyer. Sheilah Martin frightened me more than any other lawyer in that court. Among other things, she told us that the federal government believes -- and wanted the COURT to believe -- that: 1. Firearms are a "new matter." (Our Constitution gives power over certain areas to the provinces, and to others, to the feds. Any "new matter" that arises AFTER Confederation [in 1867] is allotted to the feds. The fact that, in 1867, repeating rifles had been standard issue in the [northern] US Army for 5 years, the cartridge revolver had been in use for 7 years, the full automatic firearm for 300 years [yep, I can describe to you a full auto made in about 1450], does not matter.) Firearms are a "new matter" that arose after 1867, and therefore the feds own the right to regulate. 2. While firearms before 1867 were a "local and private" matter, AFTER 1867 they magically became a "nationwide" matter. She was not very clear on how this came to be. 3. She claimed that the feds could decide that ONE homicide, ONE suicide or ONE accident featuring a firearm would be sufficient justification for the feds to decide that the risk level from firearms is unacceptable. Once such a decision is made, the feds have the RIGHT to legislate. The feds can, at any time they choose, prohibit the possession of ANY or ALL firearms because the feds decide the risk to public safety is too hign. 4. The provinces, by NOT legislating against firearms possession, have demonstrated an INABILITY to legislate in this area, and therefore the feds have the RIGHT to take control. The idea that it was not INABILITY but was recognition that there was no need to legislate in an area where the problems were and are minimal seems never to have occurred to her. Bluntly, the fed position she was advancing is that the provinces MUST enact legislation that the feds want, or the feds get to take over control directly. How far will the feds go with that idea? 5. The provinces have NO jurisdiction over firearms -- except a very minor interest relating to HUNTING. The provinces can make no laws about firearms except HUNTING laws. Everything else belongs to the feds. Why, she didn't say. 6. The provinces are UNABLE to cooperate in a nation-wide scheme to licence and register. The fact that the provinces DO control motor vehicles, nationwide, by mutual cooperation and PROVINCIAL laws regarding licensing and registration, is not proof that they could do the same with firearms. They cannot. Why, she didn't say. If the court rules in favor of the feds, I wonder what jurisdiction the feds will NOT be able to take away from the provinces? Will there be any POINT in having provincial governments? Remember, the two Martins are both putting forward WHAT THE FEDERAL GOVERNMENT BELIEVES ITS POWERS TO BE. The degree of authority that our federal government believes it ALREADY HAS is terrifying. Humorous interlude: Toward the end of the day, CJA Fraser asked a simple question. There had been discussion about the fact that a person cought in possession of ANY firearm while without BOTH a valid license and a valid registration certificate for that firearm could be charged under ANY of three laws, at the choice of the Crown prosecutor [Firearms Act section 112, Criminal Code section 91(1) and CC s. 92(1)]. CJA Fraser asked the fed lawyers if conviction of an offence under FA s. 112 would give the person a criminal record. The fed lawyers lapsed into total confusion. The answer was "No" -- then it was "Yes" -- and then it became "No" again. At that point, CJA Fraser threw up her hands, slumped forward, and laid her cheek on the desk (table? bench?) in front of her. Dave Tomlinson, NFA FOCUS: If you give power to people who have the minds of tyrants, they will take more -- and more -- and more -- until you have no freedom left. At that point your choices are emigration, abandoning your beloved home to the mercy of the tyrants, total submission to tyranny, or armed rebellion. It is far, far better to rap the knuckles of egomaniacs in power EARLY, BEFORE the amass too much power, than to let the situation deteriorate until you must choose one of those extremes. ------------------------------ ------------------------------ Date: Thu, 11 Sep 1997 21:50:25 -0600 From: "Marc Thibault" Subject: Provinces' Court Challenge What I'd like to know is why the Provinces took Wendy Cukier's advice and put Rod McLennan in charge of their legal team. Wouldn't it have made more sense to use a lawyer who's against gun registration and has some idea of why it's not a good thing? Could it be that they want to lose? ------------------------------ ------------------------------ Date: Sun, 14 Sep 1997 11:25:56 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 5 Day 5, Part 1 of 2 The feds finally came up with answers to CJA Fraser's questions about FA s. 112: Will such a conviction be recorded? Apparently yes. Will it show up on a Canadian Police Information Computer (CPIC) check? Apparently no. Will it show up on a pre-sentencing report to a judge? Apparently "not ordinarily." Personally, I would not trust that information as far as I could throw it "Regulations are being drafted, but are not available yet." Hmmm. I've heard that FAR too often when questioning features of C-68. Haven't you? One disturbing point came out. Since police have the choice of what charge to lay initially, it seems probable that they will choose the simplest and easiest to prove: CC s. 91(1). If that happens, the accused will be photograhed and fingerprinted. If the Crown prosecutor then decides to prosecute using FA s. 112, fngerprinting and photographing should NOT be done -- but it is too late for that. Your prints and mug shot are in the files -- right along with all the other criminals. The Martins made a final pitch. The court MUST consider the Act as a WHOLE, not the challenged sections. It MUST find that the challenged sections are part of an integrated whole, and cannot be considered in isolation. The Act contains matter dealing with imports, exports, and inter-provincial trade (all federal jurisdiction) and therefore, the REST of the Act must be fine too. Uh, say that again? _________________________________________________________________ Next up was Clayton Ruby. You remember him -- he got a huge wave of free publicity by announcing that he would defend C-68 "at his own expense." Then Wendy Cukier of the CfGC started a fundraising drive to pay him. The Mayor and Council of Metropolitan Toronto, touched by Wendy's plea, donated tax money to her lobby group. Ruby stood up, and announced that he is the lawyer for the CfGC, the City of Montreal, Metropolitan Toronto, AND the Canadian Association of Chiefs of Police -- all sharing a common presentation to the court. But the "anti" side cannot understand why we think those four are in bed together. Ruby ook the position that our federal government has come to the conclusion that ALL firearms are dangerous, ALL the time. The only way to make a firearm SAFE is to LICENSE the possessor and REGISTER the firearm. That is because licensing and registration will force the possessor to act safely. Really? Justice Conrad pointed out that the feds have been loudly claiming that rifles and shotguns are NOT inherently bad -- like tobacco. It was the inherent "evil" in tobacco that made the new laws against tobacco advertising Constitutional, and there is no such finding to make THESE laws Constitutional. Ruby replied that all firearms are inherently dangerous, and that it was the feds recognition of that fact that caused the feds to enact C-68. Apparently, he believes that the feds are lying when they say that they respect the fact that rifles and shotguns have many uses that are socially good -- and not "evil." Justice Conrad asked again. If, as the feds have claimed -- loud and often - -- rifles and shotguns are NOT inherently evil, then where and how does a firearm BECOME evil if it is not registered? She thought a rational connection was required. Ruby replied that it became connected when the federal government THOGHT there was a connection, and that the court MUST find that there IS a connection in such a case, even when the court thinks that the federal government is dead wrong in its thinking. He said that firearms are inherently dangerous, that prohibition n(of all firearms) is desirable, an that C-68 is the logical 'next step" in this ongoing process. His honesty about Liberal intentions is refreshing; most Liberal and Conservative politicians have been claiming for YEARS that total confiscation is NOT their intent. Ruby made it very clear that their statements have had one word missing: "yet." Ruby's position is that firearms ownership is not acceptable to our society. He then took the position that the federal government has been passing gun control laws "for over 100 years." It is therefore "too late" for the provinces to claim any jurisdiction in this area. (Rather like saying, "I have been stealing your chickens for many years, so it is now TOO LATE to charge me with breaking the law.") Continued in Part 2...) ------------------------------ ------------------------------ Date: Mon, 15 Sep 1997 14:01:44 -0600 From: "David A. Tomlinson" Subject: Provincial-Federal Court Battle Over Gun Law -- Day 5+ Day 5, Part 2 of 2 Clayton Ruby (for Metropolitan Toronto, Montreal, the Canadian Association of Chiefs of Police, and Wendy Cukier's CfGC -- hereafter known as the Strange Bedfellows [SB]) cheerfully explained to us that handguns have "no use." That is because our wise Parliaments have passed laws against them. If it wre not for that, Canadians would have handguns for use in personal protection. He pointed out that handgus are the "perfect" firearm for use in the protection of human life from criminal violence, but we noble Canadians do not have or use them. He made it quite clear that, as he understood it, the handgun control laws were enacted specifically to prevent Canadians from being able to protect human life from criminal violence. Considering the fact that the feds "believe" that there are about 1.25 million registered handguns in Canada (the number of registration certificates on file as "current" in Ottawa), one wonders how he thinks those handguns are prevented from being used to protect innocent lives from criminal violence. Ruby acknowledged that handgun ownership is legal, and that self-protection is legal. How he came to above conclusions in the teeth of those admissions is unknown. He felt that the court could have no rational basis for finding that the feds had no rational basis for enacting C-68. Ruby insisted that the failure of provinces to enact savage firearms control laws is clear proof that the provinces are UNABLE to enact such laws. CJA Fraser asked if the refusal of provinces to enact such laws might not equally mean that there was no NEED for such laws -- and a desire not to intrude on the lives of citizens. Ruby rejected that, saying again that it indicated, at best, disinterest. The feds HAD to act. CJA Fraser asked if the court should look at the questions through the eyes of Toronto, or through the eyes of Yellowknife. Ruby replied that the court should ask if Parliament COULD have come to the conclusion that this legislation was needed -- and, if it COULD, then the legislation is valid. CJA Fraser pointed out that to Western and Northern eyes, the people are being asked to register their TOOLS, on threat of criminal prosecution if they do not. Ruby replied that Canadians WILL register. Canadians OBEY the laws. They always have. He also pointed out that the expense and complication of getting the firearm registered may well result in the citizen getting rid of his firearm -- which he seemed to think was highly desirable. Ruby presented the idea that our very low firearms accident rate exists only because firearms are not used that often. Justice Conrad asked if he was claiming that the danger in firearms comes from USING firearms, but he deftly avoided answering that. It would have blown his "inherent danger" offering. ______________________________________________________________ Alex Pringle spoke next, representing the Alberta Council of Women's Shelters. He agreed with what I have been saying -- that Criminal Code section 91(1) creates a crime. That crime is simple possession of ANY firearm. The word "unless" and what follows it do not change the fact that possession is a crime; they merely create an exemption for someone who has both a license and a registration certificate for each firearm in his possession. Again, note the strangeness of that law. The feds are CRIMINALIZING simple possession of legally-owned and legally-acquired property, and providing a sentence of up to 5 years imprisonment if the possessor does not BUY a license (Black's Law Dictionary: "LICENCE: A document that GIVES PERMISSION" - -- in this case, gives permission to COMMIT THE CRIME.) and BUY registration certificate. The criminal act of possessing a single-shot .22 rifle is a CRIME -- a crime so evil that the feds will send you to prison for up to five years for committing it -- and yet that behavior is so normal and socially acceptable that the feds will SELL you a licence and a registration certificate, LICENSING you to COMMIT that crime. The mind boggles. He claimed that registration would allow courts to order firearms owners to surrender every firearm they have when issuing bail orders, prohibition orders, etc. CJA Fraser asked if that was not possible now. AB's lawyer read out the CC provisions that make it easily possible today. Pringle said that registration is "an integral part of the Act" and that the court could not consider it in isolation. In other words, the attacked sections cannot be considered separately, but must be considered ONLY as part of the whole. June Ross then arose for the same client, and CJA Fraser asked her if Parliament can create a new crime out of anything whatever -- as long as Parliament has a 'public safety' purpose in doing so. Ross said yes. CJA Fraser asked if Parliament could criminalize dropping a banana in the street, to protect 'public safety.' Ross replied that Parliament had demonstrated admirable restraint in legislating only as far as it has in C-68. That ended the fed arguments. _______________________________________________________________ McLennan, for AB, rebutted by reading the current CC s. 106(10) into the record: "No local registrar of firearms, firearms officer or other person shall require as information, to be sumbmitted by an applicant for a firearms acquisition certificate or permit, details concerning the makes or serial numbers of a type, kind or design commonly used in Canada for hunting or sporting purposes." That was, he said, express recognition of the principle that rifle and shotgun possession is none of the federal government's business. CJA Fraser asked about possible Charter violations, and McLennan began to read a whole series of sections that are likely to fall when challenged under the Charter. He did not get very far on that long list -- Peter martin arose to protest that Charter arguments had not been brought in earlier, and therefore could not be looked at now. The court cut McLennan off, so he was unable to fully answer CJA Fraser's question. (The NFA has quite a few Charter challenges waiting for C-68's coming into force. Whee!) McLennan forcefully made the point that the police do, and will continue to, consider it likely that there is a firearm in any "domestic violence" home that they are called to. They will not look at a registry and ASSUME that, because there are no registered firearms at that address according to the registry, that there are ACTUALLY no firearms at that address. I noticed a police constable I knew (who was attending in civvies) unconsciously nodding his head as that point was made. Thus ended the battle. Now the 5 justices must meet, consider, decide and write their decision. My bet on how they will rule? No bet. Anyone who will bet on what a judge will do will also bet long shots at the horse track. Dave Tomlinson, NFA ------------------------------