Canadian prime minister Justin Trudeau’s sweeping gun ban on “military style” firearms has come under fire in recent days, with lawmakers and gun owner groups pointing out that the government’s flawed language has not only banned the most common modern sporting rifles, but most 12 and 10-gauge shotguns. Gun control activists, meanwhile, are complaining that the gun ban doesn’t go far enough, because handguns weren’t included in the massive list of firearms now deemed “prohibited” by the Trudeau administration.
Now one group of gun owners says it will take the Trudeau administration to court over the ban, arguing that the new restrictions violate Canada’s constitution.
The Canadian Coalition for Firearms Rights (CCFR) will launch the legal action arguing under section 7 of the Charter of Rights to “life, liberty and security of the person” the prohibition is “fundamentally unjust” because it deprives people of their property.
“The government, in an entirely arbitrary and irrational way, has created legislation that will deprive us of our property and our freedom to live as we wish, on pains of incarceration for failing to comply,” said Rod Galitca, CEO and executive director of the CCFR.
While the Canadian constitution doesn’t contain any explicit protections for the right to keep and bear arms, and a 1993 Supreme Court decision ruled that Canadian citizens have no right to own firearms, which could make a constitutional challenge difficult.
“Canadians, unlike Americans, do not have a constitutional right to bear arms,” the high court stated in 1993, in a decision over the possession of convertible semi-automatic weapons.
“Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited,” said the court.
The rights issue was tested again in the case of an Ontario firearms dealer and manufacturer.
Bruce Montague was charged with several weapons offences after police found more than 200 firearms and 20,000 rounds of ammunition at Montague’s home in northwestern Ontario.
Montague didn’t renew the registrations on his weapons, convinced that he had a constitutional right to bear arms without government interference or regulation, despite the passage of Bill C-68, the Firearms Act, in 1995.
Montague argued that he had “a constitutional right to possess firearms for self defence” derived from the constitution of Britain.
He pointed to the preamble of the Constitution Act, 1867, Canada’s founding constitutional document, which in his view imported the English Bill of Rights of 1689, which states in Article 7: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.”
Montague further argued that in 1982, this historical right was shielded from any ordinary legislation by section 26 of the Charter of Rights and Freedoms, which reads: “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.”
His convictions were upheld in the Ontario Court of Appeal and in September 2010, the Supreme Court of Canada refused to hear a final appeal, without offering reasons.
I’m not an expert in Canadian constitutional law, but it sounds like any challenge to Trudeau’s order in council banning tens of thousands of legally-owned firearms may have to rely on more than just the language about the right to “life, liberty, and security” found in the constitution. I expect we’ll see opposition coming from several Canadian provinces, and a petition started by a member of Parliament calling on Trudeau to scrap his gun ban has already attracted more than 100,000 signatures in just a few days, which means this will likely not only be a legal issue, but a political one in the months ahead.