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Rights: Not Absolute:
But Very Nearly So.

By Peter Landry.1

"How small, of all that human hearts endure, That part which kings or laws can cause or cure." (Samuel Johnson.)
We have had the "tobacco fight" in our Supreme Court of Canada: the government lost. Soon we will have the "gun fight": and, my bet, is that government will lose again. The federal politicians (and, for all I know, maybe their legal advisers) are either; not listening to the Supreme Court of Canada; or, they don't seem to understand what is at stake here. Our rights are near to being absolute, and, cannot be encroached upon except "as can be demonstrably justified in a free and democratic society." (Section 1, The Charter.)

The obligation on those pressing parliament to pass legislation which by its very nature limits the fundamental rights of Canadians, is, to be in a position to justify such limits. This is the law as has been very clearly announced by the Supreme Court of Canada, as the written decision of Justice McLachlin in the "tobacco case" will demonstrate. (RJR - Macdonald v. Canada, 1995.)

Now, for the purposes of this argument, we will accept that we now have persons in the political cabinets of this country who are of goodwill; but, who, on occasion, become focused, by whatever forces, on certain "unique socio-economic phenomenon," or other. The usual result of this process, is, that, we all end up having to cope with an expensive legislative scheme; most - impossible to implement; all, invariably - tread upon our freedoms.

As a branch of government, the court's principal function is to check the power of the state; so, it will give no automatic deference to the legislative schemes of parliament. The impossibility of addressing "unique socio-economic phenomenon," by any person or group of persons, so to devise an overall better result, was recognized by Justice McLachlin: "The difficulty of devising legislative solutions to social problems which may be only incompletely understood may also affect the degree of deference that the courts accord to Parliament or the Legislature." And, for this reason,

"[136] ... care must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded."
With an understanding of the court's thinking on this subject, certain dedicated citizens of this country will confidently test - not government's role in tobacco consumption - but, rather, anti-gun legislation (C-68) which the current federal government has now put in place. The principal tool, by which this legislation will be declared a constitutional nullity, will be the citizens' rights, at least those as are contained in the Charter. The purpose of the Charter, as the Supreme Court of Canada pointed out, in 1988, is this:
"... the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of that fence." (Justice Wilson.)
Some mapping, it was thought when the Charter was drafted, might well be required, and, thus, the reason for Section 1 of the Charter (government might infringe the rights of certain Canadians "as can be demonstrably justified in a free and democratic society.") The leading observation on section 1. is that of Chief Justice Dickson, made in 1986. The Chief Justice thought that two central criteria must be satisfied. "First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be 'of sufficient importance to warrant overriding a constitutionally protected right or freedom' ...
"Second, once a sufficiently significant objective is recognized, then the party [that would be the government] invoking s. 1 must show that the means chosen are reasonable and demonstrably justified."
In the process the court will be obliged to balance "the interests of society with those of individuals and groups." The Chief Justice thought that the measures adopted [in the case of C68, what comes to mind is: registration, inspection without a warrant, and confiscation] "must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations." In short, they must be rationally connected to the objective. But, the Chief Justice thought, no matter that the means may be rationally connected to the objective -- and in the case of C68 it can be demonstrated that gun control is not rationally connected to crime control[2] -- the means, in any event, should impair "as little as possible" the right or freedom in question. In all of this, the Chief Justice, continued in 1986, "there must be a proportionality between the effects of the measures which are responsible for limiting the Charter rights or freedoms, and the objective which has been identified as of sufficient importance." So, assuming the government wants to rely on section 1, viz., sometimes we have to deny rights in order to preserve the whole, our Supreme Court of Canada, whose constitutional role is to act as a check to the legislature will not allow government to use section 1 in any sort of a flimsy fashion. The Supreme Court of Canada, thankfully, has set the pole on the hurtle we know as section 1. The first thing, however, before we get into exceptions, is to show which of the provisions the Gun Control legislation, offend the Charter. A full analysis will have to wait for another day; but permit me to set out certain provisions of the Charter which I think may be used.

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."

The words -- in the context of the legal fight about too much gun control -- "security of the person" stand out. One can only try the argument out: Is it not so, to fetter a person's right to own guns is to fetter his ability to keep himself and his family secure: Against animals? Against criminals? Against ...
Oh! Well. I'll just leave it at that, and move on.

If the gun control legislation does not offend section 7, it most certainly does offend section 8.

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

"This section stands as a bulwark against unreasonable state sponsored invasions of an individual's privacy." From what I can see the bulk of the cases brought under this section deal with the rights of a person versus the state in respect to searches and property taken during the "investigation" of a crime. At any rate, it is this section, section 8, that preserves the notion that "a man's home is his castle" and, under our common law, inviolable.

(It is well settled that no policeman can come barging in on you while you are in your home without a valid warrant: and, to be valid, it must include, on the face of the warrant, sufficient and adequate particularity of its essential ingredients: a description of the offence alleged, a detailed listing of the items being sought, and an adequate designation of the building, receptacle, or place to be searched.)

Now, in the legal battle against this impugned gun legislation, which has upset so many Canadians, it should be expected that no assistance will be forthcoming from the government to those who launch the Charter Challenge. Most certainly the citizens will be met in court by a bunch of Ottawa lawyers, paid, liberally, from the pockets of the very citizens who come to the court with their constitutional complaint.



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NOTES:
1 Peter Landry is a lawyer and has been, for 20 years, in private practice in the City of Dartmouth. He invites correspondence on the topic and may be contacted at P.O. Box 1200, Dartmouth, Nova Scotia, B2Y 4B8, or at peteblu@blupete.com.

2 Crime control is needed: the sole question is whether the control of guns, will, within the limits of reason, reduce the crime rate in the country: I have yet to see any evidence of it. Now I don't need to go any further to make my case; but - and I leave it to my critics to check this out - I am told, that the State of Vermont has the most law abiding bunch of citizens in the United States: and, yet, in Vermont, you can go buy yourself just about any kind of gun one would like at the local hardware store, no questions asked. However, the freedom of a person in Vermont, for that matter every American, is now impinged by federal law. In this regard I had a note from one of my friends:
"Unfortunately, as of December 1, 1998 there is now an 'instantaneous' background check on would-be purchasers of all guns, including shotguns and rifles, in all 50 States of the US. Because of software problems, the background checks are not remotely 'instantaneous' and have become another excuse to delay rightful gun ownership to deserving citizens.
Perhaps the most interesting relationship of gun control to crime can be found in my region of the US. I live in the state of Virginia where guns are relatively easy to purchase and thousands of citizens have been issued carry permits for them. Virginia is not a crime-free paradise, but life here is far safer than across the Potomac River in the District of Columbia. DC has severe gun control, yet violent crime is so rampant there that for several years it was known as the 'Murder Capital of the US'!."
Let me, too, at this place, before passing on, put something else to rest: This anti-gun legislation is not (most definitely) a response to an increasing crime rate in this country. Canada's murder rate has steadily gone downward since 1991, and, in 1994, stood at around 2 homicides per 100,000. The Interpol police [see Fraser Forum, 1996] rank Canada very favourably (53/83) in the crime rate for murder (United States, 12th; Bermuda, 3rd; Mexico 20th; etc.) Thus, keeping tabs on those of us who might like to own guns can hardly be condoned on the basis that Canada is a dangerous place in the world in which to live.

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Peter Landry