Introduction
In July 2014, the Conservative Public Safety Minister of Canada, Steven Blaney, announced amendments to Canada’s gun laws and asserted that “To possess a firearm is a right,” although “it’s a right that comes with responsibilities.” Journalists quickly took note of his comment since most Canadians associate a right to bear arms with the American legal tradition. Terry Pedwell of the Canadian Press evaluated the veracity of Minister Blaney’s statement, concluding that the claim deserved a rating of “full baloney” on a “baloney meter.” Footnote 1 This was not the first time the Conservative Party had alluded to the “rights” of gun owners. For example, in its 2006 election platform, the Conservatives promised to abolish the long-gun registry and to work with the provinces on firearm control programs “designed to keep guns out of the hands of criminals while respecting the rights of law-abiding Canadians to own and use firearms responsibly.” Footnote 2 The assertion of a right to possess a firearm, however, was new.
This article seeks to understand why and how some Canadians asserted a right to firearms from the late nineteenth century to the early twenty-first century. It demonstrates that the idea of such a right was not new in 2014. A handful of nineteenth-century politicians asserted a right to arms for self-defense, though Canadians subsequently forgot about this “right.” This changed in the late twentieth century, when some gun owners fought against new firearm regulations by dusting off the English constitutional tradition, asserting a right to arms based upon the English Bill of Rights, William Blackstone, and the common law. This claim to a historically-based right helped unify firearm owners spread across the country. It demonstrates how individuals and groups of Canadians have attempted to define themselves “through the medium of historical narratives.” Footnote 3 In this case, gun owners found unity in historical narratives that emphasized the dangers of an expanding state and the value of “British justice.” This article will first survey historic claims of a right to possess arms in Canada. It will then examine unsuccessful recent efforts to assert such a right to highlight how and why the idea of a right to possess firearms has been embraced by some members of the Canadian firearms community.
The History of the Right to Possess Arms in Canada
A smattering of evidence suggests that some lawyers in late nineteenth-century Canada believed in a right to possess arms for protection. These lawyers demonstrated awareness of the right to arms found in the English Bill of Rights of 1689. Article VII of the Bill of Rights provided “that the Subjects which are Protestants may have Armes for their defense suitable to their Condition and as allowed by Law.” Footnote 4 William Blackstone repeated this right in his Commentaries on the Laws of England, calling Article VII an “auxiliary right”: “The fifth and last auxiliary right of the subject … is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law.” Footnote 5 Some scholars argue that this provision guaranteed a right to the mass of Englishmen to bear arms. Footnote 6 Other scholars, however, have emphasized the important limitations embedded in the article. Lois Schwoerer, for example, notes that only Protestants had the right to arms. As well, the provision had a class limitation, for men could only be armed “suitable to their Condition.” The right to possess arms was therefore connected to income. Finally, the provision “as allowed by law” allowed Parliament to regulate firearms as necessary, such as through the game laws. Footnote 7
The Bill of Rights, and/or Blackstone’s interpretation of it, appeared in several debates over regulating access to firearms in the nineteenth century. The Glorious Revolution and the Bill of Rights held a privileged place in the conception of “British justice” espoused by many nineteenth-century English-Canadian lawyers. As well, Blackstone was important in common law legal education. For example, in the middle decades of the nineteenth century, candidates for admission to the Law Society of Upper Canada were asked questions based on the Commentaries. Footnote 8 It is thus not surprising that some lawyers expressed a belief in a right to possess arms. The right to possess firearms, for example, appeared during efforts to regulate handguns in the 1870s when the introduction of inexpensive revolvers into Canadian cities sparked considerable fears about accidents and interpersonal violence. Prime Minister John A. Macdonald refused to support new firearm controls, partly on the ground that regulating pistols would infringe the right of British subjects to possess arms for protection. Prime Minister Macdonald, for instance, rejected a proposed measure because of “the principle laid down in Blackstone of the right of parties to carry weapons in self-defence.” Footnote 9 In the 1880s, Members of Parliament again invoked a right to have firearms for self-defence. At issue was a proposal to limit gun possession among western Indigenous Peoples following the Northwest Rebellion of 1885. Footnote 10 Opponents of the bill questioned whether it should apply to British subjects who, several MPs argued, had a right to possess arms. Liberal leader and lawyer Edward Blake made the case for white settlers’ right to weapons: “The character of the white population is eminently one which fits them to be trusted with arms.” “That is the ordinary right of British citizens,” he noted. It was a right that “ought not to be taken away from settlers in the North-West.” Liberal MP David Mills, a future member of the Supreme Court of Canada, also raised this constitutional concern, arguing that the British constitution held that it was “one of the rights of a British subject to have fire arms in his possession.” Footnote 11
These references to a right to firearms disappeared from Canadian political discourse by the turn of the twentieth century. Explaining absence is always difficult, but several factors may have contributed to this decline. Changes to Canadian legal education offer one explanation. By the early twentieth century, legal education in English Canada employed the case method approach to teaching associated with Harvard Law School. The case method required law students to read and analyze appellate level cases, rather than legal treatises, which had often been the backbone of legal education in the past. Footnote 12 Fewer lawyers in twentieth-century Canada thus read Blackstone, although his name remained a prominent symbol of “British justice” at least until World War Two. Many Canadians also came to identify the right to bear arms as an “American” right. A sense that Canadians and Americans possessed different cultural and legal assumptions about guns had begun to percolate in the last third of the nineteenth century, and the Second Amendment became entwined in how Canadians thought about the United States. It was an “American” right.
Gun owners, not lawyers, dusted off the English Bill of Rights provision in the late twentieth century in opposing a series of new firearm laws that, for the first time, regulated “average” long-gun owners. Before the late 1960s, Ottawa had largely attempted to prevent “suspicious” groups—such as Indigenous Peoples or perceived radicals—from acquiring and/or using weapons. For example, in 1919, with postwar tensions high about alleged Bolsheviks, Ottawa required all aliens to acquire a permit to possess any kind of firearm. Footnote 13 Even the most ambitious measures, which included the creation of a registry for handguns in the 1930s, usually affected only a small percentage of firearm owners. Beginning in the late 1960s and 1970s, however, concerns with rising rates of violent crime motivated federal government action. In 1968–1969, Ottawa created the categories of “firearm,” “restricted weapon,” and “prohibited weapon.” Footnote 14 In 1977, Ottawa established requirements for a Firearms Acquisition Certificate (FAC) to purchase a firearm. As well, fully automatic weapons became prohibited firearms (unless registered as restricted weapons before January 1, 1978). Footnote 15
The pace of regulating “average” gun owners accelerated following the murder of fourteen female engineering students at the École Polytechnique Massacre in Montreal (the “Montreal Massacre”) on December 6, 1989. The shooter was twenty-five-year-old Marc Lépine, armed with an unrestricted Mini-14 semi-automatic rifle. The Progressive Conservative government of Prime Minister Brian Mulroney, despite fierce resistance, including resistance from many of his own MPs, enacted legislation in 1991 that strengthened the FAC system by requiring applicants to include more background information, a photograph, and two references. Other major changes included increased penalties for firearm-related crimes, new firearm dealer regulations, and detailed regulations for the safe storage, handling, and transportation of firearms. The Progressive Conservatives also prohibited large-capacity magazines, banned automatic firearms that had been converted into semi-automatics to avoid the 1978 prohibition (though existing owners were exempted), and, with a series of orders-in-council, prohibited or restricted many military-style rifles. Footnote 16
The Liberal government of Jean Chrétien, elected in 1993, enacted additional measures in 1995. The Liberals provided harsher penalties for some crimes involving guns. Ottawa also created a new licensing system. Firearm licenses became necessary to acquire and possess firearms and to purchase ammunition. Most controversially, the legislation required the registration of all firearms, including hunting rifles and shotguns. The licensing provisions became operative on 1 January 2001, while the registration requirements were imposed on 1 January 2003. To try to placate gun owners, Ottawa took the administrative and regulatory aspects of licensing and registration out of the Criminal Code and placed them in the new Firearms Act. Footnote 17
These measures sparked a strong backlash from many gun owners. The regulations in the late 1960s and 1970s lit the fire. For example, when the Liberal Party introduced proposals for new gun controls in 1976, the ferocity of the resistance forced the federal government to pass a watered down bill in 1977. The measures implemented by Prime Minister Mulroney and Prime Minister Chrétien resulted in rallies, letter-writing campaigns, efforts to nominate pro-gun candidates in some federal ridings, and instances of open defiance of regulations. Unlike the United States, Canada long lacked an effective gun lobby, but this began to change. Various target shooting, hunter, and gun collector organizations worked to oppose many of the new regulatory initiatives. Footnote 18
While less organized than firearm regulation opponents in the United States, Canadian gun owners proved politically powerful. The Reform Party became a willing conduit for the arguments of firearm owners. Under the leadership of Preston Manning, the Reform Party expressed its opposition to many of Canada’s gun laws, especially the registration of firearms. Members of the Reform Party hammered away at the Liberal Party as the costs of registration skyrocketed, portraying it as a classic big-government “boondoggle” that had failed to make Canadians safer. When the Reform Party morphed into the Canadian Alliance in 2000 it retained its anti-gun control position. The Conservative Party, formed with the 2003 merger of the Canadian Alliance and the Progressive Conservative Party, also staked out a strong position against some gun controls. In 2012, the Conservative government of Prime Minister Stephen Harper passed legislation to abolish the long-gun registry. Footnote 19 A constitutional appeal by Quebec to retain the data relating to gun ownership in Quebec failed at the Supreme Court. Footnote 20 The province subsequently announced it would create its own long-gun registry. Prime Minster Harper’s government also passed the Common Sense Firearms Licensing Act, which loosened a number of gun law provisions. For example, the legislation permitted the easier transportation of restricted firearms held by licensed owners for certain lawful activities, such as transport to a shooting range. Footnote 21
In the battles over gun control, firearm owners tried to use “rights talk” to their advantage. Various groups of Canadians had begun to employ the discourse of rights to argue for better treatment in the postwar period. Indigenous Peoples argued for recognition of their treaty rights and for Aboriginal title to land. Women’s groups called for greater equality. Footnote 22 Gun owners looking for a “rights” argument struggled to ground their claim. Most Canadians dismissed any suggestion that the American Second Amendment was a model worth copying, particularly because, by the 1970s, commentators had taken note of the increased radicalization of the National Rifle Association and the spike in gun deaths occurring in the United States. As a result, many firearm owners and groups instead suggested that government licensing was the first step towards registration and then confiscation of their property. They also frequently pointed to what they said were historic examples of repressive states disarming citizens. A few critics of the gun controls of the 1970s asserted a “right” to possess firearms, making vague allusions to the English common law in claiming that new regulations were unconstitutional. Footnote 23
The claim to a historically-grounded right to possess firearms strengthened during debates over gun control following the Montreal Massacre. This idea received academic support from Frederick “Ted” Morton. In 2002 he presented a lengthy paper prepared with the financial assistance of several gun groups entitled “How the Firearms Act (Bill C-68) Violates the Charter of Rights and Freedoms.” Footnote 24 Morton had strong conservative credentials. Born in Los Angeles in 1949, he came to Canada to take up a position in the University of Calgary political science department. He became associated with the so-called “Calgary School” that included several conservative scholars. Morton published several books in which he criticized what he deemed judicial activism in the age of the Charter of Rights and Freedoms. Footnote 25 Morton also became involved in politics. He sat as a member of the Legislative Assembly of Alberta from 2004 until his defeat in 2012. He also ran, unsuccessfully, for the leadership of the Alberta Progressive Conservative Party in 2006 and 2011.
Morton’s advocacy of judicial restraint found little expression in his firearms paper. Morton asserted the unconstitutionality of many provisions of Canada’s gun laws under the Canadian Charter of Rights. He contended firearm legislation violated the rights to liberty, security of the person, procedural fairness, privacy, the presumption of innocence, the bar against arbitrary detention, expression, property, equality, and multiculturalism. Among his claims was that federal legislation violated a right to possess arms. His argument rested on the idea that s 26 of the Charter guaranteed the continuing enjoyment of common law rights not enumerated in the Charter. In Morton’s view, the firearm provision of the English Bill of Rights applied in Canada because the preamble of the British North America Act of 1867 granted Canada “a Constitution similar in Principle to that of the United Kingdom.” Footnote 26 Morton acknowledged that the right to possess arms was not absolute and had long been subject to regulation. However, 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 [i.e. Blackstone], is protected in Canada through section 26 of the Charter.” Footnote 27 Morton’s position as a well-published, tenured academic gave weight to his claims within the gun community, although, as we will see, the courts found his constitutional analysis unpersuasive. Footnote 28
A number of federal politicians also alluded to gun rights, particularly Reform Party, Canadian Alliance, and Conservative MPs from western Canada. In 1996, Jay Hill, a Reform MP from British Columbia, objected to the Firearms Act: “Rejecting an individual’s right to protect themselves, their home, their family, and their property is a frightening prospect. Were the civil liberties and rights of legitimate gun owners ever considered?” Footnote 29 Another Reform MP from British Columbia, Philip Mayfield, charged that the Firearms Act demonstrated the Liberal government’s “willingness to ignore Magna Carta civil liberties.” Footnote 30 Many MPs tied their claims of a right to possess firearms to property rights, although no constitutional right to property existed in the Charter of Rights. A consistent theme was that regulations passed in the 1990s were a stepping-stone to the confiscation of firearms. Some MPs also pointed to Morton’s unpublished paper. Gerry Ritz, a Canadian Alliance MP, claimed that Morton had done “an indepth study on the constitutionality” of the federal gun laws, and shown that “the government did not have a leg to stand on.” Footnote 31 Garry Breitkreuz, an MP from Saskatchewan from 1993 to 2015, became one of the most vocal proponents of gun rights in the House of Commons. As the Canadian Shooting Sports Association noted in marking his 2015 retirement from Parliament (and in announcing Breitkreuz’s appointment to its board of directors), Breitkreuz’s “passion for firearm owners and their struggle to retain their rights and respect within Canadian society is something in which he truly believes.” Footnote 32
Gun Rights in Court
While some opponents of firearm regulation voiced a belief in gun rights, Canadian courts dismissed such claims. However, an individual right to possess a gun was not at issue in the most famous constitutional case concerning guns, Reference re Firearms Act. Footnote 33 This litigation began when the Progressive Conservative government of Alberta announced that it would launch a challenge to the Firearms Act. Opponents of the Firearms Act argued that Ottawa lacked the jurisdiction to regulate “ordinary” firearms such as hunting rifles and shotguns because the “pith and substance” of the legislation was the regulation of property and civil rights—a provincial area of jurisdiction. Ottawa responded by arguing that the Firearms Act fell within the federal jurisdiction over the criminal law and/or Ottawa’s residual authority to regulate for the peace, order, and good government of Canada. The Alberta Court of Appeal upheld the constitutionality of the Firearms Act, and the Supreme Court subsequently ruled unanimously for the federal government. The Supreme Court concluded that the legislation fell within the federal jurisdiction over the criminal law, as the “pith and substance” of the legislation—controlling access to firearms through penalties and prohibitions—was directed at public safety. Footnote 34
Reference re Firearms Act settled the question of whether Ottawa had authority under Canada’s federal structure to regulate firearms, but a few ardent gun control opponents argued that they could use individual rights claims against the Firearms Act. At first glance, however, there seemed to be little chance of success. Several courts had dismissed the idea that there was a right to possess firearms in Canada. In R v Thompson (1987), the Ontario Court of Appeal considered whether a section of the Criminal Code that made mandatory an order prohibiting the possession of firearms upon the conviction of certain offences violated the Charter. The court dismissed the notion, commenting that there was “no constitutional right to the use of firearms in this country and Parliament can reasonably take steps to prevent violent people from being in possession of them.” Footnote 35 In 1996, in R v Simmermon, the Alberta Court of Appeal said “there is no absolute right in Canada to possess whatever firearm a person wishes to possess.” Footnote 36
In two cases, the Supreme Court of Canada also suggested there was no right to possess firearms. In 1993, in R v Hasselwander, the Supreme Court considered an appeal from an order of a Provincial Court in Ontario that a semi-automatic Uzi firearm be forfeited because it was readily convertible to fully automatic status. A majority of the Supreme Court said that a weapon that could be readily converted should fall within the definition of a “prohibited weapon.” Justice Peter Cory indicated that Canadians, “unlike Americans do not have a constitutional right to bear arms.” “Indeed,” he continued, “most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.” Footnote 37 Then, in 2005, in R v Wiles, the Supreme Court made a similar comment. In that case, a Nova Scotia man had pleaded guilty to unlawfully producing cannabis. The Crown had sought to impose a firearm prohibition, but the defendant argued that this would constitute “cruel and unusual punishment” in violation of s 12 of the Charter. At the Supreme Court, Justice Louise Charron noted that “possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.” Footnote 38
These courtroom losses led some gun owners and groups to suggest that they would only achieve their goals through the political process. A few true believers, however, continued to argue that the Canadian constitution might still protect their right to possess firearms. They claimed that the comments of the Supreme Court dismissing the right were obiter dicta. In two cases, gun owners Edward Hudson and Bruce and Donna Montague directly tested the claim that a right to possess firearms existed based on English constitutional heritage.
Hudson v Canada (Attorney General)
Dr. Edward Hudson wanted to fight in the courts for firearm rights. He was an American by birth who had come to Canada in 1977 after serving in the US Army. He worked as a veterinarian and became a gun rights activist, acting as the secretary of the Canadian Unregistered Firearms Owners Association (CUFOA). Footnote 39 This organization formed in Saskatchewan following the passage of the 1995 Firearms Act and claimed approximately 450 members by the early 2000s. The association advocated civil disobedience, encouraging its members (and other Canadians) not to participate in the federal government’s licensing and firearm registration requirements. On the date that the registration requirements came into effect, 1 January 2003, Dr. Hudson took part in a protest on Parliament Hill that resulted in his arrest for brandishing a piece of a firearm. Footnote 40 He was undeterred. He publicly proclaimed that he owned firearms without a license. In an op-ed published in the Winnipeg Free Press in March 2003, Hudson declared the Firearms Act an “unjust law” which he felt compelled to disobey. He cited Ted Morton’s work in claiming that the Firearms Act violated Charter guarantees, and he quoted Morton’s claim that “Fair minded judges will have no choice but to declare the Firearms Act unconstitutional.” Footnote 41 In the summer of 2003, Hudson and a few other members of the Association travelled across the country. They visited provincial capitals, carrying signed affidavits stating that they possessed unregistered firearms. Authorities refused to arrest them, however, which Association members took as a sign that the government doubted the constitutionality of its legislation. As one member told the Halifax Chronicle-Herald, the “government won’t charge us because they know the law violates so many rights and it won’t stand up in court.” Footnote 42
In October 2003, Hudson and an associate planned a demonstration and hunting trip in the Craik district of Saskatchewan. Prior to the trip, Dr. Hudson sent a letter to the federal Minister of Justice to inform him that he intended to hunt with an unregistered firearm and without a firearm license. He sent a copy of this letter to the Craik RCMP detachment. This led an RCMP officer to seize (under s 117.03 of the Criminal Code) a shotgun owned by Dr. Hudson at Craik. Footnote 43 The RCMP then seized a second weapon from Dr. Hudson at Carmel, Saskatchewan. Authorities, however, did not charge Dr. Hudson for possessing an unregistered weapon. Instead, they proceeded under the authority granted by s 117.03 to bring the matter of the seized firearm before a judge of the Provincial Court, who ordered the shotgun forfeited to the Crown.
Dr. Hudson wanted to challenge the constitutionality of Canada’s gun laws. “It’s a rights and freedoms issue,” he declared, and thus “We want to fight this in the courts.” Footnote 44 At the Provincial Court of Saskatchewan, Judge David Orr heard Dr. Hudson’s claim that the seizure provision of the Criminal Code was unconstitutional. Among Dr. Hudson’s arguments was that s 117.03 of the Criminal Code violated the right to possess arms for self-defence found in the English Bill of Rights and imported into Canada through s 26 of the Charter. Judge Orr reviewed the history of the English provision and concluded that a right which discriminated against Catholics and applied only to certain classes had no effect in modern Canadian law, and that Parliament had the authority to legislate concerning firearms. Footnote 45
The fact that the RCMP did not charge him made it difficult for Dr. Hudson to make constitutional arguments concerning the Firearms Act in appealing the forfeiture order. The Saskatchewan Court of Queen’s Bench dismissed his appeal because there was no right of appeal under the Criminal Code from a s 117.03(3) order. The Court of Appeal of Saskatchewan also dismissed his case. Footnote 46 Dr. Hudson, however, did not give up attempting to place constitutional arguments before the courts. He made an application for a declaration that the Attorney General of Canada was without jurisdiction to request that his firearm be destroyed and to continue to hold his firearm; that the Provincial Court was without jurisdiction to make any findings of fact concerning his firearms; and that the RCMP had no right to take his firearms. In 2007, Justice Neil Gabrielson of the Saskatchewan Court of Queen’s Bench considered three issues: Did a right to bear arms exist in Canada? Was s 117.03 of the Criminal Code ultra vires of the jurisdiction of the Parliament of Canada? And, did s 117.03 of the Criminal Code violate the Charter? Footnote 47
In arguing the first issue, Dr. Hudson claimed, according to the Court, “an inalienable right to possess firearms in Canada” that “comes directly” from the English Bill of Rights. Footnote 48 Like Ted Morton, Dr. Hudson argued that the Bill of Rights was operative in Canada based on the statement in the preamble of the British North America Act that Canada had “a Constitution similar in Principle to that of the United Kingdom.” Footnote 49 His argument was that Canadians had the rights of a British citizen in 1867, one of which, Dr. Hudson claimed, was the right to bear arms. However, Justice Gabrielson pointed out that the Supreme Court had confirmed that the principles incorporated by the preamble for the BNA Act were not laws. Further, Justice Gabrielson noted that that the Supreme Court had indicated in R v Hasselwander that Canadians did not have a right to possess firearms. He also detailed the important limitations on the right enunciated in the Bill of Rights, as demonstrated by the long history of firearm regulations in the United Kingdom. Further, the Supreme Court in Wiles described gun ownership as a privilege Footnote 50 , and thus “Dr. Hudson has not established that there is an unfettered right to bear arms in Canada.” “Rather,” he continued, “there is a privilege to own and use firearms” which is “subject to licensing requirements which may be established from time to time by Parliament.” Footnote 51
Justice Gabrielson also easily disposed of the other two issues. The Supreme Court’s Reference re: Firearms Act decision settled whether s 117.03 of the Criminal Code was ultra vires the legislative jurisdiction of the Canadian Parliament. Hudson’s Charter claim was that the licensing of firearms and the seizure and destruction of unlicensed firearms would prevent him from defending himself and thus created a breach of his s 7 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.” Footnote 52 Dr. Hudson suggested that, at some future date, citizens would need firearms to protect themselves from government tyranny. Justice Gabrielson, however, held that Dr. Hudson had not provided any evidence to prove that he needed the seized firearm for his personal security. He adopted the comments of the Provincial Court judge in the seizure hearing, who had stated that “I can only comment that such social conditions do not presently exist, nor do they seem likely to exist in the foreseeable future. The courts must deal with reality as it is, not as it might be in some awful and hopefully never-to-be future.” Footnote 53 Further, Justice Gabrielson noted that remedial action by the Courts was not justified unless there was also evidence that a particular practice violated a principle of fundamental justice. Dr. Hudson had provided no such evidence, and Justice Gabrielson observed that Canadian gun laws entitled a person whose firearm had been seized to receive a hearing before a Provincial Court judge, and that if a person produced a valid license the firearm would be returned. Thus, there was no violation of fundamental justice and no violation of s 7 of the Charter.
Dr. Hudson appealed to the Saskatchewan Court of Appeal. In 2009, Chief Justice John Klebuc wrote for a unanimous court in dismissing Dr. Hudson’s appeal. Justice Klebuc considered whether there existed a constitutional right to have an unlicensed firearm for self-defense by virtue of the English Bill of Rights. According to Chief Justice Klebuc, the Supreme Court had “consistently stated that no constitutional right to possess firearms existed in the specific circumstances it considered.” Footnote 54 He also disposed of Dr. Hudson’s argument that the possession of an unlicensed firearm for self-defense was an inalienable “natural right” that Parliament could not unreasonably limit. Chief Justice Klebuc admitted that jurists and jurisprudential writers had posited that there were “specific circumstances where a right or obligation under natural law may override a law imposed by the state.” Footnote 55 However, invoking the natural law required a careful review of the “history, culture, values and relevant jurisprudence of the state involved,” Footnote 56 and in this case “the limited evidence and jurisprudence” placed before the court did “not establish the broad inalienable right to possess an unlicenced firearm for self-defence he advanced.” Footnote 57 Dr. Hudson then tried to appeal to the Supreme Court of Canada, but the Court dismissed his application for leave in 2010. Footnote 58
This did not end Dr. Hudson’s legal odyssey. Although the courts had dismissed his strongest constitutional arguments, Dr. Hudson used another set of arguments to challenge the seizure of his second weapon at Carmel. His efforts began to strain the patience of the courts, however. Justice R.C. Mills of the Saskatchewan Court of Queen’s Bench began his decision with a dismissive comment: Dr. Hudson’s case was “part of an ongoing crusade” to get the courts to “grant him the right to own a firearm without the necessity of a firearm licence.” Footnote 59 Justice Mills indicated that Dr. Hudson’s previous court cases meant that the only position open to him was to argue that the Crown must lay a charge which “would then allow him to elect a trial by jury and such trial would have to be concluded before a destruction order could be made.” Footnote 60 Justice Mills continued to take a dismissive tone. “His application must fail,” for Dr. Hudson had “not been able to point to any authority which gives him the specific right to a trial by jury.” He referred to and argued that such a right was founded in the “Magna Carta, the Common Law, the Petition of Rights, 1628, the English Declaration of Rights, 1689, the British North America Act, 1867, and the Canadian Bill of Rights, 1960, the Canadian Charter of Rights and Freedoms, 1982, the Rule of Law, separation of powers and the Supremacy of God or natural law.” Footnote 61 However, Dr. Hudson was unable to identify the specific provisions that entitled him to a jury trial, and instead Dr. Hudson simply “referred to the notion that the state could not confiscate his property without due process of law,” and he “equated the notion of due process of law to trial by jury of his peers.” But Dr. Hudson “was unable to give any legal foundation for such a concept.” Footnote 62
Dr. Hudson also argued that the court should direct that he be indicted under the Criminal Code so that he would then be entitled to a jury trial. Justice Mills, however, pointed out that the court could not order the Crown to charge him. Justice Mills concluded by bluntly telling Dr. Hudson that his belief in a right to possess an unlicensed firearm was misguided: “The applicant’s belief that he has the right to possess an unlicensed firearm, the right to have a jury trial before the firearm can be forfeited, or the right to be charged with a criminal offence of his choosing all do not exist.” Footnote 63 Despite Justice Mills’s strong words, Dr. Hudson nevertheless sought to appeal the trial decision. The Saskatchewan Court of Appeal dismissed his appeal in a short judgement issued in 2011, and the Supreme Court of Canada then refused to grant Dr. Hudson’s application for leave to appeal in 2012. Judicial patience had worn thin by the end, and the courts assigned costs against Dr. Hudson. Footnote 64
R v Montague
While the RCMP refused to charge Dr. Hudson, forcing him into convoluted proceedings to challenge the constitutionality of Canadian firearm laws, authorities decided to take more direct action against Bruce and Donna Montague. In September 2004, police in Dryden, Ontario, executed a search warrant on the home of the Montagues. Police eventually seized over 200 firearms and thousands of rounds ammunition, including many hidden in a secret room in the basement of their house. Authorities charged Mr. Montague with over 50 counts of firearm offences under the Criminal Code and the Firearms Act. They also charged Ms. Montague with one count of possession of an unlicensed firearm. This began a ten-year legal odyssey for the Montagues that would end with convictions and near financial ruin.
Bruce Montague might have foreseen this turn of events, as he had long flouted Canada’s gun laws. He had a strong interest in firearms and took gunsmith courses, eventually opening a sports shop business in St. Jacobs (north of Kitchener) at which he offered gunsmith services. He sold this business, and in 1991 the Montagues moved from southern Ontario to Dryden in the northwestern part of the province. In Dryden, they purchased a 160-acre property and Mr. Montague built a log home. Mr. Montague again began operating a gunsmith business, offering a variety of services including repairing firearms, mounting telescopes, and modifying and customizing firearms. He developed a reputation as an expert gunsmith. Footnote 65
Like Dr. Hudson, Bruce Montague became a fierce opponent of the gun controls instituted after the Montreal Massacre. He attended protests on Parliament Hill and became involved with CUFOA. In 2002, he decided not to renew his gun licenses, his gunsmith license, and his vendor’s permit. He also began to flout the registration requirements of the Firearms Act by taking an unregistered .22 caliber rifle to gun shows with a sign declaring it unregistered. Like Dr. Hudson, he seemed intent on getting charged so that he could challenge the constitutionality of Canada’s firearm laws. In the summer of 2004, authorities acted, arresting Mr. Montague at a gun show. They searched his home, and eventually discovered the secret room in the basement. In it, they found unrestricted, restricted, and prohibited weapons, some of which were loaded. Weapons included handguns and semi-automatic weapons that Mr. Montague had converted into fully automatic firearms. Other items that caused concern included dynamite, illegal noise suppressors (“silencers”), guns with serial numbers removed, oversize magazines, and books dealing with topics such as how to make explosives, survival techniques, and infantry tactics.
Mr. Montague initially seemed unconcerned about the charges he faced, declaring that “We’re looking forward to taking it in front of a judge.” Footnote 66 CUFOA launched a fundraising effort to help defray the Montagues’ legal costs, and Mr. Montague toured the country complaining about the government’s actions and asking for financial assistance. Footnote 67 Mr. Montague also established a website entitled “Bruce Montague Court Challenge for Liberty and Rights.” On the website, he expressed his determination “to expose the constitutional violations of the Canadian Firearms Act.” Footnote 68 He used the website to publish updates on his case, distribute videos featuring his teenage daughter asserting gun rights, and ask for donations. He submitted a constitutional challenge to various sections of the Firearms Act and the Criminal Code by invoking numerous sections of the Charter of Rights, the Magna Carta, the English Bill of Rights and the Common Law. His arguments drew heavily from Ted Morton’s article. Footnote 69
Justice John dePencier Wright of the Ontario Superior Court of Justice decided against the Montagues’ constitutional claims in 2007. Justice Wright expressed some frustration with the Montagues, noting that “a great deal of argument was focused upon the system of universal firearm registration,” even though the registration scheme was not an issue before the court. Footnote 70 The Montagues’ core argument, wrote Justice Wright, was that “they have a constitutionally protected right to possess firearms free from excessive regulation by the state,” and that this “right has been unnecessarily infringed and that this prosecution should be dismissed as a result.” Footnote 71 Interestingly, Justice Wright did not dismiss out of hand a right to possess firearms for protection. He acknowledged the existence of rights that predated the Charter. He also noted that the defendants’ claim that a citizen’s right to possess firearms could be traced to the 1689 English Bill of Rights. Justice Wright agreed this was “indeed part of the rich constitutional heritage Canadians have received from the mother country.” Footnote 72 He quoted the Bill of Rights and Blackstone, but mentioned that “Even Blackstone noted that at Common Law the right to possess firearms was not an absolute right.” Footnote 73 The “Englishman’s right to possess firearms for defence which Canadians inherited was not an absolute right but was one “as allowed by law,”” and Parliament had “always legislated to regulate that right.” Footnote 74 He noted the times that Canadian courts had indicated no constitutional right existed to possess firearms, although he expressed some reservations about these judicial pronouncements. He suggested that the “casual downgrading” of a right “to a ‘privilege’ without any principled analysis” had “done much to heat the debate before me.” However, in the end, the fact remained that this right was “not guaranteed under the Charter.” Footnote 75 Justice Wright thus found against the Montagues’ constitutional argument. However, he said it was “unfortunate that Parliamentarians” believed that in passing gun controls they were “not interfering with a right but with a privilege.” Footnote 76
After a four-week trial, a jury found Mr. Montague guilty of twenty-six offences. In determining a sentence, Justice Wright acknowledged that Mr. Montague was a well-respected member of the community but noted that he had intentionally broken the law. The court thus imposed an eighteen-month prison term, followed by ninety days’ imprisonment served in the community and probation for one year. The court also imposed a lifetime ban on possessing firearms. Ms. Montague was convicted of possessing a firearm without a license and received six months’ probation. Footnote 77 Some critics of gun regulation thundered their disapproval. For instance, one urged all Canadians to support “this brave citizen who has gone out of his way to preserve our rights and freedoms by opposing a law, which neither protects public safety nor keeps our society safe from crime.” Footnote 78
The Montagues appealed to the Ontario Court of Appeal. Mr. Montague expressed pleasure at Justice Wright’s apparent recognition of a constitutional right to possess weapons for self-defense, suggesting that the ruling “acknowledges the right to firearms ownership,” but then, unfortunately, “defers to parliament’s history of infringing on our fundamental right to possess effective tools for the defense of human life.” Footnote 79 He also noted, presciently, that he had “a funny feeling that things aren’t really stacked in my favour” going forward. Footnote 80 The Court of Appeal began its judgement with comments suggesting it was not predisposed to finding in favour of the Montagues’ appeal. “It is fair to say,” wrote the Court, “that the quantity and nature of the seized arsenal of weapons and associated items may have been sufficient for a small-scale insurrection,” and that the “evidence at trial established that Mr. Montague believed himself to be preparing to defend himself, and others, in the event of a war.” Footnote 81 The Court noted that, at trial, the Montagues had not contested many of the essential facts, including that Mr. Montague knew that he did not have the requisite authorization to possess the items in question.
The Montagues attacked Justice Wright’s ruling regarding the constitutionality of the impugned firearms provisions. The Montagues asserted that the introduction of the Charter meant that Parliament was henceforth “precluded from abrogating existing fundamental rights and freedoms,” and that the right to possess firearms in the home for self-defence was “one of those fundamental rights.” Footnote 82 Firearm legislation was thus constitutionally invalid as an “unwarranted intrusion on the Montagues’ pre-existing common law right to possess and use firearms.” Footnote 83 In support of this argument, the Montagues submitted that Article 7 of the Bill of Rights was “the entrenchment and verbalization of the inherent right to possess firearms for self-defence.” Footnote 84
The Court disagreed, noting several difficulties with this submission. First, the Court of Appeal emphasized that Article 7 of the Bill of Rights only protected this right “as allowed by law.” Thus, the “plain language” of the article recognized “Parliament’s jurisdiction to constrain the right to possess firearms.” Footnote 85 Second, the court noted that there was no precedent for the argument that Article 7 of the Bill of Rights had been incorporated into Canada’s constitution. Third, the Court of Appeal held that, “contrary to the Montagues’ contention,” Footnote 86 the Supreme Court had rejected the notion that Canadians had an absolute constitutional right to possess and use firearms. The Montagues submitted that the comments of the Supreme Court in Wiles and Hasselwander were obiter dicta. “We disagree,” replied the Court of Appeal. Footnote 87 Finally, the Court of Appeal noted that the Supreme Court in the Wiles and the Reference re Firearms Act cases had recognized that the possession and use of firearms was a “heavily regulated activity aimed at ensuring peace, order and public safety.” Footnote 88 Thus, even if the Court assumed that a right to possess and use firearms came within the reach of s 7 of the Charter, that right, “like all other fundamental rights and freedoms,” was “not absolute.” “The impugned firearms legislation does not prohibit the right to possess and use firearms for self-defence—in the home or elsewhere,” reasoned the Court of Appeal: “Rather, it simply regulates the circumstances under which such possession and use are permissible.” Footnote 89 Despite losing unanimously at the Ontario Court of Appeal, the Montagues attempted to appeal to the Supreme Court. In September 2010, however, the Supreme Court dismissed their application for leave to appeal. Footnote 90
This did not end the Montagues’ legal journey. The issue of whether the firearms and ammunition seized in the search of their home should be forfeited to the Crown under the Criminal Code had not been settled. Footnote 91 At stake was over $100,000 worth of firearms and ammunition valued at $16,000. The defense again raised constitutional concerns—that it was “tantamount to expropriation without compensation and is against our legal tradition.” Footnote 92 Justice Wright had little sympathy for this argument, noting that the “firearms present a case where a knowledgeable individual cold bloodedly and with knowledge of the potential consequences deliberately and publicly broke the law.” Courts, Wright continued, “cannot stand by and appear to condone such behavior.” Footnote 93 Justice Wright thus ordered the seizure of the firearms and other prohibited devices but allowed the Montagues to retain the ammunition on the ground it had been stored appropriately. The Montagues appealed this forfeiture order to the Ontario Court of Appeal. This proved a poor decision, as the Crown cross-appealed and demanded the forfeiture of the ammunition as well. In 2014, the Court of Appeal varied the forfeiture order to include the ammunition. Soon after, the Supreme Court of Canada refused to grant leave to appeal. Footnote 94
The seizure of the firearms and ammunition angered some firearm owners, as it fed into their fear that authorities wished to repress gun owners. Another action of the Ontario government against the Montagues strengthened this narrative of an oppressive state. Ontario brought a civil suit against Mr. Montague under the Civil Remedies Act, claiming a right to seize his log home, which had housed his gunsmith shop, as an “instrument of crime” or “proceeds of crime.” This action startled gun owners, some columnists, and the Canadian Constitutional Foundation (which had begun representing the Montagues pro bono in 2013), many of whom concluded that the state was using every legal tool at its disposal to harass the Montagues. Footnote 95 In the summer of 2016, however, an Ontario court finally ruled against the province’s right to seize the Montagues’ home. Footnote 96
Conclusion
The courts have decided there is no right to possess a firearm in Canada. For most Canadians, this conclusion is unsurprising, and it is tempting to dismiss or mock the efforts to assert such a constitutional right. However, claims to a right to possess firearms are worth examining, not because they are based on solid legal analysis, but because they shed light on how and why groups can embrace such a “right.”
A.J. Somerset, author of Arms: The Culture and Credo of the Gun, recently tweeted that “Arguments that Canada has a right to bear arms periodically come back to life, like persistent zombies.” Footnote 97 The responses to the legal losses suffered by Dr. Hudson and the Montagues demonstrate this. Bruce Montague, for example, remained unrepentant and continued to assert his right to possess weapons. After serving his jail term, Mr. Montague reflected on his experiences. He suggested that the Ontario Court of Appeal had ruled against him even though “we were given no real reasons for why.” Footnote 98 He then alleged that only antipathy towards firearms had motivated the court’s judgement: “To me it seems obvious that the judges simply didn’t like guns so they ignored our constitutional rights and ruled against us. I guess it’s hard to give reasons for a judgment when it’s directly against our constitution.” Footnote 99 Many firearm owner advocacy groups continue to assert gun rights, although some fall back on a natural rights argument. Footnote 100 Other groups allude more vaguely to rights to possess weapons. Canada’s National Firearms Association, for instance, has asserted faith in “property rights & the natural right to self-defense,” Footnote 101 claimed that it promotes “the rights and freedoms of all responsible firearm owners and users,” Footnote 102 and argued that legislation denies firearm owners “their fundamental rights.” Footnote 103
Conservative newspaper columnist and documentary filmmaker John Robson recently became a public advocate for a right to bear arms. Robson received a PhD in American history from the University of Texas at Austin. In his most recent documentary, “A Right to Arms,” Robson tries to demonstrate that Canada inherited a right to possess arms from Britain, and that if Canadians want their nation “to remain worthy of true patriot love” then they must preserve their heritage, including an “emphasis upon individual rights,” such as “the right to possess and use weapons to defend ourselves, our homes, our communities, and our nation.” Footnote 104 In a 2016 Dorchester Review article entitled “Armed Canadians: A Brief History,” Robson claims that Canadians’ “long and glorious tradition of liberty” includes “a proud right to bear arms.” Footnote 105 Efforts to assert a right to possess firearms are not going away, it appears.
What explains this persistence? Many gun owners, annoyed with the firearm laws passed after the 1989 Montreal Massacre, have longed for the ability to claim a right to their weapons like American gun owners. Gun owners often feel misunderstood and looked down upon by other Canadians. This creates a sense of disempowerment and makes some worry that Ottawa will eventually confiscate their weapons. In this context, the idea of a right to possess weapons grounded in British constitutional traditions is appealing and helps unite some gun owners. The efforts of Canadian governments to downplay the British cultural connection in the postwar period and to, instead, recognize the growing diversity of Canada through policies such as multiculturalism, created a sense of nostalgia for British traditions. Footnote 106 Invoking the English constitutional lineage has the advantage of stoking romantic notions of a version of Canada defined by stability, order, and liberty—of Canada at a time when judges and politicians valued property rights, and the right to defend one’s home rather than rights of women and ethnic and racial minorities. The call for recognition of gun rights thus reflects a broader desire to reorient Canadian political and legal culture.
