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Re: Cdn-Firearms Digest V1 #982



Forwarded from the Canadian Firearms Digest V1 #982

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Date: Tue, 9 Sep 1997 11:31:58 -0600
From: "David A. Tomlinson" <[email protected]>
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
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