Originally Posted by
1ABNDT
Really! Why don't you brush up.
The Legal basis for the Right to Keep and Bear Arms in Canada.
Many Canadians believe (and our government would certainly have us believe) that there is no Right of the citizen to keep arms for their own use and defense, like the US Second Amendment, in Canadian law.
To those citizens, I would suggest a bit of reading up on our own history and legal framework.
Our right to bear arms is not mentioned in recent documents such as the Constitution or Charter because it's already stated elsewhere in Canadian law.
We have this Right, though our government is attempting to suppress it and deny citizen's their age-old right to self-defense with the egregious and unconstitutional (not to mention horrendously expensive) Firearms Act and other proposals. It leads one to wonder why the government so wants an unarmed and defenceless populace.
Our right to keep and bear arms in our own or the country's defense comes from exactly the same place as the American one -- English Common Law, the English Bill of Rights 1689, the writings of Sir William Blackstone in his Commentaries on English Law, and others. All these laws (and indeed the full body of English Law), became part of Canadian law on our Confederation in 1867 with the affirmation of the British North America (BNA) Act.
The Canadian Right to Bear Arms
The common law right to bear arms has existed for at least 300 years in Anglo-Canadian law. Although it may have had its origins even earlier,42 the first explicit recognition of this right appears in the English Bill of Rights (1689), designed by Parliament to constrain the power of the new King after the Glorious Revolution of 1688. Article VII of this document states:
That the subjects which are Protestant may have arms for their defence, suitable to their conditions, and as allowed by law.
Article VII thus indicates that Protestants in Great Britain enjoyed the right to bear arms, subject to certain restrictions placed upon the right by Parliament, restrictions that were usually related to class. The right to bear arms was so fundamental to the British constitutional system that in the next century Sir William Blackstone, the celebrated author of the Commentaries on the Laws of England, included this right among the five most fundamental auxiliary rights of British subjects, including such fundamental tenets as Parliamentary supremacy and the right of subjects to seek redress for grievances in courts of law. Blackstone laid out the right to bear arms as follows:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2. c. 2 (the English Bill Of Rights), and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
Although this right has been regulated in various ways since its promulgation, it remains part of one of the most important legal instruments in British constitutional history. This right was passed down to Canada through the preamble of the British North America Act (1867) which grants Canada “a Constitution similar in Principle to that of the United Kingdom,” a phrase which transfers to and entrenches the British common law legacy in Canada - including the right to keep arms.
A counter argument has been made to the claim that there is a right to own firearms in Canada by Lois G. Schwoerer. Schwoerer argues that Article VII in the 1688 English Bill of Rights did nothing more than grant Britons a communal right to self-defence; the right of the British to have an armed militia for the common defence of their territory. According to Schwoerer, Article VII did not grant individuals a right to own firearms for self-protection, and there is no common law foundation for such a right.43
Joyce Malcolm effectively rebuts Schwoerer’s evidence. Malcolm points out that many of the drafters of the English Bill of Rights were lawyers who knew the importance of draftsmanship and statutory interpretation. Such people would undoubtedly have included a reference to a common or communal right to bear arms if they had intended it not to apply strictly to individuals. As well, farmers of the American Bill of Rights, basing their document on its British ancestor, included a right for individuals to bear arms in their document, so sure were they that their citizens had enjoyed a right to bear arms under British rule:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Malcolm buttresses her position with several British precedents. In R. v. Gardner 93 E.R. 1056, it was ruled that the keeping of a gun for self-defence was a legal and permissible act in England, provided that it was not used for unlawful purposes (in this case, for hunting, an activity prohibited to members of the lower class such as the accused). In Wingfield v. Stratford and Osman 96 E.R. 787, a similar ruling was made confirming the right of individuals to bear arms for their self-defence.
The right to bear arms is not absolute, and has been subject to regulation by law since at least the time of the Glorious Revolution. Regulation, however, does not extinguish this right. In R. v. Sparrow [1990] 1 S.C.R. 1075 the Supreme Court affirmed that regulation of an aboriginal right does not automatically extinguish the right. Mutatis mutandi, the same logic applies to section 26 rights such as the right to bear arms.
Indeed, the historical right of the descendants of European settlers to bear arms can be no less than the right of Aboriginal Canadians to possess firearms, since the latter only acquired firearms with the arrival of the former. It can hardly be maintained that there is an Aboriginal right to bear arms but not a similar right for non-Aboriginals, when it was European settlers who first brought firearms to North American and its Aboriginal inhabitants. The right to bear arms is thus a historical right of all Canadians, and this right is affirmed and extended by section 26 of the Charter.
A right that has been entrenched in constitutional and quasi-constitutional documents for three centuries, recognized in judicial interpretation, and accorded constitutional pre-eminence by one of the most renowned commentators on British law, is protected in Canada through section 26 of the Charter. Since the Firearms Act prohibits the mere possession of a firearm—even for purposes of self-defense in one’s own home—it restricts this right. Given the intimate connection between the right of self-defense and to rights to life, liberty and security of the person protected by section 7 of the Charter, the state must justify its restriction of this right according to the strict tests mandated by the Oakes precedent.
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