Long gun registry debate misses the point
The failure of Bill C-391, which proposed the scrapping of the federal long gun registry, has drawn renewed interest to a subject which has lain virtually dormant for much of the last decade – gun control. The new Conservative majority government, which has promised to end the registry once and for all, has further enflamed debate on this controversial topic.
It is unfortunate, however, that the discussion has focused exclusively on the long gun registry – its use, cost and effectiveness. In my view, all the involved parties – politicians, policy makers and commentators – are missing the forest for the trees.
The long-gun registry is the least offensive portion of the Firearms Act and related legislation and regulation, introduced collectively in 1995 as Bill C-68. Of course, it is overly expensive and wasteful. Of course, it is virtually useless. $2 billion later and supporters of the registry are unable to point to one life saved or a single crime averted at the hands of the registry. But at least its constitutional.
Other provisions of the Firearms Act are far more problematic and seem to run directly counter to the most fundamental freedom at the heart of our democracy.
I recall a comment made to me by a fellow who has been involved in shooting sports for nearly three decades. “All I want, as a law-abiding gun owner,” he told me, “is to have the same rights as any convicted criminal”. New to the shooting discipline and equally new to its politics, I was, needless to say, taken aback.
The right to silence. The presumption of innocence. The right to be free from unreasonable search and seizure. The right against self-incrimination. These are all rights that Canadians take for granted. They are enshrined in our Charter of Rights and Freedoms. These guarantees are centuries old, the product of hard-won struggles and well-established jurisprudence.
Canadians know, most likely informed by years of Law & Order, that the police require a warrant to search their homes. No warrant, no entry, they assume. Moreover, the public is well aware of the notion that, in order for the police to enter your home, violate your privacy and examine your personal belongings, they must demonstrate reasonable and probable grounds to believe that a criminal offence has been committed.
In fact, there is perhaps no more stirring a paean to the inviolability of the private home, than William Pitt’s oft-cited 1763 address to Parliament:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! — all his force dares not cross the threshold of the ruined tenement!
That’s true of course, unless you are a licensed owner of a registered firearm. Deer gun, bird gun or Olympic competition .22 caliber rifle – it doesn’t matter.
Anyone with a firearms collection is subject, under the terms of the Firearms Act, to an inspection of their home by a “firearms officer”. Failure to comply with an officer’s direction is a criminal offence. Moreover, anyone who owns even a single firearm is obligated, again on penalty of criminal charge, to produce their firearm for inspection on demand. Papers, please!
Canadians are also familiar with the right against self-incrimination and its legal Siamese twin, the right to silence. In a justice system which is founded on the presumption of the innocence, the notion that the state can coerce an individual into participating in his own prosecution is both foreign and offensive.
Except of course for the licensed owners of registered firearms. The Firearms Act requires gun owners to give “all reasonable assistance” to peace officers and firearms inspectors. Where ordinary suspected criminals have the right (and rightfully so!) to refuse to assist the state in building a case against them, gun owners are denied that critical freedom.
The gun control scheme also reverses the burden of proof which is at the heart of our common law system.
For most offences, the Crown must prove each element of the charge beyond a reasonable doubt. The exception to the rule? Individuals are presumed to be in illegal possession of firearms unless they provide proof of licensing and registration. The state does not have to prove that the firearm is possessed illegally; the individual must prove that it is possessed legally.
Notice that there is no requirement that the police must suspect that the gun owner committed a crime. There is no need for even the most remote allegation of violence, personal instability or criminal intent. Simply by being a licensed gun owner, a “crime” committed by nearly 2 million Canadians, one is forced to surrender fundamental freedoms.
Now of course, there is one class of individual who is exempted from these draconian provisions. You see, to receive a firearms license and legally acquire firearms in Canada, one must pass an exhaustive background check. References are called, spouses are consulted, criminal histories are queried.
Naturally, individuals with serious criminal records are denied firearms licenses. They are thereby essentially exempt from the onerous requirements of the Firearms Act and its Regulations. Only law-abiding citizens are subject to its provisions.
Hopefully the newly-revived debate over the state of Canada’s gun control regime will bring about a serious and critical examination of the entire firearms control scheme, not just the long-gun registry. Wasteful and inefficient as it may be, the long gun registry is merely the tip of a deep and dangerous iceberg.
– Originally published in the August/Sept 2011 issue of The Landowner.
Solomon Friedman is a criminal defence lawyer from Ottawa who specializes in defending firearms related charges. Before joining Edelson Clifford D’Angelo LLP, Solomon served as a law clerk to Justice Morris Fish of the Supreme Court of Canada.