Following is the entire text of the article
"Much more than mere gun control" which was published
in the April 24, 1995 issues of Western Report. This
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Bob Bryce

The text of this articlegfollows:

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Much more than mere gun control
----------------------------------------

Rock's firearms bill tramples
centuries-old freedoms
for everyone, not just gun owners


"In English common law the principle that anything not prohibited is
permissible has existed since time out of mind," says Calgarian
Ronald Cantlie, an expert on jurisprudence - the study of the origins
and philosophy of law - who has been a lawyer in both England and
Canada. "Whatever you were up to was taken to be innocent unless
you were known to be breaking the law."

  The only period when this fundamental freedom was suspended,
Mr. Cantlie explains, was from 1653 to 1658, when the Puritan
Oliver Cromwell, having executed the king in1649, ruled Britain as
lord protector. During those five years, agents of the state were free
to enter private homes at any time to check for sinful, as well as
illegal behaviour. Attendance at church was mandatory and the
joyful celebration of Christmas outlawed. Cromwell and his
parliamentarians passed dozens of laws that made criminals of
ordinary citizens. "That period ought to serve warning that even
when the best people start a revolution they never can guess where it
will end," Mr. Cantlie says.

  Now there are fears that a second Protectorate is on the horizon,
this time in Canada. Mr. Cantlie and others are worried that Justice
Minister Allan Rock's gun control law, Bill C-68, which the
Liberals forced through on second reading two weeks ago, will
undermine at least four basic liberties that residents of common law
countries such as Canada have enjoyed for 800 years or more.

  Legal experts and gun owners charge that among other things, the
Firearms Act will allow police to search private homes without a
warrant. It will suspend citizens' right to refuse to co-operate with
police and may force them to self-incriminate or face jail for failing
to do so. It allows for the confiscation of private property by the
state without compensation. And it creates a "reverse onus" on those
accused of offences under several of its sections; in other words, it
requires those charged to prove their innocence, rather than
assuming they are innocent until proven guilty.

  Until last month, most criticism of Bill C-68 had focused on two
issues: the ineffectiveness of universal gun registration as a means
of crime control and the high cost of registering Canada's six million
to 18 million handguns, shotguns and rifles. Most analysts figure
that registering all the country's firearms will cost about $500
million over the next five years, to say nothing of the large numbers
of police officers registration will take off the street to do
paperwork. Mr. Rock insists the tab will be just $85 million and that
no police manpower will be diverted.

  But John Hardy, legal counsel for the Saskatchewan Responsible
Firearms Owners, says more and more people are now reading the
bill, and have found that its provisions go well beyond establishing
a national firearms registry. "This bill gives police the broadest
range of powers found in any Canadian legislation," he says. "[It]
encroaches so much more on individual rights than any previous law
that the whole concept of personal rights and liberties is
endangered."

  The contentious sections are 99 through 102, which cover
"inspection." They empower police to enter businesses and homes
without a warrant, for the purpose of insuring compliance with
registration and storage laws. Section 99, for example, says "a
police officer may at any reasonable time enter and inspect any place
in which the police officer believes on reasonable grounds there is a
firearm, [or] prohibited weapon..." It even allows for unwarranted
searches of homes suspected of containing ammunition or any
record of a gun or ammunition purchase.

  It also authorizes police to "examine any firearm and examine any
other thing that the officer finds and take samples of it," disposing
of those samples "in any manner that he or she considers
appropriate." Police do not have to return property seized, even if it
turns out to be legal.

  On first blush, the wording of section 100 seems innocuous. It
says simply that citizens must "give the police officer all reasonable
assistance to enable him or her to carry out the inspection ... and
provide the police officer with any information relevant to the
enforcement of this Act."  However, Mr. Hardy points out that this
provision, in effect, removes the protection from unreasonable
search and seizure that homes have traditionally enjoyed and that is
(at least in theory) guaranteed in the Canadian Charter of Rights and
Freedoms.

  Until C-68 passes, home owners have the right to refuse to let
police officers search their property without a warrant, unless the
lawmen have good reason to believe a crime is in progress.
Otherwise, before the search occurs the home owner may go to
court where a judge can decide whether it is reasonable. After C-68
becomes law, citizens must first allow a search or face arrest. They
may challenge it only after the fact.

  Sections 100 and 102 have the combined effect of removing the
common law protection against self-incrimination. Section 102,
which Mr. Hardy calls the "big stick" of the Firearms Act, reads,
"every person who ... does not comply with section 100 is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding two years." Thus a home owner who has not double-
locked his shotgun as the law demands must lead the policeman at
his door to the offending weapon, thereby incriminating himself.

  Mr. Hardy concedes that section 101 states, "a police officer may
not enter a dwelling-house except with the consent of the occupantor
under a warrant." Yet it then says a police officer may apply to a
judge for a warrant on the grounds "that entry to the dwelling-house
has been refused."

  "This law represents a complete erosion of individual privacy,"
Mr. Hardy continues. To be subject to inspection, a home owner
need not own guns, just be suspected of possessing documents
pertaining to firearms registration or be guilty of refusing police
entry without a warrant. "If this law is upheld by the courts it could
become a precedent allowing agents of the state to 'inspect' for
compliance in any number of areas," he says. "I could see social
services, for instance, gaining the right to enter anybody's home to
see how they are treating their children."

  Christopher Manfredi, professor of political science at McGill
University in Montreal and author of the book _Judicial Power and
the Charter_, is concerned that Bill C-68 hastens Canada's drift
towards collective security at the expense of individual liberty. "To
infringe on individual rights in the name of a social good," he
explains, "you have to be able to show compelling evidence that
there will be benefits. Gun control does not meet that standard."

  Furthermore, he scoffs at comparisons between registering guns
and registering cars. "We don't register cars to reduce accidents,"
he says. But more importantly, ownership of an unregistered
automobile is not a crime as long as the car is not driven on the
streets. Mr. Rock's new law makes a criminal act out of possession
of an unregistered firearm. Moreover, he adds, criminalizing passive
behaviour and ownership of property may mean Canada is sliding
into despotism. "If the government can successfully trample on
personal rights behind the smoke screens of gun control and,
presumably, crime control, this enhances the power of the
government to do the same thing in other areas," he says. "Anyone
concerned with personal liberty should be bothered by this law."

 Returning to the common law notion that anything not illegal is
considered legal, Mr. Hardy adds that should the government get
away with setting the dangerous precedents contained in C-68, "this
could eventually allow the government, in the name of public safety,
or environmental controls, or whatever, to criminalize everything in
the country."

He points out that the legislation even amends the Criminal Code to
give each provincial or local firearms officer the power to prohibit
someone from owning guns because he "cohabits with, or is an
associate of" someone already prohibited from owning guns. "This
is a direct assault on the Charter of Rights protection of freedom of
association. There seems to be an assumption on the part of the
government that firearms owners are all unstable people just waiting
for a chance to break the law."

  What upsets Mr. Cantlie the most is that the freedoms threatened
by C-68 are mostly hundreds of years old, and were often hard-
won. Protection from unwarranted search and seizure, for example,
was first codified in the Magna Carta, the foundation for limitation
of the crown's power, in 1215.

  The presumption of innocence, according to Mr. Cantlie, also goes
back at least as far. "Prior to that time most questions of guilt were
settled through trial by ordeal," he explains. "If you were suspected
of a crime you would be thrown into a pond. If you floated, you
were innocent." This, though, was a pre-Christian practice that the
Fourth Lateran Council in 1215 forbade priests from endorsing,
effectively ending it. At about this time it was established that a
defendant should not be thrown in prison until proven guilty.

  The right to avoid self-incrimination was widely recognized by at
least 1686. That year James II charged seven bishops with sedition.
One of them is recorded as saying, "I never thought the day would
come when I would claim the right to remain silent, but I'm claiming
it now." This, asserts Mr. Cantlie, shows that the principle was
already well established in common law. The idea that silence
proved guilt died with the abolition of the Star Chamber trials in
1641.

  Compensation for confiscation of property, another right
undermined by Bill C-68, also has a long history. "Confiscation of
property couldn't be done except for defence purposes," says Mr.
Cantlie. "And there was always an obligation to pay for the property
taken."

  The origin of the right to refuse co-operation to the police is
murkier. When most sheriffs were volunteers, judges expected
citizens to help them. But this expectation was limited mostly to
assisting with the arrest of suspects. As more and more police
officers became full-time professionals, the right to refuse to go
along with their investigations evolved, as did the obligation not to
obstruct them, Mr. Cantlie says.

  Just when the common law forbade courts from judging any one
guilty by association is also unclear. "Conspiracy and being an
accessory to a crime have always themselves been crimes," says Mr.
Cantlie. "But in ordinary times English law has never sought to
implicate anyone not actually involved with the crime."

  Reform Party Leader Preston Manning shares gun owners'
concerns that C-68 goes too far. "This point hasn't been stressed
enough," he says. "Since it looks like the Liberals will ram this bill
through, I hope one of the provinces will challenge it in court."

  Jack Ramsay, Reform's gun control critic, is even more emphatic
about the threat posed by Mr. Rock's law. "When this bill passes,"
he says, "our freedoms are gone."

  However, Mr. Ramsay is convinced that gun owners take their
rights seriously, and rather than give them up without a fight, will
disobey what they believe to be an unjust law. "Mr. Rock is being
absolutely unreasonable and irresponsible when he moves in this
fashion to make criminals out of law-abiding citizens," he says. "If
[the government] will seize guns, which in themselves are personal
property, what will stop them in future from seizing anything they
want?"

 Mr. Ramsay also points out that the economic consequences of the
government's anti-gun bill are starting to manifest themselves.
"American hunters are promising to keep the millions of dollars they
have previously spent annually on hunting trips to Canada at home,"
he reports. "They won't register their guns at the border because
their constitution guarantees them the right to bear arms. They don't
want Canadian bureaucrats sharing registration information with
their American counterparts."

  Mr. Rock and his officials deny their bill constitutes a threat to
Canadians' freedom. Jim Hayes, co-ordinator of the Justice
Department's firearms control task group, says, "It's not our
intention to let the police get out of control. Firearms officers need
freedom to act in situations of imminent danger, such as domestic
violence cases. But afterwards they will have to go before a judge to
justify their actions."

  Asked whether Bill C-68 represents a trend toward the
criminalization of property ownership, Mr. Hayes replies, "No, the
legislation does not lead in that direction." He adds, "The minister
has a different perception, and besides, every property owner in the
country is already affected by the Criminal Code." He also insists
most of the provisions of Bill C-68 were proposed by gun clubs
worried about people taking out bogus memberships just so they
could qualify to buy restricted weapons.

  Reform MP Bob Mills says Mr. Hayes' denials are dishonest. A
federal Justice Department official told him that "An unidentified
enforcement agency would be sent from house to house if necessary
to implement the gun registration system." And a senior federal
bureaucrat, who insisted on remaining anonymous, explains that
"The government does not use the terms 'search and seizure'. They
call it an 'inspection power'." In this way they hope to get around
the Charter. "But what they are proposing is quite wide. They are
going to have to clean up that part of the act or it won't pass
constitutional muster."

  "To say that the Justice Department consulted with gun clubs is
baloney," says Jim Schille, co-chairman of the Saskatchewan
Responsible Firearms Owners. "Mr. Rock came to Saskatchewan in
1994, but when he met with us he asked no questions and took no
notes. Nor did anyone with him do so."

  Mr. Schille reports that at the time Mr. Rock revealed himself to be
ignorant of existing gun control laws. "We told him that judges
don't like to be constricted by mandatory sentencing laws so they
routinely deal them away," says Mr. Schille. Mr. Rock denied that
happened, but his bureaucrats were later forced to admit it was true.
"I can't believe a man who used to be a trial lawyer could know so
little about basic criminal law," he says.

  Paul Steckle is convinced Mr. Rock doesn't know much about
politics, either. Mr. Steckle is one of the three Liberal MPs thrown
off standing legislative committees because they voted against Bill
C-68 on second reading. "Mr. Rock is not being sensitive to
Canadians," he says. "Sure, people want safer streets, but they
don't want their freedoms trampled on either. We didn't campaign
on this at all. There was nothing in the Red Book about warrantless
searches and seizures. There was nothing in there about
criminalizing every gun owner in Canada. And there was nothing
about confiscation."

  Within the first 10 hours after he was exiled from his committees,
Mr. Steckle says, "I had over 100 phone calls. They came from
every province except Newfoundland. Every one of them supported
the stand I took. It's a shame that so many voters remain
unrepresented by their government."

  It is difficult for Mr. Steckle to fathom why Mr. Rock is pushing
so hard to pass a bill so detested by such a huge block of committed
voters. He thinks the minister's efforts will prove the first step
toward a decline in the Liberals' unprecedented popularity. He also
postulates that Mr. Rock may be captive to a registration-crazed
bureaucracy.

  Reformer Ramsay believes there is a third, more important reason
for the government's haste in putting C-68 into law: it is worried
that if the legislation does not pass before summer, Liberal
backbenchers will be convinced to oppose it when they get back
home.

Shafer Parker, Jr.

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