Williams v. Kaplan, Supreme Court of Ontario, Dec 83 (WILKAP.892)

This case was an application for judicial review of Order in
Council (OIC) PC 1982-3964 and OIC 1983-1888.  In it, Mr. Justice
Osler said:

"...The Order in Council was enacted [emphasis
added by researcher] purportedly under the provisions of s. 82(1)
of the Criminal Code [sic] and was published in the Canada
Gazette, Part II, January 12, 1983.  It was in the following terms:

His Excellency the Governor General in Council, on the
recommendation of the Minister of Justice [emphasis added by
researcher], pursuant to paragraph (d) of the definition
"restricted weapon" s. 82(1) [now ss. 84(1) "restricted weapon"
(d)] of the Criminal Code [sic], is pleased hereby to amend
the restricted weapons order made by Order in Council P.C.
1980-3372 of the 11th day of December, 1980, in accordance with
the schedule hereto, effective July 12th, 1983.

Three questions emerge from this application.

(1) Is the act of the Governor in Council in purported compliance
with the statutory power subject to judicial review?

(2) If so, has the Divisional Court of the Supreme Court of
Ontario jurisdiction to make that review?

(3) If it has, what is the scope of the permitted review?

Question (1) has been answered beyond doubt, by recent decisions
of the courts in Canada.  I need only cite the following:
Jabour v. Law Society of British Columbia et al. [1982] 66
CPR (2d) at 1 (SCC)... where... Mr. Justice Estey says...:

... It is difficult to see how an argument can be advanced
that a statute adopted by Parliament for the establishment of a
court for the better administration of the laws of Canada can at
the same time include a provision that the provincial superior
courts may no longer declare a statute enacted by Parliament to
be beyond the constitutional authority of Parliament...

In our view, the Governor in Council falls within the definition
of "federal board" in s. 2 of the Federal Courts Act, but
for the reasons given, the jurisdiction of the federal Court to
make a declaration respecting the counsel is not exclusive.

If anything, that applies with greater force to the Governor in
Council, a body described by counsel for the respondent as being
at the apex of the government structure of Canada...

In our opinion, it was for the applicant to persuade us that
there was no basis for the opinion upon which the Governor in
Council must ber presumed to have acted, and he has not done so. 
In our view, special property rights were omitted from the
Charter, and no knowledgeable Canadian of our time, not even
judges, can fail to be aware that the omission was deliberate...

This case was decided upon the principle that there are no
property rights in the Charter; but s. 8 of the Charter says:

8.  Every one has the right to be secure against
unreasonable search or seizure [emphasis added].

It is clear that OIC's JUS-92-555-01, JUS-92-0562-01,
JUS-92-0563-01, JUS-92-0564-01, and JUS-92-567-01,  "enacted
(as the term is used by Mr. Justice Osler, supra) by His
Excellency the Governor General in Council, on the recommendation
of the Minister of Justice [emphasis added by researcher]" have
the effect of authorizing the seizure of all or any of the items
which are reclassified as "prohibited weapons" by the said OIC's.

The Minister of Justice has taken the position that any property
seized as a result of the said OIC's will be simply confiscated
by the state, and that no compensation will be paid to any person
adversely affected by such actions by the state.  

Perhaps more importantly, there is an intimate and indissoluble
link between such seizure and imprisonment imposed by the
provisions of ss. 90(1) of the Criminal Code.

Is that unreasonable seizure as set forth in s. 8 of the Charter? 
Assuredly, s. 8 would not exist had Parliament not intended to
guarantee an important right; but what, precisely, is that right?  

Given the apparent intent of Parliament to deny Canadians the
right to property in its broad sense, it is submitted that the
wording of s. 8 strongly suggests that Parliament's intent was to
prevent abuse of Canadians by agents of the state acting within
the criminal justice system.

That view is supported by the language of s. 8; "unreasonable
search or seizure" clearly implies that such an unreasonable
search or seizure is to be found within the context in which
search and seizure take place; within the criminal justice
system, and, at the very least, in circumstances intimately
linked to criminal prosecution, imprisonment, and a criminal
record for the victim of such abuse by agents of the state.

Any search or seizure which is intimately linked to imprisonment,
which in turn links it to s. 7 of the charter, should be a
subject for examination for possible violation of s. 8.  S. 8
cannot be presumed to exist in a vacuum, protecting against some
evil which in fact does not exist; it must, at the very least,
guarantee Canadians against unreasonable searches and seizures
which are intimately linked to criminal prosecution, imprisonment
and a criminal record.

Prior to the coming into force of the said OIC's, the possessor
of any item of property so converted to "prohibited weapon"
status is coerced into surrendering his property by the threat
that he will become a criminal on the date the OIC comes into
force, and will be liable, under ss. 90(1) of the Criminal Code:

[From Bill C-17] 90.(1)  Every one who has in his
possession a prohibited weapon 

(a) is guilty of an indictable offence and liable to
imprisonment for a term  not exceeding ten years...

The use of such a draconian threat in the Criminal Code to force
voluntary surrender of property makes a mockery of the word
voluntary.  Any loss of property as a result of the said OIC's--
whether by formal seizure, or by surrender, or by forced
destruction or mutilation of the property by the possessor, is
the direct result of the conversion of the property's status
through the said OIC's, and the criminalization of simple
possession of that property through ss. 90(1).

Surrender, destruction, mutilation, or seizure--all result in
the loss of the value of his property, the loss of enjoyment of
his property, and the loss of his prestige in the community for
running afoul of the Criminal Code.

It is submitted that it is precisely that situation which s. 8 of
the Charter is intended to control.  The power of agents of the
state is very susceptible to abuse, when such agents exercise
their vested authority and vested decision-making powers in a way
beyond that which Parliament intended.

It is submitted that where such seizure is authorized by an OIC
--working, as it is designed to do, in conjunction with ss. 90(1)
of the Criminal Code--that the same test that applies to a
violation of the right to liberty under s. 7 applies to a
violation of "the right to be secure against unreasonable search
or seizure" under s. 8 of the Charter. 

It is submitted that where property is to be seized by the state
under the threat that any disagreement about the state's right to
seize private property without payment will incur "imprisonment
for a term not exceeding ten years" invokes both s. 7 and s. 8 of
the Charter, invoking the rule already frequently used for s. 7
violations and that is also applicable to s. 8 violations.

In R. v. Finlay [1991] 5 WWR 193, the Saskatchewan Court of
Appeal ruled that the test under s. 1 of the Charter to save
legislation found to be contrary to s. 7 of the Charter was to be
found in Edwards Books & Art Ltd., [1986] 2 SCR 713 at 768, 55
CR (3d) 193 (sub nom. R. v. Videoflicks Ltd., 30 CCC (3d) 385
(sub nom. R. v. Edwards Books & Art Ltd.; R. v. Nortown Foods
Ltd.), 87 CLLC 14001, 35 DLR (4th) 1, 19 OAC 239, 71 NR 161:

1.  The objective of the violating provision must be "of
sufficient importance to warrant over-riding a
constitutionally-protected right or freedom";

2.  The objective of the violating provision must be shown
to be reasonable and demonstrably justified under a "form of
proportionality test", which breaks down into:

(a) measures must be carefully designed to achieve the
objective in question.  They must not be arbitrary, unfair,
or based on irrational considerations;

(b) the means chosen should impair the right or freedom violated
as little as possible; and

(c) there must be a proportionality between the effects of the
measures taken and the objective to be achieved.

All of the above arguments apply with equal force to "the right
to be secure against unreasonable search" guaranteed by s. 8.  In
that context, the court's attention is drawn to OIC
JUS-92-55-02, which says, in part:

2. "registration certificate" means the registration
certificate issued in respect of a restricted weapon that is
registered under subsection 109(7) of the Act as part of the
collection of a genuine gun collector.

In ss. 84(1):

[From C-17] 84.(1) "genuine gun collector" means an
individual who possesses or seeks to acquire one or more
restricted weapons that are related or distinguished by
historical, technological or scientific characteristics, has
knowledge of those characteristics, has consented to the
periodic inspection, conducted in a reasonable manner and in
accordance with the regulations, of the premises in which
the restricted weapons are to be kept and has complied with
such other requirements as are prescribed by regulation
respecting knowledge, secure storage and the keeping of records
in respect of the restricted weapons (emphasis added).

From ss. 84(1) and s. 109, it is clear that the state has vested
authority to the Commissioner of the RCMP to force any Canadian
who wishes to register even one restricted firearm to classify
himself as a "genuine gun collector," and to coerce him into
agreeing to "periodic inspections."

It is submitted that the state's contention that such "periodic
inspections" are reasonable is incorrect.  Such a periodic
inspection may open the person whose home is being inspected to
criminal prosecution, imprisonment, and a criminal record.  Ss.
86(3) of the Criminal Code says:

86.(3) Every person who stores, displays, handles,
or transports any firearm in a manner contrary to a
regulation made under paragraph 116(1)(g) (emphasis added)

(a) is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years...

JUS-92-55-02 then establishes the "periodic inspections":

7.(1) A police officer, police constable, local
registrar of firearms or firearms officer may inspect the
premises in which a restricted weapon registered under a
registration certificate is to be kept

(a) at any time agreed on by the holder of the registration
certificate and the police officer, police constable, local
registrar of firearms or firearms officer; or

(b)between the hours of 7:00 AM and 9:00 PM, local time, where
the holder and the police officer, police constable, local
registrar of firearms or firearms officer cannot agree on a
time for the inspection (emphasis added throughout).

It is drawn to the court's attention that an inspection conducted
under ss. (1)(b) of the regulation does not require the consent
or even the presence of the "holder of a registration
certificate."  It apparently vests authority in any " police
officer, police constable, local registrar of firearms or
firearms officer" to enter the "premises" usually a private home)
and "inspect".

Where such an "inspection" reveals anything "contrary to a
regulation", or contrary to any provision of the Criminal Code,
the person whose premises are being "inspected" is subject to
criminal charges, imprisonment, and a criminal record.

 While it is true that two restrictions are placed on such
inspectors, they are rather weak:

7.(2)  Before carrying out an inspection under
subsection (1), the police officer, police constable, local
registrar of firearms or firearms officer shall give
reasonable notice [presumably (1)(b) is meant here; under
(1)(a) this would be redundant] to the holder of a
registration certificate that an inspection is to be carried
out (emphasis added).

It is submitted that the authors of JUS-92-55-02 have recognized
a fundamental weakness in the concept of gaining the agreement of
a "genuine gun collector" to "periodic inspections"; such
treatment of some holders of registration certificates, while
leaving other such holders free of the requirement, would
possibly violate s. 15 of the Charter.

It is evident from the above that the intent is to expand the
concept, allowing the state's officers to inspect, within his
home or (rarely) place of business, the storage facilities,
record keeping facilities, and whatever else is covered by such
inspections of every "holder of a registration certificate."

The other limitation is also weak:

7.(3) A police officer, police constable, local
registrar of firearms or firearms officer who carries out an
inspection under subsection (1) shall limit the inspection to the
parts of the premises in which the restricted weapon and the
record referred to are kept.

It is submitted that ss. 7(3) of the regulation in question
ignores the fact that the officers must be admitted to the home
(or, rarely, place of business); must be conducted to the
locations cited, thereby giving them an opportunity to see other
areas they could not otherwise have access to without a search
warrant issued after proof of proper cause had been placed before
a judge.

It is submitted that it is the admission of officers of the
state, authorized to arrest and instigate criminal charges, to
the home which violates s.  8 of the Charter in cases where the
Southam rule is not met:

In Director of Investigation and Research of the Combines
Investigation Branch et. al. v. Southam Inc. (1984) 2 SCR
145, in which the Supreme Court of Canada ruled:

"The location of the constitutional balance
between a justifiable expectation of privacy and the legitimate
needs of the state cannot depend on the subjective appreciation
of individual adjudicators.  Some objective standard must be
established. (emphasis added)" (166)

"The state's interest in detecting and preventing crime begins to
prevail over the individual's interest in being left alone at the
point where credibly-based probability replaces suspicion.
(emphasis added)" (167) 

This prohibition against using the "subjective appreciation of
individual adjudicators" in cases where Charter rights are at
stake, as they are in the matters in question, is apparently a
result of the provision of imprisonment and a criminal record as
penalties for any violation.

It is submitted that s. 84(1) "genuine gun collector" and s.
86(30 of the Criminal Code, taken in conjunction with s. 7(1)(b)
of OIC JUS-92-55-02, establish any police officer, police
constable, local registrar of firearms or firearms officer as an
"individual adjudicator" with the authority to enter, or to order
an entry of, private premises in connection with matters which
may well lead to criminal charges, imprisonment, and a criminal
record for any  person residing in or visiting those premises.

It is submitted that the prohibition against using a "single
adjudicator", particularly one without an "objective standard" to
guide him, may not invalidate legislation where a clear right of
appeal to the courts on the merits is included in the
legislation.  It is further submitted that it does invalidate
such legislation where no such appeal procedure exists in the
legislation; and there is no appeal procedure to allow a "genuine
gun collector" to keep the officers out of his home. 

It is submitted that the requirement that he "has consented" to
such an entry is void, because that consent was obtained by
coercion.  In order to get the license needed to possess his
property, the registration certificate, he must consent.

When the Supreme Court of Canada struck down the abortion
legislation in Morgentaler et. al. v. The Queen and the
Attorney General of Canada (1988) 1 SCR 30, the Court
ruled that there were constitutional standards that
legislation must meet:

"Even if the purpose of legislation is unobjectionable,
the administrative procedures created by law to bring that
purpose into operation may produce unconstitutional effects and
the legislation should then be struck down."(emphasis added)
(62)

"One of the basic tenets of our system of criminal justice is
that when parliament creates a defense to a criminal charge, the
defense should not be illusory or so difficult to attain as to
be practically illusory.  The criminal law is a very special
form of governmental regulation, for it seeks to express our
society's collective disapprobation of certain acts and
omissions.   When a defense is provided, especially a
specifically-tailored defense to a particular charge, it is
because the legislator has determined that the disapprobation of
society is not warranted when conditions of the defense are
met. (emphasis added)" (70)

In striking down the legislation, the Court ruled:


"A further flaw with the administrative system established in
(the Criminal Code) is the failure to provide an adequate
standard for therapeutic abortion committees which must
determine when [a permit for] a therapeutic abortion 
should, as a matter of law, be granted.  Subsection (4)
states simply that a therapeutic abortion committee may grant a
certificate when it determines that a continuation of a pregnancy
would be likely to endanger the 'life or health' of the pregnant
woman. (emphasis added)" (68)

It is submitted that a therapeutic abortion certificate was a
license to have an abortion.  In this case, the required license
is the registration certificate, and the state is coercing the
applicant to "consent" to periodic invasions of his home and his
privacy in order to get it.  

It is submitted that such behaviour, on the part of the state,
tends to bring the law into disrepute and is contrary to the
right to be secure from unreasonable search guaranteed by s. 8 of
the Charter.

It is further submitted that the provisions of s. 7 of OIC
JUS_92-55-02 are damaging to the personal security of any person
subjected to such inspections.  This is particularly true of
major firearms collectors; the state offers no protection or
indemnity to the collector whose home is struck by burglars or
armed robbers who obtained their information about his property,
security measures, or location through careless talk on the part
of inspecting officers.

It is submitted that firearms are interesting, and that officers
are likely to discuss firearms collections which they have
inspected.  It is further suggested that such a conversation may
well innocently take place between such an officer and someone
who should not be privy to the information; or between two
officers who are unknowingly within earshot of a person being
detained by the police.

In the Southam case, only the relatively weak right to
privacy was being considered.  In any firearms control case, the
ability of the applicant to acquire the necessary licensing
documents determines whether or not he is able to obtain a
specifically-tailored defense to a particular criminal charge;
one which is specified as being available by the legislation. 

It is submitted that the applicant is faced with a dilemma;
either he must compromise his personal security and his privacy,
or he will be denied the registration certificate which is a
specifically-tailored defense to a criminal charge under ss.
91(1) of the Criminal Code.  In such a case, can he be said to
have "consented" to the "periodic inspections", or has he been
coerced by the state into authorizing otherwise unlawful entry
into his home, disruption of his privacy, and opened himself to
criminal charges under ss. 86(3) arising from an inspection?

It is submitted that such "periodic inspections" are
nothing like inspections authorized by provincial governments for
fire safety, gas leaks, etc.  These "periodic inspections" are to
be made by police officers, and their findings may well lead
directly to criminal charges agains the homeowner under CC ss.
86(3), imprisonment, and a criminal record.

It is submitted that the "periodic inspections"
authorized by s. 84(1) "genuine gun collector" and OIC
JUS-92-55-02 constitute authorization for an "unreasonable
search", contrary to s.  8 of the Charter, and are void as
unconstitutional. 

It is submitted that the use of Criminal Code vested authority to
refuse the licensing document required (the registration
certificate) to force the applicant to "agree" to the periodic
invasion of his home by officers of the state seeking evidence to
file criminal charges makes a mockery of the word "agree."  

Any criminal charge filed as a result of the said OIC is the
direct result of the admission of the state's officers to the
defendant's premises through authority vested by the said OIC's,
and the criminalization of public welfare offences, such as an
improper method of storing a firearm--even if the method of
storage is equivalent to the method prescribed by regulation. 
Criminal charges, imprisonment, and a criminal record form an
intimate part of the provisions of OIC JUS-92-55-02.

It is submitted that that is precisely the situation which s. 8
of the Charter is intended to control.  The power of agents of
the state is very susceptible to abuse, when such agents exercise
their vested authority and vested decision-making powers by
liberally interpreting their powers, or when excessive powers are
vested in them by subordinate legislation.

It is submitted that where such actions are authorized by an OIC
--working, as it is designed to do, in conjunction with the
Criminal Code--that the same test that applies to a violation of
the right to liberty under s. 7 applies to a violation of "the
right to be secure against unreasonable search or seizure"
under s. 8 of the Charter. 

In the special case where a person owns a firearm which is
subject to the provisions of CC ss. 109(4.1), (4.2) and (4.3):

[From C-17] 109.(4.1) A registration certificate may
only be issued in respect of a restricted weapon described in
paragraph (c.1) of the definition "restricted weapon" in
subsection 84(1) where a local registrar of firearms, in addition
to the matters referred to in subsection (3),

(a) indicates on the copy of the application that is sent
to the Commissioner pursuant to subsection (5) that the
restricted weapon will form part of a gun collection of the
applicant who is a genuine gun collector whose collection
includes one or more restricted weapons described in that
paragraph; and

(b) describes on the copy referred to in paragraph (a) all
alterations that have been made to the restricted weapon to
enable it to fire only one projectile with one pressure of the
trigger.

(4.2) Where the description of the alterations referred to in
paragraph (4.1)(b) changes in respect of a restricted weapon, the
restricted weapon registration certificate issued in respect of
the weapon is automatically revoked and the holder of that
certificate shall immediately apply for a new registration
certificate in respect of the weapon.

(4.3) Notwithstanding anything in this Act, no registration
certificate may be issued in respect of a restricted weapon
described in paragraph (c.1) of the definition "restricted
weapon" in subsection 84(1) to a person who does not lawfully
possess such a restricted weapon at the time of coming into force
of this subsection.

The definition referred to is:

84.(1) "restricted weapon" means...

[From C-17] (c.1) any firearm that is assembled or designed
and manufactured with the capability of firing projectiles in
rapid succession with one pressure of the trigger, to the extent
that 

(i) the firearm is altered to fire only one projectile with
one such pressure,

(ii) on October 1, 1992, the firearm was registered as a
restricted weapon, or an application for a registration
certificate was made to a local registrar of firearms in respect
of the firearm, and the firearm formed part of a gun collection
in Canada of a genuine gun collector (emphasis added), and

(iii) subsections 109(4.1) and (4.2) were complied with in
respect of that firearm, or...

It is submitted that the pattern of coercion is clear within CC
ss. 84(1) and s. 109, supra, and that that is contrary to s. 15
of the Charter.

If the objective standard which the legislation is trying to
achieve is, as specified repeatedly throughout Part III of the
Criminal Code, "the safety of the apllicant or any other person",
how can that standard be met by authorizing people to possess on
the basis of previous possession?  It is submitted that the
dividing lines for licit possession of this sub-class of
restricted firearm has been drawn in a manner that is in direct
violation of the accepted standard test utilized in s. 7
violations; and that there is an intimate connection between s. 7
and these provisions, as is illustrated by Morgentaler,
supra, and by the factt that failure to possess the required
licensing document, a specifically-tailored defense to a charge
under CC ss. 91(1), results in criminal charges, imprisonment,
and a criminal record.

It is submitted that where s. 7 of the Charter is
violated as a consequence of a division of society into differing
classes by Criminal Code legislation, as happened in
Morgentaler, then s. 15 is also violated, and that the test
for that violation becomes the same as the test applied to s. 7
to ensure that the "over-riding of a constitutionally-protected
right" is justified under s. 1 of the Charter. 

It is submitted that violation of s. 7 is widely accepted as
requiring a test, in the accepted form, to ascertain whether or
not violating the affected person's right to liberty is
demonstrably justified in a free and democratic society.  

It is submitted that where s. 8 or s. 15 are apparently violated,
then a demonstration of violation of s. 7 as an
intimately-related part of the apparent violation of s. 7,
whether through a law embedded in the Criminal Code, or through
an OIC with force of law enacted as an integral part of the
Criminal Code, must also meet the standards set by s. 1 of the
Charter.