Submission Courtesy of Elizabeth F. Marshall
Memes inserted by News Alert Niagara
Memes inserted by News Alert Niagara
Thought of the Day, Part IV - Gun Ban Order In Council
- P.C.
2020-298[i] – Does this regulation create
an “absurdity” or, as expressed in Sullivan on the Construction of Statues, a
“consequence that are self-evidently unreasonable, unjust or unfair”?
That is for you and the Courts
to decide…
In Canada it has been stated “Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.”[ii]
The opening statement (preamble) of
P.C. 2020-298 May 1, 2020, states:
“Whereas the Governor in Council is
not of the opinion that any thing prescribed to be a prohibited firearm or a
prohibited device, in the Annexed Regulations, is reasonable for use in Canada
for hunting or sporting purposes;…”
What exactly is an “opinion” within
the context of this statement? According to Black’s Law Dictionary, p.
1202, one could think that the Governor in Council’s “opinion” can be defined
as:
“3. A person’s thought,
belief, or inference, exp., a witness’s view about a fact(s) in dispute, as
opposed to personal knowledge of the facts themselves. – Also termed (in sense
3) conclusion.”
But then included in definition 3 of
“opinion” is “fixed opinion” (1807) A bias or prejudice that disqualifies a
potential juror.”
And has the “opinion” of the
Minister of Justice biased the Governor in Council’s opinion in any way?
And does this “opinion” and the statements in the OIC create an “absurdity,” conflicts or a
“consequence that are self-evidently unreasonable, unjust or unfair”?
Perhaps having more information on
these topics might assist in a person to decide what their answers may or may
not be.
According to Sullivan, p. 328,
“10.43 Consequence that are self-evidently
unreasonable, unjust or unfair. There is a residual category of absurdity
consisting of consequences that violate norms of reasonableness, justice and
equity. As stated by Gonthier J. in Ontario v. Canadian Pacific Ltd.,
“…it may be presumed that the legislature does not intend unjust or inequitable
results to flow from its enactments.” [1995] S.C.J. No. 62, [1995] 2 S.C.R.
1031, at para. 65 (S.C.C.). … The unreasonableness and injustice of such a
result was apparently self-evident to the Court. However, it does not
seem entirely absurd that, even in the absence of reliance, a legislature would
intend to penalize an issuer that knowingly misrepresented material facts in a
prospectus by imposing liability even in the absence of reliance.”
In other words, the
legislature and/or the G.G. may not have presumed that all firearm owner’s are
criminals and yet if one continues to own said listed firearms one does become
a criminal under the regulation, except, perhaps/maybe, if one is executing a “right”
under section 35 – Treaty Rights, of the 1982 Constitution. It might also
be a thought that the OIC potentially will make 2.1 million licenced firearm
owners’[iii] into criminals, wouldn’t
it? Could this be a “consequence that are self-evidently unreasonable,
unjust or unfair”?
Then there may be a
conflict within the OIC. According, again, to Sullivan, she states (p.
344 – 345):
“11.22 The challenges of
defining conflict. When two or more provisions overlap, the courts try to
give effect to each. They do not resort to the conflict resolution
strategies at their disposal unless there is a genuine conflict. However,
determining whether a genuine conflict exists in particular circumstances can
be challenging. There are several distinct contexts in which provisions
potentially conflict with one another:
…overlap between
provisions enacted by the same legislative body
…overlap between
executive legislation and other legislation within the same jurisdiction
There are also distinct
ways in which provisions may overlap:
…contradiction:
one provision permits what another provision prohibits
…impossibility of
dual compliance: one provision requires what the other provision prohibits.
…11.24 The
operational conflict test as formulated by Dickson J. in Multiple Access Ltd.,
v. McCutcheon sets out the most stringent test for determining conflict – the
impossibility of dual compliance. Dickson J. wrote:
‘In principle, there
would seem to be no good reason to speak of paramountcy and preclusion except
where there is actual conflict in operation as where on enactment says ‘yes’
and the other says ‘no’; ‘the same citizens are being told to do inconsistent
things’; compliance with one is defiance of the other.’ [1982] S.C.J. No. 66,
[1982] 2 S.C.T. 161, at 191 (S.C.C.) …”
Sullivan states (p. 349
– 350):
“11.31
Historically, in keeping with the presumption of coherence, the courts have
held that conflict should be avoided if possible. In Tabernacle Permanent
Building Society v. Knight, Lord Halsbury said that so long as the Acts under
review can ‘stand together and both operate without either interfering with the
other’, there was no inconsistency or conflict. … It is not clear how
these tests relate to the impossibility of dual compliance and frustrated
purpose tests discussed above.
11.23 In
concurring judgment in Levis (City) v. Fraternite des policiers de Levis Inc.
case, Deschamps and Fish JJ. urged the adoption of a narrow definition of
conflict for provisions enacted by the same legislature.
They wrote: ‘If, for reasons related
in large part to the balancing of legislative power within Confederation, a
restrictive approach has been taken to conflicts in constitutional law, the
rule should in our view be applied even more rigorously where the conflicting
laws have been enacted by a single legislature. Since the legislature is
presumed to know its own laws and to intend that they be applied consistently,
the application of a rule favouring an interpretation that makes it possible to
avoid conflicts is fully justified.
A finding by a court that a
conflict exists is necessarily founded on an assumption that the legislature
has been inconsistent in enacting its laws. It is therefore only where
conflict is unavoidable that a court must apply the principles of
interpretation that give precedence to one law over the other, in which case
the conflicting provision will be tacitly repealed or found to be partially
inapplicable.’
This analysis is
grounded in the presumption of perfection – the presumption that the
legislature knows everything it needs to create coherent schemes and that it
does not make mistakes. This analysis ignores the realities of the way
legislation is made and the way the statute book evolves. It ignores, for
example, the fact that legislative schemes are developed, introduced and
implemented by different departments with different legislative
priorities. It ignores the tight timelines and political pressures under
which much legislation is drafted. While the presumption of perfection
has a legitimate role in interpretation, it should not receive more weight than
it can realistically bear.”
To the Order In Council (OIC)
P.C. 2020-298 May 1, 2020, p. 54, states:
“… While some of these newly
prohibited firearms were previously used by individuals for hunting or
sporting purposes, it is the view of the Government that those firearms are
unreasonable and disproportionate for such purposes….”
In this section of the OIC it states
“it is the view of the Government,” if government is attempting to say it is of
the “opinion” “that those firearms are unreasonable and dipropionate” for
hunting and sporting purposes, why had government allowed the said newly banned
firearms to, historically, be used to hunt and for sport?
What exactly is an “opinion” within
the context of this statement? As expressed above, according to Black’s Law
Dictionary, p. 1202, one could think that the Governor in Council’s “opinion”
can be defined as:
“3. A person’s thought,
belief, or inference, exp., a witness’s view about a fact(s) in dispute, as
opposed to personal knowledge of the facts themselves. – Also termed (in sense
3) conclusion.”
But then included in definition 3 of “opinion”
is “fixed opinion” (1807) A bias or prejudice that disqualifies a potential
juror.”
And is the “opinion” of the Minister
of Justice biased opinion in any way? And does this “opinion” and the
statements in the OIC create an “absurdity,”
conflicts or a “consequence that are self-evidently unreasonable, unjust or
unfair”?
Also, with the statement that these
firearms cause “significant risk” to “the public’s safety” does this mean that
government is of the “opinion” that every owner of these firearms will use
these firearms for “…immobilizing or killing humans in large numbers” when, in
Canada, there have been very few, if any, legal, law-abiding persons who have acted
in this fashion? And what of a Canadian’s right to be presumed innocent
until proven guilty, regardless of any mechanism or tool they may or may not
use?
P.C. 2020-298 May 1, 2020, p. 57 –
58, states:
“The Amnesty Order has been made … in order
to afford the individuals with time to dispose of the firearms. Disposal can
include: having the firearm deactivated by an approved business; delivering
the firearm or device to a police officer; legally exporting the firearm; and,
if a business, returning the firearm or device to the manufacturer.
**Other permitted activities during the
amnesty period are to transport the firearm for any of the above purposes and
to use the newly prohibited firearm, if previously non-restricted, [emphasis]**
to hunt for the purposes of sustenance or to exercise a right recognized and
affirmed by section 35 of the Constitution Act, 1982 (the Constitution).
Individuals are no longer allowed to import the firearms listed in the
Regulations. Affected owners will no longer be permitted to sell to individuals
within Canada or use the prohibited firearms, and no transportation will be permitted
except for the purposes described above. The firearms will have to be kept
securely stored in accordance with the legal storage requirements for the
classification of the specified firearms prior to their prohibition.”
In other words, one could conceive
that one may only transport the newly banned firearms to rid themselves of it,
but not sell it to anyone, and yet transport of these firearms may continue if
one has recognized rights under section 35 of the Constitution? But what of the
rights established under the Constitution Act 1867 – do they not apply?
If they don’t is this not yet another conflict, absurdity or “consequence that are
self-evidently unreasonable, unjust or unfair”?
P.C. 2020-298 May 1, 2020, p. 59, states:
“…Following the publication of the
Regulations, the Government will continue to engage with Indigenous groups to
assess whether the prohibition of these firearms has a continued impact on the
right to hunt affirmed by section 35 of the Constitution.”
Could this be considered as
government creating a “consequence that are self-evidently unreasonable, unjust
or unfair”? It would seem this is stating that even after the ban is
fully implemented and after the Amnesty period is completed that government may
continue to negotiate with various Indigenous groups regarding this
prohibition, doesn’t it? So, is this OIC applicable to all Canadians or
only select persons who are presently lawfully licenced firearm owners?
And how can this premise be allowed unless there is
an “absurdity” or a
“consequence that are self-evidently unreasonable, unjust or unfair”?
That is for you and the Courts
to decide…
.
1 http://gazette.gc.ca/rp-pr/p2/2020/2020-05-01-x3/pdf/g2-154x3.pdf
.
10.43 – “…The
presumption was applied by the Supreme Court of Canada in Sharbern Holding
Inc., v. Vancouver Airport Centre Ltd., where one of the issues was whether the
deemed reliance provision in paragraph 72 (2)(a) of British Columbia’s Real
Estate Act created an irrebuttable presumption….On its face, this provision
appears to create an irrebuttable presumption, that is, a legal fiction.
As the trial Judge pointed out, there is no qualifying language in the
provision, no reference to circumstances in which the reliance would no be
deemed. The fact that reliance in deemed even if the prospectus has not
been received further suggests an intention to create a fiction rather than a
rebuttable presumption. However, the Supreme Court of Canada concluded
that “a non-rebuttable presumption would be contrary to the legislative
balancing that underlies the disclosure requirements…and would result in absurd
and unjust results.” As Rothstein J. explained:
‘[A] non-rebuttable
presumption would allow an investor to claim reliance on a misrepresentation,
even if the investor was fully informed and had complete knowledge of all of
the facts. In doing so, the issuer would be held liable for a
misrepresentation of which the investor was fully aware. This would be an
absurd and unjust result, which would place issuers into the position of having
to guarantee the loses of fully informed investors.’”
11.24 “…Dickson J.
offers three formulations of actual conflict in this passage; it is arguable
that the first (one enactment says yes and the other says no is significantly
broader than the other two). An enactment authorizing (as opposed to
requiring) an activity that is prohibited by another enactment could be
captured by the first formulation but not by the other two.”
11.31 “In Toronto
Railway Co. v. Paget, Anglin J. wrote:
‘It is not enough to exclude
the application of the general Act that it deals somewhat differently with the
same subject-matter. It is not ‘inconsistent’ unless the two provisions
cannot stand together.”
[iii] https://www.ofah.org/2019/12/government-targets-lawful-canadian-firearm-owners/Gun Bans only works for Tyrants
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