The obligation on those pressing parliament to pass legislation which by its very nature limits the fundamental rights of Canadians, is, to be in a position to justify such limits. This is the law as has been very clearly announced by the Supreme Court of Canada, as the written decision of Justice McLachlin in the "tobacco case" will demonstrate. (RJR - Macdonald v. Canada, 1995.)

Now, for the purposes of this argument, we will accept that we now have persons in the political cabinets of this country who are of goodwill; but, who, on occasion, become focused, by whatever forces, on certain "unique socio-economic phenomenon," or other. The usual result of this process, is, that, we all end up having to cope with an expensive legislative scheme; most - impossible to implement; all, invariably - tread upon our freedoms.

As a branch of government, the court's principal function is to check the power of the state; so, it will give no automatic deference to the legislative schemes of parliament. The impossibility of addressing "unique socio-economic phenomenon," by any person or group of persons, so to devise an overall better result, was recognized by Justice McLachlin: "The difficulty of devising legislative solutions to social problems which may be only incompletely understood may also affect the degree of deference that the courts accord to Parliament or the Legislature." And, for this reason,

"[136] ... care must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded."

"... the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of that fence." (Justice Wilson.)

"Second, once a sufficiently significant objective is recognized, then the party [that would be the government] invoking s. 1 must show that the means chosen are reasonable and demonstrably justified."

Section 7:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

If the gun control legislation does not offend section 7, it most certainly does offend section 8.

Section 8:

"Everyone has the right to be secure against unreasonable search or seizure."

(It is well settled that no policeman can come barging in on you while you are in your home without a valid warrant: and, to be valid, it must include, on the face of the warrant, sufficient and adequate particularity of its essential ingredients: a description of the offence alleged, a detailed listing of the items being sought, and an adequate designation of the building, receptacle, or place to be searched.)

Now, in the legal battle against this impugned gun legislation, which has upset so many Canadians, it should be expected that no assistance will be forthcoming from the government to those who launch the Charter Challenge. Most certainly the citizens will be met in court by a bunch of Ottawa lawyers, paid, liberally, from the pockets of the very citizens who come to the court with their constitutional complaint.

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1 Peter Landry is a lawyer and has been, for 20 years, in private practice in the City of Dartmouth. He invites correspondence on the topic and may be contacted at P.O. Box 1200, Dartmouth, Nova Scotia, B2Y 4B8, or at peteblu@blupete.com.

2 Crime control is needed: the sole question is whether the control of guns, will, within the limits of reason, reduce the crime rate in the country: I have yet to see any evidence of it. Now I don't need to go any further to make my case; but - and I leave it to my critics to check this out - I am told, that the State of Vermont has the most law abiding bunch of citizens in the United States: and, yet, in Vermont, you can go buy yourself just about any kind of gun one would like at the local hardware store, no questions asked. However, the freedom of a person in Vermont, for that matter every American, is now impinged by federal law. In this regard I had a note from one of my friends:
"Unfortunately, as of December 1, 1998 there is now an 'instantaneous' background check on would-be purchasers of all guns, including shotguns and rifles, in all 50 States of the US. Because of software problems, the background checks are not remotely 'instantaneous' and have become another excuse to delay rightful gun ownership to deserving citizens.
Perhaps the most interesting relationship of gun control to crime can be found in my region of the US. I live in the state of Virginia where guns are relatively easy to purchase and thousands of citizens have been issued carry permits for them. Virginia is not a crime-free paradise, but life here is far safer than across the Potomac River in the District of Columbia. DC has severe gun control, yet violent crime is so rampant there that for several years it was known as the 'Murder Capital of the US'!."
Let me, too, at this place, before passing on, put something else to rest: This anti-gun legislation is not (most definitely) a response to an increasing crime rate in this country. Canada's murder rate has steadily gone downward since 1991, and, in 1994, stood at around 2 homicides per 100,000. The Interpol police [see Fraser Forum, 1996] rank Canada very favourably (53/83) in the crime rate for murder (United States, 12th; Bermuda, 3rd; Mexico 20th; etc.) Thus, keeping tabs on those of us who might like to own guns can hardly be condoned on the basis that Canada is a dangerous place in the world in which to live.