The Legal Basis for the
Right to Keep and Bear Arms
in Canada

The Canadian Right to Keep and Bear Arms

A Historical Perspective

Magna Carta, 1215

Magna Carta is important for a couple of reasons: it establishes that Royal Perogatives do have limits, that subjects do have certain rights under the Common Law, and that the King cannot run roughshod over those rights.

1. [...]
We have also granted to all freemen of our kingdom, for us and our heirs for ever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs for ever:

[...]
63.Thus, we wish and we firmly ordain that the English church shall be free, and that men in our kingdom shall have and keep all these previously determined liberties, rights, and concessions, well and in peace, freely and quietly, in their fullness and integrity, for themselves and their heirs, from us and our heirs, in all things and all places for ever, as is previously described here.

This establishes that "freemen" have rights, and that they shall be recognized and maintained by the Rulers of England "in all things and all places for ever" -- wherever England rules, for all time.

Freeman -- those of free status in the eyes of the law (that is, not villeins) and as such having certain rights denied to villeins, such as access to the Kings courts in certain actions, freedom to move about and marry and exemption from certain onerous duties.

English Bill of Rights, 1689

An Act for declaring the rights and liberties of the subject and settling the succession of the crown.

Notice it says RIGHTS AND LIBERTIES of the SUBJECT -- rights that previously existed, which the EBOR seeks to restore.

complaints

Whereas the late King James the Second, by the assistance of divers evil counselors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom.

This is their complaint -- that King James II tried to subvert the laws and liberties of the kingdom -- in other words, he exceeded his authority.

[...]
[idem]
By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.

this is one of the specific complaints, the disarmament of Protestants -- which was contrary to the law

[...]
All of which are utterly and directly contrary to the known laws and statutes, and freedom of this realm.

This is the conclusion of the complaint portion of the petition ("Bill") -- all the previous actions of King James II listed were DIRECTLY CONTRARY to the known laws and statutes and FREEDOM of the realm

And whereas the said late King James II having abdicated the government, and the throne being thereby vacant, his highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the lords spiritual and temporal, and divers principal persons of the commons) cause letters to be written to the lords spiritual and temporal, being protestants; and other letters to the several counties, cities, universities, boroughs, and cinque-ports, for the choosing of such persons to represent them, as were of right to be sent to parliament, to meet and sit at Westminster upon the 22 January, 1689 in order to make such an establishment, as that their religion, laws, and liberties might not again be in danger of being subverted; upon which letters, elections have been accordingly made,

this is the preamble to the "rememdy" phase of the petition ("Bill"); they seek to remedy the complaints listed in the first section, and ensure that they don't happen again: "as that their religion, laws, and liberties might not again be in danger of being subverted" and abused by "arbitrary power"

And thereupon the said lords spiritual and temporal, and commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid; do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties, declare:

This is the part of the petition ("Bill") that outlines how they expect the Crown to remedy and redress the unlawfull actions of the former King. Note it says "THEIR ANCIENT RIGHTS AND LIBERTIES" -- these are what are being vindicated and asserted

Remedies:

[...]
[idem]
That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law;

having had this RIGHT subverted and denied them by the former King, this RIGHT is being restored to them, fully and completely. If the right was being restored, it must have previously existed. Throughout the EBOR, the phrase "allowed by law" is an affirmation, not a constraint. See Bill of Rights by Richard Munday

COMMENTARIES on the LAWS OF ENGLAND

Sir William Blackstone 1765

[...]
In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,

[1 ... 4]
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c. 2. [English Bill of Rights] and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other.

And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed.

"Personal security" equates to "security of the person", that is, the right to be free from assaults or other violence perpetrated by the State or others.

To preserve these from violation, it is necessary that the constitution of parliaments be supported in it’s full vigor; and limits certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts and law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defense.

And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened.

The "restraint of law" must be "reasonable"

For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens.

This means that "good men" do not need the constraint of the law to act in a responsible manner.

So that this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom[x]; and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world, where political or civil liberty is direct end of it’s constitution.

Recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country, "ESTO PERPETUA!" x Montesq. Sp. L. 11. 5.

Blackstone establishes these rights as belonging to all Englishmen, not just nobility or others.

British North America Act, 1867

129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.

The important part is the section in parenthesis: (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,). This means that any Acts of Parliament of Great Britain cannot be overidden by the Parliament of Canada.

So at the time of Confederation, at least, we still had the right to bear arms given to British Subjects by the English Bill of Rights 1689.

From the Federal Prosecutor's Desk Book:

1. SOURCES OF THE CRIMINAL LAW IN CANADA
1.1 History and Sources^[1]
1.1.1 Introduction

To understand the nature and purpose of Canadian criminal law, it is necessary to understand its sources. Under the British colonial system, the letters patent or instructions issued by the Crown to the Governor governed the constitution of a settlement. When unsettled territory was conquered by or ceded to England, it was a matter of royal prerogative whether the Crown would grant the territory its own constitution.

Settlers of unsettled territory were deemed to take with them the common law and applicable statute law of England^[2]. Accordingly, the unsettled territories that were to become Canada had a criminal law from the moment of their settlement. That law consisted of the common law and applicable statute law of England as of the date of settlement. In addition, each territory had a legislature with limited power to amend existing laws or enact new ones.

[...]
The basic criminal law of each territory varied according to the date of initial settlement or conquest. For example, the date of "reception" fixed for Ontario was September 17, 1792^[5]. Just before Confederation, the criminal law of Canada consisted of that part of the criminal law of England applicable as of the reception date for each territory concerned, and any alterations made by the legislature of the territory^[6]. Because the various colonial and provincial legislatures had passed criminal laws, striking differences existed in the criminal law from one jurisdiction to another. The system of criminal law at Confederation was therefore not consistent across Canada, except for the common law base. Immediately after Confederation, that criminal law remained in force. However, the British North American Act [now the Constitution Act, 1867], transferred the amending power to the federal government.

Therefore, the English Bill of Rights 1688 was extant in Canada at the time of settlement, and could not be repealed by the Canadian Parliament under the provisions of the BNA s. 129

United Nations Universal Declaration of Human Rights 1948

Article 3.

Everyone has the right to life, liberty and security of person.

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Canadian Bill of Rights 1960, c. 44

Preamble

The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;

Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;

And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:

Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Preamble

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

See also the Canadian Bill of Rights Examination Regulations

Canadian Charter of Rights and Freedoms, 1982

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

R. v. Sparrow, [1990] 1 S.C.R. 1075

[...]
Section 35(1) applies to rights in existence when the Constitution Act, 1982 came into effect; it does not revive extinguished rights.  An existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982. The phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time.

The Crown failed to discharge its burden of proving extinguishment. An aboriginal right is not extinguished merely by its being controlled in great detail by the regulations under the Fisheries Act. Nothing in the Fisheries Act or its detailed regulations demonstrated a clear and plain intention to extinguish the Indian  aboriginal right to fish. These fishing permits were simply a manner of controlling the fisheries, not of defining underlying rights. Historical policy on the part of the Crown can neither extinguish the existing aboriginal right without clear intention nor, in itself, delineate that right. The nature of government regulations cannot be determinative of the content and scope of an existing aboriginal right. Government policy can, however, regulate the exercise of that right but such regulation must be in keeping with s. 35(1).

While the State may have the authority to put regulations on rights, those regulations in and of themselves do not extinguish those rights. The rights must be specifically extinguished.

I do not believe that this right was ever specifically repealed. The right still exists; that the Government chooses to suppress that right shows more about the nature of that government than it does about our rights.

Contact:

BruceMontague.ca. Donate NOW. CdnShootingSports.org. CSSA. Join Now. FirearmsPositive.com. HandGunban.org. Hands Off My Handguns! Gun-control.ca. DumbLaw.ca.

"No man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."
-- Thomas Jefferson