Constitution and the Courts in Canada Research Proposal

Pages: 10 (2703 words)  ·  Bibliography Sources: 5  ·  File: .docx  ·  Level: College Senior  ·  Topic: Law - Constitutional Law

Canada

The issue of firearms is a complicated one that has been scrutinized for many years. The purpose of this discussion is to explore that issue of firearms in the context of the constitution and Canadian Courts. In particular the research will explore the court case of The Attorney General for Alberta v. The Attorney General of Canada. This particular case was chosen because it brings into question the firearm rights in concordance with the Constitution Act of 1867 and the Firearms Act of 1995. The Attorney General for Alberta v. The Attorney General of Canada was a definitive case that assisted in establishing the gun laws that currently exist in the country and the authority of Parliament as it pertains to the establishment of gun laws.

Main legal issues and Questions

This particular cases is composed of several legal issues involving Criminal law power, Constitutional law, Division of powers, Firearms, Whether licensing and registration provisions of Firearms Act intra-vires Parliament, Licensing and registration of ordinary firearms, the Constitution Act, 1867, s. 91(27 and Firearms Act, S.C. 1995, c. 39 (Attorney General for Alberta v. The Attorney General of Canada).

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More specifically this case deals with the Criminal code that was amended in 1995 by parliament. At this time the Firearms Act was developed and became known as the gun control law (Attorney General for Alberta v. The Attorney General of Canada). One of the key provisions of the act was to require that gun owners to register their guns and get licenses for their guns (Attorney General for Alberta v. The Attorney General of Canada). According to the case

Research Proposal on Constitution and the Courts in Canada Assignment

"The 1995 gun control scheme is distinguishable from existing provincial property regulation schemes. The Act addresses the aspects of gun control which relate to the dangerous nature of firearms and the need to reduce misuse. While ordinary guns are often used for lawful purposes, they are also used for crime and suicide, and cause accidental death and injury. Their control accordingly falls within the criminal law power. The registration provisions cannot be severed from the rest of the Act. The licensing provisions require everyone who possesses a gun to be licensed; the registration provisions require all guns to be registered. These portions of the Firearms Act are both tightly linked to Parliament's goal of promoting safety by reducing the misuse of any and all firearms. Both portions are integral and necessary to the operation of the scheme (Attorney General for Alberta v. The Attorney General of Canada)."

However, the act was challenged by Alberta because it was believed that the Parliament did not possess the power to pass such a law. This challenge was brought before the Alberta Court of Appeal. The court, in a 3:2 majority decision found that the Parliament did possess the power to pass the law. Alberta then appealed the lowers courts decision. The question in this case actually has very little to do with the law itself, instead it confronts the issue of whether or not Parliament held the constitutional authority to establish such a law.

According to the case the formal questions before the Alberta Court of Appeal by the Alberta government in 1996 was "whether or not the licensing and registration provisions in the Firearms Act, as they relate to ordinary firearms, were validly enacted by Parliament (Attorney General for Alberta v. The Attorney General of Canada)." This was the primary and most important question before the court.

According to literature written concerning the case the answer to the aforementioned question can be found in the Canadian Constitution. For instance "The Constitution assigns some matters to Parliament and others to the provincial legislatures: Constitution Act, 1867. The federal government asserts that the gun control law falls under its criminal law power, s. 91(27), and under its general power to legislate for the "Peace, Order and good Government" of Canada (Attorney General for Alberta v. The Attorney General of Canada)."

However, the providence of Alberta contends that the act is actually an aspect of its power over property and civil rights, s. 92(13) (Attorney General for Alberta v. The Attorney General of Canada). Both parties agreed that the only way for the issue to be addressed is to have the court examine the actual law. Such an examination would be instrumental in determining the substance of the law. Once this is determined the heads of power that control such legislation can also be determined (Attorney General for Alberta v. The Attorney General of Canada).

The manner in which the law will actually effect Canadians was actually examined to determine a ruling in this case. According to the Attorney General of Alberta the law would not fulfill his purpose. The attorney general asserted that such a law would not be successful because criminals would not register guns. In addition in cases when the law was effective it would not have an impact on decreasing the crime. He also asserted that rural citizens would be caught up in the bureaucracy of the new law.

"These are concerns that were properly directed to and considered by Parliament. Within its constitutional sphere, Parliament is the judge of whether a measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court's division of powers analysis... Rather, the inquiry is directed to how the law sets out to achieve its purpose in order to better understand its "total meaning" (Attorney General for Alberta v. The Attorney General of Canada).

This particular case may indeed have an effect that was not intended by the law. These unintended effects might include intruding upon the rights of law abiding citizens to have firearms. That is "a law may say that it intends to do one thing and actually do something else. Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be "colourable" (Attorney General for Alberta v. The Attorney General of Canada)."

Although there is some possibility that the law might be quite problematic, the higher court upheld the findings of the lower court. The higher court concluded that this particular act established by Parliament was permissible because Parliament had jurisdiction over criminal law. Furthermore, the court found that "The law in "pith and substance" is directed to enhancing public safety by controlling access to firearms through prohibitions and penalties. This brings it under the federal criminal law power. While the law has regulatory aspects, they are secondary to its primary criminal law purpose. The intrusion of the law into the provincial jurisdiction over property and civil rights is not so excessive as to upset the balance of federalism (Attorney General for Alberta v. The Attorney General of Canada)."

The upholding of the lower courts decision helped to establish the gun laws that currently exist in Canada. Like the Firearms Act these laws are designed to protect the public. This protection involves the reduction of crimes related to guns including homicide and suicide.

Development of other laws associated with firearms

Like many cases that change the manner in which certain constitutional rights are viewed, this particular case paved the way for other laws associated with firearms within Canada. Vernick et al. (2007) stricter gun laws in Canada actually began in 1991 which saw the introduction of a mandatory training course for gun owners. In addition, laws concerning guns also incorporated better screening processes for those attempting to purchase guns. There was also the introduction of a 28 day waiting period before a gun could be purchased. There were also provisions made as it pertained to safe storage. This provision required that all guns to be unloaded and locked up when they were not being used.

Of course, in 1995 the law was further amended to include, the mandatory registration and licensing. These amendments were for all guns. There was also a ban placed on short-barreled and small caliber handguns. Additionally laws contain a requirement that only those holding a license for a gun can buy ammunition. There is also some discretion given to those who have the responsibility of issuing licenses as it pertains to denying some people licenses who seem to be a threat to themselves or the public. The authors further report that,

"Although estimates vary, there are about seven million firearms in Canada, including an estimated one million handguns37 -- roughly three handguns for every 100 Canadians. Although Canada has ten provinces and three territories, firearm regulation in Canada (unlike the U.S.) is largely national in scope, thus limiting the effects of illegal trafficking from one jurisdiction to another. However, a large proportion of Canada's crime guns originate in the United States. Nevertheless, recent changes to Canada's licensing and registration laws have not been without controversy, particularly regarding the costs of implementation and the level of citizen compliance (Vernick et al., 2007)."

Indeed Attorney General for Alberta v. The Attorney General of Canada, changed gun regulation in Canada. In many respects the case has shaped much tougher gun… [END OF PREVIEW] . . . READ MORE

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