



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Montague, 2014 ONCA 439

DATE: 20140603

DOCKET: C55786

Feldman, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Bruce Montague and Donna Jeanne Montague

Appellants

Derek J. From and Chris Schafer, for the appellants

Roger Shallow, for the respondent

Heard: November 15, 2013

On appeal from the order of forfeiture of Justice John dePencier
    Wright of the Superior Court of Justice, dated May 30, 2012, with reasons
    reported at 2012 ONSC 2300.

Feldman
    J.A.:

The Appeal

[1]

The
    appellants were convicted of firearms offences under ss. 86(2), 91(1), 92(2), 95(1)(a),
    102(1), and 108(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46
. The majority of the offences
    involved possession of firearms without the proper license or authorization. The
    appellant, Bruce Montague, was a firearms dealer and manufacturer. The
    appellants decided to protest the gun laws by breaching them, leading to
    charges, then defending by challenging the constitutionality of the laws.

[2]

At
    the sentencing hearing, the Crown sought mandatory forfeiture under s.
    491(1)(b) of the
Code
,
of the over 200 weapons and related devices plus over 20,000 rounds of
    ammunition that had been seized at the time of the appellants arrest. However,
    following the imposition of sentence, the trial judge decided to defer the
    forfeiture order until after the disposition of the appeals against conviction
    and sentence. The appellant Bruce Montague was sentenced to a global sentence
    of 18 months imprisonment plus 90 days to be served in the community, followed
    by one year probation. The appellant Donna Montague received a suspended sentence
    plus six months probation.

[3]

By
    judgment with reasons dated February 25, 2010, the Court of Appeal dismissed
    the appellants appeals against conviction and the appellant Bruce Montagues
    appeal against sentence:
R. v. Montague
, 2010 ONCA 141, 260 O.A.C. 12.
    At the conclusion of the reasons, after noting that the trial judge had
    deferred the issue of forfeiture, the Court declined to make the forfeiture
    order, stating at para. 62:

Although this issue should have been dealt with at the sentence
    hearing, in the circumstances of this case we think that, as a matter of
    fairness, the issue of forfeiture should now be addressed by the trial judge
    following the release of these reasons and we so order. This will allow Mr.
    Montague the opportunity to advance arguments regarding the terms of any
    forfeiture order. In all other respects, Mr. Montagues sentence appeal is
    dismissed.

[4]

At
    the forfeiture hearing, the appellants mounted a constitutional challenge to
    the mandatory forfeiture provision, s. 491(1)(b) of the
Code
, relying
    on ss. 7 and 8 of the
Canadian Charter of Rights and Freedoms,
as well
    as the property rights provision of the
Canadian

Bill of Rights
,

S.C. 1960, c. 44.
The trial judge upheld the
    constitutionality of s. 491(1)(b), and ordered a number of the seized firearms
    forfeited to the Crown. He declined, however, to order the forfeiture of a
    large quantity of seized ammunition that had been found to be readily
    accessible to some of the firearms, contrary to s. 95(1)(a) of the
Code
.

[5]

The
    appellants now seek to appeal that order. The Crown opposes the appeal on a
    number of grounds, the first of which is that there is no provision in the
Code
that gives a right to appeal a forfeiture order under s. 491(1)(b). The Crown
    takes the position in the alternative, that if the court agrees to hear the
    appeal, the forfeiture order of the trial judge should be varied to include the
    seized ammunition that was stored in close proximity and readily accessible
    to the illegally held firearms in the items to be forfeited.

Background

[6]

I
    repeat here the description of the factual and procedural background from the Court
    of Appeal decision of 2010, at paras. 2-6:

Mr. Montague is a firearms dealer and manufacturer. He allowed
    his firearms licence to expire in November 2002 without renewal. His Firearms
    Acquisition Certificate expired in November 2003. Mrs. Montagues firearms
    licence expired without renewal in March 2004.

In September 2004, acting on the authority of two search
    warrants, the police seized more than 200 firearms and related devices,
    together with in excess of 20,000 rounds of ammunition and boxes of
    military-related books and associated paraphernalia from the Montagues home. Many
    of these weapons were discovered in a hidden storage room in the basement of
    the house. It is fair to say that the quantity and nature of the seized arsenal
    of weapons and associated items may have been sufficient for a small-scale
    insurrection. The evidence at trial established that Mr. Montague believed himself
    to be preparing to defend himself, and others, in the event of a war.

On July 20, 2005, Mr. Montague was charged with various
    firearms-related offences under the
Criminal Code
on a 53-count
    indictment. Mrs. Montague was charged with one count of unlicensed possession
    of a firearm.

At trial, the Montagues did not contest many of the essential
    facts. Mr. Montague, for example, admitted that at the relevant times, neither
    he nor any business run by him had any legal authorization or licence
    permitting either or both of the Montagues to possess the firearms and
    associated devices that were seized by the police. Mr. Montague further
    acknowledged that at the relevant times, he knew he did not have the requisite
    licence or legal authorization permitting possession of the items in question.
    Nonetheless, he maintained that the seized firearms were legally his and that
    he was entitled to possess them for life.

The Montagues brought a motion challenging the constitutional
    validity of various of the firearms provisions of the
Criminal Code
,
    the
Firearms Act
, S.C. 1995, c. 39 and related firearms regulations.
    They argued that they were entitled to possess the firearms at issue because
    they allegedly had a constitutional right to possess firearms for
    self-defence, derived from the law of England and protected by ss. 26 and 7 of
    the
Charter
, which could not be legislatively restricted or regulated.
    The trial judge disagreed and, in a ruling dated November 6, 2007, he dismissed
    the motion.

[7]

The Court
    of Appeal confirmed the conclusion of the trial judge that there is no
    protected right in Canada to possess or use firearms. In particular, Article 7
    of the
Bill of Rights, 1689
, 1 Will. & Mary, sess. 2, c. 2, which
    refers to Protestants being allowed to have arms as allowed by law, has not
    been incorporated into the Canadian constitution, and s. 7 of the
Charter
does not give Canadians a right to possess or use arms (paras. 14-22). In any
    event, the impugned firearms provisions of the
Code
do not prohibit
    the possession or use of arms, but only regulate the circumstances under which
    such possession and use are permissible (para. 20).

[8]

Mr.
    Montague also challenged the mandatory minimum sentence, which was at the time
    one year imprisonment for the offences of possession of a loaded prohibited or
    restricted firearm with readily accessible ammunition without authorization or
    a license (s. 95(1)(a)) and for altering a firearm to fire automatically (s.
    102). The challenge was based on s. 12 of the
Charter
. The court
    agreed with the trial judge that the one year minimum did not amount to cruel
    and unusual punishment in the circumstances.

[9]

After dealing with the issues on appeal, the court referred
    the matter of forfeiture back to the trial judge to allow the appellants to
    address the terms of any forfeiture order. However, at the hearing, the
    appellants challenged the constitutionality of the forfeiture provision. They
    relied specifically on ss. 7 and 8 of the
Charter
as well as the
Canadian
    Bill of Rights
. They did not base their challenge on s. 12 of the
Charter
,
    although in his reasons, the trial judge refers to a defence argument that in
    the circumstances of the case, the forfeiture provision amounts to cruel and
    unusual punishment contrary to s. 12 of the
Charter.

[10]

The trial judge found
    the forfeiture provision to be constitutionally valid. He ordered certain of
    the firearms that were not owned by the appellants to be returned to their
    owners or to be transferred to licensed third parties. He ordered many of the
    weapons and some of the related equipment that were owned by the appellants or
    their corporation to be forfeited. He declined, however, to make a forfeiture
    order in respect of the 20,000 rounds of ammunition, on the basis that, in his
    view, the appellants had been convicted under the wrong section and that the
    forfeiture provision did not apply to the ammunition that was not loaded in any
    firearm. He also ordered that some non-firearm items be returned to the
    appellants.

[11]

The appellants now
    wish to appeal the forfeiture order. They seek to attack the constitutionality
    of the provision based on s. 12 of the
Charter
. The Crown opposes the
    appeal on the following grounds: 1) there is no right of appeal from a
    forfeiture order under s. 491(1)(b) of the
Code
; 2) the Crown is
    prejudiced because the appellants did not rely on s. 12 at the forfeiture
    hearing and the evidentiary record was not developed as it would have been; 3) as
    the issue of the constitutionality of s. 491(1)(b) had already been argued and
    determined as part of the challenge to the constitutionality of the weapons
    offence sections, the doctrine of issue estoppel applies; 4) if the court
    grants leave to appeal, then s. 491(1)(b) does not constitute cruel and unusual
    punishment either on the facts of this case or based on reasonable
    hypotheticals; 5) if the forfeiture section violates s. 12 of the
Charter
,
    then it is saved by s. 1 of the
Charter
; and 6) the
Canadian Bill
    of Rights
protection of property does not apply. Additionally, if leave is
    granted, the Crown gave notice, in accordance with
Hill v. R.
, [1977]
    1 S.C.R. 827, at p. 855, that it seeks an order varying the forfeiture order to
    include the ammunition seized and sought by the Crown.

Analysis

Issue 1: Is
    there a right of appeal from a forfeiture order under s. 491(1)(b)?

[12]

The Crown argues that
    there is no provision in the
Criminal Code
that provides a right of
    appeal of a forfeiture order under s. 491(1)(b). The Supreme Court of Canada
    has repeatedly stated that [a]ppeals are solely creatures of statute and
    there is no inherent appellate court jurisdiction: see
R. v. W. (G.)
,
    [1999] 3 S.C.R. 597, at para. 8;
Kourtessis v. M.N.R
., [1993] 2 S.C.R.
    53, at pp. 69-70;
R. v. Meltzer
, [1989] 1 S.C.R. 1764, at p. 1773. Section
    674 of the
Code
specifically precludes any appeal proceedings in
    respect of indictable offences except as provided in Part XXI (Appeals 
    Indictable Offences) or Part XXVI (Extraordinary Remedies).

[13]

The appellant argues
    that a s. 491(1)(b) forfeiture is appealable as part of the sentence under s.
    675(1)(b), which provides:

675.
(1) A person who is convicted by a trial
    court in proceedings by indictment may appeal to the court of appeal



(
b
) against the
    sentence passed by the trial court, with leave of the court of appeal or a
    judge thereof unless that sentence is one fixed by law.

[14]

Therefore, the issue
    is whether forfeiture under s. 491(1)(b) is a sentence or part of a sentence,
    within the meaning of s. 675(1)(b).

[15]

The term sentence is
    defined inclusively (includes) rather than definitively (means) in s. 673,
    which provides definitions for Part XXI of the
Code
. It states:

sentence includes

(a) a declaration made under subsection 199(3),

(b) an order made under subsection 109(1) or
    110(1), section 161, subsection 164.2(1) or 194(1), section 259, 261 or 462.37,
    subsection 491.1(2), 730(1) or 737(3) or section 738, 739, 742.1, 742.3, 743.6,
    745.4 or 745.5,

(c) a disposition made under section 731 or 732
    or subsection 732.2(3) or (5), 742.4(3) or 742.6(9), and

(d) an order made under subsection 16(1) of the
Controlled
    Drugs and Substances Act;

[16]

The definition does
    not list an order or disposition made under s. 491(1)(b). However, in
R. v.
    Chaisson
,

[1995]
    2 S.C.R. 1118, the Supreme Court of Canada explained, at para. 9, that [a]
    plain reading of the word includes in this context suggests that the list of
    reviewable orders under s. 673 is not exhaustive. The effect of this
    conclusion is that while the definition assists where a provision is listed,
    where it is not, an appeal will still be available if the provision can
    otherwise be determined to be a sentence.

[17]

Therefore the question
    becomes whether, applying the accepted principles of statutory interpretation,
    a forfeiture order under s. 491(1)(b) is a sentence for the purpose of being
    appealable under s. 675.

[18]

The Supreme Court of
    Canada most recently re-stated the modern approach to statutory interpretation in
Marine Services International Ltd. v. Ryan Estate
, 2013 SCC 44, [2013]
    3 S.C.R. 53, at para. 77, as follows:

Under the modern approach to statutory interpretation, 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 [references omitted].

[19]

In
Chaisson
,
    the Supreme Court discussed whether s. 741.2, the parole ineligibility
    provision, which was not specifically listed in the s. 673 definition of
    sentence, was still a sentence and therefore appealable under s. 675(1)(b) of
    the
Code
. Section 741.2 (now s. 743.6(1)) allows a judge to lengthen
    the period of parole ineligibility in prescribed circumstances. The Supreme
    Court held that as an order under this section would have the effect of
    extending the time a person served in custody, it clearly affected the
    custodial portion of the sentence and therefore was a sentence for the purpose
    of the right to appeal.

[20]

The Supreme Court of
    Canada has not definitively determined whether a consequence of conviction such
    as a forfeiture order is part of punishment for the purposes of s. 11(h) and
    (i) of the
Charter
. However, in
R. v. Rodgers
,
2006 SCC 15, [2006] 1. S.C.R. 554, in deciding
    that the imposition of a DNA order does not constitute a punishment for the
    purpose of s. 11, Charron J. stated in respect of consequences of conviction, such
    as forfeiture, at para. 63:

As a general rule, it seems to me that the consequence will
    constitute a punishment when it forms part of the arsenal to which an accused
    may be liable in respect of a particular offence and the sanction is one
    imposed in furtherance of the purpose and principles of sentencing...

[21]

A strong argument can
    be made that a forfeiture provision is part of the punishment or arsenal of
    consequences that is imposed to further the purpose and principles of
    sentencing and therefore is a sentence. Nevertheless, the Crown argues that it
    is not, based on the decision of the Supreme Court of Canada in
R. v. Craig
, 2009 SCC 23,
[2009] 1 S.C.R. 762, where
    the Court found that the issue of forfeiture was separate from sentencing. In
    my view, the
Craig
case does not assist for the purpose of this
    analysis.

[22]

The forfeiture
    provision in that case was in ss. 16(1) and 19.1 of the
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19.

Section 16(1) provides for
    the forfeiture of offence-related property upon conviction, but s. 19.1(3)
    allows the court to not order forfeiture of offence-related real property by
    applying a proportionality analysis comparing the impact of forfeiture with the
    gravity and circumstances of the offence and the offender. It was on the basis
    of the separate proportionality analysis for the forfeiture mandated by s. 19.1(3)
    that the Court concluded that forfeiture was separate from sentencing in the
    context of those provisions. Notably, despite the legal conclusion in
Craig
,
    for the purpose of the right to appeal the real property forfeiture order, the
    order is a sentence under s. 675 of the
Code
, as s. 16(1) is one of
    the provisions listed in the s. 673 definition of sentence.

[23]

The Crown also
    referred the court in oral argument to three cases from the Saskatchewan Court
    of Appeal where the court held that there is no right of appeal from a
    forfeiture order made under s. 117.03(3) of the
Code
: see
R. v.
    Lemieux
, 2006 SKCA 119, 285 Sask. R. 311;
R. v. Hudson
, 2007 SKCA
    82, 299 Sask. R. 133;
Hudson v. Canada (Attorney General),
2009 SKCA
    108, 337 Sask. R. 153. These cases are also, in my view, distinguishable. The
    forfeiture of seized property under s. 117.03(3) is found in Part III of the
Code
,
    Firearms and Other Weapons, and applies where a firearm is seized after a
    person in possession of a firearm fails to produce the required license or
    registration, and fails to claim the item within 14 days and provide the appropriate
    documentation. Such an order can be made without a conviction. It is therefore
    clearly not a sentence, and there is no provision for an appeal in the
Code
.

[24]

Finally, for the
    purpose of discerning Parliaments intention, it is important to examine the
    wording of s. 675, which provides an appeal against sentence with leave, unless
    that sentence is one fixed by law. Assuming that the mandatory nature of the forfeiture
    provided in s. 491(1)(b) makes it, therefore, fixed by law, one could argue
    that Parliament could not have intended it to be a sentence and therefore
    appealable with leave, if it immediately becomes unappealable because it is
    fixed by law.

[25]

In my view, that
    argument is answered by two cases from this court that have held that where a sentence
    provision is challenged as unconstitutional, one cannot know if the sentence is
    fixed by law until its constitutionality is first determined. Therefore, although
    if the provision is constitutional, the sentence is not appealable because it
    is fixed by law, it is appealable for the purpose of determining its
    constitutionality: see
R. v. Logan
(1986), 14 O.A.C. 382 (C.A.);
R.
    v. Olah
(1997), 115 C.C.C. (3d) 389 (Ont. C.A.). These cases may suggest,
    by analogy, that in determining whether forfeiture under s. 491(1)(b) is a
    sentence for the purpose of s. 675, the fact that the putative sentence may be
    fixed by law should not be taken as indicating Parliaments intention that
    the forfeiture provision is not a sentence and therefore not appealable.

[26]

I will discuss whether
    the mandatory forfeiture provision does come within the meaning of fixed by
    law later in these reasons in connection with the Crowns request, if leave is
    granted, to vary the trial judges decision not to order forfeiture of the
    seized ammunition.

[27]

I conclude that the
    mandatory forfeiture of firearms and ammunition involved in an offence
    committed by the accused is one of the consequences that forms part of the punishment
    for the offence, and therefore is a sentence for the purpose of s. 675, and is
    appealable with leave of this court.

Issue 2: Would the Crown be prejudiced given that s. 12
    of the Charter was not argued below?

[28]

The Crown submits that
    it will be prejudiced if the court now considers the constitutionality of the
    forfeiture section as cruel and unusual punishment based on the appellants
    argument that they will be forfeiting $100,000 worth of firearms and will
    suffer financial hardship.

[29]

In
R. v. Roach
,
    2009 ONCA 156, 246 O.A.C. 96, this court noted, at para. 7, that an appellate
    court has the discretion to permit new arguments on appeal, including
Charter
arguments, but cautioned:

In exercising that discretion, the
    appellate court must be satisfied that the new issue raised on appeal can be
    fully, effectively and fairly addressed on appeal even though it was not raised
    at trial. An appellate court will be most inclined to exercise its discretion
    in favour of hearing a new argument where that new argument can be fully
    addressed and determined based on the trial record.




[30]

The Crown states that
    had this argument been raised below (and not for the first time on appeal), it
    would have taken the opportunity to challenge the appellants on the alleged
    $100,000 valuation in cross-examination or with other evidence at the
    forfeiture hearing.

[31]

In my view, there is
    no prejudice in the particular circumstances of this case because of the way in
    which s. 12 challenges must be addressed: by using the facts of the case as
    well as reasonable hypotheticals. If the high value of the appellants firearms
    could not be established, that high value could still form the basis of a
    reasonable hypothetical on which the court could assess the constitutionality
    of the provision.

Issue 3: Does
    issue estoppel bar consideration of the s. 12 challenge made on appeal?

[32]

The Crown submits that
    at trial the appellants raised a broad constitutional challenge to a number of
    the firearms charges brought against them, where they asserted a constitutional
    right to possess firearms for self-defence. The argument was rejected at trial and
    on appeal. The appellants also challenged the mandatory one-year minimum
    sentence as cruel and unusual punishment contrary to s. 12 of the
Charter
.
    That submission was also rejected by the trial judge and, and his ruling was
    upheld on appeal.

[33]

The trial judge
    decided not to deal with forfeiture until the appeal against conviction and
    sentence had been completed. As a result, all issues regarding forfeiture were
    bifurcated from the rest of the proceeding. When the appellants sought to
    challenge the constitutionality of the forfeiture provision following the
    decision dismissing the appeal against conviction and sentence (but not based
    on s. 12), the Crown moved to quash the appellants motion on the basis of
    issue estoppel. The appellants argued that they were raising new arguments
    regarding the right to own, as opposed to the right to possess firearms. The trial
    judge dismissed the Crowns motion to quash. The appellants have changed course
    again on this appeal, and are now relying primarily on s. 12 of the
Charter
.

[34]

Had the entire
    proceeding been completed before the first appeal was taken, then all issues 
    including issues related to forfeiture  would have been heard and decided at
    one time. That is what would normally occur. However, the matter was permitted
    to be procedurally bifurcated. Accordingly, issues relating to forfeiture were
    not resolved by the trial judge in his first ruling.

[35]

In order for issue
    estoppel to be applied at this stage, it would have to be on the basis not that
    an issue was actually argued before, but that it could have been. Given that
    the entire forfeiture matter was deferred by the trial judge, I would not want
    to say at this stage that the s. 12 argument that was made could have been
    extended to apply to s. 491(1)(b) at the original trial, and that the
    appellants are therefore now estopped. I would not give effect to this
    submission by the Crown.

Issue 4: Should s. 491(1)(b), the forfeiture of
    firearms involved in the offences, be struck down as cruel and unusual treatment
    or punishment contrary to s. 12 of the Charter?

[36]

Section 12 of the
Charter
provides:

Everyone has the right not to be subjected to any cruel and unusual
    treatment or punishment.

[37]

In
R. v. Wiles
,
    2005 SCC 84, [2005] 3 S.C.R. 895, the Supreme Court of Canada agreed with the
    Crown concession that an order prohibiting the possession of weapons imposed
    under s. 109 of the
Code
constitutes a treatment or punishment
    within the meaning of s. 12. Justice Charron explained, at para. 3:

Although the purpose of the prohibition order is primarily
    preventative, in taking away the privilege to possess weapons, it may have some
    punitive effect on the offender. The question then is whether the loss of this
    privilege upon conviction of the offense of production is cruel and unusual.

[38]

In my view, the
    explanation that applies to loss of the right to possess weapons can also apply
    to the forfeiture of weapons under s. 491(1)(b). Even if the forfeiture is not
    intended to be a punishment as part of the sentence, it is a consequence of
    conviction of certain weapons offences that may have a punitive effect. Furthermore,
    the Crown has allowed in its factum that the forfeiture provision may be a
    treatment for the purpose of s. 12 of the
Charter
.

[39]

The test for whether
    a sentence constitutes cruel and unusual punishment was set out by McLachlin
    C.J. in
R. v. Ferguson
,

2008 SCC 6, [2008] 1 S.C.R. 96, the
    most recent decision of the Supreme Court of Canada to address s. 12 of the
Charter
.
    She set out the test as follows, at para. 14:

The test for whether a particular sentence constitutes cruel
    and unusual punishment is whether the sentence is grossly disproportionate:
R.
    v. Smith
, [1987] 1 S.C.R. 1045. As this court has repeatedly held, to be
    considered grossly disproportionate, the sentence must be more than merely
    excessive. The sentence must be so excessive as to outrage standards of
    decency and disproportionate to the extent that Canadians would find the
    punishment abhorrent or intolerable

[40]

The test is applied in
    a two-stage analysis. The court first examines the effect of the impugned
    provision on the particular offender. That involves considering a number of
    contextual factors including: the gravity of the offence, the personal
    characteristics of the offender and the circumstances of the case, the actual
    effect of the punishment on the individual, the penological goals and
    sentencing principles upon which the sentence is fashioned, the existence of
    valid alternatives to the punishment imposed, and a comparison of punishments
    imposed for other crimes in the same jurisdiction:
R. v. Morrissey
,
    2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 27-28;
R. v. Latimer
, 2001
    SCC 1, [2001] 1 S.C.R. 3, at para. 75;
R. v. Nur
, 2013 ONCA 677, 117
    O.R. (3d) 401, at para. 78. If the punishment is not found to be grossly
    disproportionate for the affected individual, then at the second stage, the
    court is to consider reasonable hypotheticals that could commonly arise in
    day-to day-life but are not far-fetched or marginally imaginable:
R. v.
    Goltz
, [1991] 3 S.C.R. 485, at pp. 505, 516.

Gravity of the offences

[41]

Beginning with the
    first stage, the first factor is the gravity of the offences. The appellants
    argue that the gravity of the offences here was low, stating that the offences
    of possessing firearms without the appropriate licenses or authorization demonstrated
    a low level of moral blameworthiness, involved no violence and had no victim.

[42]

I disagree. In his
    reasons for sentence, the trial judge described the nature of the offences as involving
    an extremely large quantity of firearms and ammunition. The appellant Mr. Montague
    decided to test the law by refusing to maintain licenses for his arsenal of
    weaponry as well by creating and storing automatic weapons and removing the
    serial numbers from other firearms. The purpose of the regulatory requirements
    imposed on those who want to possess weapons, particularly restricted or
    prohibited weapons, is to provide a scheme that may allow possession under
    prescribed conditions, while trying to ensure the safety of the public. The
    appellants wilfully flouted this law.

[43]

I note that in
R.
    v. Nur
, this court recently observed, at para. 92, that the harms
    associated with offences under s. 95(1) may be very attenuated in some
    situations where the three year mandatory minimum incarceration sentence would
    apply, i.e., the offences may not be the most grave, but a very onerous
    sentence still applies.

[44]

I agree that the particular
    firearms offences may also not always be the most serious offences, but the
    mandatory forfeiture consequence, unlike the 3-year mandatory minimum
    penitentiary sentence, is not a particularly onerous one: the only consequence
    is that the firearm involved is forfeited. Forfeiture is a consequence that (a)
    does not impact the liberty interest of the offender and (b) is directly
    related to the offence in that only the firearms involved in or that are the
    subject-matter of the offences are forfeited.

[45]

I would also add that
    the gravity of the firearms offences to which the forfeiture provision applies,
    is manifested in some circumstances in the significant potential for harm, even
    if no actual harm occurs.

The characteristics of the appellants and the circumstances
    of the case

[46]

The second factor is
    the particular circumstances of the appellants. When the court is considering
    the sentence itself, it looks to the aggravating and mitigating factors that
    would affect the propriety of the mandatory sentence at issue. The appellants
    submit that there are no aggravating factors but a number of mitigating
    factors. They point to the fact that they had always opposed the licensing
    requirements for firearms and believed they had to break the law in order to
    challenge them. They had no previous criminal record and were well respected
    members of their community, where law enforcement personnel used and relied on
    the appellant Bruce Montague for gunsmithing services. On the other hand, their
    stature in the community as gun experts may exacerbate the moral
    blameworthiness of their flouting of the gun laws.

[47]

The respondent says
    that the mitigating factors do not offset the gravity of the offences for the
    purpose of the s. 12 analysis and points to the fact that this court has
    already taken those factors into account in upholding the sentence earlier
    imposed.

Actual effect on the appellants

[48]

This is the main
    factor relied on by the appellants. They submit that the effect on them of
    forfeiting $100,000 worth of firearms is grossly disproportionate to the
    gravity of the offences they committed. They submit that their gun collection
    represents the bulk of their life savings. In addition to a prison sentence of
    18 months plus a number of conditional sentences and one year probation, Bruce Montague
    is subject to a lifetime prohibition from possessing firearms and cannot work
    any longer as a gunsmith. As a result, the appellants must live on Donna
    Montagues income of approximately $35,000 per year.

[49]

In addition, both appellants
    now have criminal records that can affect their ability to obtain employment.
    They have also endured tremendous stress over the duration of these proceedings.
    They submit that the totality of the consequences to them, including the
    confiscation of $100,000 worth of property, is grossly disproportionate to
    their crimes. They do not want to retain the firearms but they want to receive
    their value.

[50]

Some Canadian case-law
    has held that forfeiture will not be cruel and unusual punishment for someone
    who deliberately chooses to commit an offence that puts the particular property
    at risk, regardless of the value of the forfeited property in comparison to the
    gravity of the offence: see
Turner v. Manitoba
, 2001 MBCA 207, 160
    Man. R. (2d) 256;
R. v. Spence
, 2004 NLSCTD 113, 238 Nfld. &
    P.E.I.R. 259.

[51]

In this case, it is
    most unfortunate for the appellants that they chose to challenge the firearms
    licensing laws by putting all their firearms at risk. However, in my view, the
    fact that it was their deliberate action that put so much property at risk is
    not the full reason why its forfeiture does not constitute cruel and unusual
    punishment. It is because the forfeiture consequences cannot be viewed as grossly
    disproportionate or even disproportionate at all. The forfeiture of any one
    firearm is not going to be an overly serious consequence in comparison to the
    gravity of any one offence. What the appellants deliberately did in this case was
    put a large number of firearms constituting a significant amount of their
    property at risk. That choice does not affect the constitutionality of the
    forfeiture consequence.

Penological goals and sentencing principles

[52]

In December 1998, Parliament
    expanded the scope of the mandatory forfeiture of firearms from offences where
    firearms are actually used to offences that involve firearms or where firearms
    are the subject-matter of the offence and the firearms have been seized or
    detained. This was part of a legislative response to the pressing problem of
    increased gun crime involving illegally held guns. This response included removing
    those guns from the unlawful owners or possessors to enhance the safety of the
    public directly. Parliament determined that where a person does not comply with
    the strict licensing and registration requirements for owning or possessing
    certain types of firearms, then that person should not own or possess them.
    This is a legitimate legislative policy. It is also consistent with the
    sentencing principles of general and specific deterrence.

Other Sentences

[53]

The appellants also
    rely on the principle of parity in sentencing and refer to the decision of the
    Yukon Territory Court of Appeal in
R. v. Chief
, [1990] 1 W.W.R. 193.
    In that case, the court upheld the trial judges finding that a five-year
    mandatory firearms prohibition amounted to cruel and unusual punishment for an
    aboriginal man who was convicted of striking his spouse and waving a firearm at
    her during a domestic dispute. Because he supplemented the family income by
    hunting and trapping, he needed his firearm. However, the remedy that was
    fashioned by the court in that case was a constitutional exemption for the
    particular accused. That remedy was held to be unlawful for s. 12 violations in
R. v. Ferguson
, where the Supreme Court stated, at para. 13, that if a
    law violates s. 12 of the
Charter
, the only remedy is to strike it
    down under s. 52 of the
Constitution Act, 1982
. As the court in
Chief
found that the law should not be struck down because it served a beneficial
    purpose generally, I infer that the court would not, under the current
    jurisprudence, have been able to grant the accused a remedy in that case, and
    the result therefore is not of precedential value.

Alternatives to Forfeiture

[54]

The appellants
    submitted that as an alternative to forfeiture, the proceeds of disposition of
    the firearms should be paid to them. That argument ignores s. (3) of s. 491,
    which provides that the proceeds of sale of forfeited firearms shall be paid
    to the Attorney General unless another order has been made.

Reasonable hypotheticals

[55]

The history and
    procedure for considering reasonable hypotheticals for the purpose of a s. 12
    challenge was most recently discussed by Doherty J.A. in
R. v. Nur
. He
    concluded at para. 142:

In my view, after
Morrisey
, and
Goltz
, a
    reasonable hypothetical is one that operates at a general level to capture
    conduct that includes all the essential elements of the offence that trigger
    the mandatory minimum, but no more. Characteristics of individual offenders, be
    they aggravating or mitigating, are not part of the reasonable hypothetical
    analysis. It flows from
Morrisey
that the broader the description of
    the offence, the wider the range of reasonable hypotheticals.

[56]

The appellants suggest
    four hypotheticals that they submit the court should consider as part of its
    analysis: 1) a subsistence hunter who could not understand the licensing
    requirements and could not afford the fees; 2) a person who misunderstood the
    law and believed that licensing was no longer required; 3) any person who
    misunderstood the law; 4) the spouse of an accused who does no wrong but
    equally loses the financial benefit of the forfeited assets.
[1]

[57]

The first three
    examples are people who are ignorant of the law. Both a conviction and its
    consequences are not excused by ignorance of the law. The licensing and
    registration requirements for certain firearms were deliberately imposed by Parliament
    to ensure that those with such firearms understand the responsibility that
    accompanies that privilege and that they act accordingly. One cannot acquire
    such firearms legally without being made aware of the legal requirements for
    doing so. These examples do not, in my view, raise the spectre of
    disproportionality. The people in these hypotheticals, who do not know the law
    regarding ownership of firearms, would not likely have $100,000 worth of
    firearms. To the extent that that they have one or two that are forfeited, that
    result cannot by any stretch be said to be so excessive as to outrage
    standards of decency:
Ferguson
, at para. 14.

[58]

Finally, the fourth
    example is a spouse who suffers as a result of the actions of her spouse. This
    is unfortunately the case when a spouse is left to pick up the pieces after the
    other spouse commits a crime, and is convicted and sentenced. To the extent
    that a spouse owns the firearms and is not convicted of an offence in respect
    to them, she or he may be able to obtain their value following their
    disposition by the Attorney General under s. 491(2). Otherwise, the forfeiture
    is not from her, as much as she may suffer the consequences of her spouses
    actions.

Conclusion on s. 12 of the Charter

[59]

Considering all the
    factors as they apply to the facts in this case, it cannot be said that the
    cumulative forfeiture of these weapons would outrage community standards of
    decency so as to amount to cruel and unusual punishment. Nor do the
    hypotheticals add any force to the argument. While it is unfortunate that the
    appellants chose to proceed by putting so many of their assets at risk, they
    did so knowingly and wilfully. Taken individually, the forfeiture of a weapon
    involved in or that is the subject matter of an offence is not a disproportionate
    consequence. Here, although many firearms were forfeited, and although no
    actual violence or harm occurred, the consequence to the appellants remains
    proportionate to the number of weapons involved.

[60]

In this case, the
    weapons did not get into the hands of more dangerous individuals. However, the
    appellant, Bruce Montague, had sawed the identifying numbers off of some of the
    firearms and he had made others into automatic weapons. The situation could
    have been much more dangerous had these weapons found their way into the hands
    of criminals who were prepared to use them.

[61]

Nor is the forfeiture
    consequence grossly disproportionate as the mandatory minimum was in
Nur,
where the three-year jail sentence only applied if the Crown proceeded by indictment
    and did not apply if the Crown proceeded summarily for the same offence. The
    mandatory forfeiture applies equally, whether the Crown proceeds summarily or
    by indictment.

[62]

Because I conclude
    that there has been no s. 12 violation, it is unnecessary to determine whether
    such a violation would be saved under s. 1 of the
Charter
.

Issue 5: Does the forfeiture violate ss. 1(a) and 2 of
    the Canadian Bill of Rights?

[63]

The appellants argue
    that s. 1(a) of the
Canadian Bill of Rights
includes enjoyment of
    property and the right not to be deprived thereof except by due process of law
    as a fundamental human right and freedom. They submit that as the forfeiture
    provision amounts to expropriation without compensation, the
Canadian

Bill
    of Rights
requires that there should be due process before that can be
    done, and that it cannot be automatic without any such due process.

[64]

The Supreme Court of
    Canada considered and rejected a similar argument in
Authorson v. Canada
    (Attorney General)
, 2003 SCC 39, [2003] 2 S.C.R. 40, at paras. 51 and 52:

The
Bill of Rights
does not protect against the expropriation of property by the
    passage of unambiguous legislation. It is unnecessary to decide now
    exactly what other substantive protections, if any, might be conferred by the
Bill
    of Rights
 s. 1(a)s property guarantees.

The
Bill of Rights
protects only rights that existed at the time of its passage, in
    1960. At that time it was undisputed, as it continues to be today, that
    Parliament had the right to expropriate property if it made its intention
    clear.

[65]

I would not give
    effect to this alternative argument.

Issue
    6: Crown request to vary the forfeiture order

[66]

If leave to appeal the
    forfeiture of firearms is granted, the Crown requests that this court vary the forfeiture
    order to include the ammunition that was also the subject of the conviction
    under s. 95(1). Section 95(1) provides:

Subject to subsection (3), every person commits an offence who,
    in any place, possesses a loaded prohibited firearm or restricted firearm, or
    an unloaded prohibited firearm or restricted firearm together with readily
    accessible ammunition that is capable of being discharged in the firearm,
    without being the holder of

(a) an authorization or a license under
    which the person may possess the firearm in that place; and

(b) the registration certificate for
    the firearm.

[67]

This returns me to the
    question whether the forfeiture provision is a sentence that is fixed by law
    within the meaning of s. 675 (and s. 676(1)(d) where applicable) of the
Code
and therefore cannot be varied
. There is
    little authority to assist with this question. In order to properly consider
    the issue, I set out s. 491 in its entirety:

491. (1) Subject to subsection (2), where it is determined by a
    court that

(
a
) a weapon,
    an imitation firearm, a prohibited device, any ammunition, any prohibited
    ammunition or an explosive substance was used in the commission of an offence
    and that thing has been seized and detained, or

(
b
) that a
    person has committed an offence that involves, or the subject-matter of which
    is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a
    prohibited device, ammunition, prohibited ammunition or an explosive substance
    and any such thing has been seized and detained,

the thing so seized and detained is forfeited to Her Majesty
    and shall be disposed of as the Attorney General directs.

(2)
If
    the court by which a determination referred to in subsection (1) is made is
    satisfied that the lawful owner of any thing that is or may be forfeited to Her
    Majesty under subsection (1) was not a party to the offence and had no
    reasonable grounds to believe that the thing would or might be used in the
    commission of an offence, the court shall order that the thing be returned to
    that lawful owner, that the proceeds of any sale of the thing be paid to that
    lawful owner or, if the thing was destroyed, that an amount equal to the value
    of the thing be paid to the owner.

(3)
Where any thing in respect of which this section applies is sold, the proceeds
    of the sale shall be paid to the Attorney General or, where an order is made
    under subsection (2), to the person who was, immediately prior to the sale, the
    lawful owner of the thing.

[68]

A review of the structure
    of the provision discloses that the role of the trial judge is to make a number
    of factual findings, following which the forfeiture occurs automatically in
    accordance with the
Code
. The findings required to be made by the
    trial judge in s. 491(1)(b) are: that a person has committed an offence that
    involves, or the subject matter of which is and then there is a list of types
    of weapons and related items such as ammunition. The judge also has to find
    that any such thing has been seized and detained. Under s. 491(2), the trial
    judge may make further findings with respect to other owners of the listed
    property and their participation and knowledge of the offence, for the purpose
    of allowing innocent owners to keep the property or be paid the proceeds.

[69]

This structure can be
    usefully compared with a minimum sentence of incarceration. There, upon
    conviction, the accused is liable to the minimum stated term of imprisonment.
    There are no findings to be made by the trial judge on the sentencing phase of
    the proceeding before the minimum sentence is imposed. The mandatory sentence
    is fixed by law.

[70]

Under s. 491, the
    consequence of forfeiture is mandatory and therefore that consequence is fixed
    by law. But because the process involves a number of important factual
    findings by the trial judge, in my view, it was not the intention of Parliament
    that the entire fact-finding process leading up to the forfeiture order would
    be unappealable. Therefore, having granted leave to appeal to the appellants in
    order to consider the constitutional challenge, I will proceed to address the
    issue raised by the Crown.

[71]

In the course of addressing the Crown request to forfeit the
    ammunition that was seized from the appellant, Bruce Montague, together with
    unloaded prohibited or restricted firearms to which it was readily
    accessible, and for which he was convicted under s. 95(1), the trial judge
    considered the effect of s. 6(c) of the
Storage, Display, Transportation
    and Handling of Firearms by Individuals Regulations
, S.O.R./98-209. That
    section allows an individual to store ammunition that is readily accessible to
    a restricted firearm if they are stored in a vault, safe or room that has been
    specifically constructed or modified for the secure storage of restricted
    firearms and that is kept securely locked.

[72]

The trial judge concluded
    that the hidden gun room where the appellant had secreted his guns and
    ammunition qualified as such a room. He effectively found that the regulation
    overrides s. 95(1) of the
Code
.
[2]
He reasoned that the appellant had therefore been wrongly convicted of the
    offence under s. 95(1) with respect to the ammunition (which requires that the
    firearm be loaded or readily accessible to its ammunition), rather than an
    offense under s. 91(2) (unauthorized possession of a prohibited or restricted
    firearm, with no requirement of accessible ammunition) and purported to give a
Charter
remedy by refusing to order forfeiture of the ammunition. He did so on the
    basis that imposing forfeiture would amount to cruel and unusual punishment as
    well as a violation of the
Canadian Bill of Rights
.

[73]

I agree with the Crown that the trial judge erred in law by
    failing to order the mandatory forfeiture of the ammunition that was the
    subject matter of the appellants conviction under s. 95(1) of the
Code
.
    The appellant was convicted because he did not hold an authorization or license
    for the relevant weapons that were in proximity to readily accessible
    ammunition. A person is not entitled, under the
Storage, Display,
    Transportation and Handling of Firearms Regulations
, to store unlicensed
    firearms anywhere. There is no conflict between the two legislative provisions.
    Accordingly, the trial judge erred in law by finding that the appellant was
    erroneously convicted under s. 95(1), an offence that involves ammunition.

[74]

As a result, the ammunition that is the subject matter of
    the conviction under s. 95(1) of the
Code
and that belongs to the
    appellant(s) must be forfeited under s. 491(1)(b) of the
Code
. As no
    issue was raised regarding the ownership of the ammunition, I would issue the
    forfeiture order.

Result

[75]

I would dismiss the
    appeal against forfeiture and vary the forfeiture order to include the
    ammunition that was seized and was the subject matter of the conviction under s.
    95(1) of the
Code
.

Released: KF June 3, 2014
K. Feldman J.A.

I agree. G.G. Gillese J.A.

I agree. M. Tulloch J.A.





[1]
The parties did not have the benefit of this courts decision in
Nur
when formulating these proposed hypotheticals.



[2]

Sections 91 and 92
    of the
Code
require a license for possession of any firearm.



