The Right to Keep Arms in Our Defence

Transcription

1 The Right to Keep Arms in Our Defence To be direct and to the point I ask the question: Do Canadians have the right to keep arms? I cannot help but answer yes, indeed we do. This begs for a fuller accounting of this, therefore without reservation I will give evidence of this right and proof it forms part of the Canadian Constitution not subject to the limitations of the Charter of Rights and Freedoms, nay indeed Parliament cannot even amend it. The Dominion of Canada was created by The British North America Act of 1867 (BNA) an Act of the British Parliament to allow for self government of the areas known as the Colonies of Nova Scotia, New Brunswick, Quebec and Ontario (formerly Upper and Lower Canada also the Province of Canada) It established that Canada would have a responsible Government under the auspicious of the British Empire. Found within the BNA is article 129 which guarantees the Continuance of British Law with the footnote (64) in reference to the Act of Westminster 1931 which ended British Parliament to rule Canada and its Common Wealth cousins Australia and New Zealand 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Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Provinces, according to the Authority of the Parliament or of that Legislature under this Act.(64) (64) The restriction against altering or repealing laws enacted by or existing under statutes of the United Kingdom was removed by the Statute of Westminster, 1931, 22 Geo. V, c.4 (U.K.) except in respect of certain constitutional documents. Comprehensive procedures for amending

2 enactments forming part of the Constitution of Canada were provided by Part V of the Constitution Act, 1982, (U.K.) 1982, c. 11. Except in respect of certain constitutional documents. This leads to an interesting case. Tony O Donohue was a Toronto politician and City Councillor more importantly a Catholic. The Act of Settlement 1701 was an Act of the English Parliament to settle once and for all the succession of the Crown. It stated that no Papist could become King of England. The fact that this was a part of Canadian Law did not sit well with him since in Canada we have the Charter of Rights and Freedoms that forbids discrimination on the basis of Religion. He wrote the Prime Minister about repealing the Act. (see letter attached) The PMO wrote back to him in a letter stating that it was not within their power to repeal the Act (see letter following O Donhue s letter) This was not enough for O Donohue he took this matter to the Court of Competant Jurisdiction The Ontario Superior Court of Justice where again his case failed. In a carefully written Judgement Rouleau J gives his reasons among these reasons is the statement that the Act of Settlement 1701 is part of the Constitution of Canada and therefore is not JUSTICIABLE. Meaning one part of the Constitution cannot be turned on another part of the Constitution to render it invalid. [17] The impugned portions of the Act of Settlement are a key element of the rules governing succession to the British Crown. They were enacted following a long period of civil and religious strife. They confirmed that only the Protestant heirs of Princess Sophia, the Electoress of Hanover, are entitled to assume the throne. The Act of Settlement together with other statutes establish the legitimate heir to the British Crown. (See also Bill of Rights of 1689, (Eng.) 1 Will. & Mar. sess.2, c.2; Crown and Parliament Recognition Act, 1689, (Eng.) 2 Will. & Mar. chap.2; Act of Union (Scotland), 1706, chap.11, Article ii; Union with England, 1706, chap.7, Article ii; Treaty of Union (Ireland), 1800, chap.67, Article II;. Accession Declaration Act, 1910, (U.K.) chap.29; Coronation Oath Act, 1688, (Eng.) 1 Will. & Mar. chap.6, s. 3.) [18] Canada was established as a constitutional monarchy. This fundamental aspect of our constitutional structure is both recognized and maintained by the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c.11. It is found, among other places, in the preamble to the Constitution. [19] It is well recognized that the preamble to the Constitution identifies the organizing principles of our Constitution and can be used to fill in gaps in the express terms of the constitutional text (see Reference re Remuneration of Judges of the Provincial Court of P.E.I., [1997] 3 S.C.R. 3 at p.75). [20] The preamble to the Constitution Act, 1867, (U.K.) 30 & 31 Victoria, c.3, as amended, provides as follows: Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into

3 One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom [21] This portion of the preamble confirms not only that Canada is a constitutional monarchy, but also that Canada is united under the Crown of the United Kingdom of Great Britain. A constitutional monarchy, where the monarch is shared with the United Kingdom and other Commonwealth countries, is, in my view, at the root of our constitutional structure CanLII (ON S. [35] Further support for the respondent s position that the rules of succession (and, in particular, the Act of Settlement) have constitutional status can be found in the treatment of that Act in the Revised Statutes of Ontario of The Revised Statutes show two categories of imperial statutes, i.e. laws from Great Britain that apply to Ontario. The two categories are described as constitutional acts and certain imperial statutes of general practical utility in force in Ontario ex proprio vigore. The fact that the Act of Settlement was indexed among the constitutional acts is a further indication that, despite the fact that it was not listed in the 2003 CanLII (ON S.C.) Schedule to the Constitution Act, 1982, the Act of Settlement was intended to be a component of our constitutional enactments (see Revised Statutes of Ontario, 1897, vol. III, appendix Part 1). CONCLUSION [36] The impugned positions of the Act of Settlement are an integral part of the rules of succession that govern the selection of the monarch of Great Britain. By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. As stated by Prime Minister St. Laurent to the House of Commons during the debate on the bill altering the royal title: Her Majesty is now Queen of Canada but she is the Queen of Canada because she is Queen of the United Kingdom... It is not a separate office.. it is the sovereign who is recognized as the sovereign of the United Kingdom who is our Sovereign... Hansard. February 3, 1953, page Furthermore when we look at the Revised Statutes of Ontario 1897 we find quite easily The English Bill of Rights 1689 prominently listed as an Imperial Constitutional Act. Accordingly it is therefore acknowledge by a superior court that these old acts of the English Parliament are part of our Constitution.

4 The Supreme Court of Canada has also acknowledge that the English Bill of Rights 1689 operates in full force in Canada. Authorson v Canada (Attorney General) citing the reference to amend the Constitution 38 In Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at p. 785, it was stated that: How Houses of Parliament proceed, how a provincial legislative assembly proceeds is in either case a matter of self-definition, subject to any overriding constitutional or self-imposed statutory or indoor prescription. It is unnecessary here to embark on any historical review of the court aspect of Parliament and the immunity of its procedures from judicial review. Courts come into the picture when legislation is enacted and not before (unless references are made to them for their opinion on a bill or a proposed enactment). It would be incompatible with the self-regulating inherent is as apt a word authority of Houses of Parliament to deny their capacity to pass any kind of resolution. Reference may appropriately be made to art. 9 of the Bill of Rights of 1689, undoubtedly in force as part of the law of Canada, which provides that Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament. 39 As

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9 Thus far I feel I have adequately made the case that the Bill of Rights 1689 forms part of the Canadian Constitution. However it does not end there, chiefly because of the language of the bill of rights was written in for a lack of a better way of putting archaic English that is to say in language that is not commonly used today even by Lawyers. Therefore I must discuss the articles themselves. From the Petition of Right 1688 (Also a Constitutional Document) The Heads of Declaration of Lords and Commons, recited. Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome. Disarming Protestants, &c. By causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law. From the Bill of Rights 1689 Subjects Arms. That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law. As allowed by Law is a contentious phrase many have taken this to mean that Parliament has the right to regulate this right. I strenuously disagree, at best it is taking licence with the language a bit of intellectual dishonesty if you will at worst it is fraud. Firstly I would dare say that the people of England in 1689 especially Parliamentarians would have a firm grasp of The Common Law and the difference from legislation. Legislation is a rule given the force of law otherwise proclaimed to be law however is still not law. Secondly it was the Protestants that were disarmed CONTRARY TO THE LAW The Bill of Rights restored their right to keep arms. Which the law had always allowed a man to have arms The English Parliament did not create a new law nor did it grant a right. Suitable to their condition not a term in modern usage but very plausibly befitting the rank and status of the individual or modernizing it what one can afford to have John Locke stated in reference to this made of the sharpest and most modern steal.

10 For this reason the Firearms Act is unconstitutional and operates contrary to law. The Constitutions intention was a limit on power not on the liberty of the people. Had the English Parliament not enacted the Bill of Rights as part of its Constitution the right to keep arms would only have existed in Common Law which would have be completely extinguishable. In enacting Bill C-68 the Government of Jean Chretien ignored the Supreme Law of Canada its Constitution. Important Note I have the original letters from O Donohue and the PMO on official letterhead not photocopies.