Quash: to suppress or extinguish summarily and completely; to nullify, especially by judicial action

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On December 22, 2005, the Supreme Court of Canada ruled against drug dealer Philip Neil Wiles and, in so doing, quashed the right of Canadians to possess firearms.

[P]ossession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.  It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one.

R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84

The right to bear arms still exists in Canada, one can argue, but it is suppressed or nullified by judicial action – in this case by the Supreme Court of Canada’s wording above.

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30-Second Overview

• Philip Neil Wiles pleaded guilty to two charges of unlawfully producing cannabis, contrary to s. 7(1) of the Controlled Drugs and Substances Act.
• The second offence was committed while he was out on bail on for the first charge of running an illegal grow-op.
• At sentencing, the Crown sought a mandatory firearms prohibition order pursuant to s. 109(1) (c) of the Criminal Code.
• Philip Wiles challenged the constitutionality of s. 109(1) (c), claiming the imposition of a mandatory weapons prohibition orders constituted “cruel and unusual punishment” in violation of Section 12 of the Canadian Charter of Rights and Freedoms.
• He lost the appeal and forfeited his until-then legally-owned firearms and was subjected to a 10-year Firearms Prohibition Order.
• The Supreme Court declared “possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.”
• The Supreme Court also ruled mandatory firearm prohibition orders are constitutional.

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Constitutional Challenge

A person can legally own and safely use firearms while illegally growing marijuana.

That’s the premise Philip Wiles put before the judge when he pled guilty to two counts of unlawfully producing cannabis.

He never used his guns to defend his grow-op, something everyone, including the police, agreed on. In fact, the arresting officers were so unconcerned about his continued possession they left the firearms in his gun safe.

“The marijuana grow operation was discovered on the first occasion when the police responded to a 911 call made accidentally by one of Mr. Wiles’ daughters.  At this time, the police noted that Mr. Wiles possessed six firearms, all properly stored and licensed.  The firearms were left in his possession.”

Philip Wiles liked to target shoot and/or hunt so he, naturally, wanted to keep his legally-owned firearms despite his guilty plea on drug charges.

He argued imposing a mandatory Firearm Prohibition Order against him, as part of his sentence for running an illegal grow up, violated his Section 12 Charter rights.

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

Section 109 of the Criminal Code, states, in part:

Mandatory prohibition order

109 (1) Where a person is convicted, or discharged under section 730, of

(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act,

the court… shall… make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.

For an individual’s first offence under the Controlled Drugs and Substances Act, a 10-year firearms prohibition order must be imposed. For second and subsequent offences, a lifetime firearms prohibition order is mandatory.

These are the provisions Philip Wiles sought to have declared unconstitutional.

The high bar for a Section 12 violation is spelled out in R. v. Smith, [1987] 1 S.C.R. 1045 :

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, “whether the punishment prescribed is so excessive as to outrage standards of decency“.

In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

Wiles argued a mandatory Firearms Prohibition Order applied as part of sentencing for a conviction on drug offences where no violence was used or implied would “outrage the standards of decency.”

 

The Road to the Supreme Court

At his trial, the judge ruled the mandatory prohibition infringed Mr. Wiles’ Section 12 rights under the Charter because there was no connection between the purpose of the mandatory firearm prohibition and the offence of producing cannabis illegally.

The trial judge also ruled the Charter’s infamous weasel words in Section 1 could not justify the infringement of an individual’s Section 12 right to be free from cruel and unusual punishment.

The sentencing judge therefore read down Section 109(1) (c) to provide for a discretionary rather than mandatory firearm prohibition order and declined to make the order.

The Crown appealed the decision, naturally, and the Nova Scotia Court of Appeal reversed the trial judge’s decision, saying the test for Section 12 infringement was not met.

Philip Neil Wiles appealed to the Supreme Court, who agreed to hear the case.

This is the tortured path Mr. Wiles took in a last-ditch attempt to save his guns from a government smelter.

Little did Philip Wiles realize the precedent he would set and, in the process, forever shack his fellow gun owners, including the millions of us who don’t run illegal grow-ops.

[6] Mr. Wiles presented no evidence as to his need for the firearms found in his possession and made no argument that the prohibition orders had any particular impact upon him.

[9] Mr. Wiles has not established that the imposition of the mandatory weapons prohibition orders constitutes cruel and unusual punishment.

As noted by the Court of Appeal, the prohibition has a legitimate connection to s. 7  offences.  The mandatory prohibition relates to a recognized sentencing goal — the protection of the public, and in particular, the protection of police officers engaged in the enforcement of drug offences.

The state interest in reducing the misuse of weapons is valid and important.

The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.  It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one.

In Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power. [see conclusion from Reference re Firearms Act below]

If Parliament can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so.

It is sufficient that Mr. Wiles falls within a category of offenders targeted for the risk that they may pose.

[10] Insofar as the individual offender is concerned, there is no evidence as to any effect that the prohibition orders will have on Mr. Wiles, apart from the loss of the firearms already in his possession.

Since he was legally in possession of the firearms, the sentencing judge inferred that he was a recreational hunter and shooter.  Even assuming that to be the case, the loss of this privilege would not support the sentencing judge’s finding of gross disproportionality.

As a twice convicted producer of a controlled substance, Mr. Wiles’ loss of the privilege to possess firearms for recreational purposes falls far short of punishment “so excessive as to outrage our standards of decency”.

 

From Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31

Conclusion

[58] We conclude that the impugned sections of the Firearms Act contain prohibitions and penalties in support of a valid criminal law purpose.  The legislation is in relation to criminal law pursuant to s. 91(27) of the Constitution Act, 1867 and hence intra vires Parliament.  It is not regulatory legislation and it does not take the federal government so far into provincial territory that the balance of federalism is threatened or the jurisdictional powers of the provinces are unduly impaired.

[59] Having determined that the legislation constitutes a valid exercise of Parliament’s jurisdiction over criminal law, it is unnecessary to consider whether the legislation can also be justified as an exercise of its peace, order and good government power.

[60] We would dismiss the appeal.  The licensing and registration provisions in the Firearms Act do not constitute an infringement of the jurisdiction of the Legislature of Alberta with respect to the regulation of property and civil rights pursuant to s. 92(13) of the Constitution Act, 1867.  The Act is a valid exercise of Parliament’s jurisdiction over criminal law pursuant to s. 91(27).