The Contentious Relationship between Public Safety and Civil Liberties

Civil liberties, the fundamental freedoms which are protected from government intrusion, are integral to the functioning of a free and democratic society. Such freedoms are protected in Canada by the Charter of Rights and Freedoms, subject to reasonable and justifiable limitations (section 1). They include, for example, the right to free expression (section 2b), to equality (section 15), and to life, liberty and security of the person (section 7). Civil liberties matter to all of us, but they have been raised in the context of debates on firearms legislation from both sides of the issue.

It is important to consider that civil liberties are not absolute or consistent across jurisdictions. In Canada, not only is the right to bear arms excluded from constitutional protection, but so are property rights in general. Property rights are only referenced indirectly by certain provisions of the Charter, such as the unreasonable search and seizure of property (section 8) and the existence of pre-Charter common law and other rights (section 26).

The right to bear arms is not guaranteed in Canada’s constitution, as some argue it is in the United States. As such, firearms regulations are not technically a matter of civil liberties in Canada. As the Supreme Court of Canada ruled in 2005, the “possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.

Some opponents of Canada’s current gun control measures argue that the regulation of firearms is an undue restriction on our civil liberties. For example, the president of the National Firearms Association contends that there is no public safety concern in firearms, and that gun laws are merely restrictions on property rights and personal freedoms without merit:

“Frequently we are told that if some law or new regulation would improve public safety, then we shouldn’t have a problem with it. I haven’t run into a firearms law yet that actually does what it claims in terms of providing more security other than a false sense of it. I have seen many firearms laws that reduce freedoms and personal rights all in the name of public safety and like many firearms owners I have a significant problem with that situation.”

Conversely, the Courts and proponents of gun control alike have agreed that the regulation of firearms is in relation to public safety. In Reference Re Firearms Act, the Supreme Court ruled that:

“…the effects of the law suggest that its essence is the promotion of public safety through the reduction of the misuse of firearms, and negate the proposition that Parliament was in fact attempting to achieve a different goal such as the total regulation of firearms production, trade, and ownership.”

In recent years, challenges have been filed questioning the legality of some laws restricting the use of firearms. For example, the Ontario Court of Appeal recently found that a 3-year mandatory minimum prison sentence for possession of a loaded restricted or prohibited weapon constitutes cruel and unusual punishment, which is prohibited under section 12 of the Charter. The Supreme Court of Canada has approved leave to hear an appeal.

Some opponents of Canada’s gun laws argue that they infringe our right to security of the person (section 7) by disarming citizens from a method of self-defence. Such arguments suggest that good citizens with guns would be equipped to stop armed robberies and mass shootings, and that women with guns in their possession can better protect themselves from an assault. However, these arguments, echoing those of the American National Rifles Association, are not based on research. In fact, studies have found the opposite, namely that a reduction in the number of available firearms reduces the likelihood of gun-related deaths, thereby reinforces the security of the person. Groups such as the Canadian Federation of University Women have argued that weakening gun restrictions disregards the rights of women to life, liberty and security of the person. Subjecting gun owners to strong licensing and registration requirements does not deprive law-abiding citizens of their ability to possess firearms for self-defence or any reason.

Public safety interests need not be regarded as being in contention with civil liberties. Some civil liberties organizations, such as the Canadian Civil Liberties Association, recognize a mutually reinforcing relationship between public safety and civil liberties:

“Our work recognizes the important role that governments play in protecting public safety and advocates for the striking of an appropriate balance between public safety and civil liberties in this context. We believe that governments should treat the promotion of public safety and the protection of civil liberties as mutually reinforcing objectives…”

Civil liberties are integral to the functioning of a free and democratic society, whether or not one is a gun owner. It is important to recognize, as Canadian citizens, exactly what our civil liberties are. General restrictions on firearms, in themselves, do not erode the civil liberties we have in this country.

JN

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