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November 20 2014 - Press Release
Ottawa, ON – The Supreme Court of Canada today denied leave to appeal to Bruce and Donna Montague in a case involving a mandatory sentencing provision of the Criminal Code.  The law requires the forfeiture of a firearm upon conviction for any offence relating to the firearm, even if the offence involves nothing more than un-done paperwork.
 
Bruce Montague was a licenced gunsmith who deliberately allowed his gunsmith licence and firearms ownership licences to expire without renewing them, so that he could challenge the constitutionality of the 1995 gun control legislation known to Canadian firearms owners as Bill C-68. Donna Montague, Bruce’s wife and also a firearms owner, likewise let her licences lapse.
 
In  July 2005, the couple were charged with numerous licencing offences. The trial judge and the Ontario Court of Appeal both rejected their constitutional arguments, sentencing Bruce to 18 months in jail. The court further ordered—relying upon a mandatory provision of the Criminal Code—that Bruce’s entire inventory and the couple’s personal collections of firearms and ammunition be forefeited to the Crown.  
 
The Canadian Constitution Foundation (CCF) represented the Montagues at the Ontario Court of Appeal in November 2013, arguing that the forfeiture of the firearms collections—worth approximately $116,000—was a grossly disproportionate penalty for a paperwork offence, especially when imposed in addition to a prison sentence. The Court of Appeal rejected this argument, saying the forfeiture was “not a particularly onerous” sentence.
 
The Montagues sought leave to appeal to the Supreme Court of Canada, where they intended to argue that section 12 of the Canadian Charter of Rights and Freedoms—which forbids the imposition of “any cruel and unusual treatment or punishment”— applies to this mandatory property forfeiture. Their application, prepared by lawyers Mark Gelowitz and Gerard Kennedy of the firm Osler, Hoskin & Harcourt LLP (acting pro bono for the Montagues and the CCF), pointed out that Charter section 12 remains an unsettled area of the law.
 
Recent lower court decisions have found that such things as mandatory victim surcharges and reductions to refugee health coverage infringe section 12’s prohibition against cruel and unusual punishment. 
 
CCF staff lawyer Derek From, who represented the Montagues in the Ontario Court of Appeal, said: “It’s unfortunate that the Supreme Court of Canada has declined to hear this appeal and provide further clarification on section 12.  The Montagues are productive, upstanding citizens who have never committed an act of violence or done any harm to another human being. They are being punished inordinately for an offence which boils done to not filling out some government forms.”
 
The Montagues face still other penalties relating to their acts of civil disobedience. The province of Ontario is seeking to confiscate their home as an “instrument of unlawful activity” under the Civil Remedies Act. That case has been held in abeyance pending the completion of the criminal forfeiture battle.
 
CCF litigation director Karen Selick said: “Bruce and Donna Montague took deliberate, principled action to bring a constitutional challenge against this onerous gun licencing law. They feared that Bill C-68 was just one more step in the ongoing consolidation of state power over individual citizens. Their treatment by the federal and provincial governments has demonstrated that their fears were well-founded.”  
 
The CCF is grateful to lawyers Mark Gelowitz and Gerard Kennedy for their pro bono work on the Supreme Court leave application. 
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.
 
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For further information, contact:

Derek From
Staff Lawyer
Canadian Constitution Foundation
587-226-7037 (cell)
dfrom@theccf.ca

Karen Selick
Litigation Director
Canadian Constitution Foundation
Toll-free: 888-695-9105 x. 104
kselick@theccf.ca

Canadian Constitution Foundation

Twitter: @CDNConstFound
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