Her Majesty the Queen v. Montague et al.

[Indexed as: R. v. Montague]

Ontario Reports

Court of Appeal for Ontario,

Feldman, Gillese and Tulloch JJ.A.

June 3, 2014

120 O.R. (3d) 401 | 2014 ONCA 439

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Forfeiture order — Appellants decided to let firearms permits lapse to challenge the regulation of firearms — One of appellants a firearms manufacturer and dealer — Appellants convicted of firearms offences arising from unlicensed and unauthorized possession of more than 200 firearms and related devices valued at $100,000 — Appellants having no criminal record and gun collection representing most of their life savings — Trial judge ordering forfeiture of firearms under s. 491(1)(b) of Criminal Code — Mandatory forfeiture order not grossly disproportionate in appellants' circumstances or in reasonable hypothetical circumstances — Mandatory forfeiture not violating s. 12 of Charter — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 491(1)(b).

Criminal law — Forfeiture order — Appeal — Forfeiture order under s. 491(1)(b) of Criminal Code being "sentence" and appealable under s. 675 of Code — Criminal Code, R.S.C. 1985, c. C-46, ss. 491(1)(b), 675.

Criminal law — Forfeiture order — Variation — Mandatory forfeiture order under s. 491 of Criminal Code being "fixed by law" for purposes of s. 675 but Parliament not intending that entire fact-finding process leading up to forfeiture order would be unappealable — Sentencing judge ordering forfeiture of firearms but refusing to order forfeiture of ammunition on basis that accused was erroneously convicted under s. 95(1) of Code of possession of unloaded firearms with readily accessible ammunition — Sentencing judge erring in finding that accused was erroneously convicted under s. 95(1) — Forfeiture order varied on appeal to include ammunition — Criminal Code, R.S.C. 1985, c. C-46, ss. 95(1), 491, 675.

The appellants were charged with a number of firearms offences, mostly arising out of their unauthorized and unlicensed possession of over 200 firearms and related devices and over 20,000 rounds of ammunition. The male appellant was a firearms dealer and manufacturer, and the appellants decided to protest Canada's gun laws by breaching them and then challenging the constitutionality of the laws when charged. The trial judge upheld the constitutionality of the challenged laws and convicted the appellants. The male appellant was sentenced to 18 months' imprisonment plus 90 days to be served in the community, followed by one-year probation. His wife received a suspended sentence plus six months' probation. The Crown sought mandatory forfeiture under s. 491(1)(b) of the Criminal Code of the firearms and ammunition. The trial judge found that mandatory forfeiture did not violate the appellants' rights under s. 7 or s. 8 of the Canadian Charter of Rights and Freedoms or s. 1(a) of the Canadian Bill of Rights, S.C. 1960, c. 44. He ordered forfeiture of the firearms, but declined to order forfeiture of the ammunition on the basis that the appellant had been wrongfully convicted under s. 95(1) of the Code on the basis that the ammunition was stored in accordance with provincial firearms regulations. The appellants [page402] appealed. The Crown sought an order varying the forfeiture order to include the ammunition.

Held, the appeal should be dismissed.

A forfeiture order under s. 491(1)(b) is a "sentence" for the purpose of being appealable, with leave, under s. 675 of the Code.

The appellants were permitted to argue for the first time on appeal that the mandatory forfeiture provisions of s. 491(1) (b) violate s. 12 of the Charter. There was no prejudice to the Crown because even if the actual value of the forfeited properly had not been proven below, the use of a reasonably hypothetical postulating of a similar high-value collection could be appropriately considered in assessing the appellants' claims pursuant to s. 12 of the Charter. The forfeiture order did not violate s. 12. The offence was serious even though no one was hurt. While the appellants had no criminal record, they wilfully flouted a law which was designed to protect the public. The male appellant had sawed the identifying numbers off of some of the firearms and had made others into automatic weapons. The situation could have been much more dangerous had the weapons found their way into the hands of criminals who were prepared to use them. While the firearms were valued at $100,000 and represented the bulk of the appellants' life savings, the appellants had deliberately decided to put their property at risk. The forfeiture order was not grossly disproportionate in the appellants' circumstances. Nor was it grossly disproportionate in the circumstances of any reasonable hypothetical.

The trial judge erred in finding that the male appellant was erroneously convicted under s. 95(1) of the Criminal Code on the basis that the appellant had complied with a provincial regulation that permitted the storage of ammunition in a location that is readily accessible to a restricted firearm if the place in which they were stored met certain qualifications. The regulation did not allow a person to store an unlicensed firearm anywhere and therefore it was not in conflict with the Code provision, and could not, in any event, overrule a Code provision. Therefore, the judge erred in declining to include the ammunition in the forfeiture order. The forfeiture order should be varied to include the ammunition.

R. v. Chaisson, 1995 CanLII 58 (SCC), [1995] 2 S.C.R. 1118, [1995] S.C.J. No. 53, 183 N.R. 300, J.E. 95-1511, 163 N.B.R. (2d) 81, 99 C.C.C. (3d) 289, 41 C.R. (4th) 193, 27 W.C.B. (2d) 474, apld

Hudson v. Canada (Attorney General), [2009] S.J. No. 564, 2009 SKCA 108, 201 C.R.R. (2d) 156, [2009] 11 W.W.R. 13, 337 Sask. R. 153, 96 Admin. L.R. (4th) 234; R. v. Craig, [2009] 1 S.C.R. 762, [2009] S.C.J. No. 23, 2009 SCC 23, 306 D.L.R. (4th) 577, 244 C.C.C. (3d) 1, EYB 2009-159483, J.E. 2009-1071, 388 N.R. 254, 66 C.R. (6th) 201, 271 B.C.A.C. 1; R. v. Hudson, [2007] S.J. No. 403, 2007 SKCA 82, [2007] 9 W.W.R. 637, 299 Sask. R. 133, 75 W.C.B. (2d) 587; R. v. Lemieux, [2006] S.J. No. 673, 2006 SKCA 119, 285 Sask. R. 311, 71 W.C.B. (2d) 435, distd

Other cases referred to

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40, [2003] S.C.J. No. 40, 2003 SCC 39, 227 D.L.R. (4th) 385, 306 N.R. 335, J.E. 2003-1389, 175 O.A.C. 363, 4 Admin. L.R. (4th) 167, 36 C.C.P.B. 29, 109 C.R.R. (2d) 220, 124 A.C.W.S. (3d) 62; Kourtessis v. M.N.R., 1993 CanLII 137 (SCC), [1993] 2 S.C.R. 53, [1993] S.C.J. No. 45, 102 D.L.R. (4th) 456, 153 N.R. 1, [1993] 4 W.W.R. 225, J.E. 93-836, 27 B.C.A.C. 81, 78 B.C.L.R. (2d) 257, 81 C.C.C. (3d) 286, 20 C.R. (4th) 104, 14 C.R.R. (2d) 193, [1993] 1 C.T.C. 301, 93 D.T.C. 5137, 19 W.C.B. (2d) 344; [page403] Marine Services International Ltd. v. Ryan Estate, [2013] 3 S.C.R. 53, [2013] S.C.J. No. 44, 2013 SCC 44, 447 N.R. 1, 2013EXP-2544, J.E. 2013-1365, EYB 2013-225105, 3 C.C.L.T. (4th) 1, [2013] CLLC Â220-037, 339 Nfld. & P.E.I.R. 312, 361 D.L.R. (4th) 195, 229 A.C.W.S. (3d) 404; R. v. Chief, 1989 CanLII 281 (YK CA), [1989] Y.J. No. 131, [1990] 1 W.W.R. 193, 39 B.C.L.R. (2d) 358, [1990] N.W.T.R. 55, 51 C.C.C. (3d) 265, [1990] 1 C.N.L.R. 92, 74 C.R. (3d) 57, 44 C.R.R. 122, 8 W.C.B. (2d) 368 (C.A.); R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 228 C.C.C. (3d) 385, EYB 2008-130228, [2008] 5 W.W.R. 387, J.E. 2008-514, 371 N.R. 231, 290 D.L.R. (4th) 17, 425 A.R. 79, 54 C.R. (6th) 197, 87 Alta. L.R. (4th) 203, 168 C.R.R. (2d) 34, 78 W.C.B. (2d) 303; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, 131 N.R. 1, J.E. 91-1764, 5 B.C.A.C. 161, 61 B.C.L.R. (2d) 145, 67 C.C.C. (3d) 481, 8 C.R. (4th) 82, 7 C.R.R. (2d) 1, 31 M.V.R. (2d) 137, 14 W.C.B. (2d) 206; R. v. Hill, 1975 CanLII 38 (SCC), [1977] 1 S.C.R. 827, [1975] S.C.J. No. 137, 62 D.L.R. (3d) 193, 7 N.R. 373, 25 C.C.C. (2d) 6; R. v. Latimer, [2001] 1 S.C.R. 3, [2001] S.C.J. No. 1, 2001 SCC 1, 193 D.L.R. (4th) 577, 264 N.R. 99, [2001] 6 W.W.R. 409, 203 Sask. R. 1, 150 C.C.C. (3d) 129, 39 C.R. (5th) 1, 80 C.R.R. (2d) 189, REJB 2001-21909, J.E. 2001-237, 48 W.C.B. (2d) 279; R. v. Logan, 1986 CanLII 7297 (ON CA), [1986] O.J. No. 274, 14 O.A.C. 382, 51 C.R. (3d) 326, 27 C.R.R. 74 (C.A.); R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764, [1989] S.C.J. No. 75, 96 N.R. 391, J.E. 89-1016, 49 C.C.C. (3d) 453, 70 C.R. (3d) 383, 41 C.R.R. 39, 7 W.C.B. (2d) 298; R. v. Montague, [2010] O.J. No. 710, 2010 ONCA 141, 260 O.A.C. 12, 206 C.R.R. (2d) 146, 73 C.R. (6th) 359; R. v. Morrisey, [2000] 2 S.C.R. 90, [2000] S.C.J. No. 39, 2000 SCC 39, 2000 CSC 39, 191 D.L.R. (4th) 86, 259 N.R. 95, J.E. 2000-1844, 187 N.S.R. (2d) 1, 148 C.C.C. (3d) 1, 36 C.R. (5th) 85, 77 C.R.R. (2d) 259, 47 W.C.B. (2d) 231; R. v. Nur (2013), 117 O.R. (3d) 401, [2013] O.J. No. 5120, 2013 ONCA 677, 296 C.R.R. (2d) 21, 303 C.C.C. (3d) 474, 311 O.A.C. 244, 5 C.R. (7th) 292; R. v. Olah (1997), 1997 CanLII 3023 (ON CA), 33 O.R. (3d) 385, [1997] O.J. No. 1579, 100 O.A.C. 1, 115 C.C.C. (3d) 389, 34 W.C.B. (2d) 395 (C.A.); R. v. Roach, [2009] O.J. No. 662, 2009 ONCA 156, 246 O.A.C. 96, 185 C.R.R. (2d) 333; R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, 266 D.L.R. (4th) 101, 347 N.R. 201, J.E. 2006-910, 210 O.A.C. 200, 207 C.C.C. (3d) 225, 37 C.R. (6th) 1, 140 C.R.R. (2d) 1, EYB 2006-104246, 69 W.C.B. (2d) 741; R. v. Spence, [2004] N.J. No. 223, 2004 NLSCTD 113, 238 Nfld. & P.E.I.R. 259, 9 C.E.L.R. (3d) 11, 120 C.R.R. (2d) 121, 62 W.C.B. (2d) 161; R. v. W. (G.), 1999 CanLII 668 (SCC), [1999] 3 S.C.R. 597, [1999] S.C.J. No. 37, 178 D.L.R. (4th) 76, 247 N.R. 135, 181 Nfld. & P.E.I.R. 139, 138 C.C.C. (3d) 23, 27 C.R. (5th) 203, 43 W.C.B. (2d) 465; R. v. Wiles, [2005] 3 S.C.R. 895, [2005] S.C.J. No. 53, 2005 SCC 84, 260 D.L.R. (4th) 459, 343 N.R. 201, J.E. 2006-106, 240 N.S.R. (2d) 1, 203 C.C.C. (3d) 161, 34 C.R. (6th) 370, 139 C.R.R. (2d) 19, 68 W.C.B. (2d) 28; Turner v. Manitoba, [2001] M.J. No. 562, 2001 MBCA 207, [2002] 3 W.W.R. 601, 160 Man. R. (2d) 256, 52 W.C.B. (2d) 230

Statutes referred to

Bill of Rights, 1689, 1 Will. & Mary, sess. 2, c. 2, art. 7

Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1(a), 2

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 11, (h), (i), 12

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 16(1) [as am.], 19.1, (3)

Criminal Code, R.S.C. 1985, c. C-46, Part III [as am.], ss. 86(2) [as am.], 91 [as am.], (1) [as am.], (2) [as am.], 92 [as am.], (2) [as am.], 95(1) [as am.], (a) [as am.], 102 [as am.], (1) [as am.], 108(1)(b), 109, 117.03(3), 491 [as am.], (1)(b), (2) [as am.], (3) [as am.], Part XXI [as am.], ss. 673 [as am.], 674, 675 [as am.], (1)(b), (d), 676(1)(d), 741.2 [as am.], 743.6(1), Part XXVI [as am.] [page404]

Rules and regulations referred to

Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209, s. 6(c)

APPEAL from the forfeiture order of dePencier Wright J., [2012] O.J. No. 2429, 2012 ONSC 2300 (S.C.J.).

Derek J. From and Chris Schafer, for appellants.

Roger Shallow, for respondent.

The judgment of the court was delivered by

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 "Code"). The majority of the offences involved possession of firearms without the proper licence 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 Montague's appeal against sentence: R. v. Montague, [2010] O.J. No. 710, 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. Montague's sentence appeal is dismissed. [page405]

[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. Montague's 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. [page406] 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 "regulates 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 licence (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, [page407] 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 R. v. Hill, 1975 CanLII 38 (SCC), [1977] 1 S.C.R. 827, [1975] S.C.J. No. 137, at p. 855 S.C.R., 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 CanLII 668 (SCC), [1999] 3 S.C.R. 597, [1999] S.C.J. No. 37, at para. 8; Kourtessis v. M.N.R., 1993 CanLII 137 (SCC), [1993] 2 S.C.R. 53, [1993] S.C.J. No. 45, at pp. 69-70 S.C.R.; R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764, [1989] S.C.J. No. 75, at p. 1773 S.C.R. 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). [page408]

[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 CanLII 58 (SCC), [1995] 2 S.C.R. 1118, [1995] S.C.J. No. 53, 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] 3 S.C.R. 53, [2013] S.C.J. No. 44, 2013 SCC 44, at para. 77, as follows: [page409]

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."

(Citations 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] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, 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] 1 S.C.R. 762, [2009] S.C.J. No. 23, 2009 SCC 23, 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 [page410] 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] S.J. No. 673, 2006 SKCA 119, 285 Sask. R. 311; R. v. Hudson, [2007] S.J. No. 403, 2007 SKCA 82, 299 Sask. R. 133 (C.A.); Hudson v. Canada (Attorney General), [2009] S.J. No. 564, 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 licence 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 Parliament's 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 CanLII 7297 (ON CA), [1986] O.J. No. 274, 14 O.A.C. 382 (C.A.); R. v. Olah (1997), 1997 CanLII 3023 (ON CA), 33 O.R. (3d) 385, [1997] O.J. No. 1579, 115 C.C.C. (3d) 389 (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 Parliament's intention that the forfeiture provision is not a sentence and therefore not appealable. [page411]

[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 Crown's request, if leave is granted, to vary the trial judge's 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](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec12_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) 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] O.J. No. 662, 2009 ONCA 156, 246 O.A.C. 96 (C.A.), 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 Charter 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 [page412] 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 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 Crown's 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](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec12_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[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] 3 S.C.R. 895, [2005] S.C.J. No. 53, 2005 SCC 84, the Supreme Court of Canada agreed with the Crown concession that an order prohibiting the possession of [page413] 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 offence 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.C. in R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 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 CanLII 64 (SCC), [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] 2 S.C.R. 90, [2000] S.C.J. No. 39, 2000 SCC 39, at paras. 27-28; R. v. Latimer, [2001] 1 S.C.R. 3, [2001] S.C.J. No. 1, 2001 SCC 1, at para. 75; R. v. Nur (2013), 117 O.R. (3d) 401, [2013] O.J. No. 5120, 2013 ONCA 677, 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 [page414] are not far-fetched or "marginally imaginable": R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, at pp. 505, 516 S.C.R.

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 licences 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 licences 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 three-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 [page415] 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 Montague's 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] M.J. No. 562, 2001 MBCA 207, 160 Man. R. (2d) 256; R. v. Spence, [2004] N.J. No. 223, 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 [page416] 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, 1989 CanLII 281 (YK CA), [1989] Y.J. No. 131, [1990] 1 W.W.R. 193 (C.A.). In that case, the court upheld the trial judge's 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 [page417] 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 subs. (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 [page418] not know the law regarding ownership of firearms, would not likely have $100,000 worth of firearms. To the extent 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 spouse's actions.

Conclusion on [s. 12](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec12_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[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. [page419]

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] 2 S.C.R. 40, [2003] S.C.J. No. 40, 2003 SCC 39, 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:

95(1) 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: [page420]

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 [page421] 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, SOR/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 offence 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 appellant's conviction under s. 95(1) of the Code. The appellant was convicted because he did not hold an authorization or licence 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 [page422] 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.

Appeal dismissed.

[^1]: The parties did not have the benefit of this court's decision in Nur when formulating these proposed hypotheticals. [^2]: Sections 91 and 92 of the Code require a licence for possession of any firearm.