poligeek said:
So the "right to bear arms" is a tacit right in Canada? I'm confused, if this right is "tacit", how do you ban something you have no legal right to?
Gun Crime: Legislation and Bans work
- Thread starter Jersay
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So the "right to bear arms" is a tacit right in Canada? I'm confused, if this right is "tacit", how do you ban something you have no legal right to?
Jay said:
Nope, it was the Firearms Act, I'm certain of it, it uses reverse onus, and that's scary shit.
I think not said:
Actually, I think the scariest one is the loss of the right to remain silent.
If a official is "inspecting" (nice bit of semantics there, read "searching") your home under the Firearms Act you are required to help in in any way he requests, including answering any question. Failure to do so can result in a 2 year prison term.
Forgive my historical hysteria, but the right to remain silent evolved from the Star Chamber trials in the 1600s, where Catholic priests were tortured into confessions. The right to remain silent is a defense against torture, and as such is a very important right.
The reverse onus clauses in the Act are the same as in many other acts.....you are required to prove that your gun is registered, and you have a license, etc. The big problem with this is the system itself is a mess and undependable, so if you lose your bit of paper........you could be in deep do do.
The other big no no in the Act, and it is currently being used against gun owners in Toronto, is the government can "inspect" your storage facilities at any time if you own more than 10 guns. If you refuse entry to "inspectors" (always police) they apply for a search warrant, and judges are instructed by the Act to grant such applications.
Once again, the tradition is that search is only allowable if a crime has been committed, and if there is sufficient evidence available to convince a judge that evidence pertaining to that crime is on your premises. Neither condition applies here.
So much for the right to be free from unreasonable search.
Re: RE: Gun Crime: Legislation and Bans work
Oh-oh. You've left yourself wide open to a lecture.
The simple answer is no.
England's constitution (like Canada's) consists of a number of documents, such as the Magna Carta, and the Bill of Rights of 1689, and the traditions of English Common Law.
The right to keep arms appears in both documents mentioned, and is a British tradition that pre-dates the Magna Carta and Norman domination of Britain.
The American Constitution also consists of the body of English Common Law, but it is focused on the Constitution of the United States.
And here is the difference. In the United States, the Supreme Court is set up as a check on governmental power, and it is able to over-rule the legislative and executive branches.
In Great Britain, although rights are recognized as such in the Common Law, the supreme arbiter of these rights is Parliament. Parliament can over-rule as they see fit.
Canada is some sort of weird in-between. The SCOC over turns laws, but the Parliament has a "notwithstanding" clause that allows it to over turn the SCOC.
Hope that clears things up.
Jay said:
Oh-oh. You've left yourself wide open to a lecture.
The simple answer is no.
England's constitution (like Canada's) consists of a number of documents, such as the Magna Carta, and the Bill of Rights of 1689, and the traditions of English Common Law.
The right to keep arms appears in both documents mentioned, and is a British tradition that pre-dates the Magna Carta and Norman domination of Britain.
The American Constitution also consists of the body of English Common Law, but it is focused on the Constitution of the United States.
And here is the difference. In the United States, the Supreme Court is set up as a check on governmental power, and it is able to over-rule the legislative and executive branches.
In Great Britain, although rights are recognized as such in the Common Law, the supreme arbiter of these rights is Parliament. Parliament can over-rule as they see fit.
Canada is some sort of weird in-between. The SCOC over turns laws, but the Parliament has a "notwithstanding" clause that allows it to over turn the SCOC.
Hope that clears things up.
Re: RE: Gun Crime: Legislation and Bans work
I was asking that for ITNs benefit....I wasn’t sure (with him being an American and all) what part of common law he would understand, and if he would understand something like a unwritten constitution....
Colpy said:
I was asking that for ITNs benefit....I wasn’t sure (with him being an American and all) what part of common law he would understand, and if he would understand something like a unwritten constitution....
Re: RE: Gun Crime: Legislation and Bans work
Heh sarcasm duly noted
But we also have common law in the US, particularly on the state level.
Jay said:I was asking that for ITNs benefit....I wasn’t sure (with him being an American and all) what part of common law he would understand, and if he would understand something like a unwritten constitution....
Heh sarcasm duly noted
But we also have common law in the US, particularly on the state level.
I think not said:
I'm not particularly strong with US law, so you may need to help me with this comparison. But I think the difficulty here is in language and how the two countries use the word "right".
As I understand it in the United States a "right" in an inallienable "right" that in ensrhined in and protected by the constitution. Any changes or amendments to the constitution would be very lengthy and significant legal and political proceedings. Therefore a "right" in American society is something that is very real, very protected and very hard to infringe or remove from the people.
Canada was founded as a Dominion of the British Commonwealth and in 1897 our Constitution was referred to as the British North America Act (BNA). The BNA is revised several times as provinces join, and as various powers transfer to Canada from Britian (for example the Federal power to declare war, transferred in 1917).
In 1982 Canada obtained independance with the Constitution Act, this act effectively severed the last of the powers that linked Canada and Britain (most importantly making Canada's Supreme Cout the last area of appeal... the British Privy Council had been above the SCOC until this point, but I don't think it was ever used post WWII).
In the 1982 Constitution Act Canada attached Schedule B, which is the Canadian Charter of Rights and Freedoms.
It is this document that the equivlent of American "rights" are enshrined in. (Right to vote, protection against racial discrimination, right to lawful search and seisure).
That being said, general practice in Canadian law has been to refer to Charter rights (those discussed above), Statue rights (rights passed by law, but not ensrhiend in the charter) (i.e. divorce law, property laws), and Tacit or Common-law rights... these are rights that are general popular practice and are not necessarily written or protected anywhere but are customary and cultural.
In other words Canada has both hard and soft rights, and Gun Ownership is a long term "soft" right. While some feel that it is not a right at all, it's common law history and large precidence of existence grants it a tacit status.
Re: RE: Gun Crime: Legislation and Bans work
Actually Colpy I have to correct you here, it is a myth that the US Supreme Court has the final say, it does serve as a check and balance but Congress certainly has the power to pass a new or revised law that "changes" or "reverses" the meaning or scope of the law as interpreted by the Court, and the legislative history of the new law usually states that it was intended to "overrule" a specific Court decision.
Colpy said:
Actually Colpy I have to correct you here, it is a myth that the US Supreme Court has the final say, it does serve as a check and balance but Congress certainly has the power to pass a new or revised law that "changes" or "reverses" the meaning or scope of the law as interpreted by the Court, and the legislative history of the new law usually states that it was intended to "overrule" a specific Court decision.
For anyone who needs a little more reading to kill time at work:
http://laws.justice.gc.ca/en/F-11.6/text.html
http://laws.justice.gc.ca/en/F-11.6/text.html
poligeek said:
You said that very well poligeek, much appreciated for the time you put into it. I see what you mean now, "soft" rights or common law is well understood now, for me anyway. All states have common law, some have proceeded in the codification of these laws, in which were originally based on tradition and precedent.
Thanks.