Firearms Owners Association
CITATION: R. v. Montague, 2010 ONCA 141
COURT OF APPEAL FOR ONTARIO
Moldaver, MacPherson and Cronk JJ.A.
Her Majesty the Queen
Douglas H. Christie, for the appellants
John Pearson and Frank Au, for the respondent
Heard: February 18, 2010
On appeal from the convictions entered by Justice J. Wright
of the Superior Court of Justice, sitting with a jury, on December 6,
2007 and the sentences imposed by Justice Wright on March 18, 2008.
 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. 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.
 The Montagues raise a large number of grounds of appeal in support of their conviction appeal. These include attacks on: (1) the trial judge’s ruling regarding the constitutionality of the impugned firearms provisions; (2) the validity of the second search warrant executed on their home, whereunder the weapons in the hidden storage room were seized; (3) the trial judge’s decision, prior to the commencement of trial, to excuse certain persons from jury service; (4) the Crown’s closing address at trial; (5) the trial judge’s approach to the requisite mens rea for some of the offences at issue, including his instructions to the jury on this issue; (6) the amendment of the indictment at trial to make it conform to the wording of the applicable firearms regulations; and (7) the trial judge’s charge to the jury on the offence of firearms conversion under s. 102 of the Criminal Code.
 Mr. Montague also appeals from sentence. He argues, among other matters, that: (1) the sentence imposed violates his rights under s. 12 of the Charter; (2) his overall sentence was inordinately harsh; and (3) the trial judge erred by refusing to hear the proposed testimony of the jury foreman on sentencing.
A. Conviction Appeals
(1) Constitutionality of Firearms Provisions
 The basis of the Montagues’ challenge to the
constitutionality of various provisions of Canada’s firearms legislation
is succinctly set out at paragraph 73 of their factum on appeal:
 As the trial judge noted, much of the time at trial was consumed by the Montagues’ challenge to the efficacy of the firearms registration system in Canada. In his ruling, the trial judge observed that this was not the issue in this case. That observation was accurate.
 In this case, the Montagues contend that they have a constitutional right to possess arms in their home for self-defence, free from government interference or regulation. They submit that the legislation and regulations under which they were charged violate that right and are therefore of no force and effect. Hence, they say that the prosecution against them should have been dismissed.
 In oral argument before this court, the Montagues argue that whatever the course of Canada’s legislative history in relation to firearms regulation, the world changed in 1982 with the advent of the Charter. From that date forward, they submit, Parliament was precluded from abrogating existing fundamental rights and freedoms. They maintain that the right to possess firearms in the home for self defence without state intervention was one of those fundamental rights. Accordingly, as a result of the Charter, the existing firearms legislation, which regulates the right to possess and use firearms, is constitutionally invalid as an unwarranted intrusion on the Montagues’ pre-existing common law right to possess and use firearms.
 In support of this argument, the Montagues submit that Article 7 of the Bill of Rights, 1689, 1 Will & Mary, sess. 2, c. 2, is “the entrenchment and verbalization of the inherent right to possess firearms for self-defence”. There are several difficulties with this submission.
 First, Article 7 of the Bill of Rights, 1689 reads: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” (emphasis added). Thus, the plain language of Article 7 of the Bill of Rights, 1689 recognized that the right to possess arms for the purpose of defence was subject to allowance by law. In other words, Article 7 recognized Parliament’s jurisdiction to constrain the right to possess firearms.
 Second, although the Montagues contend that the right envisaged by Article 7 of the Bill of Rights, 1689 comes within the ambit of s. 7 of the Charter, Article 7 has neither directly nor indirectly been incorporated into Canada’s constitution. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),  1 S.C.R. 319, at para. 54, McLachlin J. (as she then was) clearly stated that provisions of the Bill of Rights, 1689 “cannot be directly transported without specific reference” and, further, “I do not think that the wording of the preamble to the Constitution Act, 1867 can be taken to refer to [a] specific article of the Constitution of the United Kingdom.”
 Moreover, contrary to the Montagues’ contention, the Supreme Court of Canada has addressed the question of whether the possession and use of firearms is a constitutionally protected right and has rejected the notion that Canadians have an absolute constitutional right to possess and use firearms. See R. v. Wiles,  3 S.C.R. 895, at para. 9; R. v. Hasselwander,  2 S.C.R. 398, at para. 414. Although s. 7 of the Charter does not appear to have been expressly invoked in those cases, the Supreme Court stated in Hasselwander at para. 414 that, “Canadians, unlike Americans, do not have a constitutional right to bear arms.” In Wiles at para. 9, the Supreme Court said: “[P]ossession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.”
 The Montagues submit that the above-quoted comments are obiter, as ss. 7 and 26 of the Charter were not engaged in Hasselwander and Wiles or any related jurisprudence.
 We disagree. The Supreme Court’s comments in Hasselwander and Wiles apply with equal force to s. 7 of the Charter.
 The Supreme Court has also recognized that the possession and use of firearms is a heavily regulated activity aimed at ensuring peace, order and public safety: see Wiles, at para. 9; Reference re Firearms Act (Can.),  1 S.C.R. 783.
 Importantly, even assuming that a right to possess and use firearms comes within the reach of s. 7 of the Charter, that right, like all other fundamental rights and freedoms, is not absolute. The impugned firearms legislation does not prohibit the right to possess and use firearms for self-defence – in the home or elsewhere. Rather, it simply regulates the circumstances under which such possession and use are permissible.
 Finally, we note that the trial judge considered in detail the Montagues’ constitutional challenge to the impugned firearms provisions of the Code, the Firearms Act and associated regulations enacted under the latter statute. His reasons in support of his ruling dismissing that challenge are thoughtful and comprehensive. He essentially held that there is no protected constitutional right in Canada to possess or use firearms. We agree with this conclusion and see no basis on which to interfere with his ruling.
(2) Attack on Second Search Warrant
 On the eve of trial, Mr. Montague sought to challenge the validity of the second search warrant obtained by the police on September 20, 2004. It was pursuant to this search warrant that the police obtained access to the hidden weapons storage room in the Montagues’ home and seized a large quantity of firearms, associated devices and firearms-related paraphernalia. In the exercise of his trial management power, the trial judge refused to allow this last-minute attack on the search warrant to proceed.
 We decline to interfere with this discretionary decision by the trial judge. On the record before him, he was entirely justified in denying Mr. Montague’s motion to challenge the second search warrant.
 Many of the background facts concerning the obtaining of the second search warrant and the police entry to the hidden storage room are set out in the record, including in the transcript of Mr. Montague’s bail hearing on September 20, 2004 and in affidavits sworn by Detective Sergeant Wade Meeks and Detective Constable Randall Belluz of the Ontario Provincial Police, filed with the trial judge. There is no need to repeat those facts in these reasons. However, we note, in particular, the following.
 At a judicial pre-trial held on December 21, 2005, the Montagues’ trial counsel indicated that he would inform Crown counsel within approximately one week whether the defence intended to seek to challenge the second search warrant. Defence counsel failed to do so. On April 30, 2006, the Montagues delivered a “Notice of Application and Constitutional Issue”. That Notice did not refer to the exclusion of any evidence as a constitutional remedy.
 A further judicial pre-trial was held by the trial judge on September 7, 2007. He accepted that the evidentiary phase of the Montagues’ constitutional challenge was complete and that only oral argument remained. On the record before us, it appears that the Montagues’ counsel also accepted this position.
 Only on October 23, 2007, after two judicial pre-trials and 22 months after his December 2005 commitment to inform Crown counsel within one week whether the defence would be mounting a challenge to the second search warrant, did the Montagues’ counsel raise the possibility of objecting to the warrant.
 By that time, this jury trial was looming. A challenge to the second search warrant at that stage potentially would have derailed what was anticipated to be a lengthy trial. In those circumstances, there was ample justification for the trial judge’s decision.
 Finally, it is important to underscore that the basis for the proposed attack on the second search warrant was Mr. Montague’s bald claim that he had been coerced or “extorted”, while in custody, into revealing the location of the secret firearms storage room to the police. There was no evidentiary foundation for this assertion. Indeed, the transcript from Mr. Montague’s bail hearing and the police affidavits to which we have referred belie this contention.
(3) The Jury Panel Issue
 The Montagues contend that the trial judge violated s. 632 of the Criminal Code by excusing persons from jury service out of their presence.
 We do not accept this submission. Section 626(1) of
the Criminal Code provides:
 In Ontario, the relevant law is the Juries Act, R.S.O. 1990, c.J.3. Section 24 provides that when jurors are summoned for jury sittings, a judge of the Superior Court of Justice may at any time before or during the sittings, “release from or postpone service of any number of jurors summoned for the sittings.” Where jurors have been released from service or their service has been postponed, “the remaining jurors constitute the panel”.
 This is precisely what happened at the Montagues’ trial. From the transcript, it is clear that defence counsel was aware of s. 632 of the Criminal Code but did not appear to be aware of s. 24 of the Ontario Juries Act, which is a complete answer to this ground of appeal.
 We also observe that when defence counsel raised his concern about the jurors who had been excused from the panel, the trial judge explained the process to him, including the crucial fact that the decision to excuse some jurors from the panel was made by him or by Justice Stach, not by a court administrator. This is what s. 24 of the Juries Act requires. Finally, the trial judge offered to show defence counsel the letters from prospective jurors that formed the basis for the trial judge’s exercise of discretion. He informed counsel that most of the people excused from service “were medical situations, but some were holidays”. There is nothing in the record to support any suggestion that anyone was excused from jury service on the basis of partiality.
 In short, the practice followed by the trial judge in this case was entirely consistent with s. 626 of the Criminal Code and s. 24 of the Ontario Juries Act.
(4) Crown Closing Address
 Mr. Montague contends that Crown counsel made false
and inflammatory remarks in his closing address to the jury and that the
trial judge erred by not correcting those remarks. In particular, Mr.
Montague objects to this comment from Crown counsel:
 When counsel’s impugned comment is considered in context, we view it as simply a characterization – perhaps somewhat vivid – that reasonably flowed from Mr. Montague’s own testimony about governments, war, weapons, resistance and rights. We are not persuaded that Mr. Montague suffered any prejudice from this comment. The jury acquitted him on all the ‘weapons dangerous’ charges to which the impugned remark related. The jury also acquitted Mr. Montague on a host of other charges, thereby undercutting his submission that the remark in question would have influenced the jury’s assessment of his credibility.
(5) Mens Rea Issues
 Mr. Montague raises several grounds of appeal relating to the issue of his intent. In particular, he submits that the trial judge effectively removed from the jury’s consideration the defences of colour of right and honest but mistaken belief that his possession of the firearms and other prohibited items was lawful. Mr. Montague further submits that the trial judge erred in removing s. 39 of the Criminal Code – defence of personal property under a claim of right – from the jury’s consideration.
 We would not give effect to these grounds. The mens rea defences upon which Mr. Montague relies do not apply to someone who knowingly violates valid legislation under the mistaken belief that the legislation itself is invalid. That argument was considered and rejected by this court in R. v. Klundert,  O.J. No. 3515. As Doherty J.A. explained in that case at para. 59, this kind of mistake of law cannot provide “a freestanding excuse for the commission of a crime”.
 In this case, it is apparent from his own evidence that Mr. Montague was not trying to obey the law; instead, in protest against various firearms laws and regulations with which he disagreed, he was choosing which laws he thought should be obeyed. In sum, he knowingly disobeyed the current law. In these circumstances, the defences of honest but mistaken belief and colour of right have no application.
 As for s. 39 of the Criminal Code, the trial judge was correct in instructing the jury that s. 39 was irrelevant and should not be considered. Section 39 provides that persons in peaceable possession of personal property may use reasonable force to prevent someone from unlawfully taking their property. In its essence, s. 39 is a self-defence provision. It has no application here since the defence of self-defence was not raised by Mr. Montague.
(6) Amending the Indictment
 At the close of evidence, the trial judge amended counts 5, 6, 40 and 42 (all s. 86(2) charges regarding contraventions of firearms storage regulations) to make the indictment conform to the wording of the relevant regulations. As those regulations define the term “unloaded” but not “loaded”, the trial judge amended the four counts in question to read “not unloaded” instead of “loaded”.
 Mr. Montague was acquitted on counts 40 and 42 and convicted on counts 5 and 6. We would not give effect to his submission that the trial judge erred in amending the indictment. The decision to amend was discretionary and in making it, the trial judge obviously satisfied himself that the amendment occasioned no irreparable prejudice to Mr. Montague. In particular, it did not alter the essential elements of the charges, nor did it affect the way in which Mr. Montague conducted his defence.
 In the circumstances, we are not persuaded that the trial judge erred in making the impugned amendment.
(7) Instructions to the Jury on the Alteration Offences
 Mr. Montague also submits that the trial judge erred in his response to the following question posed by the jury: “Under Mr. Montague’s business licence, was Mr. Montague legally allowed to alter a semi-automatic gun to a fully automatic gun?”
 The trial judge responded to the question by instructing
the jury that:
 The trial judge then told the jury that although Mr. Montague had given three reasons as to why he had converted the weapons in issue, “[N]one of them were valid reasons under Section 22 of the Firearms Licences regulations”. It followed, according to the trial judge, that even if Mr. Montague were allowed to alter these particular weapons pursuant to his business licence, “he could only alter them for specific purposes and he wasn’t within those purposes.”
 Contrary to Mr. Montague’s submission, we agree with the Crown that this instruction was correct. None of the reasons provided by Mr. Montague for converting his firearms constituted a “prescribed purpose”. Accordingly, he could not shelter under s. 22 of the applicable firearms regulations.
(8) Conclusion Regarding Conviction Appeals
 Accordingly, for the reasons given, the conviction appeals are dismissed.
B. Sentence Appeal
(1) Mandatory Minimum Sentences
 Mr. Montague challenges the constitutionality of the mandatory minimum term of one-year imprisonment that then existed for the offences of possession of a loaded prohibited or restricted firearm with readily accessible ammunition (s. 95(1)(a) of the Criminal Code) and for altering a firearm to fire automatically (s. 102 of the Criminal Code). Mr. Montague further submits that a global custodial sentence of 18 months was manifestly excessive and disproportionate to the nature and severity of his crimes and his degree of moral blameworthiness.
 We would not give effect to either submission. The trial judge found that the one-year minimum sentence for the s. 95(1)(a) offences would not shock the conscience of the community in the circumstances of this case, having regard to the totality principle and the number of such offences (nine in total). The trial judge sentenced Mr. Montague to one year concurrent on each of the nine offences.
 We agree with the trial judge’s analysis and conclusion that the one-year minimum sentence did not amount to cruel and unusual punishment in the circumstances of this case. The appellant does not rely, in the alternative, on reasonable hypotheticals to support his argument. See R. v. Ferguson,  1 S.C.R. 96.
 With respect to the 18-month concurrent sentences imposed on the three “alteration” charges under s. 102 of the Criminal Code upon which he was convicted, the trial judge considered those offences to be the most serious of all the offences Mr. Montague was facing. In the trial judge’s opinion, Mr. Montague made the alterations to prove to himself, and perhaps others, that he could do so with impunity. According to the trial judge, his conduct in that regard amounted to “a deliberate and dangerous flouting of the law”.
 In our view, the 18-month concurrent sentences on the alteration offences were both measured and fit, having regard to the number of alteration convictions (three) and the totality principle. In the circumstances, there is no basis for concluding that the one-year minimum sentence under s. 102 could be said to amount to cruel and unusual punishment. We again note that Mr. Montague does not raise reasonable hypotheticals in the alternative.
(2) Fitness of Sentence
 We are not persuaded that an 18-month global custodial sentence was manifestly unfit or disproportionate to Mr. Montague’s degree of moral blameworthiness. In so concluding, we have taken into account the number of convictions, the seriousness of the offences involved, the threat that Mr. Montague’s arsenal of weapons posed to public safety, and his deliberate defiance of the law.
 Accordingly, we would not interfere with the custodial sentence imposed.
(3) Proposed Testimony of Jury Foreman
 Mr. Montague also submits that the trial judge erred in rejecting the proposed viva voce evidence of the jury foreman on the question of sentence.
 Neither at trial nor on appeal has the appellant cited any authority for his request that the jury foreman be permitted to testify. Indeed, after raising the matter at trial, and following a discussion with the trial judge where defence counsel put his position in terms of “as a citizen, he has … the right to express an opinion”, “he heard all the evidence”, “[h]e could have an impression of the accused”, it appears that defence counsel ultimately did not pursue this request.
 In any event, the foreman’s proposed opinion evidence on the appropriate sentence to be imposed, like the opinion of any other observer of the trial, was irrelevant. It was the trial judge’s task to fashion an appropriate sentence for Mr. Montague.
 We reject this ground of appeal.
(4) Other Matter
 Finally, we note that the trial judge did not decide the issue of forfeiture. Rather, after learning that the Montagues were intending to appeal, he invited the parties to return to address the issue depending on the outcome of the appeal.
 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.