Cruel and Unusual Punishment: Don’t Governments Have Better Things to Do?

By Chris Schafer
(Reposted from the Canadian Constitution Foundation, click for original article)

Our clients, Bruce and Donna Montague, have never caused anyone harm and have never committed acts of violence. They are well-respected members of their community, with Bruce having worked as a gunsmith serving the needs of local law enforcement.

They simply let the licences on their legally owned firearms lapse (they didn’t fill out the required paperwork), solely for the purpose of publicly mounting a constitutional challenge of the licensing requirements under the federal Firearms Act.

After losing the long constitutional challenge, for this “crime”, Bruce was sentenced to a prison term of 18 months together with conditional sentences totalling 90 days and one year of probation. Bruce is now subject to a lifetime firearms prohibition, making it impossible for him to carry on his former business as a gunsmith. His wife Donna was sentenced to six months’ probation. They both have criminal records now further limiting their future employment prospects.

If this punishment wasn’t enough already for a victimless paperwork “crime”, the federal government now wants to keep their extensive firearms collection worth about $100,000 under federal forfeiture laws. (The province of Ontario is also attempting to take away their family home under civil forfeiture laws but more on that another day).

Bruce and Donna simply want their property back which makes up the bulk of their live savings so that they can have an independent third party sell the collection on their behalf for a profit in order to avoid personal financial ruin. They are not attempting to regain possession of the firearms.

However, the Criminal Code provides for the automatic and mandatory forfeiture of their firearms collection even for this victimless paperwork crime.

But that’s where the Canadian Constitution Foundation stepped in (and you with your charitable financial support)! We are representing Bruce and Donna Montague on a pro bono basis (no costs to them personally) at the Ontario Court of Appeal this Friday. Whether or not you own a firearm (I personally don’t and probably never will) is not the point. What the federal government is attempting to do to Bruce and Donna constitutes, in our opinion, cruel and unusual punishment contrary to section 12 of the Charter of Rights and Freedoms.

We think the forfeiture of more than $100,000 of property owned by Bruce and Donna for paperwork “crimes” that neither endangered nor harmed anyone is not merely disproportionate (to use the legal language of lawyers), but rises to the level of gross disproportionality and as such, imposes a cruel and unusual punishment that violates the Charter rights of Bruce and Donna.

Haven’t Bruce and Donna been punished enough already without the federal government also taking away the bulk of their life savings?