Our Constitutional Inheritance

 

 

The English Bill of Rights 1689

Our Constitutional Inheritance

 

PART I   Our Constitution.

If you are like many Canadians you know there is a Charter of Rights and Freedoms but have little idea what exactly they are or how they work. So it would be even less likely that you would know what exactly comprises our Constitution. So what is our Constitution made up of?

 Our Constitution is in fact several documents or Acts of the British Parliament and a few enacted right here in Canada. You are probably aware of the Meech Lake Accord, or the Charlottetown Accord (which was resoundingly defeated by the people of Canada). These are two recent examples of Constitutional amendments however Charlottetown failed therefore does not form part of our Constitution. A list containing many such amendments can be found here.

However these do not include Constitutional Acts of the Imperial Parliament that also form part of our Constitution. These acts still form part of our Constitution first by the reception dates of English Law by the individual Provinces as they entered into Confederation the original four Provinces Nova Scotia, New Brunswick, Quebec, and Ontario have the oldest dates ranging from 1756 for Nova Scotia and 1792 for Ontario.[1] Secondly by section 129 of the Constitution Act 1867-1982.

Continuance of existing Laws, Courts, Officers, etc.

129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.(65)

The restriction against altering or repealing laws enacted by or existing under statutes of the United Kingdom was removed by the Statute of Westminster, 1931, 22 Geo. V., c. 4 (U.K.) except in respect of certain constitutional documents. Comprehensive procedures for amending enactments forming part of the Constitution of Canada were provided by Part V of the Constitution Act, 1982, (U.K.) 1982, c. 11.

This is to say that Acts of the British Parliament that form part of their un-codified Constitution therefore form part of the Canadian Constitution. As noted the Parliament of Canada has long considered these old Imperial Constitutional Acts to be part of our Constitution and can only be amended by the formula provided in Part V of the Constitution Act. Further authority can be found in Judgments of our Courts

R. v. Monatague Wright J.

 [16]      Notwithstanding that in 1973 the federal government argued before the Joint Committee on Regulations and Other Statutory Instruments that the Bill of Rights of 1689 was not part of the law of Canada I agree that the English Bill of Rights of 1689 is indeed part of the rich constitutional heritage Canadians have received from the mother country.  I take some quibble with the mechanism for its reception, however.

 

O’Donohue v. Canada, ROULEAU J.:

[35]      Further support for the respondent’s position that the rules of succession (and, in particular, the Act of Settlement) have constitutional status can be found in the treatment of that Act in the Revised Statutes of Ontario of 1897. The Revised Statutes show two categories of imperial statutes, i.e. laws from Great Britain that apply to Ontario. The two categories are described as “constitutional acts” and “certain imperial statutes of general practical utility in force in Ontario ex proprio vigore”. The fact that the Act of Settlement was indexed among the constitutional acts is a further indication that, despite the fact that it was not listed in the Schedule to the Constitution Act, 1982, the Act of Settlement was intended to be a component of our constitutional enactments (see Revised Statutes of Ontario, 1897, vol. III, appendix Part 1).

Authorson v. Canada (Attorney General),

38                              In Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at p. 785, it was stated that:

 

How Houses of Parliament proceed, how a provincial legislative assembly proceeds is in either case a matter of self-definition, subject to any overriding constitutional or self-imposed statutory or indoor prescription.  It is unnecessary here to embark on any historical review of the “court” aspect of Parliament and the immunity of its procedures from judicial review.  Courts come into the picture when legislation is enacted and not before (unless references are made to them for their opinion on a bill or a proposed enactment).  It would be incompatible with the self-regulating — “inherent” is as apt a word — authority of Houses of Parliament to deny their capacity to pass any kind of resolution.  Reference may appropriately be made to art. 9 of the Bill of Rights of 1689, undoubtedly in force as part of the law of Canada, which provides that “Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament”.

The O’Donohue judgment was endorsed by the Court of Appeal for Ontario. This establishes that these old Imperial Acts are very much in force and part of the “Supreme Law of The Land” Furthermore that these acts are not subject to the limiting section of the Charter of Rights section 1. Indeed these acts unless amended or repealed by the amending formula are very much alive within our Constitution. It also establishes that one part of the Constitution cannot be turned on another to render it void. While the Act of Settlement violated the Charter of Rights it is not justiciable or in other words beyond the jurisdiction of the court to alter it.

What does this mean? It means several things actually; first it means that some very old acts of Parliament of England are as much a part of our Constitution as the new ones passed and ratified by Parliament and the Provincial legislative assemblies; secondly that one part of the constitution cannot be used against another part of the constitution; unless they were specifically repealed by the British Parliament prior to the enactment of the British North America Act they were not amenable by our Parliament; and finally it would require the Parliament of Canada along with a two thirds majority of the Provinces that contain at least fifty percent of the population and any Province may dissent from the amendment and the amendment would not apply to that Province. (see amending formula)  Oddly the amending formula in practice makes the Constitution un-amenable; it requires the consent through majority vote in each Provincial Legislature which presents the perfect opportunity for the Provinces to barter concessions on other matters which Parliament may not wish to do.

I believe that I have firmly established in law that these older Constitutional Acts of the British Parliament are very much part of our Constitution. If there were any doubt section 26 of the Charter would meekly bring it into our Constitution, I say meekly in that section 26 rights are not guaranteed rights in the opinion of the Supreme Court.

 CHARTER DECISIONS

The thrust of s.26 is that a guarantee of any Charter right or freedom cannot be turned around and used against the individual who is seeking the protection of a non-Charter right or freedom:  R. v. Morgentaler et al.  (1984), 12 D.L.R. (4th) 502 (Ont. S.C.); appeal quashed 1984 CanLII 55 (ON C.A.), (1984), 16 C.C.C. (3d) 1 (Ont. C.A.).

Principles developed under the common law do not acquire additional content by the inclusion of s.26 in the Charter:  Le Groupe des Eleveurs de Volailles et al. v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (F.C.T.D.).

Section 26 only indicates that the Charter is not limiting or interfering with any additional rights which already existed, but that is quite a different matter from saying the Charter guarantees those rights:  R. v. MacAusland et al. (1985), 19 C.C.C. (3d) 365 (P.E.I.C.A.).

. Hudson v. Canada (Attorney General), 2007

 ... That section [s. 26] of the Charter acknowledges that rights guaranteed in the Charter are not in lieu of any other rights that exist in Canada. Therefore, all Canadians continue to enjoy the protection provided for in the Canadian Bill of Rights which they had before the Charter as well as the rights and freedoms as guaranteed in the Charter. However, while the rights and freedoms as recognized and declared in the Canadian Bill of Rights continue to exist, they are not guaranteed by the Charter. Section 26 would have been unnecessary and the words “as guaranteed by this Charter” would not have been used in s. 24(1) of the Charter if s. 24 applied to all rights whatever their source. Section 26 only indicates that the Charter is not limiting or interfering with any additional rights which already existed, but that is quite a different matter from saying the Charter guarantees those rights. ... [Emphasis added.]

 

This begs the question however if section 26 was not intended to protect these rights why would we even have section 26 at all if the Charter does not offer a guarantee of these rights? When it suited the Courts the Act of Settlement was very much a guaranteed Constitutional document, it was cited as the source of the guarantee of an independent, and impartial judiciary when it came to determining the wages and benefits of judges. although section 26 did not play a role in this particular case.

 

Part II

The Importance of The English Bill of Rights

 

The Hard Road To Change

As people go I would have to say that I am a bit of an anomaly, I love history! English History more so than Canadian History because it is the bedrock which our history is built on. I rely upon the Maxim “Those who cannot remember the past are condemned to repeat it” -George Santayana and its many permutations. Therefore I take the view that history is everything; when the UN ignored the history lesson of Cambodia and the Khmer Rouge it was repeated in Rwanda; which was a repeat of what happened in Germany circa 1933-1945; which was a repeat of what happened in Armenia in 1915. To remove all doubt I will simply say mass genocides took place while the world stood by.

There are couple of things to remember about the English Bill of Rights the first being; it did not create any rights, and second it was the culmination of events that began in 1626 when the kindling wood of the Civil War was being laid down by Charles I of England (the only English King to be tried and executed for treason)   War officially broke out however in 1642 when the King raised his standard, the war lasted for four years and ended badly for the King; Parliament was victorious it lead to the establishment of the Commonwealth of England (aka republic) which was quite short lived a mere span of twelve years that were not exactly peaceful years.

King Charles II was declared King in Scotland of Great Britain in 1649, which Parliament passed a statute declaring any such claim unlawful in England and Ireland as England and Ireland and been declared to be republics. Oliver Cromwell lead an army against Charles and won Charles fled to mainland Europe, however upon Cromwell’s death Parliament invited his return and the Crown. All documents were altered to read as though he had succeeded his Father Charles I in 1649, but like his father he believed a King ruled by divine right and once more tensions began to rise in Parliament with the King. Though Parliament did not rise against this King who would reign for 30 years upon his death in 1685; Charles II left no heirs to the throne save but his brother James II (aka. James the Catholic). James II was not popular to begin with as he was a Papist; what further compounded his unpopularity was his belief in the Divine right of Kings; which seemed to run in his family and the lessons of the Civil War seemed to have been lost on him. He become increasingly hostile towards dissenting voices many arrest were made; James appointed George Jeffreys, first Baron Jeffreys of Wem as his Chief Justice who would because of his work for his King become known as the ‘Hanging Judge’. In a psychotic fashion Jeffreys set to the task of silencing the dissent for his King in what would become known as the ‘Bloody Assizes’. It could easily said that these assizes were the lynch pin in the demise of the King; for even his subjects began to despise him (see timeline). The Glorious Revolution was afoot.    

The Glorious Revolution culminated with James II fleeing and abdicating his throne; the throne being vacant it was then the duty of Parliament to bring a more suitable King to the Throne. The Throne was offered to Prince William of Orange and his wife Mary the protestant sister of the absent King James II; she was James’s heir to the throne until the birth of James’s son Charles. In our age of tolerance we have a hard time imagining such strife between two Christian faiths, however in that day and age your faith was everything; Charles was a Catholic and Mary a Protestant the faith of Parliament. James II had given favour to Catholics given them posts in high positions displacing Protestants from them if they were in the way; an early form of affirmative action all in the name of tolerance. Parliament however needed a King that would understand his role in England and understood the role that Parliament must play.

Parliament and the people of England had suffered at the hands of Charles I, II and James II. Flirted with a republic which created a de facto dictator in Oliver Cromwell; Parliament had absolutely no desire to enthrone another King just to repeat this all over again. Though it should be noted that; William of Orange was in England not as a conqueror, but rather as military aid; this aid did cause the King to flee. Parliament did not intend to depose James II; he did leave all of his own accord throwing the great seal into the Themes. William convened a convention Parliament to decide how matters were to proceed. It was agreed that James II having fled England had indeed abdicated his throne; therefore Parliament declared Mary Queen who was to rule jointly with her husband William as the King; Parliament for wont of not repeating the past drafted the Bill of Rights.

 

The English Bill of Rights

On 22 January a new Parliament was called. The Convention Parliament although as it was summoned by William of Orange and not the King; it could not be called a Parliament in the strict meaning of the word. On February 12, the Convention Parliament issued this Declaration of Rights which sharply condemned the actions of James II and asserted what it described as "certain ancient rights and liberties". The same day, Princess Mary, William's wife and James's elder daughter, arrived in London. Lord Halifax, the leader of the Lords, read the Declaration to both William and Mary on the next day, and then offered them the crown. The declaration was later embodied in the Bill of Rights passed by Parliament in December 1689: this further stipulated that the throne be occupied by a Protestant only and that the succession was to rest with (1) the heirs of Mary (2) the heirs of her sister Anne.[2]

 

     The Declaration of Rights: February 13 1689

1.      Whereas the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of the kingdom.

2.      By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without the consent of parliament.

3.      By committing and prosecuting divers worthy prelates for humbly petitioning to be excused concurring to the said assumed power.

4.      By issuing and causing to be executed a commission under the Great Seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes.

5.      By levying money for and to the use of the Crown by pretence of prerogative, for other time and in other manner than the same was granted by parliament.

6.      By raising and keeping a standing army within this kingdom in time of peace without the consent of parliament and quartering soldiers contrary to the law.

7.      By causing several good subjects, being Protestants, to be disarmed at the same time when papists were both armed and employed contrary to the law.

8.      By violating the freedom of election by members to serve in parliament.

9.      By prosecutions in the Court of King's Bench for matters and causes cognizable only in parliament; and by divers other arbitrary and illegal courses.

10.  And whereas of late years, partial, corrupt, and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason, which were not freeholders.

11.  Excessive bail hath been required of persons committed in criminal cases, to elude the benefit of laws made for the liberty of the subjects.

12.  And excessive fines have been imposed; and illegal and cruel punishments inflicted.

13.  And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons, upon whom the same were to be levied.

14.                       All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.

 

It is apparent by the tone of the grievances listed that Parliament took the role of protector of the common people very seriously. Many of these grievances are directly related to the actions of James and his Cheif Justice Jeffreys in connection with the Bloody Assizes. However the one that every Canadian ought to take note of is article7. By causing several good subjects, being Protestants, to be disarmed at the same time when papists were both armed and employed contrary to the law. This is almost an alien idea in our day and age; discrimination solely on the basis of Christian denomination, but in that age it was reason enough to go to war. James II however was intent on “toleration” and balancing the number of Protestant employed by the Government with Catholics in a forced affirmative action program as stated above.

The process of drafting the Bill of Rights took some months indeed. What began in February of 1689 was finalized in December of the same year. The final draft of the Bill incorporated the Declaration of Rights into it; thus forming two parts; the first being the Declaration of Rights and the second part being the remedy or the enactment of the protections for the rights that were abrogated by the previous King; it was with and by the agreement to the terms of the Bill of Rights that William and Mary were Crowned King and Queen of England.

 And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the lords spiritual and temporal, and divers principal persons of the Commons) cause letters to be written to the lords spiritual and temporal, being Protestants; and other letters to the several counties, cities, universities, boroughs, and Cinque Ports, for the choosing of such persons to represent them, as were of right to be sent to parliament, to meet and sit at Westminster upon January 22, 1689 . .. And thereupon the said lords spiritual and temporal and Commons . . . do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare:

1.      That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

2.      That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

3.      That the commission for erecting the late Courts of Commissioners for Ecclesiastical Causes and courts of like nature are illegal and pernicious.

4.      That levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is, or shall be granted, is illegal.

5.      That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.

6.      That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

7.     That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.

8.      That election of members of parliament ought to be free.

9.      That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament.

10.  That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

11.  That jurors ought to be duly impannelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.

12.  That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.

13.  And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliaments ought to be frequently held.

And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declaration, judgments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequent of example.

To which demands of their rights they are particularly encouraged by the declaration of His Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein.

Having therefore an entire confidence that his said Highness the prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights and liberties.

The said Lords Spiritual and Temporal, and Commons, assembled at Westminster do resolve that William and Mary, Prince and Princess of Orange be, and be declared, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, to hold the Crown and royal dignity of the said kingdoms and dominions to them the said Prince and Princess during their lives, and the life of the survivor of them; and that the sole and full exercise of regal power be only in, and executed by the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said Kingdoms and dominions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess of Anne of Denmark and the heirs of her body; and for default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal and the Commons do pray the said Prince and Princess to accept the same accordingly.

The Following is an abbreviated version of the Bill of Rights; which is still in force in Great Britain. Please note that the date is in accordance with the Gregorian Calendar and that it is still in the original Middle English. I have emboldened text that is very important; however I will discuss probably our oldest if not most important  following the Bill of Rights (here)

Full text of the Bill of Rights

1688 c.2 1_Will_and_Mar_Sess_2

An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne.                                    

Whereas the Lords Spirituall and Temporall and Comons assembled at Westminster lawfully fully and freely representing all the Estates of the People of this Realme did upon the thirteenth day of February in the yeare of our Lord one thousand six hundred eighty eight present unto their Majesties then called and known by the Names and Stile of William and Mary Prince and Princesse of Orange being present in their proper Persons a certaine Declaration in Writeing made by the said Lords and Comons in the Words following viz

The Heads of Declaration of Lords and Commons, recited.

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome.

 

 

Standing Army.

By raising and keeping a Standing Army within this Kingdome in time of Peace without Consent of Parlyament and Quartering Soldiers contrary to Law.

Disarming Protestants, &c.

By causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law.

Illegal Prosecutions.

By Prosecutions in the Court of Kings Bench for Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall Courses.

Juries.

And whereas of late yeares Partiall Corrupt and Unqualifyed Persons have beene returned and served on Juryes in Tryalls and particularly diverse Jurors in Tryalls for High Treason which were not Freeholders,

Excessive Bail.

And excessive Baile hath beene required of Persons committed in Criminall Cases to elude the Benefitt of the Lawes made for the Liberty of the Subjects.

Fines.

And excessive Fines have beene imposed.

Punishments.

And illegall and cruell Punishments inflicted.

Grants of Fines, &c. before Conviction, &c.

And severall Grants and Promises made of Fines and Forfeitures before any Conviction or Judgement against the Persons upon whome the same were to be levyed.All which are utterly directly contrary to the knowne Lawes and Statutes and Freedome of this Realme.

 

The Subject’s Rights.

And thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their auntient Rights and Liberties, Declare

Right to petition.

That it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegall.

Standing Army.

That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law.

Subjects’ Arms.

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

Excessive Bail.

That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.

Juries.

That Jurors ought to be duely impannelled and returned . . . F1

Grants of Forfeitures.

That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void.

The said Rights claimed. Tender of the Crown. Regal Power exercised. Limitation of the Crown.

 

I will go out on a limb here for a moment. I put forth the proposition that in 1689 men had a more ordered view of life; that is to say that right and wrong were absolutes no differently than good and evil. Everyone knew God was in heaven Satan was in hell, and it was the latter that inspired men to do evil, and God inspired the good to come out. Unlike today with both moral and cultural relativism muddying the waters; back then the moral compasses were fixed true; that is to say men and women knew right from wrong.

A ‘Right’ is an entitlement, simply put. The law sought to protect those rights; it was the Crown that usually sought to extinguish rights when the need arose for example Habeas Corpus a right enshrined in the oldest constitutional document in the western world the Magna Carta. This right held by a free man was to prevent arbitrary arrest and detention by the authorities; it is the literal demand to show cause to determine whether an arrest is lawful. It is a sacred limit placed upon the Crown. During the Bloody Assizes Habeas Corpus was suspended; wholesale arrests were made contrary to law. Any protestant that could be considered a threat to the authority of the Crown was disarmed; also contrary to law. In the Bill of Rights Parliament did not create any rights what so ever; they merely entrenched what already existed in the laws of England.

Furthermore Parliament made the distinction between a law and a statute; this bolsters the argument that I make that a statute is not a law. The Bill of Rights also established that Parliament was a sovereign body; that it was free to legislate without interference from the Crown and Courts; furthermore that is was the sole source of legislation. I would also point out that; as a sovereign body it was not bound by the acts of previous Parliaments; it was free to repeal or override legislation. The English Bill of Rights has not ever been repealed nor amended by any Parliament in England and stands intact as statutory law in Great Britain, nor has it has not been repealed or altered in anyway by any Parliament of Canada; it too remains intact and in full force and vigour in Canada.      

The Oldest Right

“Subjects’ Arms.

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”

I stand by my contention that; not only is the English Bill of Rights 1689 in force and effect in Canada supra; it is indeed part of the Supreme Law of The Land. The keeping of arms is not confined to sword, spear, knife, or firearm. I will deconstruct the article without losing its spirit or intent as follows:

That the Subjects which are Protestant; is the subject of the article it was these “persons” which the erstwhile king acted against contrary to law.  

May have arms for their defence; may is synonymous with shall in law; it is an imperative. Arms are what they “shall” have; the qualifying phrase for their defence is the imperative reason for having arms. The controversy of this statement is that in today’s Canadian society it horrifies the general public that people are allowed to have weapons. Even with the qualifier “for their defence”.

suitable to their Conditions; Arguably as confusing as the U.S. second amendment. Condition is synonymous with “Class” or “Status”; we have no such distinctions in Canada, save but we have rich people, poor people, and not so poor people. However the English Courts of have held even the poorest man has a right to defend his home and his life with arms. I would further state that this clause is perhaps deference to the Ancient Assize of Arms 1181 and 1252

Ancient Assize of Arms 1252 required that all "citizens, burgesses, free tenants, villeins and others from 15 to 60 years of age" should be armed.

Rex v. Dewhurst (1820)

[The Bill of Rights] ... provides that, "The subjects which are Protestant may have arms for their defence suitable to their conditions, and as allowed (p.34)by law." (...). But are arms suitable to the condition of the people in the ordinary class of life, and are they allowed by law? A man has a clear right to arms to protect himself in his house. A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business. But I have no difficulties in saying you have no right to carry arms to a public meeting, if the number of arms which are so carried are calculated to produce terror and alarm....

Prior to 1689 the various Game Acts more or less removed firearms from the common man simply by saying that they were not qualified to hunt; which were statutory acts of the Crown not law. However the Glorious Revolution saw the end of these statutes being used in this manner; since it was the duty of everyone to keep the kings peace. As per Dewhurst supra we see it evolve into an individual right by the interpretation of the courts. In what I consider a landmark case the Supreme Court of Canada upheld the fundamental concept of self defence, and keeping a concealed weapon in R. v. Kerr an inmate in a penitentiary knew of an imminent attack on himself; armed himself with a makeshift knife (shank) concealed it and went about his business. Of note is that it was customary for this inmate to be armed. He was acquitted of murder and the carrying of a weapon dangerous to the peace; the Crown subsequently appealed the weapons charge and had the acquittal reversed. The Supreme Court however restored the acquittal; with this notable citation

   39                              The question arises as to the relevance of a finding that the accused actually used his weapon in a manner which constituted justifiable self-defence.  Thus, in R. v. Sulland (1982), 2 C.C.C. (3d) 68, the British Columbia Court of Appeal held, at p. 71:

 

In my view, one does not commit the offence with which we are concerned if one carries a weapon for self-defence that is an appropriate instrument with which to repel, in a lawful manner, the type of attack reasonably apprehended and if the person carrying it is competent to handle the weapon and is likely to use it responsibly.  In the absence of other circumstances, such as conduct calculated to provoke an attack, the purpose is unlikely to be dangerous to the public peace.  That an attacker might be repelled forcefully, and even injured, is not a danger that the section refers to.  In that case the attack, not the response to it, breaches the public peace. [Emphasis added.]

Insofar as the B.C. Court of Appeal was referring, by the use of the phrase “in a lawful manner”, to justifiable self-defence, Jessup J.A., dissenting in Nelson, supra, seemed to agree (at p. 36):

 

Having a weapon for the sole purpose of abating a breach of the peace threatened to result from an attack on the possessor is not, in my opinion, a purpose dangerous to the public peace.  Self-defence, justifiable under the Code, is not confined to tooth and nail. [Emphasis added.]

It is my view that the phrase “suitable to their condition” is rather vague in our times if not irrelevant as the august body that the Supreme Court is; has held we are not left with but tooth and nail to defend ourselves.

“As allowed by law”

Probably the most troublesome clause of this right; this phrase which in my view has been deliberately misconstrued by both legislators and the judiciary has been a source of justification of denying an inherent and inalienable right. I’m willing to give the legislators a pass on this to a point; after all they are liars cheats and thieves; I do not have high expectations of them. The judiciary however I am not willing to be so kind with them; they have spent many years learning the law; are supposed to be impartial, and independent. They are supposed to consider the evidence before them in its entirety not selective bits nor be dismissive of evidence that clearly proves an argument. The Bill of Rights 1689 needs to be read with context and with a bit of historical deference. The English Parliament and the Subjects of the realm had fought a civil war, suffered two Kings hence of that; which believed they ruled by divine right; had their rights trampled upon and ground into the dirt by the “Bloody Assizes”, but averted a second civil war on English soil by inviting the King’s sister and her husband Prince William of Orange to England in force.

Our “powers that be” have construed this clause as to mean Parliament may regulate and legislate against this right. This is unmitigated intellectual dishonesty; it was the Protestants that were disarmed contrary to the law; the Bill of Rights restored their right according to the law or as it was put “as allowed by law”. As per article 14 of the Declaration of Rights supra; a clear distinction is made between a law and a statute; Parliament passed legislation to become statutes, and the courts determined law. Put succinctly statutes were not considered law; a sworn judge of the Crown is obliged to know the difference. Secondly the common people were the ready source of soldiers and they were charged with the duty of keeping the King’s Peace long before there were organized police. Given both those facts it defies logic that this clause could be construed as meaning Parliament would control them in future. It is later confirmed by Sir William Blackstone’s Commentaries on The Laws of England and in a more contemporary edition by James Patterson, Commentaries on the Liberty of the Subject and the Laws of England Relating to the Security of the Person (London 1877) at page 441.

Right of wearing arms.While the possession of arms was thus enjoined, it was a different thing whether each was to be allowed to carry arms about wherever he went. The wearing of arms was repeatedly forbidden by royal mandate in the time of Edward III., especially at night after curfew;5 and a penalty was imposed on those who went with them in London either by day or night.6 But in all countries where personal freedom is valued, however much each individual may rely on legal redress, the right of each to carry arms—and these the best and the sharpest —for his own protection in case of extremity, is a right of nature indelible and irrepressible, and the more it is sought to be repressed the more it will recur. If there is any danger in this right being clung to as a vital condition of personal security and self-defence, there are modes of taking the proper measures to wean subjects from the dangerous indulgence. In order to do so it is above all things necessary to create a confidence in the equality and impartiality and fitness of the laws and their administration; and this cannot be done with reasonable men, unless these have some voice in settling those laws and moulding them to the necessities of the time. As has been shown

i 3 Hen. VIII. c. 3; 33 Hen. VIII. c. 9. 2 19 Hen. VII. c. 4. 3 14 & 15 Hen. VIII. c. 7; 25 Hen. VIII. c. 17; 33 Hen. VIII. c. 6. 4 4 & 5 Ph. & M. c. 2. 5 Riley's Lib. Alb. Pref. 46.

It was not to be wondered after the experience of the civil wars, and all that led to them and followed from them, that the champions of our constitutional freedom should have retained in their inventory of personal securities the right of each individual to bear arms. It was put prominently forward in the Bill of Rights, owing to the right of wearing arms having been previously refused to Protestants, while it was allowed to Papists. The Bill of Rights expressly declared, that thenceforth "the subjects which are Protestants may have arms suitable to their conditions, and as allowed by law." 2 Since that time, though the use of arms has been wholly discontinued, and their name almost forgotten for purposes of personal defence, the law remains unimpaired as it was then deliberately settled.

While Blackstone’s Commentaries are still an adequate source; the aforementioned is closer to our times in that the Dominion of Canada had been established at this time therefore translates easier into Canadian Law as Canadian Law was British Law. This is in my view conclusive proof that as far as British Law is concerned that the right to keep arms and in fact bearing them is indeed a constitutional right. Furthermore that the Bill of Rights is not merely a “protest” as it was stated by M.J. Moldaver J.A in R. v. Montague, I was present and a direct witness to this comment and would swear to this under full liability of perjury of this prejudicial remark. In their written judgement  

[14]         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.

I take great exception to this line of reasoning; as I have taken great pains to give evidence that the term as allowed by law is not a condition at all. At the very least this could be termed as “Judicial Activism” and at the very worst “judicial fraud”. Though we should not be surprised by the finding of this court; this same court overruled another fundamental cornerstone of our system of law in another case; the very basic right of the accused to confront their accuser as in R. v. N.S., 2010 ONCA 670 (CanLII) please take note of the same judge in both cases. In short neither decision was based in law, but rather in an activist agenda.

 

In The End

I have laid bare for everyone who cares to read the full text and references provided above solid evidence  that the English Bill of Rights 1689 is fully apart of our Supreme Law of the Land that is the ultimate will of the people of Canada. I have recounted fully the reasoning of the Bill in its historical context.

A constitution of a nation is the forward view to the future of the nation. The Parliament of England understood well; that without an armed citizenry a nation could not remain free; that it would forever be at odds with petty tyrants. A nation not equipped to do violence in its defence will face extinction; regardless of the origin of the enemy it faces; whether that enemy is from without or from within.

Our Constitution is ours it does not belong to the Parliament of Canada, nor the Courts; Parliament did not give us our rights, nor did the Courts. In their own words the Constitution is the expressed will of the people of Canada and the Supreme Law of the Land. It is therefore the duty of Parliament to not to infringe upon them, furthermore it is the duty of the Courts to uphold our rights and apply the Supreme Law; it is not their task to save bad legislation anymore than it is their job to social engineer “Canadian Values” through capricious decisions that save legislation when it fits an agenda or strikes it down when it does not.

The Parliament that drafted the Bill of Rights 1689 envisioned themselves as the shield and sword against the arbitrary power of Kings; a role now passed to the Courts in Canada as the line between Crown and Parliament is blurry. We as a people must have the courage to embrace freedom; demand from our elected representatives that they obey the law; we must demand from our judiciary that they uphold and apply the law. There is no doubt that the Canadian Firearms Program operates contrary to law; no amount of wilful blindness on the part of the judiciary will change this fact; to our politicians I will part with the wise words of  Cesare Beccaria on “The false Ideas of Ultility”

 

A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniences, who had rather command the sentiments of mankind than excite them, and dares say to reason, `Be thou a slave'; who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid wearing arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? And does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.

It is a false idea of utility that would give to a multitude of sensible beings that symmetry and order which inanimate matter is alone capable of receiving; to neglect the present, which are the only motives that act with force and constancy on the multitude for the more distant, whose impressions are weak and transitory, unless increased by that strength of imagination so very uncommon among mankind. Finally, that is a false idea of utility which, sacrificing things to names, separates the public good from that of individuals.

There is this difference between a state of society and a state of nature, that a savage does no more mischief to another than is necessary to procure some benefit to himself: but a man in society is sometimes tempted, from a fault in the laws, to injure another without any prospect of advantage. The tyrant inspires his vassals with fear and servility, which rebound upon him with double force, and are the cause of his torment. Fear, the more private and domestic it is, the less dangerous is it to him who makes it the instrument of his happiness; but the more it is public, and the greater number of people it affects, the greater is the probability that some mad, desperate~ or designing person will seduce others to his party by flattering expectations; and this will be the more easily accomplished as the danger of the enterprise will be divided amongst a greater number, because the value the unhappy set upon their existence is less, as their misery is greater.

To my fellow Canadians: We must have the courage to be free; we must have the strength to stand up for what is right. We need all of our rights; even though we may not agree with every single right in its entirety. We must understand that our oldest rights have stood the test of time and tyrants; that these rights have done so with reason and good cause. We must not succumb to our private fears; for in the end it is these that will render us slaves.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

End Notes

Black’s Law Dictionary 8th Ed. 2004

MAY

may,vb. 1. To be permitted to <the plaintiff may close>. [Cases: Statutes 227. C.J.S.

Statutes §§ 362–369.] 2. To be a possibility <we may win on appeal>. Cf. CAN. 3. Loosely, is

required to; shall; must <if two or more defendants are jointly indicted, any defendant who so

requests may be tried separately>. • In dozens of cases, courts have held may to be synonymous

with shall or must, usu. in an effort to effectuate legislative intent.

Bouvier’s Law Dictionary SIXTH EDITION, REVISED, IMPROVED, AND GREATLY ENLARGED.

VOL. I.

MAY

 To be permited; to be at liberty; to have the power.

2. Whenever a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as shall. For example, the 23 H. VI. says, the sheriff may take bail, that is construed he shall, for he is compellable to do so. Carth. 293 Salk. 609; Skin. 370.

3. The words shall and may in general acts of the legislature or in private constitutions, are to be construed imperatively; 3. Atk. 166; but the construction of those words in a deed depends on circumstances. 3 Atk. 282.

See 1 Vern. 152, case. 142 9 Porter, R. 390.

 

Dictionary.com Unabridged

Related Words for : arms

implements of war, munition, weaponry, weapons system, blazon

arm 2 /?rm/ Show Spelled[ahrm]

noun

1. Usually, arms. weapons, especially firearms.

2. arms, Heraldry . the escutcheon, with its divisions, charges, and tinctures, and the other components forming an achievement that symbolizes and is reserved for a person, family, or corporate body; armorial bearings; coat of arms.

verb (used without object)

3. to enter into a state of hostility or of readiness for war. verb (used with object)

4. to equip with weapons: to arm the troops.

5. to activate (a fuze) so that it will explode the charge at the time desired.

6. to cover protectively.

7. to provide with whatever will add strength, force, or security; support; fortify: He was armed with statistics and facts.

8. to equip or prepare for any specific purpose or effective use: to arm a security system; to arm oneself with persuasive arguments.

 

Bibliography

Of Crimes and Punishments Cesare Beccaria
(1764)
Translated by E.D. Ingraham

English Historical Documents 1833-1874

 By W. D. Handcock

Ireland and Britain, 1170-1450

 By Robin Frame

Select charters and other illustrations of English constitutional history ...

 edited by William Stubbs

History of the High Court of Chancery and other institutions of England ...

 By Conway Robinson

The History of English Law Before the Time of Edward I

 By Frederick Pollock, F. w. Maitland

Constitution Acts, 1867 to 1982

Authorson v. Canada (Attorney General),

Revised Statutes of Ontario, 1897, vol. III, appendix Part 1).

Constitution Act, 1982

O’Donohue v. Canada

R. v. Monatague

Court of Appeal for Ontario

Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at p. 785

The Canadian Encyclopedia.com

Canadian Legal Information Institute

Charles II (r. 1660–1685), Official website of the British Monarchy, http://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/TheStuarts/CharlesII.aspx, retrieved 19 April 2010 

Fraser, Antonia (1979), King Charles II, London: Weidenfeld and Nicolson, ISBN 0-297-77571-5 

Hutton, Ronald (1989), Charles II: King of England, Scotland, and Ireland, Oxford (England): Clarendon Press, ISBN 0-19-822911-9 

Miller, John (1991), Charles II, London: Weidenfeld and Nicolson, ISBN 0-297-81214-9 

Seaward, Paul (September 2004; online edn, January 2008) "Charles II (1630–1685)", Oxford Dictionary of National Biography, Oxford University Press, doi:10.1093/ref:odnb/5144, retrieved 19 April 2010 (Subscription required)

Ashley, Maurice, The Glorious Revolution of 1688, Charles Scribner's Sons, New York, 1966. ISBN 0-340-00896-2.

Belloc, Hilaire, James the Second, J.B. Lippincott Co, Philadelphia 1928, popular; Catholic perspective

Callow, John, The Making of King James II: The Formative Years of a King, Sutton Publishing, Ltd, Stroud, Gloucestershire, 2000. ISBN 0-7509-2398-9.

Clarke, James S. (Editor), The Life of James II, London, 1816

Dekrey, Gary S. "Between Revolutions: Re-appraising the Restoration in Britain," History Compass 2008 6(3): 738–773,

Devine, T. M., The Scottish Nation 1700–2007, Penguin Books, London, 2006. ISBN 0-14-102769-X

Glassey, Lionel, ed. The Reigns of Charles II and James VII and II (1997)

Goodlad, Graham. " Before the Glorious Revolution: The Making of Absolute Monarchy?," History Review. Issue: 58; 2007. pp 10+. Examines the Controversies Surrounding the Development of Royal Power under Charles II and James II. in Questia

Hallam, Henry, The Constitutional History of England from the Accession of Henry VII to the Death of George II, W. Clowes & Sons, London, 1855.

Harris, Tim, Revolution: The Great Crisis of the British Monarchy, 1685–1720, Penguin Books, Ltd., 2006. ISBN 0-7139-9759-1.

"James II," Encyclopædia Britannica, 11th ed. London, 1911: Cambridge University Press.

Jones, J. R. The Revolution of 1688 in England, Weidenfeld and Nicolson, 1988. ISBN 0-297-99467-0.

Kenyon, J.P., The Stuart Constitution 1603–1688, Documents and Commentary, 2d ed., Cambridge University Press, Cambridge 1986. ISBN 0-521-31327-9.

MacLeod, John, Dynasty, the Stuarts, 1560–1807, Hodder and Stoughton, London 1999. ISBN 0-340-70767-4.

Macaulay, Thomas Babington, The History of England from the Accession of James the Second. Popular Edition in Two Volumes. Longmans, London 1889.

Miller, John. James II (3rd ed. 2000) ISBN 0-300-08728-4, Miller sees James as more interested in his own survival and tolerance for Catholics and suggests he did not have a grand plan to Catholicize England

Miller, John. The Stuarts (2004), 320pp; standard scholarly survey

Miller, John. The Glorious Revolution, (2nd ed. 1997) ISBN 0-582-29222-0

McFerran, Noel S. (2003). "James II and VII."

Mullett, M. James II and English Politics 1678–1688 (1993) ISBN 0-415-09042-3

Pincus, Steve. 1688: The First Modern Revolution (2009) ISBN 0-300-11547-4, influential new interpretation

Prall, Stuart, The Bloodless Revolution: England, 1688, Anchor Books, Garden City, New York 1972.

Royle, Trevor, The British Civil Wars: The Wars of the Three Kingdoms, 1638–1660, Little, Brown, 2004. ISBN 0-312-29293-7.

Sowerby, Scott, "Of Different Complexions: Religious Diversity and National Identity in James II's Toleration Campaign," English Historical Review, vol. 124 (2009), pp. 29–52.

Speck, W.A. James II (2002), argues James did not seek to impose Catholicism, but his ambitions went far beyond equal treatment for Catholics.

Turner, Francis C., James II, Eyre and Spottiswoode, London, 1948

Waller, Maureen, Ungrateful Daughters: The Stuart Princesses who Stole Their Father's Crown, Hodder & Stoughton, London, 2002. ISBN 0-312-30711-X.

Note V: QUESTIONS CONNECTED WITH THE RIGHT OF PUBLIC MEETING - Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF ed.) [1915] Albert Venn Dicey

 



[1] Dr. Eugene Forsey said in his autobiography “A Life On The Fringe: The Memoirs of Eugene Forsey” (1990, Oxford University Press) p. 182-3:

[2] British and Irish Legal Information Institute. Bill of Rights (13 February 1689)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This Web Page Created with PageBreeze Free HTML Editor / Web Hosting