DISCRETIONARY
LICENSING LEADS
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WHITEHORSE, Yukonslavia, Kanuckistan -- A discretionary licensing system empowers one bureaucrat to determine what a person can and cannot own and seriously infringes Charter rights. Private ownership of property is the cornerstone of any democracy. Once a state prevents its citizens from owning personal or real property, democracy no longer exists. It has been replaced with totalitarianism. A seemingly innocuous civil case presently before the courts has serious implications for any one who values freedoms and rights. My neighbor of 12 years wanted to obey the law. He unwittingly was sucked into a government snare campaign. The Canadian Firearms Centre (CFC) was open for business but firearms owners were not exactly flooding the Miramichi, N.B., office with applications. The CFC offered to waive fees if applicants filed for a POL (possession only license) or a PAL (possession and acquisition license) before a certain date. Ted Shepherd took advantage of the offer. He diligently filled out the lengthy form. He wanted to be legal in the state's eyes, although he had been in possession of the .303 Enfield inherited from his father for over 30 years. The questionnaire itself is unconstitutional. It violates privacy rights, asking intrusive, self-incriminating questions. The Ontario Court of Appeal found the questionnaire especially vile toward single persons on social assistance. Privacy is based on the notion of dignity and integrity, which is undermined when an individual no longer has the right to decide what personal information he will share with others. The information can be misconstrued and misused by any state agent. Firearms officers, police officers and bureaucrats have broad, sweeping, unfettered discretionary powers to investigate. Their "investigations" often lead to a wrongful assessment of a person who does not meet litmus-test standards for textbook-quality behaviour. Then the individual ends up in the court system--or worse, in jail. The incontrovertible proof of the many ways people can be brutalized by bureaucrats is contained within my eBook "Justice Served Up Yukonslavia Style" (diArmani.com/Download_Carlos.html). It's hard enough to win firearms-related cases when properly represented with a legal specialist who knows how to play the cat-and-mouse games in the courtroom. But the chances are almost zippo when an individual is forced to represent himself...especially in a firearms case. The political die is cast before s/he steps inside the courtroom. Shepherd is a member of the court carrousel club. It's a judicial strategy to keep Justice employees gainfully occupied and off the streets. A female complains and the police yawn. No questions asked, criminal charges are laid against the man. A legal-aid lawyer is assigned. The witness(es) doesn't show up for court. The Crown yawns. The case is stayed or dismissed. One judge pointed out that a peace bond can be put on a person whether or not the accusation is true. Another judge wrote that he couldn't understand why charges were laid against Shepherd when there was no evidence to proceed. He suggested the Crown and police review their policies and practices about wasting the court's time and the public purse clogging the court dockets with frivolous fluff. It tends to bring the administration of justice into disrepute. When a case was on the docket, Shepherd's guns went to a family member or were taken into police custody. After the dust settled, the firearms were always returned to him. Shepherd applied for a possession license on Dec. 30, 2000. When the application was processed over 30 months later on August 19, 2003, he was sent a notice of refusal. Shepherd had no money to pay an expensive lawyer to help keep what he had already owned for 30 years. And he had no formal legal training. What he had was spunk. He decided to argue the firearms officer's decision in court. First, he went to legal aid to ask that a lawyer be appointed to help him present a proper case. No. Then he went before Judge Faulkener who noted Shepherd's intelligence and told him to represent himself. This is a civil matter dealing with a firearm. The social-reform attitude is that nobody "needs" guns, unless for subsistence hunting. If he doesn't "need" a gun, he doesn't "need" a lawyer. Right? Go away. Shepherd didn't go away. He investigated. He found that the courts
had been negligent in mentioning his rights to own private property
under the Charter, as well as an inherent right he has to keep and bear
arms. "Liberty" and "property" are synonomous and used interchangeably. One cannot exist without the other. Ask John Locke and judicial scholar Sir William Blackstone. Otherwise, it's fraudulent to refer to Canada as a "democracy" and we may as well burn, embalm and bury the Charter. Section 26 states: "The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada." That confirms the continuing enjoyment of common law and statutory rights that may not be explicitly enumerated in the Charter, but are recognized in British common law, Anglo-Canadian law and jurisprudence. One such right is to keep and bear arms; the other is the right to own property. According to the Alberta Court of Appeal, the entire licensing scheme at the unfettered discretion of the chief firearms officer violates the norms of the rule of law that date back to the Magna Carta 1215. On Feb. 23, Shepherd was in court. He tabled a fistful of documents. One was a well-written defense statement prepared by a law-line lawyer. But there wasn't a defense lawyer present to know when to interrupt with objections or help question witness Ray Griffith who was video-linked from his firearms office in Terrace, B.C. Judge Overend of B.C. assured a fair hearing. He guided the layman and questioned parts of Crown attorney Ludovic Gouaillier's presentation. Shepherd was respectful to the bench and used a common sense approach. He put on a valiant performance for someone unfamiliar with legal procedures and the complexities of the law. Griffith, a former RCMP officer, said he had inherited some applications and pending matters that piled up in the Whitehorse firearms office when the Yukon firearms officer returned briefly to regular policing duties. Griffith insinuated that he had come to Whitehorse last August for the sole purpose of meeting with Shepherd. He had not. He did phone Shepherd and gave him a choice of two meeting times to come explain himself. Shepherd was not obligated to attend but promised to try. Transportation is a big problem for a person without a vehicle or taxi fare to access the inconveniently-located firearms office up on Range Road. Griffith sounded miffed: "I waited at the office in Whitehorse. He failed to show. As a result of that, I brought the paperwork back to Terrace with me and I made my decision and produced a notice (of refusal) as a result of that." The court harangue boiled down to what Parliament intended when passing a law that confines a firearms officer or provincial court judge to "within the previous five years" when assessing such criteria as a person's behavioral, criminal and mental health history in determining eligibility to hold a license. Griffith had stepped outside the five-year box by up to 18 years. The case law tabled by the Crown attorney was irrelevant and Shepherd had none to present. The judge decided to do his own research. He deliberated two days before concurring with the firearms officer in an oral decision. Griffith thought considerations were to be within five years of the date of the application, albeit the documents showed he stepped back to 1985. "Had Parliament intended within five years of the application, I am satisfied it would have said so," wrote the judge. "Therefore, I have concluded that the five-year period must be within five years of the time the application is considered...I am satisfied that the legislative intent was that the firearms officer consider the five-year period immediately preceding the issuance or revocation of a licence." References were made to dates from 1996 to 2003, which was greater than five years and which the judge adjusted. However, by then, Shepherd's entire record had been disclosed and had tainted the bureaucratic and judicial thinking. In keeping with the latest Ottawa political jingoism, the judge said that Canadians do not have the right in this country to possess firearms. "Properly speaking, possession is a privilege which may be withheld or withdrawn if an applicant is, or is perceived to be, a threat to public safety." What he ruled is where the danger lies in a discretionary licensing system. If "in the opinion of" one bureaucrat, an individual is simply "perceived" as a threat to society, the state can revoke whatever license was issued that gave only tenuous permission to own property or to do a certain thing until the state says he can't. The court is supposed to be reactive, not proactive. Yet the state has predicted that Shepherd will commit a crime sometime in the future and that act can be prevented by removing temptation. In other words, the state has done worse than smack him with reverse onus. The state is accusing him of being guilty of an offense that has not been committed. That is for sure a violation of Charter 11(d): "Any person charged with an offence has the right to be presumed innocent until proven guilty." The Charter reigns supreme. It always trumps any regular--or irregular--act, especially the non-Charter-proofed Draconian Firearms Act. Strangely, a printed copy of Judge Overend's decision was not intended to be available in the Court Registry file. It was produced only when the applicant appealed. He was provided with transcripts but had to attend Yukon Supreme Court twice to obtain a copy of the lower court decision. The Crown attorney reluctantly handed it over "with apology". The matter remains before Yukon Supreme Court Judge Ron Veale who has reserved judgement with respect to what can be done about appointing legal counsel or "a friend of the court" to enable Shepherd to present a proper case. The national gun community is watching this case in which discretionary licensing carries very serious implications for assaulting every Canadians rights and freedoms to own personal property without state interference. -- 30 -- Copyright 2004 diArmani.com |