R. v. Montague (W.B.) et al., (2014) 320 O.A.C. 168 (CA)

• Judge: Feldman, Gillese and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 15, 2013
• Jurisdiction: Ontario
• Citations: (2014), 320 O.A.C. 168 (CA);2014 ONCA 439

R. v. Montague (W.B.) (2014), 320 O.A.C. 168 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JN.007

Her Majesty the Queen (respondent) v. William Bruce Montague and Donna Jeanne Montague (appellants)

(C55786; 2014 ONCA 439)

Indexed As: R. v. Montague (W.B.) et al.

Ontario Court of Appeal

Feldman, Gillese and Tulloch, JJ.A.

June 3, 2014.

Summary:

The appellants, Bruce and Donna Montague, were convicted of firearms offences under ss. 86(2), 91(1), 92(2), 95(1)(a), 102(1), and 108(1)(b) of the Criminal Code. The majority of the offences involved possession of firearms without the proper license or authorization. Bruce Montague was a firearms dealer and manufacturer. The appellants decided to protest the gun laws by breaching them, leading to charges, then challenging the constitutionality of the laws. At the sentencing hearing, the Crown sought mandatory forfeiture under s. 491(1)(b) of the Code, of the over 200 weapons and related devices plus over 20,000 rounds of ammunition seized at the time of the appellants' arrest. However, following the imposition of sentence, the trial judge decided to defer the forfeiture order until after the disposition of the appeals against conviction and sentence. Bruce Montague was sentenced to 18 months' imprisonment plus 90 days to be served in the community, followed by one year of probation. Donna Montague received a suspended sentence plus six months' probation.

The Ontario Court of Appeal, in a decision reported at (2010), 260 O.A.C. 12, dismissed the appellants' appeals against conviction and Bruce Montague's appeal against sentence. The court ordered that the issue of forfeiture be addressed by the trial judge. At the forfeiture hearing, the appellants mounted a constitutional challenge to the mandatory forfeiture provision (s. 491(1)(b) of the Code), relying on ss. 7 and 8 of the Charter and the property rights provision of the Canadian Bill of Rights.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 2300, upheld the constitutionality of s. 491(1)(b), and ordered a number of the seized firearms forfeited to the Crown. However, the trial judge declined to order the forfeiture of a large quantity of seized ammunition that had been found to be readily accessible to some of the firearms, contrary to s. 95(1)(a) of the Code. The appellants sought to appeal that order. They sought to attack the constitutionality of the forfeiture provision based on s. 12 of the Charter. The Crown opposed the appeal on the grounds, inter alia, that there was no right of appeal from a forfeiture order under s. 491(1)(b) of the Code and the Crown was prejudiced because the appellants did not rely on s. 12 at the forfeiture hearing. In the alternative, the Crown submitted that if the court heard the appeal, the forfeiture order should be varied to include the seized ammunition that was stored in close proximity and "readily accessible" to the illegally held firearms in the items to be forfeited.

The Ontario Court of Appeal dismissed the appeal against forfeiture and varied the forfeiture order to include the ammunition that was seized and was the subject matter of the conviction under s. 95(1) of the Code.

Civil Rights - Topic 3835

Cruel and unusual treatment or punishment - What constitutes - Forfeitures - The appellants, Bruce and Donna Montague, were convicted of firearms offences under the Criminal Code - The majority of the offences involved possession of firearms without the proper license or authorization - Bruce was a firearms dealer and manufacturer - The appellants decided to protest the gun laws by breaching them, leading to charges, then challenging the constitutionality of the laws - At the sentencing hearing, the Crown sought mandatory forfeiture under s. 491(1)(b) of the Code, of the over 200 weapons and related devices plus over 20,000 rounds of ammunition seized at the time of the appellants' arrest - At a later forfeiture hearing, the trial judge ordered a number of the seized firearms forfeited to the Crown - The appellants appealed the order - They attacked the constitutionality of the mandatory forfeiture provision based on s. 12 of the Charter - The Ontario Court of Appeal found no violation of s. 12 - It could not be said that the cumulative forfeiture of the weapons would outrage community standards of decency so as to amount to cruel and unusual punishment - The appellants put their assets at risk knowingly and wilfully - Although many firearms were forfeited, and although no actual violence or harm occurred, the consequence to the appellants remained proportionate to the number of weapons involved - See paragraph 36 to 62.

Civil Rights - Topic 8005

Canadian or provincial Bill of Rights - Principles of operation and interpretation - Due process - Right to life, liberty, security and enjoyment of property - The appellants were convicted of firearms offences under the Criminal Code - The trial judge ordered a number of firearms seized at the time of the appellants' arrest forfeited to the Crown - The appellants appealed that order, attacking the constitutionality of the mandatory forfeiture provision (s. 491(1)(b) of the Code) - The appellants argued that s. 1(a) of the Canadian Bill of Rights included "enjoyment of property and the right not to be deprived thereof except by due process of law" as a fundamental human right and freedom - They submitted that as the forfeiture provision amounted to expropriation without compensation, the Canadian Bill of Rights required that there should be due process before that could be done, and that it could not be automatic without any such due process - The Ontario Court of Appeal rejected this argument - The Supreme Court of Canada had considered and rejected a similar argument in Authorson v. Canada (Attorney General) - See paragraphs 63 to 65.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The appellants were convicted of firearms offences under the Criminal Code - The trial judge ordered a number of firearms seized at the time of the appellants' arrest forfeited to the Crown - The appellants appealed that order - They sought to attack the constitutionality of the mandatory forfeiture provision (s. 491(1)(b) of the Code) based on s. 12 of the Charter - The appellants did not rely on s. 12 at the forfeiture hearing - The Crown submitted that it would be prejudiced if the court now considered the constitutionality of the forfeiture section as cruel and unusual punishment based on the appellants' argument that they would be forfeiting $100,000 worth of firearms and would suffer financial hardship - The Crown stated that had this argument been raised below, it would have challenged the appellants on the alleged $100,000 valuation - The Ontario Court of Appeal stated that "there is no prejudice in the particular circumstances of this case because of the way in which s. 12 challenges must be addressed: by using the facts of the case as well as reasonable hypotheticals. If the high value of the appellants' firearms could not be established, that high value could still form the basis of a reasonable hypothetical on which the court could assess the constitutionality of the provision" - See paragraphs 28 to 31.

Criminal Law - Topic 88

Estoppel - When applicable - The appellants were convicted of firearms offences under the Criminal Code - The trial judge ordered a number of firearms seized at the time of the appellants' arrest forfeited to the Crown - The appellants appealed that order - They sought to attack the constitutionality of the mandatory forfeiture provision (s. 491(1)(b) of the Code), based on s. 12 of the Charter - The Crown submitted that issue estoppel barred consideration of the s. 12 challenge - The Ontario Court of Appeal stated that "the matter was permitted to be procedurally bifurcated. Accordingly, issues relating to forfeiture were not resolved by the trial judge in his first ruling. In order for issue estoppel to be applied at this stage, it would have to be on the basis not that an issue was actually argued before, but that it could have been. Given that the entire forfeiture matter was deferred by the trial judge, I would not want to say at this stage that the s. 12 argument that was made could have been extended to apply to s. 491(1)(b) at the original trial, and that the appellants are therefore now estopped. I would not give effect to this submission by the Crown" - See paragraphs 32 to 35.

Criminal Law - Topic 4821

Appeals - Indictable offences - Right of appeal - General - [See both Criminal Law - Topic 5624 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Civil Rights - Topic 8584 ].

Criminal Law - Topic 4858

Appeals - Indictable offences - Grounds of appeal - "Sentence" defined - [See first Criminal Law - Topic 5624 ].

Criminal Law - Topic 5603

Punishments (sentence) - General principles - Sentence defined - [See first Criminal Law - Topic 5624 ].

Criminal Law - Topic 5622.1

Punishments (sentence) - Forfeiture orders - Firearms or weapons - [See Civil Rights - Topic 3835 and Civil Rights - Topic 8005 ].

Criminal Law - Topic 5622.1

Punishments (sentence) - Forfeiture orders - Firearms or weapons - The appellants, Bruce and Donna Montague, were convicted of firearms offences under ss. 86(2), 91(1), 92(2), 95(1)(a), 102(1), and 108(1)(b) of the Criminal Code - The trial judge ordered a number of the firearms seized at the time of the appellants' arrest forfeited to the Crown under s. 491(1)(b) of the Code - However, the trial judge declined to order the forfeiture of a large quantity of seized ammunition that had been found to be readily accessible to some of the firearms, contrary to s. 95(1)(a) of the Code - The Ontario Court of Appeal held that the trial judge erred in law by failing to order the mandatory forfeiture of the ammunition that was the subject matter of Bruce Montague's conviction under s. 95(1) - The trial judge had considered s. 6(c) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, which allowed an individual to store ammunition that was readily accessible to a restricted firearm if they were stored in a "vault, safe or room that has been specifically constructed or modified for the secure storage of restricted firearms and that is kept securely locked" - The trial judge concluded that the hidden gun room where the appellant had secreted his guns and ammunition qualified as such a room - He reasoned that the appellant had therefore been wrongly convicted of the offence under s. 95(1) with respect to the ammunition, rather than an offence under s. 91(2) - However, a person was not entitled under Regulations to store unlicensed firearms anywhere - There was no conflict between the two legislative provisions - The trial judge erred in law by finding that the appellant was erroneously convicted under s. 95(1) - The ammunition that was the subject matter of the conviction under s. 95(1) had to be forfeited under s. 491(1)(b) - See paragraphs 66 to 74.

Criminal Law - Topic 5624

Punishments (sentence) - Forfeiture orders - Appeals - The Crown argued that there was no provision in the Criminal Code that provided a right of appeal of a forfeiture order under s. 491(1)(b) of the Code - The accused/appellants argued that a s. 491(1)(b) forfeiture was appealable as part of the sentence under s. 675(1)(b) of the Code - The Ontario Court of Appeal concluded that "the mandatory forfeiture of firearms and ammunition involved in an offence committed by the accused is one of the consequences that forms part of the punishment for the offence, and therefore is a sentence for the purpose of s. 675, and is appealable with leave of this court" - See paragraphs 12 to 27.

Criminal Law - Topic 5624

Punishments (sentence) - Forfeiture orders - Appeals - The appellants were convicted of firearms offences under ss. 86(2), 91(1), 92(2), 95(1)(a), 102(1), and 108(1)(b) of the Criminal Code - The Crown sought mandatory forfeiture under s. 491(1)(b) of the Code of the over 200 weapons and related devices plus over 20,000 rounds of ammunition seized at the time of the appellants' arrest - After a forfeiture hearing, the trial judge ordered a number of the seized firearms forfeited to the Crown - The appellants sought to appeal the forfeiture order - If leave to appeal was granted, the Crown requested that the court vary the forfeiture order to include the ammunition that was also the subject of the conviction under s. 95(1) - The Ontario Court of Appeal stated that "This returns me to the question whether the forfeiture provision is a sentence that is 'fixed by law' within the meaning of s. 675 (and s. 676(1)(d) where applicable) of the Code and therefore cannot be varied. ... Under s. 491, the consequence of forfeiture is mandatory and therefore that consequence is 'fixed by law'. But because the process involves a number of important factual findings by the trial judge, in my view, it was not the intention of Parliament that the entire fact-finding process leading up to the forfeiture order would be unappealable" - The court stated that having granted the appellants leave to appeal, it would address the issue raised by the Crown - See paragraphs 66 to 70.

Criminal Law - Topic 6206

Sentencing - Appeals - Variation of sentence - Right of appeal - [See second Criminal Law - Topic 5624 ].

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Criminal Law - Topic 88 ].

Words and Phrases

Sentence - The Ontario Court of Appeal considered the meaning of the word "sentence" in s. 675(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 13 to 27.

Cases Noticed:

R. v. Hill (No. 2), [1977] 1 S.C.R. 827; 7 N.R. 373, refd to. [para. 11].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 12].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 12].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 12].

R. v. Chaisson (J.L.), [1995] 2 S.C.R. 1118; 183 N.R. 300; 163 N.B.R.(2d) 81; 419 A.P.R. 81, refd to. [para. 16].

Ryan Estate et al. v. Universal Marine Ltd. et al., [2013] 3 S.C.R. 53; 447 N.R. 1; 339 Nfld. & P.E.I.R. 312; 1054 A.P.R. 312; 2013 SCC 44, refd to. [para. 18].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 20].

R. v. Craig (J.A.), [2009] 1 S.C.R. 762; 388 N.R. 254; 271 B.C.A.C. 1; 458 W.A.C. 1; 2009 SCC 23, dist. [para. 21].

R. v. Lemieux (A.) (2006), 285 Sask.R. 311; 378 W.A.C. 311; 2006 SKCA 119, dist. [para. 23].

R. v. Hudson (E.B.) (2007), 299 Sask.R. 133; 2007 SKCA 82, dist. [para. 23].

Hudson v. Canada (Attorney General) (2009), 337 Sask.R. 153; 464 W.A.C. 153; 2009 SKCA 108, dist. [para. 23].

R. v. Logan and Dunbar (1986), 14 O.A.C. 382 (C.A.), refd to. [para. 25].

R. v. Olah (S.) and Ruston (J.D.) (1997), 100 O.A.C. 1; 33 O.R.(3d) 385; 115 C.C.C.(3d) 389 (C.A.), refd to. [para. 25].

R. v. Roach (K.) (2009), 246 O.A.C. 96; 2009 ONCA 156, refd to. [para. 29].

R. v. Wiles (P.N.), [2005] 3 S.C.R. 895; 343 N.R. 201; 240 N.S.R.(2d) 1; 763 A.P.R. 1; 2005 SCC 84, refd to. [para. 37].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 39].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 40].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 40].

R. v. Nur (H.) (2013), 311 O.A.C. 244; 117 O.R.(3d) 401; 2013 ONCA 677, refd to. [para. 40].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 40].

Turner et al. v. Manitoba (2001), 160 Man.R.(2d) 256; 262 W.A.C. 256; 2001 MBCA 207, refd to. [para. 50].

R. v. Spence (S.) (2004), 238 Nfld. & P.E.I.R. 259; 706 A.P.R. 259; 2004 NLSCTD 113, refd to. [para. 50].

R. v. Chief, [1990] 1 W.W.R. 193 (Y.T.C.A.), refd to. [para. 53].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, folld. [para. 64].

Statutes Noticed:

Canadian Bill of Rights, S.C. 1960, c. 44, sect. 1(a), sect. 2 [para. 63].

Canadian Charter of Rights and Freedoms, 1982, sect. 12 [para. 36].

Criminal Code, R.S.C. 1985, c. C-46, sect. 95(1) [para. 66]; sect. 491 [para. 67]; sect. 673 [para. 15]; sect. 675(1)(b) [para. 13].

Counsel:

Derek J. From and Chris Schafer, for the appellants;

Roger Shallow, for the respondent.

Thus appeal was heard on November 15, 2013, before Feldman, Gillese and Tulloch, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Feldman, J.A., and was released on June 3, 2014.