Toronto, ON -The Canadian Constitution Foundation hopes that the Supreme Court of Canada will grant leave to appeal in a case that may well decide the economic future of Ontario couple Bruce and Donna Montague, and the legal future of a mandatory minimum sentence that orders government forfeiture of private property without compensation or consideration of the personal effect of the forfeiture on the offender.
The Calgary-based public-interest law foundation, which defends property rights across the nation, hopes the court will review and ultimately overturn a lower court ruling that ordered the forfeiture to the government of the Montagues’ firearms collection and ammunition, which are worth approximately $116,000. The Foundation supports the Montagues who demonstrated their public opposition to the Firearms Act by allowing their firearms licences to expire without renewal.
“This is the Supreme Court of Canada case we’ve been waiting for to ensure Canadians are protected from irrational punishments that are cruel and unusual,” said Marni Soupcoff, the Foundation’s executive director. “All because they non-violently and conscientiously protested legislation they viewed as unconstitutional, the Montagues are facing a forfeiture order that takes most of their life savings. And they’re battling the government’s civil action to take their home at the same time.”
The way in which the Canadian Charter of Rights and Freedoms protections apply to forfeiture orders is a very unsettled area of the law. Courts have not shown a consistent approach to applying the Charter’s Sec. 12 protection from cruel and unusual punishment to forfeiture orders, such as the Montagues’. The result is that not only Bruce and Donna, but all Canadians, stand to be devastated by a punishment whose constitutionality has not been clearly established.
In June 2014, the Ontario Court of Appeal dismissed the Montagues’ appeal of their forfeiture order. The Court of Appeal agreed that Bruce and Donna had a right to appeal the order despite the government’s arguments to the contrary, but found that the Montagues’ Sec. 12 Charter rights were not violated by the forfeiture of their property without compensation. In her decision, Justice Feldman wrote that the Montagues’ sentence was “not a particularly onerous one.”
The Foundation is hopeful the Supreme Court of Canada will agree to hear the case. The Court is already set to hear two cases on mandatory minimum sentences for firearms offences, but it has so far never considered the issue of mandatory forfeiture orders in this context. While the Supreme Court of Canada has issued opinions clarifying the law around Sec. 12 of the Charter, there remains a gap when it comes to mandatory minimum economic penalties, which increases the odds that the High Court will hear the case. Indeed, recent lower court decisions finding that mandatory victim surcharges and reductions to refugee healthcare coverage violate Sec. 12 highlight the need for clarity.
“If this forfeiture order is allowed to stand, the Montagues will be economically devastated,” Soupcoff concluded. “We are confident the Supreme Court won’t allow that to happen without considering their plight.”
The Montagues will file their application for leave to appeal tomorrow. The Foundation is immensely grateful to lawyers Mark Gelowitz and Gerard Kennedy of Osler, Hoskin & Harcourt LLP for their generous skilled pro bono work on this case.
The Montagues’ property has been ordered forfeited to the Attorney General of Ontario. The proceeds of any sale of the property will be paid to the Attorney General.
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.
