Federal gun legislation shot down in court

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The federal legislation that created the gun registry and imposes fines for possession of unregistered firearms took several hits this month.

The law that was spawned by the outrage caused when Mark Lepine gunned down 14 women and injured another 15 in December 1989 at the University of Montreal's Ecole Polytechnique has outraged Aboriginal, northern and rural people. Even some police services have come out against the legislation.

Two Northern Ontario First Nation men won their case against paying federal gun registration fees in early March. Two weeks later, an Alberta Native woman successfully persuaded a court that the decision to deny her a gun permit because of previous mental health problems was arbitrary and improper. These two cases could be the thin edge of the wedge, observers say.

The two brothers, Mark and Leon Nayanookeesic of the Whitesand First Nation, north of Thunder Bay, went out hunting with unregistered firearms and were charged by Ontario Provincial Police in 2001 for hunting without a firearms possession and acquisition licence.

Justice Dianne Pettit Baig ruled on March 2 that asking the Whitesand First Nation citizens to pay $80 for a firearms licence is unconstitutional, because they have a constitutional Aboriginal right to hunt within their traditional lands.

The Robinson Superior Treaty of 1850, which covers the Whitesand territory, contains broad references to hunting rights. Aside from asserting an Aboriginal and treaty right to hunt, without paying licence fees, First Nations people say that taking safety courses that cost about $200 is unnecessary because hunting is part of their traditional way of life.

Bill Erasmus, Assembly of First Nations' vice-chief for the Northwest Territories, looks after the firearms portfolio. Erasmus said the two Whitesand hunters, both young men in their 20s, had performed a service for all First Nations people.

"I think it's encouraging that the young guys that were hunting challenged the system that tried to prosecute them because they do have treaty and Aboriginal rights that are constitutionally protected," Erasmus said. "It's helping to make it clear that those rights need to be accommodated within any legislation or policy-making within the country."

The vice-chief has been working on this file for several years. He said he has been trying to get federal officials to take another look at the legislation.

"We've been talking for some time with the Canadian Firearms Centre on establishing a First Nations firearms system or regime, and this strengthens our position to have something in place that our people have ownership of," he said. "I don't think these young hunters are against public safety. They probably were taught at a young age how to handle a gun, how to hunt and to be able to supply food for the family. We need to set up a system that is acknowledged and recognized and can be operated at the community level, and that's what we've been wanting to do."

Erasmus said the legislation was designed by city dwellers who had little understanding of rural, northern or First Nation subsistence lifestyles.

"There was a lot of pressure when that legislation was put into effect. They did it to satisfy the urban population when the women in Montreal were killed. That started the whole question. So the whole thing with violence and the use of firearms, they didn't look at the special situation our people were in," he said. "Only at the end of drafting the legislation did they really look at trying to accommodate. It was an attempt at the 11th hour to try to satisfy First Nations, but it didn't really go far enough."

He said the fact that courts are starting to pick away at the legislation could supply the lever that First Nations need to convince the government to revisit the legislation. It has not been announced whether the federal government or the province of Ontario will appeal the Whitesand ruling.

"We have been ying to convince the feds not to appeal it, but to sit down with us and agree on how we might proceed from here," the vice-chief said. "We're going to also have to talk to the province of Ontario as well."

Another Aboriginal man is waging a high-profile battle against the firearms' legislation. Oscar Lacombe was the sergeant-at-arms for the Alberta legislature for thirteen-and-a-half years. He was the first Metis person ever appointed to that position anywhere in Canada.

On the day the law came into force, he intentionally broke it and dared authorities to charge him. The fact that he was a bodyguard for former Alberta premier Peter Lougheed for 12 years and served in the military for 27 years before that had local authorities more than a bit nervous.

"It took them six months to charge me," he told Windspeaker. "It occurred on the first of January 2003. They confiscated the weapon that day, but they did not charge me until June. A political hot potato, I would think. It did not get into court until the seventh of November at which time it was put over for the fourth time."

Rather than charge him under the firearms legislation, Oscar Lacombe was charged under Section 91 of the Criminal Code of Canada for possession of a restricted weapon, a hunting rifle.

"If they'd charged me under the Firearms Act, which is what I was protesting, then the federal government would have had to prosecute me. Under the Criminal Code, the prosecution falls under the Justice minister of Alberta. All our Justice Minister [David] Hancock has to do is to stay the proceedings. He didn't even send a prosecutor to do the dirty work. He got a federal prosecutor to act as an agent to make it appear that the feds were prosecuting me. It's all B.S."

The idea that he is a danger to the public if he doesn't complete the safety training and pay the fees, as the Firearms Act requires, is a bit ridiculous, he suggested.

"I told the police two days before what I was going to do, hwI was going to do it. It was a political statement. I had the gun completely disassembled. I gave the bolt to a reporter, as a matter of fact, and I had it wrapped in very heavy plastic," he said. "Now you tell me how the hell I'm going to fire a gun? Now, my proficiency: 27 years in the army. I was an instructor in bayonets and you name it. I was a sniper. I could take the eye out of a rabbit or a squirrel at some distance."

And he hunted for food from an early age, as all subsistence hunters do, and learned early on to respect weapons and use them responsibly as an integral part of his Metis culture.

Lacombe, who says he's very proud of his Metis ancestry and his Ojibway, Sioux and Cree ancestors, thinks the law should just be scrapped.

"Repeal the whole damn thing," he said. "Because it's a bad law. With Bill 68 they can come into your house, confiscate everything you've got. They can confiscate it without compensation. You name it."

But after what he's seen so far, he suspects the government will proceed with the charges against him because of the political embarrassment that would come from dropping them.

"I would assume. I'm not an anarchist or anything like that. Civil disobedience is the furthest thing from my mind," he said. "All I've done all my life, overseas and in Canada, is enforce the laws and ensure that other people comply. I used to be a sergeant major in the military police. I'm going to go out and break the law purposely? But I can, as a veteran and as a public servant, criticize my government if they make a bad law. A bad law is like a bad criminal. Somebody should take it and take them to task."

But, since the federal government has sunk more than a billion dollars into the gun registry, he thinks a lot of federal officials will apply pressure to beat his challenge down. He believes that, even with all the controversy over the cost of the process so far, the real cost is probably much more.

"I was stationed in Ottawa fo to years and I've got a lot of friends there who do a little snooping around and they say it's closer to $2 billion," Lacombe said. "Because all this money they get from other departments gets shifted here and shifted there. I've got a pretty good idea how governments work. I sat in that house and listened for 13 years."

He agreed with Erasmus that there is a southern, urban bias in the legislation that needs to be examined.