CUFOA

Canadian Unlicensed Firearms Owners Association
Association canadienne des propriétaires d’armes sans permis

Armes for Their Defense;
An Inherited, Historical, Canadian Right

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Humboldt Provincial Court
The Honourable Judge Plemel
10 May 2010
Oral Presentation


I. Introduction


A. Preliminary Introductions
Jack Wilson
Joe Gingrich


B. The Montague Appeal

1. Mr. Spencer’s Brief: Tab 22: Montague

2. Mr. Christie’s –Application for Leave to Appeal - (hand out SCC info)

3. Effect – if any – on today’s activity


C. Pierre Lemieux Case in Quebec - (hand out appeal info)

II. Statement of our Position


A. Firearms Act, Chapter 39 in force


We begin with the understanding that the Firearms Act, Chapter 39, is the “Law of the Land”.

We are only challenging one very small, specific – but highly significant – element of the Firearms Act, section 117.03,


B. Brief Review of our Brief – highlight main points

To reiterate:

1. Our complaint with s. 117.03 is that Parliament has allowed the Government - without any restriction whatsoever – to use this section to seize and confiscate our legally acquired and peacefully and responsibly used personal property without charging us under either the Firearms Act or the appropriate section of the Criminal Code.

2. As noted in R. v. Lemieux and R. v. Hudson - the effect of this unjust law will allow the Government to seize and confiscate every unregistered firearm in Canada and all firearms from every unlicensed owner without laying a single criminal charge. Tab 1 & Tab 2)

http://www.canlii.org/en/sk/skqb/doc/2006/2006skqb239/2006skqb239.html
http://www.canlii.org/en/sk/skca/doc/2006/2006skca119/2006skca119.html
http://www.canlii.org/en/sk/skca/doc/2007/2007skca82/2007skca82.html

3. As Friedrich A. Hayek has demonstrated, the ownership of private property forms the basis of western democracies.

4. And as William Blackstone noted in Commentaries on the Laws of England in 1765:

Our rights and liberties may be reduced to three principal or primary articles;

the right of personal security,
the right of personal liberty;
and the right of private property:

Because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense. . (Book of Authorities, Tab 6)
http://www.lonang.com/exlibris/blackstone/

5. Our argument today in a nutshell is, as Daniel Webster argued 1n 1819:

The general law; a law which hears before it condemns, which proceeding upon inquiry and renders judgment only after trial … that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society.
http://www.lawphil.net/judjuris/juri1988/apr1988/gr_l_33237_1988.html

 

C. Brief Review of – Reference Re: Firearms Act 2000 SCC Hudson Tab 3

http://www.canlii.org/en/ca/scc/doc/2000/2000scc31/2000scc31.html


1.Purpose: criminal law

NOT confiscation

2. see Allan Rock’s statements

para 4:
4                    We conclude that the gun control law comes within Parliament’s jurisdiction over criminal law. The law in “pith and substance” is directed to enhancing public safety by controlling access to firearms through prohibitions and penalties. This brings it under the federal criminal law power.

para 18:
18                     Determining the legal effects of a law involves considering how the law will operate and how it will affect Canadians. …
In some cases, the effects of the law may suggest a purpose other than that which is stated in the law: …
In other words, a law may say that it intends to do one thing and actually do something else.
Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be “colourable”.

para 2o:
20                    The statements of the Honourable Allan Rock, Minister of Justice at the time, in his second-reading speech in the House of Commons, reveal that the federal government’s purpose … tough measures to deal with the criminal misuse of firearms; …

para 24:
24                    … In short, the effects of the law suggest that its essence is the promotion of public safety through the reduction of the misuse of firearms, and negate the proposition that Parliament was in fact attempting to achieve a different goal such as the total regulation of firearms production, trade, and ownership.


para 27:
27                    As a general rule, legislation may be classified as criminal law if it possesses three prerequisites:

a valid criminal law purpose
a prohibition, and
a penalty:


para 34:
34                    The finding of a valid criminal law purpose does not end the inquiry, however. In order to be classified as a valid criminal law, that purpose must be connected to a prohibition backed by a penalty. The 1995 gun control law satisfies these requirements.
Section 112 of the Firearms Act prohibits the possession of a firearm without a registration certificate.
Section 91 of the Criminal Code prohibits the possession of a firearm without a licence and a registration certificate.
These prohibitions are backed by penalties: see s. 115 of the Firearms Act and s. 91 of the Code.


para 37:
37                    While the Act provides for discretion … that discretion is restricted by the Act.


para 56:
56                    … If the law violates a treaty or a provision of the Charter, those affected can bring their claims to Parliament or the courts in a separate case. The reference questions, and hence this judgment, are restricted to the issue of the division of powers.

 

D. Brief Review Firearms Act, Chapter 29 Tab 26 (Hudson Addendum)

first page

SUMMARY
The enactment also revives Part III of the Criminal Code and creates a variety of offences …
A scheme for prohibiting, as a result of criminal conduct, a person from future possession of firearms is also included.

Section 117.03 Firearms Act Tab 26 (Hudson Addendum)

http://laws.justice.gc.ca/en/F-11.6/

Offences and Prohibitions
The Context of section 117.03

Use Offences p. 74
ss. 85 – 87

Possession Offences p. 76
ss. 88 to 98

Trafficking Offences p. 86
ss. 99 - 101

Assembly Offences p. 86
s. 102

Export & Import Offences p. 86
ss. 103 & 104

Defacing Offences p.87
s. 105 – 108

Prohibition Orders p.90
ss. 109 – 116

p.96
s. 117 Where the competent authority makes a prohibition order … .
p. 97
s. 117.01 … while prohibited … .
p. 98
s.117.01 … may apply … for an order… .
p.99
s.117.012 … application … order is made … .
s. 117.02 warrant … exigent circumstances … .
p.100
s. 117.03 … a police officer who finds …
p.101
s. 117.04 … may issue a warrant
p. 102
s.1170.5 … any thing or document seized


see also:

Re B.C. Motor Vehicle Act, [1985] 2 SCC

http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html
115.                     In Kenny's Outlines of Criminal Law, supra, p. 4, the author highlights the difficulty in identifying any essential characteristics of crimes created by statute. He points out that such crimes originate in the government policy of the day and that, so long as crimes continue to be created by government policy, the nature of statutory crime will elude definition. Lord Atkin:

... the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.
http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html

In summary, the Firearms Act is criminal law because the persons who violate it are punished.


III. To Refute Mr. Spencer’s Arguments


A. Authorson: Tab 23 (Mr. Spencer’s Brief)

http://www.canlii.org/en/ca/scc/doc/2003/2003scc39/2003scc39.html

“Clear and Unambiguous Words”


p.3 Parliament has the right to expropriate property … if it has made its intention clear and … and unambiguous.

p.6 para 10 …
If Parliament wishes to circumvent the protections of the Bill of Rights, it must do so explicitly by stating that the legislation in question operates notwithstanding the Bill of Rights.

pp. 12 -13 para 31
the Bill of Rights remains in force,

p. 12 para 32
federal legislation (that) conflicts with the protections of the Bill of Rights, (must) expressly declare that it operates notwithstanding the Bill of Rights as required by s. 2,


p. 13 para 33

33                     Section 1 of the Bill of Rights declares and recognizes various rights, including the due process right to the enjoyment of property … The Bill of Rights protects only rights that existed in 1960 … .
see, Miller v. The Queen (handout case report)


" rights that existed in 1960” … .

Miller v. The Queen

1977 SCC
http://www.canlii.org/en/ca/scc/doc/1976/1976canlii12/1976canlii12.html
Murder of policeman while acting in course of his duties
Death penalty not cruel and unusual

p.8
Section 5(2) of the Canadian Bill of Rights provides for its application to federal law, whether enacted before or after the effective date of the Canadian Bill of Rights, … .

pp. 11-12
the duty of the Court (is) not to whittle down the protections of the Canadian Bill of Rights by a narrow construction of what is a quasi-constitutional document.

p.24
It is to be remembered that the expression "law of Canada" as used in the Bill of Rights is defined … as meaning "an Act of the Parliament of Canada enacted before or after the coming into force of this Act ...".

rights that existed in 1960” … .

see United Nations Declaration of Human Rights

Article 17.
• (1) Everyone has the right to own property alone as well as in association with others.
• (2) No one shall be arbitrarily deprived of his property.
The Universal Declaration was adopted by the General Assembly on 10 December 1948

http://www.un.org/en/documents/udhr/

return to Authorson Tab 23 (Mr. Spencer’s Brief)

http://www.canlii.org/en/ca/scc/doc/2003/2003scc39/2003scc39.html

p.13 para 34
34                     With the constitutional amendment and the adoption of the Charter in 1982, many of the protections of the Bill of Rights gained constitutional status. The Bill of Rights, however, provides two protections not expressly available in the Charter.

Section 1(a) protects the enjoyment of property, the deprivation of which must occur through the due process of law.
Section 2(e) guarantees a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.

p.18 para 50
50                     … held that fundamental justice could also contain the substantive right not to be imprisoned for an absolute liability offence. Although this Court has not yet recognized substantive rights stemming from due process, Re B.C. Motor Vehicle Act indicates its willingness to recognize that, in the proper circumstances, guarantees of process or justice may confer substantive protections.

Substantive Rights

see Re B.C. Motor Vehicle Act
http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html

Criminal law -- Absolute liability offence with mandatory imprisonment --
Charter right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice

p. 10 para 14
14.                     … The words of Dickson J. (as he then was) in Amax Potash Ltd. v. Government of Saskatchewan, 1976:

The Courts will not question the wisdom of enactments ... but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power.

p. 13 para 21
21                     The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection.

p. 15-16 para 29
29.                     … Clearly, some of those sections embody principles that are beyond what could be characterized as "procedural".

p. 16 para 30
30.                     … justice (is) founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms).

p.12 para 21
21.                     The task of the Court is not to choose between substantive or procedural content per se but to secure for persons "the full benefit of the Charter's protection"

The Right against Self-incrimination

see Curr v. The Queen [1972] S.C.R

http://www.canlii.org/en/ca/scc/doc/1972/1972canlii15/1972canlii15.html

Criminal law-Civil rights-Motor vehicles-Due process of law
Self -crimination - Compulsory breath test Protection against self-crimination-- of the Criminal Code not inoperative- Canadian Bill of Rights, 1960.


p. 13
An accused person remains under the law of Canada a non-compellable witness for the prosecution. … what cannot be compelled from an accused directly at his trial should not be compellable from him at a pre-trial or pre-arrest stage.

p. 14
… "the privilege reaches an accused communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers"


B. Discretion

R. v. T. (V.), [1992] 1 S.C.R. Tab 22 (Mr. Spencer’s Brief)

http://www.canlii.org/en/ca/scc/doc/1992/1992canlii88/1992canlii88.html

Her Majesty The Queen Appellant

V. T Respondent

Discretion: Criminal law -- Whether youth court may decline to enter verdict of guilty on ground that charge should never have been laid --

http://www.canlii.org/en/ca/scc/doc/1992/1992canlii88/1992canlii88.html

para 19

I wish to be clear, however, that while the principle of prosecutorial discretion is an important precept in our criminal law, and exists for good reason, it is by no means absolute in its operation.


para 22

As stated in Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 116:

It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended.

para 29
On this reading of the section, it becomes plain that Parliament was attempting to achieve disparate goals by including s. 3(1) in the Act. This is entirely understandable. However, in my view, it is also fatal to the argument as advanced by the respondent for it fails to reveal the kind of clear, singular intention necessary to accept the type of radical change in the law of criminal procedure … .


Discretion see also:

R. v. Beare, 1988 SCC

http://www.canlii.org/en/ca/scc/doc/1988/1988canlii126/1988canlii126.html

Constitutional law--Charter of Rights--Right to liberty--Fingerprinting after person charged but prior to conviction--Whether or not right to liberty infringed--Whether or not principles of fundamental justice infringed--

p. 4
A person who is charged on reasonable and probable grounds with having committed a serious crime must expect a significant loss of personal privacy incidental to his being taken into custody.


p. 22 para 53
53.                     This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice; … The Court did add that if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie, … .


" Equality before the Law

Referring once again to Authorson: Tab 23 (Mr. Spencer’s Brief)

http://www.canlii.org/en/ca/scc/doc/2003/2003scc39/2003scc39.html

p. 12 para 32
federal legislation (that) conflicts with the protections of the Bill of Rights, (must) expressly declare that it operates notwithstanding the Bill of Rights as required by s. 2,
R. v. Drybones, 1969 … equality guarantee of the Bill of Rights rendered inoperative a provision of the Indian Act which made it an offence for a status Indian to be intoxicated off a reserve).

R. v. Drybones 1970 SCC
http://www.canlii.org/en/ca/scc/doc/1969/1969canlii1/1969canlii1.html

p. 14
It seems to me that a more realistic meaning must be given to the words in question and they afford, in my view, the clearest indication that s. 2 is intended to mean and does mean that if a law of Canada cannot be "sensibly construed and applied" so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is in-operative "unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights".

p. 16
The right which is here at issue is "the right of the individual to equality before the law and the protection of the law".
the word "law" as used in s. 1(b) of the Bill of Rights is to be construed as meaning "the law of Canada" as defined in s. 5(2) (i.e. Acts of the Parliament of Canada and any orders, rules or regulations thereunder) … .

Discrimination by “reason of race, national origin”

p. 19
In Plessy v. Ferguson, the (US Supreme) Court had held that under the "separate but equal" doctrine equality of treatment is accorded when the races are provided substantially equal facilities even though these facilities be separate. In Brown v. Board of Education, the Court held the "separate but equal" doctrine to be totally invalid.

The social situations in Brown v. Board of Education and in the instant case are, of course, very different, but the basic philosophic concept is the same. The Canadian Bill of Rights is not fulfilled if it merely equates Indians with Indians in terms of equality before the law, but can have validity and meaning only when subject to the single exception set out in s. 2 it is seen to repudiate discrimination in every law of Canada by reason of race, national origin, colour, religion or sex in respect of the human rights and fundamental freedoms set out in s. 1 in whatever way that discrimination may manifest itself not only as between Indian and Indian but as between all Canadians whether Indian or non-Indian.

see the Firearms Act (Hudson – Addendum – Tab 26)

p. 4 section 2(3)

Nothing in this Act shall be construed to abrogate or derogate from any aboriginal or treaty rights of the aboriginal peoples of Canada under s. 25 of the Constitutions Act, 1982.

see Nanatakapo
http://www.canlii.org/en/sk/skpc/doc/2010/2010skpc14/2010skpc14.html
http://www.thestarphoenix.com/news/Saskatchewan+guilty+shooting+incident+organize+meeting+with+residents+police/2542325/story.html

No mention of licence or registration;
no prohibition upon conviction;
no forfeiture of firearms “because they could not tell which firearm had been fired”

 

D. The Ideal of Canada

1. “No rule human or divine”

Authorson para 53

http://www.canlii.org/en/ca/scc/doc/2003/2003scc39/2003scc39.html
53                     This right has long been recognized. At the turn of the century, Riddell J. of the Ontario High Court recognized the Crown’s right to take property without compensation. The dispute involved a mining company that had failed to properly stake a claim. The claim had subsequently been sold by the Crown. Riddell J. wrote:

In short, the Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine. If it be that the plaintiffs acquired any rights, which I am far from finding, the Legislature had the power to take them away. The prohibition, “Thou shalt not steal,” has no legal force upon the sovereign body. And there would be no necessity for compensation to be given. [Emphasis added. (– by the Court)]
(Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 18 O.L.R. 275, at p. 279.)

 

2. Lord Cooke of New Zealand:

Some common law rights presumably lie so deep that even Parliament could not override them.


3. “What is Going On?” Chief Justice McLachlin

http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm05-12-01-eng.asp

 

IV. Conclusion

A. The Problems with section 117.03

(1) Parliament has not been “clear and unambiguous” in their legislation.

(2) The application 117.03 violates

a. Property Rights

b. Discretion

c. Substantive Due Process

d. Equality before the Law

d. Self-incrimination

B. Request of Court

I respectfully request that this Honourable Court:

Declare Criminal Code section 117.03 ultra vires Parliament and of no force and effect in Canada,


C. Relief Sought

Order the RCMP to return my shotgun.

 

Respectfully submitted to the Provincial Court of Saskatchewan in Humboldt, Saskatchewan, Monday, 10 May 2010.

Edward B. Hudson DVM, MS
402 Skeena Court
Saskatoon, Saskatchewan S7K 4H2
(306) 242-2379

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