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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Appeal No.      of 2011

THE COURT OF APPEAL
FOR THE PROVINCE OF SASKATCHEWAN

Judicial Center of Saskatoon

Between:

Edward Burke Hudson

Appellant

-and-

The Attorney General of Canada

Respondent

______________________

Legal Argument
for a
Right to Trial

______________________


Edward B. Hudson
402 Skeena Court
Saskatoon, Saskatchewan
S7K 4H2

Week of            2011


INDEX

 

 
Paragraph
I. INTRODUCTION
1
II. JURISDICTION AND STANDARD OF REVIEW
7
III. STATEMENT OF FACTS
10
IV. POINTS IN ISSUE
21
V. ARGUMENT AT LAW
22

The Importance of Personal Property

27

Canadian Constitution Documents & International Law

36

The Rule of Law

52

The Canadian Bill of Rights & the
Canadian Charter of Rights and Freedoms

69

“Unwritten Principles”

79

the ‘supremacy of God’ - or Natural Rights

95

Non-violent Civil Disobedience & the Distinction between
“Discretion” & “Arbitrary Power”

109

Conclusions

131

VI. RELIEF SOUGHT
138
VII. Appendices
Appendix A Hayek on The Rule of Law
A01
Appendix B British Philosophers and Natural Law
B01
VIII. COMPREHENSIVE LIST OF AUTHORITIES
200

 

I. INTRODUCTION

1. We have twice previously appeared before this Honourable Court with grievances against the Firearms Act, i.e., in 2007 and 2008.

2. This application follows our unsuccessful appeal to this Honourable Court to declare the federal firearms licencing mandate unconstitutional – please see:

Klebuc C.J.S., The Court of Appeal for Saskatchewan, Citation: 2009 SKCA 108, Dated: 20090921

(Book of Authorities, Tab 1)

3. We again appeal to this Honourable Court to challenge the constitutional validity of section 117.03 of the Firearms Act, but this time we appeal on totally separate, distinct grounds.

4. Section 117.03 allows the police and RCMP to seize, confiscate, and destroy our personal property without arrest, charge, trial, nor conviction.

5. Section 117.03 of the Firearms Act, c. 39, states:

SEIZURE ON FAILURE TO PRODUCE AUTHORIZATION /
Return of seized thing on production of authorization
Forfeiture of seized thing
117.03
(1) Notwithstanding section 117.02. a peace officer who finds

(a) a person in possession of a firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and a registration certificate for the firearm, or
(b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it,

may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.

(2) Where a person from whom any thing is seized pursuant to subsection (1) claims the thing within fourteen days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,

(a) an authorization or a licence under which the person may lawfully possess it, and
(b) in the case of a firearm, a registration certificate for the firearm,
the thing shall be forthwith returned to that person.

(3) Where any thing seized pursuant to subsection (1) is not claimed and returned as when provided by subsection (2), a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity t establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney General directs. 1995, c.39, s. 139. (pp. 100 – 101)

(Book of Authorities II, Firearms Act, c. 39)

6. In this application we are asking this Honourable Court to recognize our Right to a trial of our peers before the police and RCMP can obtain a destruction order for the most valuable piece of property that an individual can possess.


II. JURISDICTION AND STANDARD OF REVIEW

7. The Appellant submits that this Honourable Court has jurisdiction to hear this appeal pursuant to paragraph 7(2)(a) of the Court of Appeal Act, 2000, S.S. 2000, c. C-42.1:

7(2) Subject to subsection (3) and section 8, an appeal lies to the court from a decision:

(a) of the Court of Queen’s Bench or a judge of that court;

8. This is an appeal on a question of law only. As enunciated by the Supreme Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, p. 2, on pure questions of law the standard of review is one of correctness, and:

… an appellate court is thus free to replace the opinion of the trial judge with its own. ¶ 8 (p. 9)

(Book of Authorities, Tab 2).

9. And also in Housen, supra, McLachlin C.J. said with respect to matters of law the appellate courts have a broad scope of review because:

… their primary role is to delineate and refine legal rules and ensure their universal application. ¶ 9 (p. 10)


III. SUMMARY OF FACTS


10. As an integral part of the Canadian Unlicensed Firearms Owners Association’s campaign of peaceful, non-violent civil disobedience to the licencing mandate of the Firearms Act, on Tuesday, 07 October 2003, during the fall migratory bird hunting season, my associate Jack Wilson and I were in a rural area near Humboldt, Saskatchewan.

11. Along with all the necessary permits from the Province of Saskatchewan to hunt game birds in Saskatchewan, I had in my possession my shotgun.

12. Because our specific purpose that day was to challenge the licencing mandate of the Firearms Act, Mr. Wilson and I intentionally did not have a federal licence to possess my shotgun.

13. As we had done in our previous CUFOA demonstrations we had notified the Humboldt Detachment of the RCMP that we would be in their area with a shotgun that we did not have a licence to possess.

14. That morning two RCMP constables in separate vehicles attended to our location, identified themselves, then seized and confiscated my shotgun.

15. The two RCMP constables then “interviewed” Mr. Wilson and myself separately in their RCMP vehicles.

16. Eight months later, in July 2004, the Humboldt RCMP detachment filed an application for a forfeiture order of my shotgun with the Provincial Court in Humboldt.

17. Asserting that I have a Right to a trial of my peers before my personal property may be destroyed, we challenged that application in Provincial Court on 10 May 2010.

18. Never-the-less, Judge Plemel ordered that my shotgun should be forfeited and destroyed.

19. We unsuccessfully appealed that decision to the Court of Queen’s Bench in Saskatoon – see Justice Mills’ decision dated 12 January 2011.

(Book of Authorities, Tab 3)

20. We now appeal to the Court of Appeal for Saskatchewan for redress of our grievance.


IV. POINTS IN ISSUE

21. We submit that the points in issue in the present appeal are as follows:

A. Did Mills J. err in not understanding the importance of personal property?
B. Did Mills J. err in failing to understand that the Right to a trial by jury before the State may destroy our personal property is protected by:

i) the written constitutional documents that form the basis of our Canadian Constitution and international law?
ii) the Rule of Law?
iii) the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10, 11, and 26?
iv) “Unwritten Principles”?
v) the ‘supremacy of God’ - or Natural Rights?
and,

C. Did Mills J. err in failing to comprehend the distinction between
“Discretion” and “Arbitrary Power”?


V. ARGUMENT AT LAW

22. In Reference re Firearms Act (Can.), 2000 SCC 31, the Supreme Court stated,

The reference questions, and hence this judgment, are restricted to the issue of the division of powers. (¶ 56) p, 2

However, in this same paragraph of this Reference the Supreme Court also significantly noted:

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. (¶ 56) p. 2

(Book of Authorities, Tab 4)

23. In discussing the criminal law power of Parliament in Reference re Assisted Human Reproduction Act, 2010 SCC 61, LeBel, Deschamps, JJ., with Abella and Rothstein JJ. concurring, referred to ¶ 27 of the Firearms Reference, noting.

[233] Three criteria have to be met to connect a law or a provision with this federal head of power, namely that it

1- suppress an evil,
2- establish a prohibition, and
3- accompany that prohibition with a penalty. (pp. 5 -6 )

(Book of Authorities, Tab 5)

24. But LeBel, Deschamps, JJ, also noted:

[244] When Parliament exercises a power assigned to it, it can establish national standards. However, administrative efficiency alone cannot be relied on to justify legislative action by Parliament (Margarine Reference, at p. 52). The action must be taken within the limits of an assigned head. Recourse to the criminal law power cannot therefore be based solely on concerns for efficiency or consistency, as such concerns, viewed in isolation, do not fall under the criminal law. The three criteria of the criminal law must be met. (p. 9)

25. Although Cromwell J. ‘parted company’ with Justices LeBel and Deschamps on other significant points in Reference re Assisted Human Reproduction Act, he was in total agreement with this assessment about the strict limits on Parliament’s use of criminal law, stating:

[287] … I underline the comment of Justices LeBel and Deschamps (at para. 244) that “recourse to the criminal law power cannot therefore be based solely on concerns for efficiency or consistency, as such concerns, viewed in isolation, do not fall under the criminal law”. (p. 11)

26. We submit that when Parliament, in its desire to “suppress an evil”, introduced s. 117.03 into the Criminal Code, Parliament far out stepped its criminal law power by providing a means for the police to apply a “penalty”, a penalty that violates our most basic Rights of citizenship; i.e., our Right to Property and a our Right to a trial by a jury of our peers when the police confiscate our property - property that we legally obtained, responsibly possessed, and peacefully used.


27. The Importance of Personal Property

Does the importance of personal property protect the Right to a trial by jury before State ordered destruction?

28. Regarding the significance of personal property in Principles of the Civil Code, Part 1, Objects of the Civil Law, Chapter 10, Jeremy Bentham declares:

[A] state can never become rich but by an inviolable respect for property. p. 6

(Book of Authorities, Tab 6)

29. Austrian-born Nobel laureate economist and philosopher Friedrich A. Hayek has demonstrated in The Constitution of Liberty, that the ownership of private property forms the basis of western democracies.

30. As Hayek notes, when a slave was freed in ancient Greece the manumission decree protected the

1) legal status as a protected member of the community,
2) immunity form arbitrary arrest,
3) the right to work at whatever he desires to do, and
4) the right to move according to his choices. (p. 19)

31. Further Hayek observes the significance of property:

This (emancipation) list contains most of what in the 18th & 19th centuries were regarded as the essential conditions of freedom. It omits the right to property only because even the slave could do so.
With the condition of this right (property) it contains all the elements required to protect an individual against coercion.

(pp. 19-20)

32. The protection of personal property is recognized in the Criminal Code:

DEFENCE OF PERSONAL PROPERTY
... / Assault by trespasser.
38. (1) Every one who is in peaceable possession of a personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it, … .

33. And William Blackstone noted in Commentaries on the Laws of England in 1765 about the significance of our Right to property:

Thus much for the declaration of our rights and liberties. …
And these 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:

… the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense. pp. 5 -6

(Book of Authorities, Tab 7)

34. On this point Bentham, supra, agrees with Blackstone:

The more the principle of property is respected, the more is it strengthened in the minds of the people. Small attacks upon this principle prepare for greater … fatal experience has shown with what facility security may be overturned … . p. 13

(Book of Authorities, Tab 6)

35. We regard Criminal Code s. 117.03 as one of these “small attacks” against our Right to Property and our Right to trial by jury.

36. Canadian Constitution Documents and International Law
Do the written constitutional documents that form the basis of our Canadian Constitution and international law provide for a trial by jury before the Court can order the destruction of my shotgun?

37. Our Canadian Constitution is based upon the Magna Carta, British Common Law, The Petition of Rights, 1628, The English Declaration of Rights, 1689, and our Constitution has been tempered by The Canadian Bill of Rights, 1960, and obviously contains The Canadian Charter of Rights and Freedoms.

38. The Magna Carta, Article 39, provides that:

No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

(Book of Authorities, Tab 8)

39. Thomas Henry Bingham, Baron Bingham of Cornhill, KG, PC, QC, FBA, formerly Senior Law Lord of the United Kingdom from 2000 to 2008, in his recently published book, The Rule of Law, observes of the Magna Carta:

It is very hard to decipher. It is in Latin. And even in translation much of it is very obscure and difficult to understand. But even in translation the terms of chapters 30 and 40 have the power to make the blood race. (p. 10)

40. And Bingham notes:

Sir James Holt, the greatest modern authority on the charter, has written:

Magna Carta was not a sudden intrusion into English society and politics. On the contrary, it grew out of them … Laymen had been assuming, discussing, and applying the principles of Magna Carta long before 1215. They could grasp it well enough.

It had a quality of inherent strength because it expressed the will of the people. (p. 12)

41. And furthermore Baron Bingham declared:

The significance of Magna Carta lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important that the actuality … The myth proved a rallying point for centuries to come – and still does, for example when a government proposes some restriction of jury trial. (pp. 12-13)

42. In 1606 Sir Edward Coke described the importance of the Common Law’s demand for a trial by jury, stating:

2. No man shall be disseised, that is, put out of seison, or dispossessed of his free-hold (that is) lands, or livelihood, or of his liberties, or free customes, that is, of such franchises, and freedomes, and free customes, as belong to him by his free birth-right, unlesse it be by the lawfull judgement, that is, verdict of his equals (that is, of men of his own condition) or by the Law of the Land (that is, to speak it once for all) by the due course, and process of Law. p. 2

(Book of Authorities, Tab 9)

43. In 1628 Coke had the opportunity to incorporate his ideas about an individual’s Right to a trial into the Petition of Rights:

III. And whereas also by the statute called 'The Great Charter of the Liberties of England,' it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. p. 2

(Book of Authorities, Tab 10)

44. In 1689 when England was without a king, and before the Convention Parliament agreed to offer the crown to William of Orange, they declared “the true, ancient and indubitable rights and liberties of the people of this kingdom” in The English Declaration of Rights, 1689, which includes these protections of property:

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void; p. 3

(Book of Authorities, Tab 11)

45. The Canadian Bill of Rights, 1960, states, in part:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; p. 1

(Book of Authorities, Tab 12)

46. The Canadian Charter of Rights and Freedoms ss. 7, 8, 9, 10, and 11 of all apply when individuals are confronted by the coercive power of the State. p. 3

(Book of Authorities, Tab 13)

47. I submit that all these Charter sections should be applicable to my situation, but the Crown maintains that since I was not charged, the Charter does not apply.

48. That is the basis of my complaint. Since the police did not charge me, I submit they have taken my property while improperly using s. 117.03 to strip me of all my Rights.

49. The Universal Declaration of Human Rights, 1948, Article 17, states:

(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. p. 4

(Book of Authorities, Tab 14)

50. Of the United Nations’ Declaration, Baron Bingham, supra, significantly notes:

But drawing upon Magna Carta, the Bill of Rights 1689, the French Declaration of Rights of Man and the Citizen 1789, the American Bill of Rights, it (the Declaration) has provided the common standard for human rights … . (p. 32)

51. Thus the question before this Honourable Court is whether I have believed in a “myth”, or do these constitutional and international documents actually have some meaningful relevance to my Life, Liberty, Rights, Freedom, and the protection of my property against confiscation by the State?


52. The Rule of Law
Does the Rule of Law that protects our individual Canadian Liberty, Rights and Freedoms provide for a trial by jury?

53. The Preamble to the United Nations’ Universal Declaration of Human Rights 1948, declares:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. p . 1

(Book of Authorities, Tab 14)

54. In harmony with the U.N. Declaration, The Canadian Charter of Rights and Freedoms likewise declares:

Whereas Canada is founded upon principles that recognize
the supremacy of God and the rule of law:

(Book of Authorities, Tab 13)


55. The status and importance of the Rule of law is clearly demonstrated in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, which notes:

(59) The rule of law, a fundamental principle of our Constitution, … mean(s)… the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. p. 5

(63) The constitutional status of the rule of law is beyond question. The preamble to the Constitution Act, 1982 states:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.

This is explicit recognition that "the rule of law [is] a fundamental postulate of our constitutional structure" …
The rule of law has always been understood as the very basis of the English Constitution characterising the political institutions of England from the time of the Norman Conquest (A.V. Dicey … .)
It becomes a postulate of our own constitutional order by way of the preamble to the Constitution Act, 1982, and is implicit inclusion in the preamble to the Constitution Act, 1867 by virtue of the words "with a Constitution similar in principle to that of the United Kingdom". p. 6

(64) … the rule of law is clearly a principle of our Constitution. p. 6

(Book of Authorities, Tab 15)

56. While the Rule of Law is recognized as a “fundamental postulate” of our Constitution, the meaning or significance of the Rule of Law seems to be subject to considerable variation.

57. In his text, The Rule of Law, Baron Bingham notes two disparate meanings of the Rule of Law, i.e., the “thin” and the “thick” version.

58. The “thin” meaning of the Rule of Law is endorsed by Wolfgang Friedmann, Rudolf von Ihering, Hans Kelsen, Herman Finer, and Joseph Ras who, in ‘The Rule of Law and its Virtue’, The Authority of Law” Essays on Law and Morality, states:

A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies … The law may … institute slavery without violating the rule of law. (p. 96)

59. However, a “thick” version of the Rule of Law was envisioned as early as 1884 by the United States Supreme Court in HURTADO v. PEOPLE OF STATE OF CALIFORNIA, 110 U.S. 516, (1884) 110 U.S. 516 where the Court endorsed Daniel Webster’s remarks of 1819 in Dartmouth College v. Woodward:

It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. … in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall … hold his life, liberty, property, and immunities under the protection of the general rules which govern society,' and thus excluding … acts of confiscation … . p. 3

(Book of Authorities, Tab 16)

60. A “thick” version of the Rule of Law that protects the Liberty of individuals was also obviously envisioned by A. V. Dicey, who in his Introduction to the Study of the Law of the Constitution could say this of the meaning of the ‘Rule of Law’ in 1915:

The supremacy of the rule of law (is) the security given under the English constitution to the rights of individuals ... . (p. 180)

The rule of law … excludes … wide discretionary power on the part of government.

Englishmen are ruled by law, and by the law alone; a man may be punished for a breach of the law, but he can be punished for nothing else. (p. 198)

61. In reviewing the history of the Rule of Law Friedrich A. Hayek follows Dicey and precedes Bingham in endorsing the “thick” version of the Rule of Law as protecting Freedom and Liberty – see Appendix A.

62. In concluding his historical review Hayek quotes W. S. Holdsworth, A History of English Law:

As the result of all these consequences of the independence of the court, the doctrine of the rule or supremacy of the law was established in its modern form, and became perhaps the most distinctive, and certainly the most salutary, of all the characteristics of English constitutional law.

63. Hayek devotes a chapter of The Constitution of Liberty specifically to The Safeguards of Individual Liberty, where he outlines the essential conditions of liberty under the rule of law:

(1) Because the rule of law means that government must never coerce an individual except in the enforcement of a known rule, the rule of law constitutes a limitation on the powers of government, including the powers of the legislature.

From the fact that the rule of law is a limitation upon the legislature, it follows that it cannot be law in the same sense as the law passed by the legislator. … The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine … . (p.206)

The chief means of coercion at the disposal of government is punishment. Under the rule of law, government can infringe a person’s protected sphere only as a punishment … .

(2) The rule of law … distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere … . (pp. 207-208)

(5) … The rule of law requires that the executive in its coercive action be bound by the rules which prescribe not only when and where it may be use coercion but also in what manner it can do so … subject to judicial review. (p. 211)

(6) … if the law said that every thing a certain authority did was legal, it could not be restrained by a court from doing anything. What is required under the rule of law is that … the courts must have the power to decide not only whether a particular action as intra vires or ultra vires but whether the substance of the administrative decision was such as the law demanded. (p. 214)

(8) If bills of rights are to remain in any way meaningful, it must be recognized early that their intention was certainly to protect the individual against all vital infringements of his liberty … (p. 216)

(10) We have concluded the enumeration of the essential factors which together make up the rule of law, without considering the procedural safeguards such as … trial by jury … which in the Anglo-Saxon countries appear to most people as the chief foundations of their liberty.
It is not understood that they presuppose for their effectiveness the acceptance of the rule of law as here defined and that, without it, all procedural safeguards would be valueless.

… the reverence of these procedural safeguards … has enabled the English-speaking world to preserve the medieval conception of the rule of law over men.

Judicial forms are intended to insure that decisions will be made according to rules and not according to the desirability of particular ends or values.

They are designed to make the law prevail, but they are powerless to protect justice where the law deliberately leaves the decision to the discretion of authority.
It is only where the law decides – and this means only where independent court have the last word – that the procedural safeguards are safeguards of liberty. (p. 218 – 219)

64. In emphasizing the importance of the rule of law to the protection of individual Rights and Freedoms Hayek concludes:

To use the trappings of judicial form where the essential conditions for a judicial decision are absent, or to give judges power to decide issues which cannot be decided by the application of rules, can have no effect but to destroy the respect of them even where they deserve it. (p. 219)

65. Baron Bingham, supra, emphatically endorsed the “thick” version of the Rule of Law noting:

* Dicey gave three meanings to the rule of law:

We mean in the first place that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.

* Dicey’s thinking was clear. If anyone – you or I – is to be penalized … It must be for a proven breach of the established law of the land. And if must be a breach established before the ordinary courts of the land, not a tribunal of members picked to do the government’s bidding, lacking the independence and impartiality which are expected of judges. (pp. 3-4)

* Geoffrey Marshall (The Constitution: Its Theory and Interpretation) has pointed out, chapters V to XII of Dicey’s great work, in which he discusses what would now be called civil liberties, appear within Part II of the book, entitled ‘The Rule of Law’. As Marshall observes:

the reader could be forgiven for thinking that Dicey intended them to form part of what the rule of law meant for Englishmen. (p. 66)

* Lord Steyn, in R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539, 581:

Unless there is the clearest provision to the contrary, parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural. (p. 6)

* Both the Universal Declaration of Human Right and later international instruments link the protection of human rights with the rule of law, and the European Court of Human Rights has referred to ‘the notion of the rule of law from which the whole convention draws its inspiration’.

* The European Commission has consistently treated democratization, the rule of law, respect for human rights and good governance as inseparably interlinked. (pp. 66-67)

66. Significantly Baron Bingham calls our attention to:

V. D. Zorkin, President of the Constitutional Court of the Russian Federation said at a symposium held by the International Bar Association in Moscow on 06 July 2007:

Law cannot be simply what is dictated by political authority or issued by the state. In the 2oth Century there have been two examples of legal tragedies, …
One was totalitarian Soviet Communism, and the other was German Nazism.
In the USSR … the law was identified with statutory law, and law was identified with the will (or rather dictatorship) of the proletariat. Through such logic, whatever was prescribed by the state in the form of statutory law was lawful.
Hitler flowed yet a different ideological pathway … but the result was the same.
In Nazi Germany, the law was the expression of the will of the German nation,
and … the law existed only as a body of statutory laws.
Both systems were killing millions of people, because for both the law was given and contained in the statutes. (pp. 67-68)

67. Addressing the specific issue at hand here - the Right to a fair trial - Bingham asserts:

The rule of law requires that the law afford adequate protection of fundamental human rights. It is a good start for public authorities to observe the letter of the law, but not enough if the law in a particular country does not protect what are there regarded as the basic entitlements of a human being. (p. 84)

The right to a fair trial is cardinal requirement of the rule of law. It is a right to be enjoyed, obviously and pre-eminently, in a criminal trial, … (and) make(s) clear that the right extends beyond criminal trial. It applies to civil trials, whoever is involved, … . (pp. 90-97)

The right to a fair criminal trial has been described as ‘the birthright of every British citizen’ … the right to a fair trial has been described as ‘fundamental and absolute’. (p. 96)

A defendant is to be presumed innocent until he is proven to be guilty. (p. 97)

68. I would like to mirror Baron Bingham who quoted;

the Lord Chief Justice of England (Lord Hewart) who, in a powerful and very readable polemic published in 1929 entitled The New Despotism, launched a coruscating attack on the legislative and administrative practices of the day:

It does not take a horticulturalist to perceive that, if a tree is bearing bad fruit, the more vigorously it yields the greater will be the harvest of mischief. (p. 48)


69. The Canadian Bill of Rights and Canadian Charter of Rights and Freedoms
Does the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10, 11, and 26, protect an individual’s Right to a trial by jury before the State may destroy personal property?

70. As noted supra, in 1960, the Canadian Bill of Rights “recognized and declared that in Canada there have existed and shall continue to exist” the right of all Canadians to the “enjoyment of property”.

71. Even though “property” is not specifically mentioned in the Charter, we submit that our individual Right to property has not been extinguished.

72. Significantly to this point, Charter s. 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.

73. We also submit that the Charter s. 7 guarantee of “security” includes property, for as Bentham, supra, notes:

[T]he principal object of the Laws: the care of security. This inestimable good is the distinctive mark of civilization: it is entirely the work of the laws. Without law there is no security; … . p. 1

Law alone, has been able to create a fixed and durable possession which deserves the name of Property. p. 2

In order to form a clear idea of the whole extent which ought to be given to the principle of security, it is necessary to consider, that man … is susceptible of pleasure and pain by anticipation, and that it is not enough to guard him against an actual loss, but also to guarantee to him, as much as possible, his possessions against future losses. p. 2

Property and law are born and must die together. …
With respect to property, security consists in no shock or derangement being given to the expectation which has been founded on the laws … The legislator owes the greatest respect to these expectations to which he has given birth: when he does not interfere with them, he does all that is essential to the happiness of society; when he injures them, he always produces a proportionate sum of evil. p. 4

(Book of Authorities Tab 6)

74. And as noted in Canadian constitutional law in Leiriao v. Val-Bélair (Town), [1991] 3 S.C.R. 349, property rights are recognized:

In Quebec, no one can be deprived of property unless it is in the public interest and for just compensation, according to arts. 406 and 407 of the Civil Code of Lower Canada:

(406) Ownership is the right of enjoying and of disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by law or by regulations.

(407) No one can be compelled to give up his property, except for public utility and in consideration of a just indemnity previously paid.

These provisions are buttressed by s. 6 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12:

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

It is significant that the right to peaceable enjoyment of property is declared not only in the Civil Code, but also in the Quebec Charter. Both the legislator and society as a whole recognise the truth of Edward Coke's adage that "a man's house is his castle, et domus sua cuique tutissimum refugium [and one's home is the safest refuge to everyone]" (3 Inst., at p. 161). P.3

(Book of Authorities, Tab 17)

75. Furthermore in Leiriao the Canadian Supreme Court also noted:

In The Interpretation of Legislation in Canada (2nd ed 1991), P.-A. Côté writes at pp. 401-2:

“Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law". To this right corresponds a principle of interpretation: encroachments on the enjoyment of property should be interpreted rigorously and strictly. p. 4

76. The importance of the Canadian Bill of Rights was noted in Reference re BC Motor Vehicle Act, [1985] 2 S.C.R. 486:

¶ 56. This view was also put forward by Wilson J. in her judgment in Singh v. Minister of Employment and Immigration, supra, with which Dickson C.J. and Lamer J. concurred, at p. 209:

It seems to me rather that the recent adoption of the Charter by Parliament and nine of the ten provinces as part of the Canadian constitutional framework has sent a clear message to the courts that the restrictive attitude which at times characterized their approach to the Canadian Bill of Rights ought to be re-examined. (p. 3)

And,

¶ 69. It has from time immemorial been part of our system of laws that the innocent not be punished. (p. 5)

(Book of Authorities, Tab 18)

77. Regarding the significance and importance of the Canadian Bill of Rights, Bora Laskin C.J. in Miller et al. v. The Queen, [1977] 2 S.C.R, after considering “various judgments in the Supreme Court of the United States” concerning the treatment of words and phrases, declared:

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, … . (p. 6)

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. 9)

(Book of Authorities, Tab 19)

78. Therefore we submit that the Canadian Bill of Rights and Charter ss. 7 and 26 provide for a trial by jury before the destruction of my property.


79. “Unwritten Principles
Do “Unwritten Principles” protect our Right to Trial by Jury before Destruction of Personal Property?

80. In the decision of the Court below, the Honourable Justice Mills states that I have “not been able to point to any authority which gives (me) the specific right to a trial by jury.”

81. We submit that in support of many of our Canadian Rights and Freedoms we cannot “point to any authority” to a “specific right”, e.g., the right to abortion or same-sex marriage.

82. As Lebel and Deschamps JJ in Reference re Assisted Human Reproduction Act, supra, stated:

[239] ... The coming into force of the Charter … resulted in fundamental changes that affected offences related to sex, pornography and prostitution. (pp. 7 - 8)

(Book of Authorities Tab 5)

83. Germane to this discussion, while Dicey & Hayek consider the separation of powers with an independent judiciary as one of the mainstays of the protection of our basic liberties, the “independence” of our provincial courts is not a Right “named” in our constitutional documents.

84. Yet in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 the Supreme Court of Canada upheld and affirmed the independence these courts.

(Book of Authorities, Tab 20)

85. Discussing judicial independence former Chief Justice Lamer explained:

… Litigation, and especially litigation before this Court, is a last resort for parties who cannot agree about their legal rights and responsibilities. It is a very serious business. (¶7)

86. Interestingly, for such a “serious business” the former Chief Justice, observed:

… judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts. (¶ 83)

87. The Chief Justice further notes that the “root” of judicial independence relies on the existence of a principle:

whose origins can be traced to the Act of Settlement of 1701, (and) is recognized and affirmed by the preamble to the Constitution Act, 1867 … . (¶ 83)

88. The former Chief Justice declared that “unwritten constitutional principles are exterior to the Constitution” noting that:

• reference must be made to a deeper set of unwritten understanding not in the Constitution (¶ 89),

• unwritten principles can be “constitutionalized” (¶ 90),

• the list of constitutional documents is “not exhaustive” (¶ 91),

• the Canadian Constitution does not consist of a single set of documents (¶ 92),

89. The former Chief Justice then demonstrated how many very important and vital aspects of our constitutional lives depend upon “Unwritten Principles” found in the preamble:

• the preamble explains the existence of the unwritten rules (¶ 94),

• the preamble gives the underlying logic of the Constitution the force of law (¶ 95),

• Canadian constitutional democracy should be true to its (British) heritage (¶ 96),

• the Canadian doctrine of full faith and credit comes for the preamble?(¶ 97),

• the preamble explains the doctrine of paramountcy (¶ 98),

• the preamble gives rise to elected assemblies (¶ 100),

• the legislative privileges of the provinces and the Senate are protected by the preamble (¶ 101),

• freedom of political speech is protected by way of the preamble (¶ 102), and,

• based upon the preamble, the Supreme Court fashioned “an implied bill of rights” (¶ 103)

90. Significantly Lamer C.J. referred specifically to Reference re Manitoba Language Rights, 1985, supra, in this discussion of the “Unwritten Basis of Judicial Independence” where he noted:

That order, as this Court held ... is "an actual order of positive laws", an idea that is embraced by the notion of the rule of law. In that case, the Court explicitly relied on the preamble to the Constitution Act, 1867, as one basis for holding that the rule of law was a fundamental principle of the Canadian Constitution. (¶ 99)


91. In concluding his defense of the existence of “unwritten constitutional principles” in Re: Remuneration the former Chief Justice showed that:

… the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867.
In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located. (¶ 109)

92. The main point of the Chief Justice Lamer’s analysis of the importance of the preamble seems to be to show how the Supreme Court has used the preamble to introduce unwritten principles to defend some of Canadians most basis democratic values - values which are not protected by positive law.

93. We respectfully submit that “the castle” of our Canadian Constitution includes the Magna Carta, the English Common Law, the Petition of Rights, and the English Declaration of Rights, 1689.

94. We thus respectfully submit that the basic principles of these documents– perhaps “at root an unwritten constitutional principle” - not specifically named in our Constitution - protect our personal property from involuntary forfeiture and destruction without trial and conviction.


95. the ‘supremacy of God’ - or Natural Rights
Does the ‘supremacy of God’ - or Natural Rights - protect our individual Right to Trial by Jury?

96. As noted, supra, in Manitoba Langue Rights along with the “rule of law”, the preamble to the Constitution Act, 1982 recognizes “the supremacy of God”.

97. And as noted in Halsbury’s The Laws of England, “God” is certainly an integral part of our British heritage. The Holy Bible is mentioned as being:

presented [to the Sovereign] as the most valuable thing on earth, and signifies wisdom, royal law, and the lively oracles of God;
And at the coronation the Sovereign is presented the orb which signifies:
that the whole world is subject to the empire of Christ.

98. In introducing “God” into this discussion I have no desire to push my Grandmother’s straight-laced, puritanical Presbyterian ideas – nor my much more liberal Judeo-Christian views – upon anyone. And I do not want anyone else to push his or her religious mores upon me.

99. Rather I mention the importance of the ‘supremacy of God’ because I believe we Canadians may have a few things yet to learn about the limits of “positive law” and the importance of God or Natural Law.

100. British philosophers, e.g., Algernon Sydney, William Blackstone, and Samuel Adams, speak convincingly about the interrelationship of humans, government, and Natural Law, as does John Locke (1632-1704):

Any single man must judge for himself whether circumstances warrant obedience or resistance to the commands of the civil magistrate; we are all qualified, entitled, and morally obliged to evaluate the conduct of our rulers. This political judgment, moreover, is not simply or primarily a right, but like self-preservation, a duty to God. As such it is a judgment that men cannot part with according to the God of Nature. – see Appendix B.

101. A.P. d’Entreves in Natural Law, An Introduction to Legal Philosophy, regarding the provisions of the post-World War II Nürnberg Tribunal that sent many former German officials to the gallows, observes that their death sentences:

were based, or purported to be based, on existing or ‘positive’ international law. … The rejection of the defense of superior orders … is nothing less than the old doctrine that the validity of laws does not depend on their ‘positiveness’, and that it is the duty of the individual to pass judgment on laws before he obeys them. (pp. 106 – 107)

102. In approval of the death sentences of these Nazi war criminals, the Report of the International Law Commission of the General Assembly, Principle IV, noted:

The fact that a person acted pursuant to an order of his Government or a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. ¶ 105 (p. 375)

(Book of Authorities, Tab 21)

103. And much more recently Canadian Supreme Court Chief Justice McLachlin offered this observation of Natural Law in an address on “Unwritten Constitutional Principles”:

Cast in the language of religion, early natural law theories saw the manifestation of the divine in something that became the foundation of the Western world’s concept of itself: human rationality. (p. 7)

(Book of Authorities, Tab 22)

104. In her address Chief Justice McLachlin approvingly quoted M.D. Walters:

Unwritten fundamental laws is regarded as an assertion of the supremacy of natural law, right reason or universal principles of political morality and human rights over legislation, it is part of a rich intellectual heritage that had informed common law thinking from medieval times through the English and American revolutionary ages, and into the high Victorian era of empire out of which Canada’s written constitution emerged. (p.6)

105. Our pluralistic society may not feel the need of God or Natural Law, but A.P. d’Entreves, supra, states, “The undying spirit of Natural Law can never be extinguished” and quotes von Gierke:

If it is denied entry into the body of positive law, it flutters around the room like a ghost and threatens to turn into a vampire which sucks the blood from the body of the law. (p. 108)

106. As Chief Justice McLachlin, supra, stated:

judges have a duty to insist that the legislative and executive branches of government conform to certain establish and fundamental norms ... . (p. 11)

107. The Chief Justice agreed that Lord Cooke had “identified an inherent limit in the capacity of Parliament to enact enforceable laws” when he declared:

Some common law rights presumably lie so deep that even Parliament could not override them. (p. 2)

108. Therefore, we believe this Honourable Court has a duty to recognize our Natural Law Right to a trial of our peers before the Court may order the involuntary forfeiture of our most vital individual private property.


109. Non-violent Civil Disobedience and the Distinction between “Discretion” and “Arbitrary Power”
What is the distinction between “discretion” and “arbitrary power”, especially when confronted with Peaceful, Non-violent Civil Disobedience?

110. To protect human rights Henry David Thoreau, Mohandas Gandhi, and Martin Luther King, Jr. defied ‘the law of the land’ and engaged in peaceful, nonviolent civil disobedience.

111. In his seminal text, A Theory of Justice, John Rawls considers peaceful, nonviolent civil disobedience a valuable means of public discourse noting that:

• Civil disobedience (is) a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government. (p. 364)

• By acting in this way one addresses the sense of justice of the majority of the community and declares that in one’s considered opinion the principles of societal cooperation among free and equal men are not being respected. (p. 364)

• Civil disobedience is a political act not only in the sense that is addressed to the majority that holds political power, but also because it is an act guided and justified by political principles, that is, by the principles of justice which regulates the constitution and social institutions generally. (p. 365)

• In … civil disobedience … one invokes the commonly shared conception of justice that underlies the political order. (p. 365)

• By engaging in civil disobedience a minority forces the majority … in view of the common sense of justice … to acknowledge the legitimate claims of the minority. (p. 366)

• Civil disobedience is a public act. Not only is it addressed to public principles, it is done in public. It is engaged in openly with fair notice; it is not covert or secretive. One may compare it to public speech, and being a form of address, an expression of profound and conscientious political conviction, it takes place in the public forum. (p. 366)

• Civil disobedience is giving voice to conscientious and deeply held convictions; while it may warn and admonish, it is not itself a threat. (p. 366)

112. Rawls considers peaceful civil disobedience a “part of the theory of a free government”, noting that:

• Civil disobedience is a crucial test for any theory of the moral basis of democracy. (p. 363)

• The persistent and deliberate violation of the basic principles of this conception over any extended period of time, especially the infringement of the fundamental equal liberties, invites either submission or resistance. (pp. 365-6)

• Civil disobedience expresses disobedience to the law within the limits of fidelity to law, although … The law is broken, but fidelity to law is expressed by the public and nonviolent nature of the act, by the willingness to accept the legal consequences of one’s conduct. (pp. 366-7)

• Civil disobedience (is) a way of setting up … a final device to maintain the stability of a just constitution. (p. 384)

• To deny justice to another is either to refuse to recognize him as an equal … deliberate injustice invites submission or resistance. (p. 384)

113. Furthermore Rawls admonishes:

If justified civil disobedience seems to threatened civic concord, the responsibility falls not upon those who protest but upon those whose abuse of authority and power justifies such opposition.
(pp. 390-1)

114. At great expense, effort, and investment of time, my CUFOA associates and I have followed the peaceful examples of Thoreau, Gandhi, King, and the philosophical, ethical guideline of Professor Rawls.

115. We have openly engaged in nation-wide, active, honest, peaceful, non-violent civil disobedience from Victoria to St. John’s to bring our grievance with the licencing mandate of the Firearms Act into the public debate.

116. We have done everything we reasonably can do, in an open honest, peaceful, nonviolent manner, to have ourselves charged and taken before a jury of our peers for our flagrant violation of the federal licencing mandate.

117. In direct contravention of Criminal Code s. 92(1), Jack Wilson, Dr. Joe Gingrich, and I have, as our affidavits declare, specifically - and intentionally - possessed firearms knowing that we were “not the holder of a licence”. ¶10 ¶17 ¶8

(Book of Authorities, Tabs 23, 24, 25)

118. During our demonstrations in Ottawa, the Ottawa City Police and the Parliament Hill Detachment of the RCMP arrested us and confiscated four firearms from us, but later dropped all charges.

119. During our demonstrations in Saskatchewan, the Saskatoon City Police and four separate Saskatchewan detachments of the RCMP broke up our demonstrations and confiscated five firearms from us.

120. For participating in similar demonstrations three of our CUFOA associates have been arrested, charged, tried, and convicted for not having a licence to possess their firearms, i.e., Oscar Lacombe, the former sergeant-at-arms in the Alberta Legislature arrested on New Year’s Day 2003 at the Provincial Legislative Building in Edmonton, Alberta, and Bruce and Donna Montague, arrested in Dryden, Ontario, in September 2004.

121. Yet the Saskatoon City Police and the Saskatchewan detachments of the RCMP did not charge us for our illegal possession of a firearm – a charge readily available to them under CC s. 92(1). (pp. 78 – 79)

(Book of Authorities II, Firearms Act, c. 39)

122. We could not complain if the police and RCMP had use “discretion” and ignored us or had merely given us a warning.

123. But the Saskatoon police and the Saskatchewan detachments of the RCMP did not ignore us nor warn us; they stopped our peaceful activity, they detained us, and – specifically – five times, they confiscated our personal property.

124. But rather than charge us for our conspicuous violation of the federal law, the police and RCMP used s. 117.03 to confiscate our property.

125. By using s. 117.03 to confiscate our firearms without laying charges the police and RCMP have totally negated all of our Charter Rights.

126. By that action the police and RCMP have made a mockery of our peaceful demonstrations and our respect for the law.

127. We submit that using s. 117.03 in this manner was not an exercise of police “discretion”, but rather this was abuse of arbitrary power by the police.

128. Please note well what has been the effect of that action when I previously appeared before this Honourable Court in 2008:

[22] None of the aforesaid factors was adequately addressed by Dr. Hudson?before this Court or the Chambers judge. This deficiency is due, in part, to?his claim having been brought before the courts by way of a Chambers application, rather than a trial … .

(Book of Authorities, Tab 1)

129. We would remind this Honourable Court of Professor Rawls conclusion:

The final court of appeal is not the court, nor the executive, not the legislature, but the electorate as a whole. The civilly disobedient appeal in a special way to this body.. (p. 390)

130. Therefore we call upon this Honourable Court to acknowledge and respect our efforts to have a sincere, honest political dialogue regarding the unjust licencing mandate of the Firearms Act with our peers in court.


Conclusion

You do not examine legislation in light of the benefits it will convey if properly administered, but in light of the wrongs it would do and the harms it would cause if improperly administered.
- Lyndon B. Johnson

131. In noting the options open to the Court in Reference re Assisted Human Reproduction Act, supra, the Chief Justice observed:

[18] … If the scheme as a whole is valid, but some of its provisions invalid, the invalid provisions are severed, leaving the remaining provisions intact. … . (pp. 3-4)

(Book of Authorities, Tab 5)

132. We respectfully submit that Criminal Code s. 117.03 is “a constitutionally invalid provision” that should be “severed”.

133. As William Pitt, “the Younger” (1759 - 1806), British politician and former Prime Minister, would remind us:

Necessity is the plea for every infringement of human liberty; it is the arguments of tyrants; it is the creed of slaves.?

134. There is no “necessity” here that s. 117.03 addresses. Finding in our favour will not put the public to harm. Mr. Wilson, Dr. Gingrich, and I – and anyone else who is in possession of a firearm without having a licence - are all still subject to arrest, trial, conviction, and having our property forfeited after conviction.

135. We respectfully submit that under criminal law, before we can be punished we have the Right to a trial of our peers.

136. We submit that our Rights have been denied.

137. As provided for by s.24 of the Charter, we respectfully seek;

… to obtain such remedy as the court considers appropriate and just in the circumstances.


VI. Relief Sought


138. Base upon our Canadian Liberties, Rights and Freedoms of a trial by our peers being protected by:

a) the Magna Carta,
b) the Common Law,
c) the Petition of Rights, 1628,
d) the English Declaration of Rights, 1689,
e) the British North America Act, 1867,
f) the Canadian Bill of Rights, 1960,
g) the Canadian Charter of Rights and Freedoms, 1982,
h) the Rule of Law,
i) the separation of powers,
j) the Supremacy of God or Natural Law, and,
k) the concept of “Justice as Fairness”,

we hereby respectfully submit that before this Honourable Court affirms the order for the involuntary forfeiture and destruction of my individual property, I should have the Right to a trial by a jury of my peers.

139. Therefore we respectfully request that this Honourable Court either:

1. declare Criminal Code section 117.03 ultra vires Parliament and of no force and effect in Canada and order the RCMP to return my shotgun,
or,
2. order the Humboldt RCMP to charge me properly with violating Criminal Code s. 92(1) and bring me to a trial before my peers.

Respectfully submitted to the Court of Appeal for Saskatchewan,
11 March 2011.


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


Appendix A

Hayek on The Rule of Law

Hayek, F. A., The Constitution of Liberty, University of Chicago Press, Chicago, 1960

Whereas Canada is founded upon principles that recognize
the supremacy of God and the rule of law:


A01: This important principle of the ‘Rule of Law’ was forcefully articled at the conclusion of the Glorious Revolution:

The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others; which cannot be where there is no law: and is not, as we are told, a liberty for every man to do what he lists. (For who could be free when every other man's humour might domineer over him?) But a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to he the subject of the arbitrary will of another, but freely follow his own.

John Locke, Second Treatise on Civil Government, ed. J. W. Gough, Oxford, 1947, sec. 57, p. 29 (Hayek, p. 162, fn p. 456)

A02. However, this purpose of the Rule of Law has an ancient heritage. The ‘unwritten principle’ of the Rule of Law protecting individual Rights was first recognized and taught by the ancient Greeks:

(a) Pericles, 431 B.C:

The freedom which we enjoy in our government extends also to our ordinary life [where], far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes.

What was the road by which we reached our position, what the form of government under which our greatness grew, what the national habit out of which it sprang? ... If we are to look at laws, they afford equal justice to all in their private differences; ... The freedom which we enjoy in our government extends to our ordinary life ... But all this ease in our private relations does not make us lawless as citizens. Against this fear is our chief safeguard, teaching us to obey the magistrates and the laws, particularly such as the protection of the injured, whether they are actually on the statute books, or belong to that code which, although unwritten, yet cannot be broken without acknowledged disgrace.

Pericles, Pericles Funeral Oration as reported by Thucydides

The Pelopennesian War ii, 37-39, trans. Richard Crawley (Modern Library ed.), p. 104 (Hayek, p. 164, fn#10, p. 459 & p. 1 fn* @ 419)

(b) Aristotle, (384 BC – 322 BC

It is more proper that the law should govern than any of the citizens, (that the persons holding supreme power) should be appointed only guardians and servants of the law, (and that) he who would place supreme power in mind, would place it in God and the laws. (condemning the kind of government in which) the people govern and not the law (and in which) everything is determined by majority vote and not by law ... for, when government is not in the laws, then there is no free state, for the law ought to be supreme over all things.

(A government that) centers all power in the votes of the people cannot, properly speaking, be a democracy: for their decrees cannot be general in their extent.

Aristotle, Politics, 1287a & 1292a, trans W. Ellis, “Everyman” edition, (Hayek, p. 165, fn#25-6, 461)

A03. The Romans adopted the Rule of Law from the Greeks:

(a) Laws of the Twelve Tables, c450 B.C.:

no privileges, or statutes shall be enacted in favour of private persons, to the injury of others contrary to the law common to all citizens, and which individuals, no matter of what rank, have a right to make use of.

The Civil Law, ed. S. P. Scott, Cincinnati, 1932, p. 73 (Hayek, p. 166 fn#31 @ p. 462)

(b) Cicero (106 - 43 B.C.)

[T]herefore, is a law, O judges, not written, but born with us,--which we have not learnt or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught but to which we were made,--which we were not trained in, but which is ingrained in us,--namely, that if our life be in danger from plots, or from open violence, or from the weapons of robbers or enemies, every means of securing our safety is honourable. For laws are silent when arms are raised, and do not expect themselves to be waited for ... .

“In Defense of Titus Annius Milo” (in Selected Political Speeches of Cicero, ed. and trans. Michael Grant, 222 [1969])

(c) Livy, 59 BC – AD 17

The authority and rule of laws, more powerful and mighty than those of men,

Titus Livius, Ab Urbe Condita, Romane Historie, trans Philemon Holland, London, 1600, pp. 114, 134, 1016 (Hayek, p. 164, & fn#14, & p. 166, fn#33, p. 462)

A04. The Rule of Law was recognized in the early Middle Ages:

(a) “the state cannot itself create or make law, and of course as little abolish or violate law, because this would mean to abolish justice itself, it would be absurd, a sin, a rebellion against God who alone creates law.”

For centuries it was recognized doctrine that kings or any other human authority could only declare or find the existing law, or modify abuses that had crept in, and not create law. Hayek, p. 163

(b) This point was noted by Chief Justice McLachlin:

Cast in the language of religion, early natural law theories saw the manifestation of the divine in something that became the foundation of the Western world’s concept of itself: human rationality. Natural law was , Thomas Aquinas wrote, “Something appointed by reason.”

Summa theologiae I-II, Question 94, /First Article, p. 45

Since, then the lawgiver cannot have in view every single case, he shapes the law according to what happens most frequently, by directing his attention to the common good. Wherefore, if a case arises wherein the observance of that law would be hurtful to the general welfare, it should not be observed.

St. Thomas Aquinas, Summa theologiae I-II, Question 96, Sixth Article, Cited from William P. Baumgarth and Richard J. Regan, eds. Thomas Aquinas, On Law, Morality and Politics, Indianapolis, Hackett, 1988, p. 75

Quoted by Beverley McLachlin, CJ, Supreme Court of Canada, “Unwritten Constitutional Principles; What is Going On?” Given at the 2005 Lord Cooke Lecture, Wellington, New Zealand, 01 December 2005

A05. The Rule of Law was recognized and defended before the Glorious Revolution of 1689:

(a) The Petition of Grievances of 1610:

(among all the traditional rights of British subjects) there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law, which giveth to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government ...

Out of this root has grown the indubitable right of the people of this kingdom, not to be made subject to any punishment that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament”.

Great Britain, Public Record Office, Calendar of State papers, Domestic Series, 07 July 1610 (Hayek, p. 168, fn#44, p. 463)

(b) Sir Edward Coke, 1642:

If a grant be made to any man, to have the sole making of cards, or the sole dealing with any other trade, that grant is against the liberty and freedom of the subject, that before did, or lawfully might have used that trade, and consequently against this great charter; (but going beyond such opposition to the royal prerogative to warn Parliament itself) to leave all causes to be measured by the golden and straight mete-wand of the law, and not to the incertain and crooked cord of discretion.

Sir Edward Coke, The Second Part of the Institutes of the Laws of England, 1642. London, 1809, p. 47 (Hayek p. 168, fn#45 & 46, p. 463)

(c) James Harrington, 1656:

the art whereby a civil society is instituted and preserved upon the foundations of common rights and interest . . . [is], to follow Aristotle and Livy, the empire of laws not of men.

James Harrington, Oceana, 1656 (Hayek, p. 166, fn#30, p. 462)

(d) “Declaration of Parliament Assembled at Westminster" January, 1660:

There being nothing more essential to the freedom of a state, than that the people should be governed by the laws, and that justice be administered by such only as are accountable for maladministration, it is hereby further declared that all proceedings touching the lives, liberties and estates of all the free people of this commonwealth, shall be according to the laws of the land, and that the Parliament will not meddle with ordinary administration, or the executive part of the law: it being the principle [sic] part of this, as it hath been of all former Parliaments, to provide for the freedom of the people against arbitrariness in government. Hayek, p. 169.

(e) Matthew Hale, 1673:

To avoid that great uncertainty in the application of reason by particular person to particular instances; and so to the end that men might not be under the unknown arbitrary uncertain reason of particular person, has been the prime reason, that the wiser the sort of the world have in all ages agreed upon some certain laws and rules and methods of administration of common justice, and these to be as particular and certain as could well be thought of.

Sir Matthew Hale’s Criticism of Hobbes Dialogue on the Common Laws

W.S. Holdsworth, A History of the English Law, London, 1924, V, p. 503 (Hayek, fn#61, p. 465)

(f) Algernon Sydney, 1683:

That which is not just, is not Law; and that which is not Law, ought not to be obeyed.

[T]he principle of liberty in which God created us . . . includes the chief advantages of the life we enjoy, as well as the greatest helps towards felicity, that is the end of our hopes in the other. I:2:5

[T]hey could not . . . lay more approved foundations, than, that man is naturally free; that he cannot be justly deprived of that liberty without cause; and that he does not resign it, or any part of it, unless it be in consideration of a greater good, which he proposes to himself. I:2:5

The Liberty of a people is the gift of God and nature. III:33:406.

The legislative power is always arbitrary, and not to be trusted in the hands of any who are not bound to obey the laws they make. III:45:455.

Algernon Sidney, Discourses Concerning Government, ed. Thomas West, Indianapolis, Ind.: Liberty Classics, 1990

(g) Gilbert Burnet, 1688:

The degrees of al civil authority, are to be taken either from express laws, immemorial customs, or from particular oaths, ... ; this being still to be laid down as a principle, that, in all disputes between power and liberty, power must always be proved, but liberty proves itself; the one founded upon positive law, and the other upon the law of nature.

The chief design of our whole law, and the several rules of our constitution, is to secure and maintain our liberty.

Gilbert Burnet, Inquiry into the Measures of Submission to the Supreme Authority (1688) Quoted in Harleian Miscellany, London, 1808, I, p. 446-7 (Hayek, fn#59, p. 464-5)

A06. The Rule of Law was well acknowledged after the Glorious Revolution proclaimed the English Declaration of Rights, in 1689:

(a) John Locke, 1690:

Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where that rule prescribes not: and not to be subject to the inconstant, uncertain, arbitrary will of another man. (and not) irregular and uncertain exercise of the power ... whoever has the legislative or supreme power of any commonwealth is bound to govern by established standing laws promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the forces of the community at home only in the execution of such laws. (Even the legislature has no) absolute arbitrary power, ... cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges, (while the) supreme executor of the law ... has no will, no power, but that of the law.

John Locke, Second Treatise on Civil Government, ed. J. W. Gough, Oxford, 1947, sec. 22, p. 13 ff (Hayek, p. 170, fn#61-7, p. 465)

(b) David Hume, 1762:

No government, at that time, appeared in the world, nor is perhaps to be found in the records of any history, which subsisted without the mixture of some arbitrary authority, committed to some magistrate; and it might reasonably, beforehand, appear doubtful, whether human society could ever arrive at that state of perfection, as to support itself with no other control, than the general and rigid maxims of law and equity. But the parliament justly thought, that the King was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has been found, that, though some inconveniences arise from the maxim of adhering strictly to law, yet the advantages so much overbalance them, as should render the English forever grateful to the memory of their ancestors, who, after repeated contests, at last established that noble principle.

David Hume, History of England, V, London, 1762, p. 280 (Hayek fn# 83, p. 467)

(c) Sir William Blackstone, 1765:

(Law is) a rule, not a transient sudden order from a superior or concerning a particular person; but something permanent, uniform and universal. ...

In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the Crown, consists one main preservation of public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated from both the legislative and also form the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinion, and not by any fundamental principles of law; which though legislatures may depart from them, yet judges are bound to observe.

Sir William Blackstone, Commentaries on the Laws of England, London, 1765, I p. 44 & p. 269 (Hayek p.173 & fn#85, p. 468)

(d) Edmond Burke, 1766:

It would be hard to point to any error more truly subversive of all order and beauty, of all the peace and happiness, of human society, than the position, that any body of men have a right to make what laws they please; or that Laws can derive any authority from their institutions merely and independent of the subject matter. No arguments of policy, reason of State, or preservation of the Constitution, can be pleaded in favor of such a practice. ... All human Law are, properly speaking, only declamatory; they may alter the mode of application, but have no power over the substance of original justice.

Edmond Burke, “Tracks Relative to the Laws against Popery in Ireland”, Works, IX, p. 350 (Hayek fn#6, p. 458)

(e) Letters of Junius (1772) Letter 47:

The government of England is a government of law. We betray ourselves, we contradict the spirit of our laws, and we shake the whole system of English jurisprudence, whenever we in trust a discretionary power over the life, liberty, of fortune of the subject, to any man, or set of men whatsoever upon the presumption that it will not be abused. (Hayek fn#84, p. 468)

A07. The rule of Law was recognized by the international legal expert J. S. de Lolme, in 1784:

The most characteristic circumstance of the English government, and the most pointed proof that can be given of the true freedom which is the consequence of its fame (that in England) all the individual’s actions are suppose to be lawful, till that law is pointed out which makes them otherwise. ... That foundation of that law principle, or doctrine, which confines the exertion of the power of the government to such cases only as expressed by a law in being ... it has appeared by the event, that the very extraordinary restrictions upon government authority we are alluding to, and its execution, are no more than what the intrinsic situation of things, and the strength of the constitution, can bear.

J. S. de Lolme, The English Constitution, 1784, (new ed. London, 1800), pp. 436-441 (Hayek fn#84, p. 467)

A08. This importance purpose of the Rule of Law has now been recognized:

As the result of all these consequences of the independence of the court, the doctrine of the rule or supremacy of the law was established in its modern form, and became perhaps the most distinctive, and certainly the most salutary, of all the characteristics of English constitutional law.

W. S. Holdsworth A History of English Law, X, London, 1938 p. 647 (Hayek, fn#73, p. 466)


Appendix B

British Philosophers and Natural Law


B01. Algernon Sydney (1623 – 1683):

[T]he principle of liberty in which God created us . . . includes the chief advantages of the life we enjoy, as well as the greatest helps towards felicity, that is the end of our hopes in the other. I:2:5

[T]hey could not . . . lay more approved foundations, than, that man is naturally free; that he cannot be justly deprived of that liberty without cause; and that he does not resign it, or any part of it, unless it be in consideration of a greater good, which he proposes to himself. I:2:5

The Liberty of a people is the gift of God and nature. III:33:406.

The legislative power is always arbitrary, and not to be trusted in the hands of any who are not bound to obey the laws they make. III:45:455.

Discourses Concerning Government, ed. Thomas West, Indianapolis, Ind.: Liberty Classics, 1990


B02. John Locke (1632-1704):

Any single man must judge for himself whether circumstances warrant obedience or resistance to the commands of the civil magistrate; we are all qualified, entitled, and morally obliged to evaluate the conduct of our rulers. This political judgment, moreover, is not simply or primarily a right, but like self-preservation, a duty to God. As such it is a judgment that men cannot part with according to the God of Nature. It is the first and foremost of our inalienable rights without which we can preserve no other.

For the legislative acts against the trust reposed in them when they endeavour to invade the property of the subject, and to make themselves, or any part of the community, masters or arbitrary disposers of the lives, liberties, or fortunes of the people.

Two Treatises of Government, (1680-1690)


B03. William Blackstone (1723 - 1780):

The fifth and last auxiliary right ... is that of having arms for their defense, ... of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. ... security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; … And all these rights and liberties it is our birthright to enjoy entire; ... .
Commentaries on the Laws of England, (1765 - 1769)


B04. Samuel Adams (1722 - 1803):

Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature. ...

If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave.

The absolute rights of Englishmen and all freemen, in or out of civil society, are principally personal security, personal liberty, and private property.

All persons born in the British American Colonies are, by the laws of God and nature and by the common law of England, exclusive of all charters from the Crown, well entitled, and by acts of the British Parliament are declared to be entitled, to all the natural, essential, inherent, and inseparable rights, liberties, and privileges of subjects born in Great Britain or within the realm. Among those rights are the following, ...

The Legislative has no right to absolute, arbitrary power over the lives and fortunes of the people; nor can mortals assume a prerogative not only too high for men, but for angels, and therefore reserved for the exercise of the Deity alone.

The Rights of the Colonists, November 20, 1772

200.

VIII. COMPREHENSIVE LIST OF AUTHORITIES

Constitutional Documents

The Magna Carta, 1215

The Petition of Rights, 1628

The English Declaration of Rights, 1689

The Canadian Bill of Rights, 1960

The Universal Declaration of Human Rights, 1948

The Canadian Charter of Rights and Freedoms, 1982

Statutes

Firearms Act, c. 39

Cases

Charter of the Nürnburg Tribunal, Judgment

Housen v. Nikolaisen, [2002] 2 S.C.R. 235

HURTADO v. PEOPLE OF STATE OF CALIFORNIA, 110 U.S. 516, (1884) 110 U.S. 516

Klebuc C.J.S., The Court of Appeal for Saskatchewan Decision 2009

Leiriao v. Val-Bélair (Town), [1991] 3 S.C.R. 349

Miller et al. v. The Queen, [1977] 2 S.C.R

Mills J Queen’s Bench decision dated 12 January 2011

Reference re Assisted Human Reproduction Act, 2010

Reference re BC Motor Vehicle Act, [1985] 2 S.C.R. 486

Reference re Firearms Act (Can.), 2000 SCC 31

Re Manitoba Language Rights, [1985] 1 S.C.R. 721

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3

Authors

Jeremy Bentham, Principles of the Civil Code, Pt1, Objects of the Civil Law

Tom Bingham, The Rule of Law, Penguin Books 2010

Sir William Blackstone, Commentaries on the Laws of England, London, 1765, I, pp. 44 & 269

Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606], ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2., Chapter 29

A.P. d’Entreves, Natural Law, An Introduction to Legal Philosophy, Transaction Publishers, London, 1951, pp. 106 – 107

Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th edition, MacMillan & Co., London, 1915 (1885)

Halsbury’s The Laws of England, 3rd ed, Lord Simonds, ed, Vol. 7, Butterworth , London, 1954, p.204

Friedrich A. Hayek, The Constitution of Liberty, University of Chicago Press, Chicago, 1960

John Locke, Second Treatise on Civil Government, ed. J. W. Gough, Oxford, 1947, sec. 57, p. 29

Beverley McLachlin, “Unwritten Constitutional Principles; What is Going On?’, Given at the 2005 Lord Cooke Lecture, Wellington, New Zealand, 01 December 2005

Martin’s Annual Criminal Code 2003, Student Edition, Canada Law Book, Aurora, 2003, pp. 95 & 96

John Rawls, A Theory of Justice, Belknap Press Cambridge, Massachusetts, 1971

Joseph Raz, ‘The Rule of Law and its Virtue’, in Raz, The Authority of Law” Essays on Law and Morality, Oxford University Press, 1979, p. 96


Affidavits

Dr. Joe Gingrich
Dr. Edward B. Hudson
Mr. Jack McKelvie Wilson

Book of Authorities Vol. I

Tab Paragraph Name
Tab 1 ¶ 2. Klebuc C.J.S., Court of Appeal for Saskatchewan 2009
Tab 2 ¶ 8 Housen v. Nikolaisen, [2002] 2 S.C.R. 235
Tab 3 ¶ 19 Justice Mills’ Decision dated 12 January 2011
Tab 4 ¶ 22 Reference re Firearms Act (Can.), 2000
Tab 5 ¶ 23 Reference re Assisted Human Reproduction Act, 2010
Tab 6 ¶ 28 Jeremy Bentham, Principles of the Civil Code, Cpt 10,
Tab 7 ¶ 33 William Blackstone Commentaries Laws of England
Tab 8 ¶ 38 The Magna Carta, 1215
Tab 9 ¶ 42 Sir Edward Coke, 1606
Tab 10 ¶ 43 Petition of Rights, 1628
Tab 11 ¶ 44 English Declaration of Rights, 1689
Tab 12 ¶ 45 The Canadian Bill of Rights, 1960
Tab 13 ¶ 46 The Canadian Charter of Rights and Freedoms, 1982
Tab 14 ¶ 49 The Universal Declaration of Human Rights, 1948
Tab 15 ¶ 55 Re Manitoba Language Rights
Tab 16 ¶ 59 HURTADO v. PEOPLE OF STATE OF CALIFORNIA
Tab 17 ¶ 74 Leiriao v. Val-Bélair (Town), [1991] 3 S.C.R. 349
Tab 18 ¶ 76 Reference re BC Motor Vehicle Act
Tab 19 ¶ 77 Miller et al. v. The Queen, [1977] 2 S.C.R
Tab 20 ¶ 84 Reference re Remuneration of Judges Provinc. Court
Tab 21 ¶ 102 Charter of the Nürnburg Tribunal, Judgment
Tab 22 ¶ 103 McLachlin “Unwritten Constitutional Principles”
Tab 23 ¶ 117 Affidavit Gingrich
Tab 24 ¶ 117 Affidavit Hudson
Tab 25 ¶ 117 Affidavit Wilson

Book of Authorities Vol. II

Firearms Act, c. 39

Paragraph

¶ 5

¶ 121