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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IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN)
(Name of the court appealed from)

BETWEEN:

EDWARD BURKE HUDSON
(Name of the applicant as it appears on the court of appeal judgment)


APPLICANT

AND:

THE ATTORNEY GENERAL OF CANADA
(Name of the respondent as it appears on the court of appeal judgment)

RESPONDENT


APPLICATION FOR LEAVE TO APPEAL


Edward Burke Hudson
(Name of the applicant)

402 Skeena Court
Saskatoon, Saskatchewan S7K 4H2
(306) 242-2379
edwardhudson@shaw.ca


The Attorney General of Canada
(Name of the respondent)

Scott R. Spencer
Senior Crown Counsel
Department of Justice, Canada
10th Floor, 123 Second Ave S.
Saskatoon, Saskatchewan S7K 7E6
(306) 975-5641
(306) 975-6240 (fax)
scott.spencer@justice.gc.ca


Form 25A

NOTICE OF APPLICATION FOR LEAVE TO APPEAL

Supreme Court Act, R.S.C. 1985, c. S-26, ss. 35 and 40
(Section of the Act or Rules on which this document is based)

__________________________________________________

TAKE NOTICE that Edward Burke Hudson hereby applies for leave to appeal to the Court, pursuant to Supreme Court Act, R.S.C. 1985, c. S-26, ss. 35 and 40
from the judgment of the Court of Appeal for Saskatchewan, 2011 SKCA 112 made 05102011, and for the Court to order the return of his property, or any other order that the Court may deem appropriate; .

AND FURTHER TAKE NOTICE
that this application for leave is made on the following grounds:

Ground 1:

That the Honourable Justice Caldwell of the Court of Appeal for Saskatchewan erred in law in his decision of 05 October 2011 upholding the validity of the provision of the Criminal Code s. 117.03 by failing to recognize the vital, importance of property and the Right not to be deprived thereof without criminal charge, conviction at trial, and sentence by a judge.

Ground 2:

That the Honourable Justice Caldwell of the Court of Appeal for Saskatchewan erred in law in his decision of 05 October 2011 by failing to recognize the manner in which Criminal Code s. 117.03 violates the “unwritten Constitutional principles” that protect a citizen for state-imposed forfeiture of his property without charge, trial, or conviction.

Ground 3:

That the Honourable Justice Caldwell of the Court of Appeal for Saskatchewan erred in law in his decision of 05 October 2011 by failing to recognize the manner in which Criminal Code s. 117.03 violates a citizen’s Right to appeal to the common sense of Canadians in peaceful, non-violent protect against an unjust law.

SIGNED BY

___________________ 11 November 2011
Edward Burke Hudson
402 Skeena Court
Saskatoon, Saskatchewan S7K 4H2
(306) 242-2379
edwardhudson@shaw.ca


ORIGINAL TO:

THE REGISTRAR

COPY TO:

The Attorney General of Canada
Scott R. Spencer
Senior Crown Counsel
Department of Justice, Canada
10th Floor, 123 Second Ave S.
Saskatoon, Saskatchewan S7K 7E6
(306) 975-5641
(306) 975-6240(fax)
scott.spencer@justice.gc.ca


APPLICANT’S MEMORANDUM OF ARGUMENT


PART I – STATEMENT OF FACTS

[1] For the past ten years my associates and I have been engaged in an open, active, public campaign of non-violent, peaceful civil disobedience against the licencing mandate of the Firearms Act.

[2] During many of our demonstrations the local police and the RCMP used the presumed authority of section 117.03 of the Firearms Act and the Criminal Code to seize and confiscate our personal property.

[3] For one of our demonstrations in October 2003 during the fall migratory bird-hunting season, my associate Jack Wilson and I were in a rural area near Humboldt, Saskatchewan.

[4] Along with all the necessary permits from the Province of Saskatchewan to hunt game birds, I had in my possession a federal migratory bird permit and my shotgun.

[5] 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.

[6] As we had done in all our previous CUFOA demonstrations we had notified the local detachment of the RCMP that we would be in their area with a shotgun that we did not have a licence to possess.

[7] That morning two Humboldt Detachment RCMP constables in separate vehicles attended to our location, identified themselves, and immediately seized and confiscated my shotgun.

[8] The two RCMP constables then “interviewed” Mr. Wilson and myself separately in their RCMP vehicles, and then departed with my shotgun.

[9] In July 2004 the Humboldt RCMP detachment filed an application for a forfeiture order of my shotgun with the Saskatchewan Provincial Court in Humboldt.

[10] Asserting that we have a Right to a trial and conviction before our personal property may be destroyed, we challenged that application in Provincial Court on 10 May 2010.

[11] Never-the-less, Saskatchewan Provincial Court Judge Plemel ordered that my shotgun should be forfeited and destroyed.

[12] We unsuccessfully appealed that decision to the Court of Queen’s Bench in Saskatoon.

[13] Subsequently we unsuccessfully appealed to the Court of Appeal for Saskatchewan.

[14] Therefore we now appeal to this honourable Court for redress of our grievance.


PART II – STATEMENT OF THE QUESTIONS IN ISSUE


[15] Section 117.03 of the Firearms Act and the Criminal Code gives the police and RCMP the presumed authority to seize, confiscate, and obtain a court order to destroy our personal property with neither arrest, charge, trial, nor conviction.

[16] Section 117.03 of the Firearms Act, c. 39, and the Criminal Code states:

(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 to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed or otherwise dealt with as the Attorney General directs. 1995, c.39, s. 139.

[17] Since we have no intention of complying with what we consider an unjust law, s.117.03 effectively strips us of our personal property with neither trial nor conviction.

[18] We submit that there are three valid constitutional grounds for declaring s. 117.03 of the Firearms Act and the Criminal Code unconstitutional and “of no force and effect”, i.e.,

(a) In implementing s. 117.03 Parliament failed to recognize the vital, importance of property and the Right of responsible citizens not to be deprived thereof without criminal charge, conviction at trial, and sentence by a judge.

(b) In implementing s. 117.03 Parliament failed to recognize the manner in which s. 117.03 violates the legal protections of the Canadian Bill of Rights, 1960, the Canadian Charter of Rights and Freedoms and the “unwritten Constitutional principles” that protect a citizen for state-imposed forfeiture of his property without charge, trial, or conviction.

(c) In implementing Criminal Code s. 117.03 Parliament failed to recognize the manner in which Criminal Code s. 117.03 violates a citizen’s Right to appeal to the common sense judgment of Canadians in peaceful, non-violent protest against an unjust law.

[19] But the major issue before this Honourable Court is how the police and the RCMP have unjustly used s. 117.03 to deny us the ability to oppose this unjust law by peaceful, non-violent means.

[20] While we have honoured and respected the Rule of Law in all of our demonstrations and in everything we have done all across Canada, the police and the RCMP have not reciprocated.

[21] And, significantly, the Honourable Courts below have not properly considered the prima fascia evidence we presented of unethical, covert government collusion.


PART III – STATEMENT OF ARGUMENT


[22] In Reference re Firearms Act (Can.), 2000 SCC 31, at paragraph 56 this Honourable Court stated,

The reference questions, and hence this judgment, are restricted to the issue of the division of powers.

[23] However, in this same paragraph of this Reference this Honourable 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.

[24] In discussing the criminal law power of Parliament in Reference re Assisted Human Reproduction Act, 2010 SCC 61, at paragraph 233 LeBel, Deschamps, JJ., with Abella and Rothstein JJ. concurring, referred to paragraph 27 of the Firearms Reference, noting.

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.

[25] But at paragraph 244 LeBel, Deschamps, JJ, also noted:

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.

[26] 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, in paragraph 287 stating:

… 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”.

[27] 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 when the police confiscate our property - property that we legally obtained, responsibly possessed, and peacefully used.

[28] Although the authors of the Canadian Charter of Rights and Freedoms seem intentionally to have excluded “property” from that document, the vital historical, constitutional importance of personal property is indisputable.

[29] 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.

[30] 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.

[31] And William Blackstone noted in his Commentaries on the Laws of England in 1765 about the crucial significance of a citizen’s 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.

[32] 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 … .

[33] We respectfully submit that the Magna Carta, Article 39, applies:

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.

[34] 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:

(Magna Carta) 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)

[35] Baron Bingham also 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)

[36] 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)

[37] We further respectfully submit that The Canadian Bill of Rights clearly recognizes the Right to property along with “life, liberty, and security of the person”.

[38] In Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40, Mr. Justice Major of this Honourable Court noted at paragraph 10:

The Bill of Rights is a federal statute that renders inoperative federal legislation inconsistent with its protections. It protects rights that existed when the Bill of Rights was enacted, in 1960. 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.

[39] And significantly at paragraph 34 the Honourable Justice continued:

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. … .

[40] In R. v. Ontario (Provincial Court of York County) Re: Nevin; Re: DePoe, judgment of 16 October 1970, paragraph 8, Addy J. of the Ontario Supreme Court provides a good working definition of “Due Process of Law”:

… A trial by a Magistrate or a Judge … has been for some years before the turn of the century, in so far as the offences with which we are presently dealing, the law of the land as applied to all the rights and privileges of every person in Canada when subjected to or charged with those offences. Therefore, it must necessarily be part of the due process … .

[41] And in emphasizing the importance of the Canadian Bill of Rights, the Ontario Court of Appeal, judgment of 09 December 1970, Justice Jessup, noted at paragraph 10:

It is true that s. 2 when read with s. 5(2) of the statue (Canadian Bill of Rights), and as construed in the Drybones case, empowers a court to strike down a particular law which denies due process or any other existing rights expressly recognized and preserved by the statue … .

[42] And specifically the Ontario Court of Appeal stated at paragraph 11:

A further consideration is that in s. 2(f) parliament has particularized the general term “due process” in the criminal law. It has provide for criminal hearings to be by a “tribunal”, a word apt to inclusively designated trial either by a judge and jury or by judge alone … .

[43] We respectfully submit that “due process of law” requires - as a minimum a trial by a Magistrate, or a trial by a Provincial Court Judge.
[44] We further respectfully submit that Criminal Code s. 117.03 violates our Legal Rights - sections 7 through 13 of the Canadian Charter of Rights and Freedoms.

[45] The “Legal Rights” enumerated in sections 8 through 13 include protections against the Government in situations of Search or seizure, Detention or imprisonment, Arrest or detention, Proceedings in criminal and penal matters, Treatment or punishment, and Self-crimination.

[46] We submit that all these “legal protections” of Charter sections 7 through 13 were violated in Carmel, Saskatchewan, on that October day in 2003.

[47] I would like to call your attention again to Friedrich A. Hayek in The Constitution of Liberty:

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 … .

[48] We further submit that the Government’s action violated “the principles of fundamental justice”.

[49] In Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, the judgment of Dickson C.J. and Beetz, Chouinard, Lamer and Le Dain JJ. was delivered by Mr. Justice Lamer who stated at paragraph 69:

It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law.

[50] And in a subsequent section of Motor Vehicle Act Madam Justice Wilson stated at paragraphs 122 through 124:

122. I would conclude … that if the citizen is to be guaranteed his right to life, liberty and security of the person--surely one of the most basic rights in a free and democratic society--then he certainly should not be deprived of it by means of a violation of a fundamental tenet of our justice system.

123. It has been argued very forcefully that s. 7 is concerned only with procedural injustice but I have difficulty with that proposition. There is absolutely nothing in the section to support such a limited construction. Indeed, it is hard to see why one's life and liberty should be protected against procedural injustice and not against substantive injustice in a Charter that opens with the declaration:

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

and sets out the guarantee in broad and general terms as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I cannot think that the guaranteed right in s. 7 which is to be subject only to limits which are reasonable and justifiable in a free and democratic society can be taken away by the violation of a principle considered fundamental to our justice system. Certainly the rule of law, acknowledged in the preamble as one of the foundations on which our society is built, is more than mere procedure. It will be for the courts to determine the principles which fall under the rubric "the principles of fundamental justice" … .

124. … the presumption of innocence protected in s. 11(d) of the Charter may be viewed as a substantive principle of fundamental justice but it clearly has both a substantive and a procedural aspect. … .

[51] With all due respect, I submit that Justices Lamer and Wilson were endorsing the essentials of what Daniel Webster said in 1819 in defending the Trustees of Dartmouth College:

By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land.

[52] We respectfully submit that section 117.03 makes a mockery of our Charter Rights and Freedoms.

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

[54] 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.
[55] As Lebel and Deschamps JJ in Reference re Assisted Human Reproduction Act, supra, stated at paragraph 239:

... The coming into force of the Charter … resulted in fundamental changes that affected offences related to sex, pornography and prostitution.

[56] 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.

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

[58] 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)

[59] 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)

[60] Chief Justice Lamer 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)

[61] 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),

[62] 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)

[63] Significantly Lamer C.J. referred specifically to Reference re Manitoba Language Rights, 1985,4 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)

[64] 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)

[65] 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.

[66] We respectfully submit that “the castle” of our Canadian Constitution includes the Magna Carta, the English Common Law, the Petition of Rights, 1628, and the English Declaration of Rights, 1689.

[67] 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.

[68] We further submit, 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”.

[69] 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.

[70] 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.

[71] 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.

[72] 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)

[73] 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

[74] Our pluralistic society may not feel the need of God or Natural Law, but as 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)

[75] 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.

[76] 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.

[77] As Chief Justice McLachlin stated:

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

[78] 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.

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

[80] We also submit – respectfully and emphatically - that Criminal Code s. 117.03 violates our protection from Prosecutorial Impropriety.

[81] In R. v. Beare; R. v. Higgins, 1988 CanLII 126 (S.C.C.) at paragraph 53 Mr. Justice La Forest states:

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 section 24 of the Charter would lie, but no allegation of this kind has been made in the present case.

[82] We have made – and DO make - that kind of allegation.

[83] That has been one of our primary complaints in this case:

That the Government has used discretion for an improper or an arbitrary motive.

[84] We submit that prima fascia evidence supports our submission.
Please note:

The number of face-to-face encounters that we have had with the police: - Eight.
The number of arrests: - Three.
The number of our firearms seized and confiscated: – Ten.

[85] All these encounters occurred in 2003 during a ten-month period from January to October.

[86] Yet the police and RCMP did not laid a single criminal charge for the offence that we had announced publically that we were committing.

[87] If we need to produce evidence of Government collusion, we submit the Government’s action in Ottawa on New Years Day 2003, when the RCMP arrested and charged our former president and myself with “taking a weapon to a public meeting” for our possession of the inactive, non-functional receiver section of a Canadian made, British .303 rifle.

[88] And the Saskatoon City Police still hold the inactive, non-functional receiver section of a firearm that I sold to my associate Dr. Gingrich in front of the Police headquarters.

[89] And the Saskatchewan RCMP detachments in Biggar and Wilkie, Saskatchewan, still hold two shotguns that are the property of my associate Mr. Wilson.

[90] Subsequent to the implementation of the Firearms Act Parliament made significant changes to the Criminal Code that presume to authorize these seizures and confiscations.

[91] In Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783 at paragraph 20, this Honourable Court stated:

The statements of the Honourable Allan Rock, Minister of Justice at the time, … in the House of Commons, reveal that the federal government’s purpose in proposing the law was to promote public safety. (Minister Rock) stated:

The government suggests that the object of the regulation of firearms should be the preservation of the safe, civilized and peaceful nature of Canada.

[92] And in that Reference this Honourable Court at paragraph 54 also declared:

gun control is directed at a moral evil.

[93] Either the mere possession of our firearms is a totally illegal activity that threatens “the safe, civilized and peaceful nature of Canada” - and is deserving of punishment under the criminal law of Canada as this Honourable Court has declared, or our continued unlicensed possession of our many firearms is totally innocuous.

[94] Either the mere possession of our firearms is a “moral evil” that Parliament properly wants to suppress or it is not.

[95] We respectfully submit that the Attorneys General of Saskatchewan and Canada cannot have it both ways.

[96] We respectfully submit that the police and RCMP have both a legal obligation to enforce this “law of the land” and arrest us for our defiance to submit to it, and they have a moral obligation to eliminate a “moral evil”.

[97] The offence that properly applies to all our demonstration activity is Criminal Code section 92(1).

… every person commits an offence who possesses a firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; … .

[98] In everything my associates and I have done in all of our demonstration against the licencing mandate of the Firearms Act, we have been extremely clear that we possessed our firearms “knowing” that we were not the holder of a licence.

[99] To emphasize that point as clearly and graphically as we could, we all burned our firearms licences on Parliament Hill on New Years’ Day 2003.

[100] Then in July 2003, we personally hand-delivered signed affidavits to the office of each Attorneys General in the ten provinces across Canada.

[101] Dr. Gingrich, Mr. Wilson, and I submitted these affidavits to the Honourable Court below.

[102] As our affidavits make clear, we have proclaimed for all to hear:

We did not, have not, and do NOT have a licence to possess our firearms!

[103] This is an indictable offence with imprisonment for a term not exceeding ten years.

[104] In dealing with a possible accusation of bias in prosecution - or more specifically bias in failure to prosecute - we refer to Kostuch v. Attorney General of Alberta, 1995 CanLII 6244 (AB CA) where at page 4 the Alberta Court of Appeal states:

The prosecution policy established by the Attorney General of Alberta contains a twofold test: (1) the evidence must be such that there is a reasonable likelihood of conviction when the evidence as a whole is considered; (2) whether the public interest requires prosecution.

[105] We submit that the prosecution of Dr. Gingrich, Mr. Wilson, and myself in Saskatchewan would easily pass that twofold test.

[106] We submit that the Government has no valid, acceptable reason not to prosecute us.

[107] 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 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.

[108] Professor Rawls considers peaceful civil disobedience a “part of the theory of a free government”, stating that:

Civil disobedience is a crucial test for any theory of the moral basis of democracy.

[109] We are seeking to test “the moral basis” of what we consider an unjust law.

[110] We submit that the Government is exercising discretion “for improper or arbitrary motives” and that this arbitrary, improper action violates our Right to address our fellow citizens directly in a court of law.

[111] Therefore we respectfully submit that this Honourable Court has an obligation to act to hold the Government accountable for their just, fair, application of the “laws of the Land”.

[112] We would like to remind this Honourable Court that declaring section 117.03 of the Firearms Act and the Criminal Code null and void would not make Canadians any less safe.

Ninety-nine point nine percent of the Firearms Act would still be in effect.
My associates and I would still be subject to arrest for possession of our firearms without a licence and thereby subject to having our firearms seized.

[113] In his text, The Rule of Law, Baron Thomas Bingham, former Lord Chief Justice of England and Wales, supra, states:

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’.

[114] The status and importance of the Rule of law in Canada is clearly demonstrated in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, which at paragraph 59 declares:

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.

[115] Lorne Gunter, in an article in the Edmonton Journal on 14 February 1996, entitled “Citizens, not politicians, the true defenders of civil order”, states:

When the laws start to represent the elite's goals for us, … when lawmakers trample centuries-old liberties without offering an overwhelming social good in return … then respect for the law dies and the rule of law along with it.

[116] And as Dr. Martin Luther King, Jr. wrote on 16 April 1963 in “Letter from a Birmingham Jail” :

Sometimes a law is just on its face and unjust in its application … such an ordinance becomes unjust when it is used … to deny citizens the … privilege of peaceful … protest.

[117] Dr. King further stated:

an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

[118] Our purpose is to “arouse the conscience” of our community.

[119] We respectfully ask this Honourable Court to give us that opportunity.

PART IV – SUBMISSIONS IN SUPPORT OF ORDER SOUGHT CONCERNING COSTS
(Submissions, if any, not exceeding one page in support of the order sought concerning costs.)


[120] This Honourable Court is aware of the heavy financial burden Canadians face in legal situation. As the Honourable Chief Justice said here in Saskatoon:

It's increasingly difficult for middle class people to afford litigation, to afford to take their problems to court.

[121] I have personally borne the entire cost of taking my case through the court system.

[122] I submit that I have already paid my fair share of costs.


PART V – ORDER OR ORDERS SOUGHT


[123] We have presented three reasons to support our request to this Honourable Court to declare section 117.03 of the Firearms Act and the Criminal Code to be unconstitutional, invalid, and of no force and effect, i.e.:
[124] We respectfully submit that:

(1) s. 117.03 violates the Canadian Bill of Rights protection of Property,

(2) s. 117.03 violates the Canadian Charter of Rights and Freedoms and the unwritten constitutional principles that protect our Right to a trial,
and,
(3) s. 117.03 violates our protection from Prosecutorial Impropriety.

[125] We respectfully submit that only one of the three reasons enumerated and discussed above is sufficient reason for this Honourable Court to strike down section 117.03 of the Firearms Act and the Criminal Code.

[126] Therefore,
We respectfully ask that this Honourable Court:

(1) to declare s. 117.03 of the Firearms Act and the Criminal Code ultra vires parliament and to be invalid and of no force and effect.
And,

(2) to order the Humboldt detachment of the RCMP to return my shotgun.

_______________________________
(Your signature)
Edward Burke Hudson, DVM, MS
11 November 2011

PART VI – TABLE OF AUTHORITIES

Legislative enactments, case law, articles, texts and treaties

Paragraph

Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40

[38] [39]
Bentham, Jeremy, Principles of the Civil Code, Part 1, Chapter 10,Objects of the Civil Law
[29] [32]
Bingham, Thomas Henry, The Rule of Law, Penguin Books 2010
[34] [35] [36] [113]
Blackstone, Sir William, Commentaries on the Laws of England, London, 1765, I, pp. 44 & 269
[31]
Canadian Bill of Rights, 1960
[41]
Canadian Charter of Rights and Freedoms
[44] [45] [50]
Criminal Code section 117.03
[16]
d’Entreves, A.P., Natural Law, An Introduction to Legal Philosophy, Transaction Publishers, London, 1951, pp. 106 – 107
[72] [74]
English Declaration of Rights, 1689
[66]
Firearms Act, c. 39
[16]
Gunter, Lorne, “Citizens, not politicians, the true defenders of civil order”: Edmonton Journal, 14 February 1996,
[115]
Halsbury’s The Laws of England, 3rd ed, Lord Simonds, ed, Vol. 7, Butterworth , London, 1954, p.204
[69]
Hayek, Friedrich A. The Constitution of Liberty, University of Chicago Press, Chicago, 1960
[30] [47]
Hutton, David, “McLachlin seeks justice for all”, The StarPhoenix, 12 May 2007
[119]
King, Jr., Martin Luther, “Letter from a Birmingham Jail” 16 April 1963
[116] [117]
Kostuch v. Attorney General of Alberta, 1995 CanLII 6244 (AB CA)
[104]
Locke, John, Second Treatise on Civil Government, ed. J. W. Gough, Oxford, 1947, sec. 57, p. 29
[71]
Magna Carta, Article 39
[33]
McLachlin, Beverley, “Unwritten Constitutional Principles; What is Going On?’, Given at the 2005 Lord Cooke Lecture, Wellington, New Zealand, 01 December 2005
[75] [76] 77] [78]
Petition of Rights, 1628
[66]
Rawls, John, A Theory of Justice, Belknap Press Cambridge, Massachusetts, 1971
[107] [108]
R. v. Beare; R. v. Higgins, 1988 CanLII 126 (S.C.C.)
[81]
R. v. Ontario (Provincial Court of York County) Re: Nevin; Re: DePoe
[40] [41] [42]
Re B.C. Motor Vehicle Act, [1985] 2 SCR 486
[49] [50]
Reference re Assisted Human Reproduction Act, 2010 SCC 61
[24] [25] [26] [55]
Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783
[91] [92]
Re Manitoba Language Rights, [1985] 1 S.C.R. 721
[63] [114]
Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3
[57] [58] [59] [60] [61] [62] [63] [64]
Report of the International Law Commission of the General Assembly, Principle IV
[73]
Trustees of Dartmouth College v. Woodward, 17 U.S. 518
[51]