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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QUEEN'S BENCH FOR SASKATCHEWAN

Citation: 2007 SKQB 455

Date: 2007 12 12
Docket: Q.B.G. No. 810/2007
Judicial Centre: Saskatoon


BETWEEN:

EDWARD B. HUDSON

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA,

Respondent

Appearances:

Edward B. Hudson
on his own behalf
Scott R. Spencer and Donald J. Klaasen
for the respondent

JUDICIAL REVIEW
December 12, 2007
GABRIELSON J.

Introduction

[1] In his notice of motion filed June 27, 2007, the applicant, Edward B. Hudson, ("Dr. Hudson") applied:

a) For an Order pursuant to Rule 664 declaring that Respondent Attorney General of Canada is without jurisdiction:

i) to request a destruction order of my firearm;

ii) to continue to hold my firearm;

b) For an Order pursuant to Rule 664 declaring the Provincial Court of Saskatchewan in Craik, Saskatchewan, is without jurisdiction to make any findings of fact which would amount to a status decision concerning the applicant's firearm;

c) For an Order pursuant to Rule 664 declaring that the Craik RCMP:

i) are without any authority to hold applicant's firearm; and

ii) should forthwith return said firearm to applicant.

[2] At the hearing of this matter which took place on October 18, 2007, Dr. Hudson confirmed that he understood that there was no appeal or judicial review possible concerning the Provincial Court judge's order for the destruction of his firearm. However, in accordance with the grounds for relief listed in his notice of motion, he took the position that his appication was really an application for a declaration that s. 117.03 of the Criminal Code of Canada was ultra vires of Parliament in that it violated the Canadian Constitution and, further, that it was contrary to the provisions of the Canadian Charter of Rights and Freedoms. Counsel for the resondent, the Attorney General of Canada, indicated that the Crown was not taking issue with the form of the application and that he was prepared to proceed with the merits of the application. Crown counsel also acknowledged that Dr. Hudson had standing to challenge the constitutional validity of s. 117.03 and to seek a declaration that he had a right to possess firearms without a federal license. However, while agreeing to speak to the merits of the application, Crown counsel suggested that if the Court should find any violation of the Charter, a further hearing would be required to determine whether there was justification for such violation within the meaning of the Act. Dr. Hudson agreed to the proposed procedure of splitting the hearing in this fashion, and the application proceeded, based upon the affadavit material filed. My decision was reserved.

[3] Counsel for the respondent also filed a letter from Thomson Irvine, Counsel for the Constitutional Branch of the Government of Saskatchewan, confirming that Dr. Hudson had served the Attorney General for Saskatchewan with the notice of motion and the notice of constitutional questions. In his letter, Mr. Irvine indicated that, as the matter involved an application brought against federal law, the Attorney General for Saskatchewan would not be intervening.

Background

[4] Dr. Hudson was born in the United States and immigrated to Canada in 1977. He is a doctor of veterinary medicine. At the time of the application, he was the secretary of the Canadian Unregistered Firearms Association. As part of his "campaign of peaceful, nonviolent civil noncompliance to the Firearms Act", he and an associate scheduled a hunting trip and demonstration in the Craik district of Saskatchewan for October 10, 2003. Prior to going hunting, he sent a letter dated October 9, 2003, to Justice Minister Wayne Easter, advising him of his intent to hunt with an unregistered firearm and without a firearm possession license and giving him the location where he would be hunting. Dr. Hudson provided a copy of this letter to the Royal Canadian Mounted Police ("RCMP") detachment at Craik, Saskatchewan. As a result of the notice, an RCMP officer attended at the start of a proposed demonstration at Craik, Saskatchewan, on October 10, 2003, and, pursuant to s. 117.03 of the Criminal Code, seized a shotgun owned by Dr. Hudson. The matter was subsequently brought before a judge of the the Provincial Court so that the shotgun could be dealt with in accordance with s. 117.03(3) of the Criminal Code. Dr. Hudson was not, however, charged with a criminal offence under the Firearms Act, S.C. 1995, c. 39, or the Criminal Code. Following a hearing, in a decision dated December 6, 2005, a Provincial Court judge ordered forfeiture of the shotgun seized. Dr. Hudson's appeal of that decision was dismissed by a judge of the Court of Queen's Bench on the basis that there was no right of appeal available under the Criminal Code from a s. 117.03(3) forfeiture order. The appellate judge also determined that Dr. Hudson's submission that the forfeiture of his shotgun violated his rights pursuant to the Charter could not be considered part of his appeal and suggested that he proceed by way of an application for a declaration pursuant to The Queen's Bench Rules. Dr. Hudson then applealed the forfeiture order to the Court of Appeal, which dismissed his appeal on June 5, 2007. Dr. Hudson then launched the application under consideration in this case.

Issues

[5] The issues are:

1. Does the right to bear arms exist in Canada?

2. Is s. 117.03 of the Criminal Code ultra vires of the Parliament of Canada?

3. Does s. 117.03 of the Criminal Code violate the Charter?

1. Does the right to bear arms exist in Canada?

[6] The essence of Dr. Hudson's application is that there is an inalienable right to possess firearms in Canada, which he suggests comes directly from an act of the Parliament of England. This Act, An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (1 Will. & Mar. sess. 2 c. 2), is commonly known as the Bill of Rights 1689. The Seventh declaration contained in the Bill of Rights 1689 provides as follows:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

[7] Dr. Hudson submitted that the context of the Bill of Rights 1689 is very important stating that it was passed by a convention parliament as part of an agreement to invite William and Mary of Orange to become the constitutional monarchs of England and was also part of the conditions which had to be accepted by the monarchs before they were offered the English Crown. Dr. Hudson submitted that the historical background to this Act is that the previous monarch had passed laws preventing certain citizens from carrying firearms. Dr. Hudson suggested that the drafters of the Bill of Rights 1689 specifically intended to ensure that they could defend themselves, not only against thieves and invaders but also against their own government and accordingly wanted to ensure that they had this right to bear arms.

[8] Dr. Hudson suggested that the Bill of Rights 1689 is also operative in Canada based upon the terms of the British North America Act, 1867, 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II., No. 5, (now the Constitution Act, 1867), which he stated incorporated into Canada certain British constitutional principles. Dr. Hudson referred to the preamble to the British North America Act, 1867, a portion which states as follows:

WHEREAS the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: [Emphasis added.]

Dr. Hudson suggested that the reference to "a Constitution similar in Principle to that of the United Kingdom" would also mean that citizens of Canada would have the rights which a citizen of the United Kingdom had at the time of the passage of the British North America Act, 1867, one of which rights was the right to bear arms. Dr. Hudson referred to several Supreme Court of Canada decisions: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Secession of Québec, [1998] 2 S.C.R. 217; and R. v. Smith, [1987] 1 S.C.R. 1045. Dr. Hudson suggested that these cases recognized that the reference in the British North America Act, 1867 to Canada having a constitution similar in principle to the United Kingdom incorporates many rights or principles such as those outlined in the Bill of Rights 1689.

[9] While the Supreme Court of Canada, in the cases referred to by Dr. Hudson, stated that certain principles of the British constitutional authority have been incorporated into Canada without specific reference, that Court has also confirmed that such principles are not laws. In the case of Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, supra, Chief Justice Lamer stated at page 69:

94 ... Although the preamble has been cited by this Court on many occasions, its legal effect has never been fully explained. On the one hand, although the preamble is clearly part of the Constitution, it is equally clear that it "has no enacting force": Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at p. 805 (joint majority reasons). In other words, strictly speaking, it is not a source of positive law, in contrast to the provisions which follow it.

[10] Furthermore, the Supreme Court of Canada has also confirmed that there is no constitutional right to bear arms. In the case of R. v. Hasselwander, [1993] 2 S.C.R. 398, at para. 33, Justice Cory stated:

33 ... Canadians, unlike Americans do not have a constitutional right to bear arms. ...

[11] Accordingly, it is my opinion that the preamble to the British North America Act, 1867 did not incorporate into Canada's statutes the right of certain persons to bear firearms which was contained in the Bill of Rights 1689.

[12] Furthermore, it is clear that even in England, under the Bill of Rights 1689, the right to bear arms was not unqualified. The qualifications were: (1) its application was to the subjects who were Protestants; and (2) armed for their defence; and (3) suitable to their conditions; and (4) as allowed by law. The first three conditions relate to the political situation at the time the declaration was passed. A previous king, who was Catholic, had for a time prohibited other religions from bearing arms. As a result, people of those other religions felt that they were unable to appropriately defend themselves. As well, suitable to their conditions would also have been a reference to the political situation at that time which favoured landed gentlemen. The fourth condition was according to law which would have made the right to bear arms would be subject to the power of Parliament to make laws concerning the said firearms.

[13] Dr. Hudson acknowledged that the United Kingdom has, since the Bill of Rights Act, 1689, passed a series of laws restricting the right to bear firearms. Dr. Hudson referred the Court to "Memorandum for the Guidance of the Police", Home Office, Firearms Act, published in 1937, 1964 and 1969, each of which refers to such restrictions. Accordingly, even in the United Kingdom, there was no absolute unfettered right to bear arms notwithstanding the Bill of Rights 1689.

[14] The parliament of Canada has also placed restrictions on guns at least as far back as the 1892 enactment of the Criminal Code, S.C. 1892, c. 29. Section 105 of that Code required a permit for the carrying of a handgun. Subsequent changes to the Criminal Code have added to the control of firearms. Recently, the Supreme Court of Canada clearly described gun ownership as not a right in Canada but rather a heavily regulated privilege. In the case of R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 9, Charron J. stated:

9 ... The state interest in reducing the misuse of weapons is valid and important. The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege. ...

[15] In my opinion, Dr. Hudson has not established that there is an unfettered right to bear arms in Canada. Rather, there is a privilege to own and use firearms, which privilege is subject to licensing requirements which may be established from time to time by Parliament. While firearms may have been a part of the heritage of Canada as described in the affidavits filed by Dr. Hudson in support of this application, it never was intended to be an unfettered right that was not subject to parliamentary limitations. Some of these limitations include the licensing of individual firearms owners and the licensing or prohibition of certain types of firearms.

2. Is s. 117.03 of the Criminal Code ultra vires of the Parliament of Canada?

[16] Section 117.03 of the Criminal Code provides as follows:

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 license 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 license 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 persuant to subsection (1) claims the thing within fourteen days after the seizure 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 is lawfully entitled to possess it, and

(b) in the case of a firearm, a registration certificate for the firearm,

the thing shall forthwith be returned to that person.

(3) Where any thing seized pursuant to subsection (1) is not claimed and returned as and 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 of or otherwise dealt with as the Attorney General directs.

[17] Dr. Hudson's position was that s. 117.03 of the Criminal Code is unconstitutional because it conflicts with common law rights such as those found in the Bill of Rights 1689. Dr. Hudson was quick to point out that he was not challenging the regulation of certain types of firearms, such as handguns and assault weapons, but only the ability of Parliament to make it a crime to possess an otherwise legal firearm unless it was licensed. While opposed in principle to the Firearm Acquisition Certificate required under the Firearms Act, Dr. Hudson acknowledged that in this application he was only challenging that portion of that Act dealing with the licensing of the firearm itself. He indicated that he had always complied with legislation requiring that certain types of handguns and carbines be registered, but stated that his complaint was in respect to the Act requiring him to have a personal license for an otherwise lawful firearm. Dr. Hudson suggested that s. 117.03 is an unlawful interference with his inalienable right to protect himself and his property.

[18] Dr. Hudson submitted that Parliament cannot pass any laws inconsistent with an "inalienable" right to protect himself by the ownership of firearms. As indicated in Issue No. 1 herein, he suggested that this inalienable right was granted in the Bill of Rights 1689, which he suggested was incorporated into Canada by the preamble to the Constitution Act, 1867.

[19] I have already determined Issue No. 1 that there was no inalienable right to bear arms and that the preamble to the Constitution Act, 1867, would not assist Dr. Hudson in this application. I will, however, proceed to consider the issue of whether Parliament had the constitutional power to pass s. 117.03 of the Criminal Code.

[20] The Crown's position is that s. 117.03 was passed pursuant to the constitutional powers granted to the Government of Canada in respect to issues of criminal law by virtue of s. 91(27) of the Constitution Act, 1867. In Reference re: Firearms Act (Canada), [2000] 1 S.C.R. 783, 2000 SCC 31, the Supreme Court was asked to consider whether the Firearms Act constituted a valid exercise of Parliament's discretion over criminal law. At page 804, paras. 32-33, the Court stated:

32 In determining whether the purpose of a law constitutes a valid criminal law purpose, courts look at whether laws of this type have traditionally been held to be criminal law. ... Courts have repeatedly held that gun control comes within the criminal law sphere. As Fraser C.J.A. demonstrated in her judgement, gun control has been a matter of criminal law since before the enactment of the Criminal Code in 1892, and has continued since that date. ...

33 Gun control has traditionally been considered valid criminal law because guns are dangerous and pose a risk to public safety. Section 2 of the Criminal Code (as amended by s. 138(2) of the Firearms Act) defines a "firearm" as "a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person" (emphasis added). This demonstrates that Parliament views firearms as dangerous and regulates their possession and use on that ground. The law is limited to restrictions which are directed at safety purposes. As such, the regulation of guns as dangerous products is a valid purpose within the criminal law power: see R. v. Felawka [1993] 4 S.C.R. 199; R.J.R-MacDonald [[1995] 3 S.C.R. 199, R. v. Wetmore, [1983] 2 S.C.R. 284; and Cosman's Furniture [(1976), 73 D.L.R. (3d) 312].

In its conclusion in that case, the Supreme Court of Canada stated at page 817:

58 We conclude that the impugned sections of the Firearms Act contain prohibitions and penalties in support of a valid criminal law purpose. The legislation is in relation to criminal law pursuant to s. 91(27) of the Constitution Act, 1867 and hence intra vires Parliament. it is not regulatory legislation and it does not take the federal government so far into provincial territory that the balance of federalism is threatened or the jurisdictional powers of the provinces are unduly impaired.

[21] My review of s. 117.03 leads me to also conclude that Parliament has viewed it necessary to seize a firearm not licensed and, after a successful hearing before a Provincial Court Judge, to dispose of the firearm if not registered, all for the safety of the public. This section is a regulation of the possession of a firearm and its use which the Supreme Court of Canada has determined comes within the sphere of the criminal law power.

[22] Accordingly, I find that s. 117.03 of the Criminal Code is intra vires the jurisdiction of the Parliament of Canada.

3. Does s. 117.03 violate the Charter?

[23] In his notice of motion, Dr. Hudson submitted that s. 117.03 of the Criminal Code violates s. 7 of the Charter and that he is therefore entitled to a remedy pursuant to s. 24 of the Charter. His application further suggested that he was "[i]nvoking this Honourable Court's original and exclusive jurisdiction to interpret and declare that the statutory intent and meaning of Section 117.03 of the Criminal Code violates Section 26 of the Canadian Charter of Rights and Freedoms".

[24] The referenced provisions of the Charter are as follows:

Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived therof except in accordance with the principles of fundamental justice.

Enforcement of guaranteed rights and freedoms
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

...

Other rights and freedoms not affected by Charter
26. 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.

[25] Dr. Hudson's position was that the licensing of firearms and the seizure and destruction of firearms not licensed will prevent him from defending himself and, accordingly, is a breach of his security of the person which is the fundamental right protected by s. 7 of the Charter. Dr. Hudson suggested that, while it may not be necessary at present, at some future time firearms may be necessary to protect an individual from the tyranny of government itself. If the government can control firearms by way of license, Dr. Hudson suggested that he will not have the means to defend himself. He did concede that he does not dispute Parliament's right to take away firearms from convicted criminals or from those of whom it has been otherwise proven that their continued right to possess firearms would be dangerous to the public.

[26] Crown counsel pointed out that s. 7 of the Charter has been held not to apply to property rights and therefore submits that the seizure of a firearm, which is a piece of property, would not offend s. 7. See Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927 at para. 96. As indicated previously, however, Dr. Hudson suggested that he is invoking s. 7 not in reference to an article of personal property but because a seizure of his firearm in the manner found in the circumstances of this case would prevent him from defending himself should the need arise.

[27] In my opinion, however, Dr. Hudson has not provided an evidentiary basis to suggest that he needed the firearm in question for his personal security. I also adopt the comments of the learned Provincial Court judge in the seizure hearing in this case where he stated at para. 16:

[16] ... It is probably true that if Parliament were to purport to take away from Canadians the right to self-defense, that would be an infringement of section 7 of the Charter, because that would impinge unacceptably on the right of Canadians to security of the person. However, as Mr. Spencer pointed out, it is simply unreasonable to argue that the provisions of section 117.03 take away the right to self-defense. It is possible that in some hypothetical future Canada where a tyranny has arisen, or, alternatively, where anarchy and lawlessness have broken out, even the relatively mild restrictions of section 117.03 would so hinder Canadians in their right of self-defense that the section might be ruled by courts (if there still were any) to be an infringement of section 7. I can only comment that such social conditions do not presently exist, nor do they seem likely to exist in the foreseeable future. The courts must deal with reality as it is, not as it might be in some awful and hopefully never-to-be future. No finding is possible that the Charter is offended by section 117.03 because it hinders the right to possess arms for self-defense.

[28] Furthermore, as was stated by the Supreme Court in Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, remedial action by the Courts is not justified unless there is not only a violation of the security of the person but also that the particular practice violates a principle of fundamental justice. See also R. v. Beare, [1988] 2 S.C.R. 387. The applicant has not established the breach of any fundamental principle of justice. Section 117.03 of the Criminal Code provides that a person from whom a firearm has been seized is entitled to a hearing before a Provincial Court judge to determine whether this person was entitled to lawfully possess it. If the person can produce a valid license, his firearm will be returned. If not, it can be declared forfeited and dealt with as the Attorney General directs. In my opinion, therefore, there has been no violation of a principle of fundamental justice and, accordingly, no violation of s. 7 of the Charter for which a remedy can be obtained pursuant to s. 24.

[29] While Dr. Hudson did not expand upon the alleged breach of s. 26 of the Charter, the nature of his application appeared to be that the right to bear arms as set out in the Bill of Rights 1689 was a right of freedom that existed in Canada prior to the passing of the Charter and, as such, it would therefore be protected by s. 26 of the Charter. It is clear, however, that s. 26 of the Charter does not guarantee other rights which may exist but rather simply indicates that the Charter is not to be held to deny those other rights. In the case of R. v. MacAusland (1985), 19 C.C.C. (3d) 365 (P.E.I. S.C.), the Prince Edward Island Court of Appeal held at page 375:

... That section [s. 26] of the Charter acknowledge that rights guaranteed in the Charter are not in lieu of any other rights that exist in Canada. Therefore, all Canadians continue to enjoy the protection provided for in the Canadian Bill of Rights which they had before the Charter as well as the rights and freedoms as guaranteed in the Charter. However, while the rights and freedoms as recognized and declared in the Canadian Bill of Rights continue to exist, they are not guaranteed by the Charter. Section 16 would have been unnecessary and the words "as guaranteed by this Charter" would not have been used in s. 24(1) of the Charter if s. 24 applied to all rights whatever their source. Section 26 only indicates that the Charter is not limiting or interfering with any additional rights which already existed, but that is quite a different matter from saying the Charter guarantees those rights. ... [emphasis added.]

[30] Accordingly, although I have already found that paragraph 7 of the Bill of Rights 1689 is not a part of the Canadian Constitution, even if it were, s. 26 of the Charter would not provide a remedy for Dr. Hudson.

Conclusion

[31] I therefore conclude:

1. There is no unfettered right to possess or use firearms in Canada pursuant to the Bill of Rights 1689 or any subsequent legislation;

2. Section 117.03 of the Criminal Code is inter vires the legislative power of the Parliament of Canada;

3. Section 117.03 of the Criminal Code does not violate the Charter;

4. As there has been no violation of the Charter, it is unnecessary to determine whether s. 117.03 of the Criminal Code could be justified pursuant to s. 1 of the Charter;

5. The application is dismissed with costs to the respondent, the Attorney General of Canada.

 

_________Signed___________ J.
N.G. Gabrielson

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