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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Saskatchewan Court of Appeal shoots down "right to bear arms for self-defence"

By Cristin Schmitz
Ottawa, The Lawyers Weekly
October 16 2009 issue

Saskatchewan’s top court has shot down arguments that Canadians have a constitutional right to bear arms for self-defence — but the court didn’t blow away the case completely.

Instead, the Saskatchewan Court of Appeal implied it might reconsider Edward Hudson’s constitutional challenge if the gun rights activist can muster expert and other evidence to bolster his contention that the right to bear arms for self-defence is an inalienable natural right, which supersedes the Criminal Code.

The court’s Sept. 21 ruling apparently marks the first time appellate judges have specifically addressed whether Canadians might have a right to bear arms for self-defence.

Chief Justice John Klebuc, and Justices Nicholas Sherstobitoff and Gene Anne Smith, dismissed the appeal of Hudson, a veterinarian who is secretary of the Canadian Unregistered Firearms Association.

The ex-U.S. Special Forces officer, who served in Panama and survived a total parachute malfunction in 1971, was born in Atlanta, Georgia, but emigrated here 32 years ago because he loves duck hunting and winter sports.

Hudson appealed a 2007 Queen’s Bench Chambers ruling that his constitutional rights were not violated when one of his unlicensed shotguns was seized by the RCMP (and later forfeited by a court) at an Oct. 10, 2003 protest in a field near Davidson, Sask.

The Court of Appeal unanimously rejected Hudson’s separate arguments that the right to arms for self-defence is an inalienable natural right and that art. 7 of the English Bill of Rights 1689 forms part of the Canadian constitution and thereby gives every citizen the right to arms for self-defence.

“I will be seeking leave to appeal to the Supreme Court,” Hudson said via e-mail.

He added “I would like to emphasize we are NOT asking the Court to grant us our Right to have ‘Armes for their Defense’. We are TELLING them that we have the Right, and if they disagree with us, they can put us in prison.”

Justice Canada senior counsel Scott Spenser of Saskatoon told The Lawyers Weekly the federal Crown contends the Supreme Court has already determined, in R. v. Wiles, 2005 SCC 84, that there is no constitutional right to possess firearms. “The Crown submitted that the Supreme Court of Canada... had stated gun ownership is a privilege, not a right,” Spenser explained.

But Hudson said he believes the Court of Appeal’s judgment has “left me a big opportunity to continue this fight in court.” He told The Lawyers Weekly “I am here for the duration of the conflict” even though “I have no legal help, aside from some committed like-minded buddies.”

In commenting on Hudson’s argument that the right to armed self-defence is a natural right, which pre-dates written law and entitles a citizen to defend himself or herself against criminals and the government, the chief justice observed, “I will go no further than to dismiss Dr. Hudson’s argument... on the basis that the limited evidence and jurisprudence placed before the Chambers judge and this court do not establish the broad inalienable right to possess an unlicenced firearm for self defence he advanced.”

However the chief justice also noted there are conflicting views amongst jurists and academics on the interrelationship between natural and “state-made law” in this context. A “meaningful discussion” of the issues involved would require expert evidence and “a careful review of the history, culture, values and relevant jurisprudence of the state involved,” which the applicant failed to provide.

The Court of Appeal acknowledged that the Supreme Court of Canada has previously held that there is no constitutional right to possess firearms, but said this was only “in the specific circumstances it considered.”

Chief Justice Klebuc said, in his view, “these decisions do not conclusively declare that in no circumstances is a citizen entitled to possess a firearm other than as permitted by positive law.”

In his argument, Hudson distinguished the English right to arms for self-defence from the broader right under the U.S. Constitution’s 2nd Amendment, which includes the right to own and use fully automatic firearms.

Article 7 of the English Bill of Rights 1689 states “that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” Hudson urged that this was incorporated into Canada’s constitution by the The Constitution Act, 1867’s preamble, which states that Canada is to have a Constitution “similar in principle to that of the U.K.”

Summed up Chief Justice Klebuc, “he essentially argues that the licencing scheme under the Firearms Act is overly broad and dilutes to a mere privilege the right of Canadians to have a firearm for self-defence
purposes which is subject to any licensing restriction Parliament may impose.”

Held the court, “the Chambers judge correctly held that the preamble to the British North America Act, 1867 does not incorporate into Canadian law a right to possess firearms for self-defence provided for by the Bill of Rights, 1689.”

The chief justice pointed out that in England firearms are strictly regulated by legislation.

The appeal court remarked that Hudson did not clearly delineate the scope of the right of arms for self-defence, but he conceded that Parliament has the authority to “fetter” the irresponsible use of firearms, and to “place reasonable restrictions on the acquisition and possession of certain types of firearms.”

Hudson has shown energy and persistence in getting his constitutional challenge before the courts. He invited the RCMP to a public display of skeet shooting in 2003. His unlicenced shotgun was seized under s. 117.03 of the Criminal Code, but police didn’t charge him under either the Firearms Act or the Criminal Code. Hudson’s appeal of the forfeiture order was dismissed because the Criminal Code doesn’t permit such appeals. So Hudson applied unsuccessfully to a Chambers judge for a declaration that his constitutional rights were violated. If the Supreme Court spurns his leave to appeal application, he could start a new process bolstered by additional evidence, as per the Saskatchewan Court of Appeal’s comments.

Meanwhile a separate constitutional challenge to the Firearms Act by gun rights activists is slated to be heard by the Ontario Court of Appeal next February.

Reasons: Hudson v. Canada (Attorney General), [2009] S.J. No. 564.