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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My Last Day in Court

Jack Wilson and I were in Provincial Court in Biggar, Saskatchewan, on Wednesday, 18 September 2013, presenting our argument to Judge O'Hanlon that the 1995 Firearms Act that Mr. Harper and his so-called Conservative Government now endorse is "ultra vires" (beyond the powers of) Parliament.(1)

This case arises from 13 September 2003 (yes, TEN years ago) when the RCMP interrupted our duck hunt, issued Jack an Appearance Notice for unlicenced possession of a firearm, and confiscated his shotgun.(2)

Ten years ago when Jack went to Court in Biggar to answer his criminal Appearance Notice, the Crown dropped the charges, yet kept his shotgun. After ten years a new detachment leader apparently wanted to clear out his evidence storage locker and had the Saskatchewan Crown Prosecutor call Jack into Court under Criminal Code section 117.03 for a forfeiture hearing.

The Firearms Act provides for an "either/or" scenario.
The police can charge us with:

EITHER;
a Criminal Code violation of section 92 "possession of a firearms knowing its possession is unauthorized"

OR:
use Criminal Code section 117.03 to confiscate our firearm.

With a Criminal Code 92 charge we would have all the legal protections of the Canadian Charter of Rights and Freedoms - primarily the presumption of innocence, and more importantly, the right to a trial by a jury.

When the RCMP use section 117.03 to confiscate our property, we have none of our basic Charter guaranteed human Rights. The onus shifts upon us; we must establish that we have a licence to possess our firearm. And since for the past ten years we have been telling the entire country that we refuse to submit to the firearms licencing scheme, we are burned toast in a mere forfeiture "proceeding". The Crown claims this is all that "proper procedure" requires.

Our argument is that the Firearms Act violates the "Rule of Law". This either/or provision is the manifestation of arbitrary.

At the beginning of the proceeding, without hearing a word from me, Justice O'Hanlon informed us that he agreed with a ruling of Justice Calwell of the Saskatchewan Court of Appeal "that s. 117.03 of the Criminal Code is intra vires Parliament."(3)

I objected that I had not presented this argument before Justice Calwell. I explained I would be presenting an entirely new argument using the Charter's declaration that the "Rule of Law" is one of the foundational principles of Canadian law and that the Rule of law prohibits arbitrary laws. Judge O'Hanlon allowed me to present my argument.

I highlighted the pertinent points of my written submission, emphasizing that this either/or scenario is by definition "arbitrary".

For example:

"When we speak of the ‘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."

Professor A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 1885.


"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. … ."

"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."

"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 and that therefore they must be presumed to contain a general clause protecting against the government’s interference those immunities which individuals in fact have enjoyed in the past."

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


"Dicey was adamantly opposed to the conferment of discretionary decision-making powers on officials. This, he believed, opened the door to arbitrariness, which is the antithesis of the rule of law."

"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, but the rather ponderous language of this principle is choose to make clear that the right extends beyond criminal trial. It applies to civil trials, whoever is involved, … ."

Tom Bingham, The Rule of Law, Penguin Books 2010

"When the laws themselves may be as arbitrary as you like ... then the “protection” that the individual get at the hands of the law has turned into arbitrary tyranny of the very type that we might have hoped government would function to prevent."

"The wrong laws can kill us, and certainly impoverish us, at least effectively as no laws at all." (pp.138-139)

Jan Narveson, You and the State, Rowman & Litttlefield Toronto, 2008

In the end none of this was to avail.

Judge O'Hanlon, pleasant, patient man that he appears to be, rejected my argument and stood by this original position.

The police can arrest Bruce and Donna Montague, confiscate their property, convict them, and send Bruce to prison for doing exactly what Jack and I have been doing 'Scot free' for ten years.(4)

The police can do whatever they like and call it "discretion".

And the Courts of Saskatchewan will not recognize this perversion of law as arbitrary.

Please Note Well:

Mr. Harper promised to repeal the Firearms Act.(5)

The Conservative Party Policy pledges to respect " the rights of law-abiding Canadians to own and use firearms responsibly."(6)

Mr. Harper could have - should have - repealed this monstrosity of a law this past April.

I hold Mr. Harper accountable for the forfeiture and destruction of this firearm.

Sincerely,


Edward B. Hudson DVM, MS
Secretary
Proud unlicenced owner of a single-shot, Model 39, bolt-action Cooey .22 caliber rifle.

Ref:
1. Biggar RCMP Firearms Confiscation
http://www.cufoa.ca/articles/armes/armes_12_sept_2013.html

2. Appendix B - Notice to Biggar RCMP
http://www.cufoa.ca/articles/armes/armes_12_sept_2013.html#b

3. Court of Appeal for Saskatchewan 2011
http://www.cufoa.ca/articles/armes/armes_05_october_2011.html


4. Bruce & Donna's Constitutional Challenge
http://www.cufoa.ca/articles/montague/montague_25_feb_2010.htm

5. Mr. Harper's Promise to Firearms Owners
http://www.cufoa.ca/articles/primeminister/pm_19_jan_2002.html

6. The Conservative Party of Canada Policy Declaration
http://www.cufoa.ca/articles/primeminister/pm_19_jan_2002.html

PS: Professor Narveson is a Canadian philosopher;
I highly recommend his book, "You and the State".
http://en.wikipedia.org/wiki/Jan_Narveson

Canadian Unlicensed Firearms Owners Association
Association canadienne des propriétaires d’armes sans permis
402 Skeena Court Saskatoon, Saskatchewan S7K 4H2
(306) 242-2379 (306) 230-8929
edwardhudson@shaw.ca
www.cufoa.ca