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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THE COURT OF APPEAL FOR SASKATCHEWAN

Citation: 2009 SKCA 108
Date: 20090921

Between:
Docket: 1565

Edward Burke Hudson

Appellant

- and -

 

The Attorney General of Canada

Respondent


Coram:
      Klebuc C.J.S., Sherstobitoff & Smith JJ.A.

Counsel:
      Edward Burke Hudson appearing in person
      Scott Spencer for the Crown

Appeal:

From: 2007 SKQB 455
Heard: September 8, 2008
Disposition: Appeal Dismissed
Written Reasons: September 21, 2009
By: The Honourable Chief Justice Klebuc
In Concurrence: The Honourable Mr. Justice Sherstobitoff
The Honourable Madam Justice Smith


Page 1

Klebuc C.J.S.

I. Introduction

[1] In this appeal, Dr. Hudson submits the learned Chambers judge erred in
holding that no right to have arms for self-defence exists under Canadian law
and, therefore, s. 117.03 of the Criminal Code, R.S.C. 1985, c. C-46, is intra
vires
the powers of Parliament and does not violate either s. 7 or s. 26 of the
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. He bases
his appeal on two grounds: first, Article 7 of the Bill of Rights, 1689 (An Act
Declaring the Rights and Liberties of the Subject and Settling the Succession
of the Crown
(1 Will. & Mar. sess. 2 c. 2), commonly referred to as the Bill
of Rights 1689
), forms part of the Canadian Constitution and thereby provides
every citizen with the right to arms for self-defence; second, the right to arms
for self-defence is an inalienable “natural” right which supersedes the
Criminal Code.

[2] After a full review of the submissions by Dr. Hudson and the authorities
cited by him, I concluded that the Chambers judge made no reversible error.
Consequently, I would dismiss the appeal for the reasons set forth below.

II. Factual Background

[3] The issues followed a rather convoluted path and warrant some
discussion. At all material times, Dr. Hudson was the secretary for the
Canadian Unregistered Firearms Association and involved in a campaign of
"peaceful, nonviolent civil noncompliance to the Firearms Act,” S.C. 1995,


Page 2

c. 39. As part of his campaign, Dr. Hudson and an associate organized a
hunting trip and a firearm demonstration near Craik, Saskatchewan. The
RCMP was advised of the proposed event where Dr. Hudson would discharge
an unlicenced firearm. An RCMP officer attended the event and seized Dr.
Hudson's unlicenced shotgun, pursuant to s. 117.03 of the Criminal Code.
Thereafter, the RCMP officer brought the subject shotgun before the
Provincial Court in accordance with s. 117.03(3) of the Criminal Code.
Following a hearing, Orr P.C.J. delivered written reasons dated December 6,
2005, wherein he ordered forfeiture of the seized shotgun. Dr. Hudson was
not charged with an offence under the Firearms Act or the Criminal Code.

[4] Dr. Hudson appealed the forfeiture order to Queen's Bench on the basis
it contravenes his right to a firearm for self-defence and violates his rights
pursuant to the Charter. The Queen’s Bench Court dismissed the appeal on
the grounds that the Criminal Code does not provide for a right of appeal from
a s. 117.03(3) forfeiture order, and his Charter claim could not be dealt with
in the manner it was presented. Thereafter, Dr. Hudson unsuccessfully
appealed the Queen’s Bench decision to this Court.

[5] In order to get his claim before the courts, Dr. Hudson applied by notice
of motion to the Court of Queen’s Bench for an order pursuant to Rule 664 of
The Queen's Bench Rules declaring that: (i) the Attorney General of Canada
was without jurisdiction to request that his firearm be destroyed and
improperly continues to hold his firearm; (ii) the Provincial Court was without
jurisdiction to make any findings of fact concerning his firearm; and (iii) the


Page 3

RCMP had no right to take his firearm. The Chambers judge heard the
application and dismissed it based on the comprehensive reasons set forth in
his judgment dated December 12, 2007. It is this decision which is under
appeal (Hudson v. Attorney General of Canada, 2007 SKQB 455, [2008] 6
W.W.R. 572).

III. The Decision under Appeal

[6] The Chambers judge rejected the submission that a right to firearms for
self-defence purposes exists in Canada by virtue of the Bill of Rights, 1689
being incorporated as part of the “Canadian Constitution”, or is a fundamental
right which Parliament may not encroach by imposing a licencing requirement.
The Chambers judge wrote:

[11] ... [I]t 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.
. . .
[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....
[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.


Page 4

[7] The Chambers judge then went on to find that s. 117.03 of the Criminal
Code
is intra vires of the Parliament of Canada and does not violate the
Charter.

IV. Analysis

[8] For the purpose of the appeal, the issues raised by Dr. Hudson can be
addressed by way of the following questions:

  1. Does a constitutional right to have unlicenced firearms for self-defence
    exist in Canada by virtue of Article 7 of the Bill of Rights, 1689?
  2. Is possession of an unlicenced firearm for self-defence a recognized
    inalienable “natural right” or a fundamental norm that Parliament may
    not unreasonably limit?
  3. If a right to have unlicenced firearms for self-defence is a fundamental
    right in Canada by virtue of positive law or a fundamental right or norm,
    are the provisions of the Firearms Act ultra vires the powers of
    Parliament, or inconsistent with the Charter?

[9] Dr. Hudson submits, as part of his overall argument, that the right to
arms for self-defence under English statute law is not the same as the right to
bear arms pursuant to the Second Amendment to the Constitution of the
United States of America, which includes the right to own and use fully
automatic firearms. He maintains the Chambers judge materially misdirected
himself by failing to consider how the material differences impact on his
application.


Page 5

[10] For the purposes of the question under consideration, I need only
address whether the possession of an unlicenced firearm for self-defence
purposes is a constitutional right which Parliament may not unreasonably
limit. Thus, I need not consider the nature and extent of a right to arms under
the Second Amendment. However, I note that the nature of that right to arms
under the Second Amendment was recently considered by the United States
Supreme Court in District of Columbia et al. v. Heller, 128 S. Ct. 2783. The
right to a firearm advanced by Dr. Hudson is very similar to the right defined
by the majority in Heller.

[11] Although Dr. Hudson has not clearly delineated the scope of the right to
arms for self-defence, he concedes that Parliament has authority to "fetter" the
irresponsible use of firearms and to "place reasonable restrictions on the
acquisition and possession of certain types of firearms" (Appellant’s factum,
para. 108). Moreover, he concedes that the Canadian right to arms for
self-defence is a "very circumscribed, very severely limited Right, but a Right
none-the-less which negates Parliament's authority to legislate the licencing
scheme" (Appellant’s Factum, para. 110). Thus, 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 licencing restriction Parliament may impose. Against
this background, I turn to the first question.



Page 6

A. Does a constitutional right to have unlicenced firearms for self-defence
exist in Canada by virtue of Article 7 of the Bill of Rights, 1689?

[12] Article 7 of the Bill of Rights, 1689 provides:

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

[13] The extent of the right is described in Sir William Blackstone's
Commentaries on the Laws of England, Vol. 1, at p. 139:

5. The fifth and last auxiliary right of the subject, that I shall at present
mention, is that of having arms for their defence, suitable to their condition
and degree, and such as are allowed by law. Which is also declared by the
same statute l W. & M. st. 2. c. 2. [the Bill of Rights, 1689] and is indeed
a public allowance, under due restrictions, 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. [Emphasis added.]

[14] Although neither 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)
nor the Charter refers to a right to arms for self-defence purposes, Dr. Hudson
maintains that the aforementioned right under the Bill of Rights, 1689 is
carried forward by the preamble of the British North America Act, 1867 and
forms part of the “Canadian Constitution”. The preamble provides that
Canada is to have a Constitution "similar in Principle to that of the United
Kingdom". The Chambers judge considered and correctly rejected this
argument based on the decision in Reference Re Remuneration of Judges of
the Provincial Court of Prince Edward Island; Reference Re Independence



Page 7

and Impartiality of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3.

[15] In Reference Re Remuneration of Judges of the Provincial Court of
Prince Edward Island
, Lamer C.J.C, writing for the majority, articulated the
limited manner preambles may be considered:

[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.
[95] But the preamble does have important legal effects. Under normal
circumstances, preambles can be used to identify the purpose of a statute, and also
as an aid to construing ambiguous statutory language: Driedger on the
Construction of Statutes
(3rd ed. 1994), by R. Sullivan, at p. 261. The preamble to
the Constitution Act, 1867, certainly operates in this fashion. However, in my view,
it goes even further. In the words of Rand J., the preamble articulates "the political
theory which the Act embodies": Switzman, supra, at p. 306. It recognizes and
affirms the basic principles which are the very source of the substantive provisions
of the Constitution Act, 1867. As I have said above, those provisions merely
elaborate those organizing principles in the institutional apparatus they create or
contemplate. As such, the preamble is not only a key to construing the express
provisions of the Constitution Act, 1867, but also invites the use of those organizing
principles to fill out gaps in the express terms of the constitutional scheme. It is the
means by which the underlying logic of the Act can be given the force of law.

Lamer C.J.C. provides the following examples:

[104] These examples—the doctrines of full faith and credit and paramountcy,
the remedial innovation of suspended declarations of invalidity, the recognition of
the constitutional status of the privileges of provincial legislatures, the vesting of
the power to regulate political speech within federal jurisdiction, and the inferral of
implied limits on legislative sovereignty with respect to political speech—illustrate
the special legal effect of the preamble. The preamble identifies the organizing
principles of the Constitution Act, 1867, and invites the courts to turn those
principles into the premises of a constitutional argument that culminates in the
filling of gaps in the express terms of the constitutional text.


Page 8

[16] I note that the examples given by Lamer C.J.C. involved items critical
to the proper functioning of a parliamentary democracy and not a right to arms
for self-defence purposes. Also see: New Brunswick Broadcasting Co. v.
Nova Scotia (Speaker of the House of Assembly)
, [1993] 1 S.C.R. 319 at 375.

[17] The Supreme Court has consistently stated that no constitutional right
to possess firearms existed in the specific circumstances it considered, and
that Parliament has jurisdiction over the regulation of firearms pursuant to s.
91(27) of the Constitution Act, 1867. See: R. v. Hasselwander, [1993] 2 S.C.R.
398; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; and Reference Re
Firearms Act (Canada)
, 2000 SCC 31, [2000] 1 S.C.R. 783. All of these
decisions were fully considered by the Chambers judge. In R. v. Wiles,
Charron J. confirmed, for the purposes of the specific Charter right advanced
before her, “that possession and use of firearms is not a right or freedom
guaranteed under the Charter, but a privilege” (para. 9). However, in my
opinion, these decisions do not conclusively declare that in no circumstance
is a citizen entitled to possess a firearm other than as permitted by positive
law.

[18] Leaving aside the “natural law” submission addressed later, I conclude
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. See: Wendy
Cukier, Tania Sarkar & Tim Quigley, "Firearm Regulation: International Law
and Jurisprudence", (2001) 6 Can. Crim. L. Rev. 99 at 107, where the authors


Page 9

discuss strict legislated restrictions on the use and control of firearms
currently in place in England and elsewhere.

[19] That said, I turn to the second question.

B. Is possession of an unlicenced firearm for self-defence a recognized
inalienable “natural right” or a fundamental norm that Parliament
may not unreasonably limit?

[20] Dr. Hudson submits the right to armed self-defence is a "natural right"
which predates any written law and entitles a citizen to defend himself or
herself against criminals and the government.

[21] A number of jurists and jurisprudential writers agree that various
elements of natural law and other fundamental norms may be taken into
account in the interpretation and application of state-made law and its written
or unwritten constitution. However, several other jurists and jurisprudential
writers have posited that there are specific circumstances where a right or
obligation under natural law may override a law imposed by the state. A
meaningful discussion of these conflicting views and how rights and norms
recognized by either view are to be defined and applied in specific
circumstances requires a careful review of the history, culture, values and
relevant jurisprudence of the state involved.

[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


Page 10

application, rather than a trial where expert witnesses could articulate the
nature and applicability of a particular fundamental right and related
historical values to a specific circumstance and comment on relevant material
jurisprudential writings. In these circumstances, I will go no further than to
dismiss Dr. Hudson's argument on the second question, 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.

C. If a right to have unlicenced firearms for self-defence is a
fundamental right in Canada by virtue of positive law or a
fundamental right or norm, are the provisions of the Firearms Act
ultra vires
the powers of Parliament, or inconsistent with the
Charter?

[23] With respect to this question, I am satisfied that the Chambers judge
correctly concluded that s. 117.03 of the Criminal Code is intra vires the
jurisdiction of the Parliament of Canada, as it was held to be in Reference Re
Firearms Act (Canada), supra
. He also correctly found that s. 117.03 does not
violate Dr. Hudson's right pursuant to s. 7 or s. 26 of the Charter. Whether the
possession of a firearm is only a privilege is not a question before the Court
or necessary for the disposition of the within appeal.


Page 11

V. Conclusion

[24] The within appeal is dismissed. The respondent shall have its costs.

      DATED at the City of Regina, in the Province of Saskatchewan, this
21st day of September, A.D. 2009.

 

“Klebuc C.J.S.”
Klebuc C.J.S.

 

 

I concur

“Sherstobitoff J.A.”
Sherstobitoff J.A.

 

 

I concur

“Smith J.A.”
Smith J.A.

 



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