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 PROVINCIAL COURT FOR SASKATCHEWAN
BEFORE
THE HONOURABLE JUDGE J.A. PLEMEL
HUMBOLDT, SASKATCHEWAN

 

 

BETWEEN:

EDWARD HUDSON

 

APPLICANT

- and -         

HER MAJESTY THE QUEEN

 

RESPONDENT

 

 

 

BRIEF OF LAW

 

 

 

   

 

 

Department of Justice
Prairie Region, Saskatoon Office

10th Floor, 123 Second Ave South

Saskatoon, Saskatchewan
S7K 7E6


 

INDEX

 

  1. Introduction ......................................................................................................... 2
  2. Facts...................................................................................................................... 3
  3. Issues .................................................................................................................... 3
  4. Argument and Law ............................................................................................. 3
  5. Conclusion ............................................................................................................ 10
  6. List of Authorities ............................................................................................... 12

 

INTRODUCTION

  1. The matter before the Court is an application pursuant to s. 117.03(3) of the Criminal Code [Tab1] for forfeiture of a firearm seized from the Applicant.
  2. The Applicant does not agree with the licensing provisions of The Firearms Act and related provisions of The Criminal Code of Canada (the "Code").
  3. The Applicant orchestrated a seizure of two firearms, one near Davidson, Saskatchewan, and one near Carmel, Saskatchewan, in order to ground a "constitutional challenge" to the licensing provisions.
  4. The "Davidson firearm" was taken before Orr PCJ sitting in Craik, Sasktachewan. The Applicant's challenge in relation to that matter was unsuccessful and his firearm was forfeited [Tab 17]. He attempted to appeal but there is no appeal of a s.117.03 [Tab 18].
  5. The Applicant then initiated an independent "constitutional challenge" in the Court of Queen's Bench (Saskatoon). That challenge was unsuccessful [Tab 19] and his appeal of that determination was also unsuccessful [Tab 20]. Leave to appeal to the Supreme Court of Canada was denied [Tab 21].
  6. The present matter was adjourned to allow the Craik matter to proceed on the basis that the facts were essentially the same and that the decision would determine this matter. This matter was then adjourned to allow the independent "constitutional challenge" to proceed. The Applicant argued that this matter should be further adjourned to await a similar challenge that was before the Ontario Court of Appeal. That challenge was also unsuccessful.

R. v. Montague, 2010 ONCA 141 [Tab 22]

  1. The Applicant has been allowed every opportunity to make every possible argument in relation to the previous matters and he has been unsuccessful. Douglas Christie argued the Montague matter and was unsuccessful.
  2. The Crown was under the belief that the Applicant would accept the determination in the above matters with respect to this proceeding.
  3. The Applicant has now submitted to this Honourable Court that he has "different" arguments to make. However, upon a review of his Notice of Constitutional Question and supporting materials, there is no apparent new legal argument. There is an attempt to approach the same arguments from a different perspective, that of "Involuntary Forfeiture", but the essence of the argument remains grounded in teh refrain, "the right to bare armes".

FACTS

  1. The facts are not in dispute. The Applicant did not, and does not, have a firearms Possession and Acquisition License ("PAL") or other authorization to possess firearms. Further, the firearm before the Court is not registered. He cannot establish lawful ownership.

ISSUES

(A) Does s. 117.03 of the Criminal Code violate the Applicant's due process rights?

ARGUMENT AND LAW

  1. s. 117.03 OF THE CRIMINAL CODE DOES NOT VIOLATE THE APPLICANT'S DUE PROCESS RIGHTS UNDER SECTION 1(A) OF THE CANADIAN BILL OF RIGHTS OR OTHERWISE

 

  1. Although wide-ranging, both in terms of its breadth of history and references, the essence of the Applicant's argument appears most succinctly at paragraph 3 of his materials:

    Our complaint with s. 117.03 is that Parliament has allowed the Government -- without any restriction whatsoever -- to use this section to seize and confiscate our legally acquired and peacefully and responsibly used personal property without charging us under either the Firearms Act or the appropriate section of the Criminal Code.

  2. The Applicant essentially argues that his right to property has been violated through the confiscation of his firearm without due process.
  3. Property rights are not entrenched in the Charter. However, section 1(a) of the Canadian Bill of Rights states:

    1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, the right of the individual to life, security of the person, and enjoyment of property, and the right not to be deprived thereof except by due process of law;

    Canadian Bill of Rights 1960, c.44[Tab 2]

  4. As the Supreme Court of Canada has noted, the Bill of Rights has received little judicial notice since its passage in 1960. The Supreme Court has, however, clearly indicated that the legislation protects "only rights that existed in 1960, prior to..." its passage.

    Authorson v. Canada (Attorney General),
    [2002] 2 S.C.R. 40 at 51-52 [Tab 23]

  5. Therefore, although s. 1(a) remains in force to protect the "enjoyment of property", it only does so such as that right existed in 1960. In addition, the provision expressly states that right may be limited "by due process of law."
  6. Of course, the matter before the Court is the process.
  7. Indeed Orr PCJ ruled on this very submission as follows at paragraph 6:

    [6] ... I have already stated at an earlier stage of the argument - and I have not changed my mind - that in my view no right to due process has been violated by the seizure of the firearm, or by the hearing for forefeiture which we have commenced. It is trite that police have the right, if authorized by statute law, to seize items which they regard on reasonable and probable grounds as being illegal, or illegally possessed. This may occur before a court has had the opportunity to rule on the legality of the seizure, or the guilt or innocence of the accused (where applicable). The exigencies of law enforcement procedures make such occurrences inevitable. The key must surely be whether the enabling statute provides for a court hearing wherein according to a fair standard of evidence the accused - or analogous person - may defend him or herself and show that the seizure was not according to law. Section 117.03 passes this test. Dr. Hudson has been afforded - is being afforded - the opportunity of challenging before a judge the right of the police to seize his firearm and their attempt to have it forfeited. [emphasis added]

  8. The Applicant now argues that the due process requirement means that he must be charged with a criminal offence and must be tried before a jury of his peers.
  9. Authorities have been provided an option of a criminal charge or seizure. The seizure option is clearly less serious but is by no means unfettered as it expressly requires that the seized firearm be taken before a provincial court judge. Further, a forfeiture hearing is a less formal simplified process but is not insignificant or an ineffective way to ensure that police powers are not being abused.
  10. The Supreme Court of Canada has never recognized that "due process" confers any substantive right. In fact, Laskin, J. opined that "extreme caution" would be appropriate before so doing. Although the door to substantive rights may not be completely closed, the Supreme Court has categorically stated that it does not apply in this context:

    The Bill of Rights does not protect against the expropriation of property by the passage of unambiguous legislation.

    Authorson, ibid. at 58

  11. While the Applicant may be entitled to procedural rights in the application of the Firearms Act and the Code, those rights are limited to notice and an opportunity to contest a governmental deprivation of property rights before a court or tribunal.
  12. Authorson, ibid. at 42

  13. The very fact that the Applicant is present at a judicial hearing eliminates any complaint about lack of notice and opportunity to contest the forfeiture order.
  14. The Applicant's claim that he is entitled to a trial by jury is simply without merit. As held by Addy J. in R. v. Judges of the Provincial Court (Criminal Division) of the County of York, ex parte Nevin and DePoe, unless a hearing before a Provincial Court judge is viewed as inherently corrupt it cannot be seen as a violation of due process:

    I would like to say at the outset that it seems to me to be abundantly clear that a trial under s.467 does not constitute a deprivation of a fair hearing in accordance with the principles of fundamental justice, nor is it an abrogation, abridgement of infringement of the rights and freedoms declared in the Canadian Bill of Rights, 1960 (Can.), c. 44. It is not a deprivation of a fair hearing as, in order to hold that it is, one would have to assume ab initio that a hearing before a Provincial Court Judge would be likely to be unfair. It is not an abrogation, abridgement or infringement of the rights and freedoms declared in the Canadian Bill of Rights because there is nothing in the Canadian Bill of Rights which mentions or refers to trial by jury. Therefore, the denial of a trial by jury cannot be held to offend against s. 2(e) of the Canadian Bill of Rights.

    Counsel for the accused argued extensively that the provisions of s.467 infringed the "due process of law" provision of s. 1(a) of the Canadian Bill of Rights. Trial by jury, although enshrined for many centuries in our laws (some trace their existence back beyond Magna Carta), has always been and will always remain fundamentally a matter of procedure as opposed to a matter of substantive law. [emphasis added]

    R. v. Judges of the Provincial Court (Criminal Division)
    of the County of York, ex parte Nevin and DePoe

    (1970), 2 C.C.C. (2d) 469 (Ont. C.A.) at 470-471 [Tab 24]
    Canada v. Waddell, [1996] 83 B.C.C.A 202 at para. 11 [Tab 25]

  1. Moreover, since this decision the right to trial by jury has been specifically limited in the Charter. Section 11(f) of the Charter enshrines the right to trial by jury only in certain circumstances:

    11. Any person charged with an offence has the right (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

  2. To accept the Applicant's suggestion that any criminal matter whatsoever requires a trial by jury would invoke an overhaul not only of the Charter but of the criminal justice system itself. Such drastic action is not necessary to ensure due process in relation to something as simple as licensing guns.
  3. The Applicant's submission that he is "entitled to be charged" is simply not correct. The police must and do have discretion to lay charges, or not to lay charges, as appropriate. The Supreme Court of Canada has consistently ruled that police and prosecutorial discretion exist throughout the entire criminal process, from the initial decision to investigate and whether to prefer charges through to the conclusion of the trial.

    R. v. T.V. [1992] 1 S.C.R. 749, (SCC)
    L'Heureux-Dube, J. at para 16 quoting with
    approval the decision of Giesbrecht Prov. Ct. J.
    in R. v. Poirier, [1989} M.J. No. 379,
    (Man.Prov.Ct.) [Tab 26]

  4. This brings us to the core of the Applicants argument: The Canadian constitution should provide for a "right to bear armes for defence". Of course, the Applicant is not prohibited from "bearing armes", he simply has to have a license and registration certificate. Both are relatively easy to acquire at a modest cost.
  5. The Applicant finds it incredible that everyone does not support his view on this issue. However, the reality is that there has been no categorical right to bear arms in Canada for at least a century. Gun control in Canada dates back to the 1892 enactment of the Criminal Code.
  6. Specifically, the 1892 Code required that a permit be obtained for the purchase of handguns. In 1933, further limits were placed on the possession of handguns and by the beginning of 1934 all handguns were required to be registered. following the First World War, legislation was enacted in 1920 requiring a permit for all rifles and shotguns. Although there were exceptions, and the legislation was repealed in 1921, the existence of the legislation demonstrates that there was no unassailable right possess even long guns as far back as the 1920s. Since 1979 individuals have been required to obtain Firearms Acquisition Certificate (FAC) in order to acquire a firearm. The requirement to possess a licence for any firearm and to register long guns became law on December 1, 1998.

    Criminal Code, S.C. 1892, c. 29 [Tab 4]
    Criminal Code, R.S. 1906, c. 146[Tab 5]
    Criminal Code, R.S.. 1920 c. 43 [Tab 6]
    Criminal Code, R.S. 1921 c. 25 [Tab 7]
    Criminal Code, R.S. 1927 c. 36 [Tab 8]
    Criminal Code, R.S. 1933 c. 25 [Tab 9]
    Criminal Code, R.S. 1934 c. 47 [Tab 10]
    Criminal Code, R.S. 1953-54 c. 51 [Tab 11]
    Criminal Code, R.S. 1968-69 c. 38 [Tab 12]
    Criminal Code, R.S. 1970 c. C-34 [Tab 13]
    Criminal Code, R.S. 1977 c. 53 [Tab 14]
    Criminal Code, R.S. 1985 c. C-46 [Tab 15]
    Criminal Code, R.S. 1991 c. 40 [Tab 16]

  7. To varying degrees, since 1892 the Code has included provisions for the control, use and possession of firearms and offensive weapons. As noted in Schwartz, the importance of gun control to the peaceful growth of Canadian society "may be considered a sober warning":

    Canada has been fortunate in having had a gradual development of control over firearms for the past 100 years. We have never had to face a situation as in the United States today, which appears to many observers to be almost out of control.

    Criminal Code, S.C. 1892, section 105 [Tab 4]

    M. Friedland, A Century of Criminal Justice (1984), at 125 [Tab 31]

    Schwartzy v. The Queen, at (1988) 45 C.C.C. (3d) 97 at 127
    (S.C.C.), per McIntyre, J. [Tab 27]

  8. In fact, the Supreme Court of Canada has explicitly stated that no constitutional right to bear arms exists in Canada.
  9. In R. v. Hasselwander where the Court considered the forfeiture of the respondents submachine gun, Cory J. made an unequivocal statement on this issue:

    "Canadians, unlike Americans, do not have a constitutional right to bear arms. Indeed most Canadadians prefer peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited." (emphasis added)

    R.v. Hasselwander [1993] 2 S.C.R. 398 at para. 33 [Tab 28]

  10. Further, in R. v. Wiles Charron J. stated for the Court:

    "... 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. It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one. In Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power. If Parliament can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so. ..." (emphasis added)

    R. v. Wiles, [2005] 3 S.C.R. 895 at para.9 [Tab 29]

  11. The Ontario Court of Appeal has very recently confirmed once again, in the context of a virtually identical challenge to the Firearms Act, that there is no protected constitutional right in Canada to possess or use firearms.

    R. v. Montague, supra, at para. 12 to 21 [Tab 22]

CONCLUSION

  1. The Applicant is entitled to his "day in Court" to establish that he is lawfully entitled to own the firearm that he caused to be seized. The hearing before this Honourable Court more than adequately meets the requirement of due process.
  2. There is no "right to be charged" in Canada.
  3. There is no "right to a jury" in relation to all matters between state and citizen in Canada.
  4. There is no "right to bear arms" in Canada.
  5. This application is not about the potential for tyranny or disarming the masses. It is about ensuring qualified and safe individuals hold licences and lethal devices are registered. The law of the land does not prohibit gun ownership, it affirms it on some reasonable conditions. To the extent that the Applicant is denied his firearm, that is the result of his own choice. If the Applicant feels it is necessary to have the firearm or any firearm, so be it, but he must acquire a license and register the specific firearm. He can then possess it, hunt with it, target-shoot with it, and hope he never needs to use it for protection.
  6. The "constitutional challenge" is without merit and should be dismissed. The facts are clear. The Applicant is by his own conduct unable to establish lawful ownership and the firearm before the Court should be forfeited.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at teh City of Saskatoon, in the Province of Saskatchewan, this 28th day of April, A.D. 2010.

[signed]

SCOTT SPENCER
Counsel for The Attorney
General of Canada

 

This document was delivered by:

Department of Justice (Canada)
Saskatchewan Regional Office
10th Floor, 123 2nd Avenue South
Saskatoon, Saskatchewan
S7K 7E6

Address for service is: same as above
Lawyer in charge of file: Scott Spencer
Telephone: (306) 975-5641
Facsimile: (306) 975-6240
File: 2-30068-1

LIST OF AUTHORITIES

Statutes and Regulations

  1. Criminal Code, R.S., 1985, c. C-46 s. 117.03(3)
  2. Canadian Bill of Rights, 1960, c.44
  3. Canadian Charter of Rights and Freedoms,
  4. Criminal Code, S.C. 1892, c.29
  5. Criminal Code, R.S. 1906, c. 146
  6. Criminal Code, R.S. 1920, c. 43
  7. Criminal Code, R.S. 1921, c. 25
  8. Criminal Code, R.S. 1927, c. 36
  9. Criminal Code, R.S. 1933, c. 25
  10. Criminal Code, R.S. 1934, c. 47
  11. Criminal Code, R.S. 1953-54, c. 51
  12. Criminal Code, R.S. 1968-69, c. 38
  13. Criminal Code, R.S. 1970, c. C-34
  14. Criminal Code, R.S. 1977, c. 53
  15. Criminal Code, R.S. 1985, c. C-46
  16. Criminal Code, R.S. 1991, c. 40

Cases

  1. Re: Application Pursuant to Section 117.03 of the Criminal Code, Orr, P.C.J., December 6, 2005
  2. Hudson v. Her Majesty, 2007 SKCA 82
  3. Hudson v. The Attorney General of Canada, 2007 SKQB 455
  4. Hudson v. The Attorney General of Canada, 2009 SKCA 108
  5. Hudson v. Attorney General of Canada, No. 33406 SCC
  6. R. v. Montague, 2010 ONCA 141
  7. Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40
  8. R. v. Judges of the Provincial Court (Criminal Division) of the County of York, ex parte Nevin and DePoe (1970), 2 C.C.C. (2d) 469 (Ont. C.A.)
  9. Canada v. Waddell, [1996] 83 B.C.C.A. 202
  10. R. v. T.V., [1992] 1 S.C.R.749
  11. Schwartz v. The Queen (1988), 45 C.C.C. (3d) 97
  12. R. v. Hasselwander [1993] 2 S.C.R. 398
  13. R. v. Wiles, [2005] 3 S.C.R. 895
  14. Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31

Other

  1. M. Friedland, A Century of Criminal Justice (1984)

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