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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Appeal No. 1452

IN THE COURT OF APPEAL

FOR THE PROVINCE OF SASKATCHEWAN

BETWEEN:

EDWARD BURKE HUDSON

APPELANT

- and -

THE ATTORNEY GENERAL OF CANADA

RESPONDENT

 

FACTUM OF THE RESPONDENT

 

The Department of Justice (Canada)
Prairie Region, Saskatoon Office
10th Floor, 123 -2nd Avenue South
SASKATOON, Saskatchewan

S7K 7E6

 

INDEX

.................................................................................................................. Page

 

I. INTRODUCTION ....................................................................................1

II. JURISDICTION AND STANDARD OF REVIEW .................................1

III. STATEMENT OF FACTS ......................................................................2

IV. POINTS IN ISSUE ................................................................................ 4

V. ARGUMENT ........................................................................................... 5

VI. RELIEF SOUGHT ..................................................................................16

VII. LIST OF AUTHORITIES ......................................................................17

 

"... possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege."

R.v. Wiles, [2005] 3 S.C.R. 895 at para. 9 [Tab 1]

I. INTRODUCTION

1. Dr. Hudson does not believe that he, or any "law abiding citizen", should have to register his weapons. He has been peacefully, although at times not lawfully, protesting the registration requirements of the Firearms Act and related provisions for over a decade.

2. His position appears to be based on a belief that the Constitution of Canada should provide "a right to bear arms" so that any restrtiction on gun ownership, even a simple registration or licensing requirement, would be unconstitutional.

3. However, there is no constitutional provision which confers a right to bear arms in Canada. Dr. Hudson's position is more a challenge to the Constitution than a constitutional challenge to the legislation.

II. JURISDICTION AND STANDARD OF REVIEW

4. Paragraph 7(2)(a) of The Court of Appeal Act 2000, c.C-42.1, provides that an appeal lies to the Court of Appeal from a decision of the Court of Queen's Bench or a judge of that court.

5. Generally an appeal of a constitutional challenge is a question of law and the standard of review is correctness. However, the issue of whether the legislation infringes on Dr. Hudson's right to security of the person is a question of fact and law. The standard of review in relation to that issue is whether Justice Gabrielson committed a palpable and overriding error. Housen v. Nikolaisen, [2002] 2 S.C.R. 235, para. 8 [Tab 2].

III. STATEMENT OF FACTS

6. Dr. Hudson had a FAC (Firearms Acquisition Certificate) but intentionally destroyed it.

See Affidavit of Edward B. Hudson, Exhibit "A", Letter to Prime Minister Jean Chretien November 2001 [Appellant's Book of Authorities, Tab 27]

7. His shotgun was seized by the Craik RCMP pursuant to s. 117.03 of the Criminal Code (hereafter "s.117.03"). Dr. Hudson was notified pursuant to s. 117.03(2) that his firearm would be returned when he presented a valid registration certificate. Dr. Hudson has not presented a valid registration certificate and openly admits he does not have one.

See Appellant's Factum, para. 13

See also Affadavit of Edward B. Hudson, Exhibit "C", Letter to Justice Minister Wayne Easter [Appelants Book of Authorities, Tab 27]

8. Subsection 117.03(3) requires the police to take a seized firearm before a provincial court judge, who may declare it forfeited to Her Majesty after affording the owner an opportunity to establish lawful possession. Accordingly, Dr. Hudson's shotgun was taken before Provincial Court Judge Orr sitting at Craik.

See Appellant's Factum, paras. 14-17

9. Dr. Hudson initiated a "Charter Challenge" by serving a Notice of Constitutional Question, filing written submissions, and making oral arguments before Judge Orr. He argued that it was unconstitutional to require him to obtain a licence to possess firearms or to require him to register his firearms.

See Affidavit of Edward B. Hudson, paras. 15-16 and Exhibit "D",
Notice Constitutional Questions Act [Appellant's Book of Authorities, Tab 27]

10. Judge Orr dismissed Dr. Hudson's "Charter Challenge" by decision dated December 6, 2005 [Tab 3]. Dr. Hudson filed a Notice of Appeal at that time but the Crown objected on the basis that an appeal was premature. Dr. Hudson's appeal to the Court of Queen's Bench was adjourned pending the completion of the forfeiture hearing.

11. Since Dr. Hudson admitted that his shotgun was not registered, on May 2, 2006 Judge Orr ordered Dr. Hudson's shotgun be forfeited to Her Majesty pursuant to s. 117.03(3) of the Criminal Code [Tab 20].

12. Dr. Hudson attempted to appeal Judge Orr's decision but as there is no right of appeal from a s. 117.03 order, his appeal was dismissed by Justice Hunter (then of the Court of Queen's Bench) on January 19, 2007 [Tab 4]. Dr. Hudson's further appeal to this Honourable Court was dismissed orally for want of jurisdiction on June 5, 2007 with written reasons on August 2, 2007. [Tab 5].

13. Dr. Hudson subsequently brought a motion pursuant to Rule 664 of the Queen's Bench Rules. Despite some procedural irregularities, the Respondent, Attorney General of Canada, agreed to deal with the merits of the application and an oral hearing took place before Justice Gabrielson on October 18, 2007.

14. Dr. Hudson argued that s. 117.03 of the Criminal Code is ultra vires Parliament, and violates s. 7 and 26 of the Charter. He further requested a remedy under s. 24 and a declaration that he has a constitutionally protected right to possess firearms without a licence.

See Applicant's Brief of Reasons, paras. 17-21

15. In his fiat, issued December 12, 2007 [Tab 6], Justice Gabrielson dismissed Dr. Hudson's motion, concluding as follows:

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

b) Section 117.03 of the Criminal Code is intra vires the legislative power of the Parliament of Canada;

c) Section 117.03 of the Criminal Code does not violate the Charter;

d) As there is 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.

16. Dr. Hudson appeals from this decision.

IV. POINTS IN ISSUE

17. Dr. Hudson has identified four issues in his Appeal. The Respondent submits that they should be determined as follows:

a) Gabrielson J. was correct in finding that s. 117.03 of the Criminal Code is intra vires the Parliament of Canada;

b) Gabrielson J. was correct in finding that there is no unfettered right to posses or use firearms in Canada pursuant to the Bill of Rights 1689 or any subsequent legislation;

c) Gabrielson J. was correct in finding that s. 117.03 of the Criminal Code does not violate the Charter; and

d) Gabrielson J. was correct in finding that s. 26 of the Charter would not provide a remedy.

 

V. ARGUMENT

A. Gabrielson J. was correct in finding that s. 117.03 of the Criminal Code is intra vires the Parliament of Canada.

18. The issue of whether the provisions of the Firearms Act are within the legislative power of Parliament was squarely before the Supreme Court of Canada in Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783 [Tab 7]. The Court held as follows at paragraph 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.

19. Gabrielson J. properly viewed this as determinative of the issue of whether Parliament had the constitutional authority to regulate firearms, and therefore found s. 117.03 to be intra vires the jurisdiction of the Parliament of Canada.

B. Gabrielson J. was correct in finding that there is no unfettered right to possess or use firearms in Canada pursuant to the Bill of Rights 1689 or any subsequent legislation.

20. Before Gabrielson J., Dr. Hudson argued that the Bill of Rights 1689 granted an inalienable right to bear firearms, and that this right had been incorporated into the constitution of Canada. He alleged the requirement in s. 117.03 of the Criminal Code that he have a licence to possess a firearm and a registration certificate for the firearm violates this right.

21. Gabrielson J. rejected this argument. He held that any right to bear arms provided by the Bill of Rights 1689 was not incorporated into the British North America Act, 1867, and that even if it was, the right granted was not intended to be absolute but could be limited by legislation.

B. (i) The Right to Bear Arms and the Canadian Constitution

22. There are no provisions in either the Constitution Act, 1867 or the Charter that address a right to bear arms. Dr. Hudson still argues that there must be (or should be) such a right by virtue of the preamble to the Constituion Act, 1867, which reads 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]

23. The effect and meaning of this preamble has been considered by the Supreme Court of Canada. While the preamble may serve as an interpretive tool it carries no force by itself:

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. [emphasis added]

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 at para. 94 (QL) [Tab 8]

Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at page 805 (QL at page 33) [Tab 9]

See also: Switzman v. Elbling, [1957] S.C.R. 285, at page 306 (QL at page 15) [Tab 10]

24. In Reference re Remuneration of Judges, supra, after making the statement cited above, Lamer C.J.C. goes on to discuss what effect the preamble does have on Canadian law, namely as a resource for filling in gaps in the express language of the constitution so as to give effect to its underlying logic. After discussing a series of examples Lamer C.J.C. concludes at paragraph 104:

The preamble identifies the organizing principles of the Constitution Act, 1867, and invites the courts to turn those principles into the premises of a contstitutional argument that culminates in the filling of gaps in the express terms of the constitutional text.

25. Moreover, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) the argument put forward by Dr. Hudson was explicitly rejected by the Supreme Court of Canada. In that case, it was argued that the preamble of the Constitution Act, 1867 in referring to "a Constitution similar in Principle to that of the United Kingdom" incorporated article 9 of the English Bill of Rights of 1689, which provided for the legislative bodies. Writing for the majority, McLachlin J. (as she then was) expressed the following at paragraph 108:

In respect of the second argument, it is clear that, absent specific reference, the wording of the preamble should not be understood to refer to a specific article of the English Bill of Rights. This is not to say that the principles underlying art. 9 of the English Bill of Rights of 1689 do not form part of our law and inform our understanding of the appropriate relationship between the courts and legislative bodies in Canada: Reference re Resolution to Amend the Constituion, 1981 CanLII 25 (S.C.C.), [1981] 1 S.C.R. 753, at p. 785, [emphasis added]

Lamer C.J.C. reached a similar conclusion at paragraph 54:

I do not think that the wording of the preamble of the Constitution Act, 1867 can be taken to refer to so specific an article of the Constitution of the United Kingdom. While the Constitution of Canada is undoubtedly founded upon many of the same broad principles as is the Constitution of the United Kingdom, the two are from from identical. Article 9 cannot be directly transplanted without specific reference. The historical review undertaken in the preceeding section makes clear that the different paths of evolution of government in the two jurisdictions led to significant differences in the branches of government themselves from the very beginning. And there is no question that in recent years we have diverged further still with the patriation of Canada's Constitution in 1982. Similar in principle does not mean identical in the powers it grants. [emphasis added]

New Brunswick Broadcasting Co. v. Nova
Scotia (Speaker of the House of Assembly),

[1993] 1 S.C.R. 319 (QL) [Tab 11]

26. Although McLachlin J. did go on to find that the wording of the preamble supported the Parliament and the legislatures possess constitutional privleges, it was based on the determination that the privileges were one of the organizing principles identified by Lamer C.J.C that could be used to fill in the gaps.

27. Dr. Hudson's argument is not that there is some ambiguos language or otherwise subtle constitutional principle that can be further developed or clarified by reference to the preamble. Rather, he contends that the phrase "with a Constitutional similar in Principle to that of the United Kingdom" is a source of positive law for an explicit individual right, the right to bear arms, that is equivalent to the other rights specifically enumerated in the Charter. This assertion is at odds with the direct statement in Reference re Remuneration of Judges that the preamble is not a source of positive law, and the finding in New Brunswick Broadcasting Co. that the preamble does not refer to a specific article of the Bill of Rights 1689.

28. In addition, the Supreme Court of Canada has explicitly stated that no constitutional right to bear arms exists in Canada.

29. In R. v. Hasselwander, which pre-dates the Reference re Firearms Act, the Supreme Court of Canada considered the forfeiture of the respondents Mini-Uzi 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 Canadians prefer the 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 p. 414 [Tab 12]

30. More recently, in R. v. Wiles, supra, it was argued a mandatory weapons prohibition imposed upon conviction for the offence of production of cannabis was a violation of s. 12 of the Charter. The Court rejected this argument, with Charron J. stating as follows at paragraph 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. 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, supra [Tab 1]

31. The Respondent respectfully submits that a right to bear arms does not form part of the constitution of Canada, either explicitly or implicitly, and the Supreme Court of Canada has confirmed that no such right exists. Accordingly, Gabrielson J.'s ruling on this point is clearly correct.

B.(ii) The Right Conferred by the Bill of Rights 1689

32. Even if the Bill of Rights 1689 were to form a part of the constitution of Canada, which is not the case, the extent to which it grants a right to bear arms is expressly qualified. Article 7 of the Bill of Rights 1689 states:

"That the subjects which are Protestants may have Arms for their defense suitable to their conditions and as allowed by law." [empahsis added]

33. Judge Orr considered this provision and concisely concluded as follows:

The key words in the declared right, though, are "and as allowed by law." What does this mean? The whole point of the Declaration of Rights was arguably that it signified that thenceforth only Parliament - not the King - would have the right to proclaim binding law.When the Declaration made the right to bear arms conditional by including the phrase "as allowed by law," it was saying two things - first, that the right could be restricted by the passing of valid laws regulating it, and, second, by impliciation, that it was Parliament which could pass those restricting laws.

Fiat of Judge Orr, at para 13. [Tab 3]

34. Dr. Hudson fails to appreciate that historically there has never been a categorical right to bear arms in Canada. Gun control in Canada dates back to the 1892 enactment of the Criminal Code.

35. The 1892 Criminal Code required that a permit be obtained for the purchase of handguns. Legislation was enacted in 1920 requiring a permit for all rifles and shotguns, although it was repealed shortly thereafter.

36. In 1933, further limits were placed on the possession of handguns and by the beginning of 1934 all handguns were required to be registered. The requirement to possess a licence for any firearm has existed in Canada since 1979, and long guns have been required to be registered since 1995.

Criminal Code, S.C. 1892, c. 29, s. 105. [Tab 21]

Criminal Code, R.S.C. 1906, c. 146, s. 118. [Tab 22]

Criminal Code, S.C. 1920, c. 43, s. 2. [Tab 23]

Criminal Code, S.C. 1921, c. 25, s. 2. [Tab 24]

Criminal Code, R.S.C. 1927, c. 36, s. 118. [Tab 25]

Criminal Code, S.C. 1933, c. 25, s. 118-119. [Tab 26]

Criminal Code, S.C. 1934, c. 47, s. 1. [Tab 27]

Criminal Code, S.C. 1953-1954, c. 51, s. 90, 93-94. [Tab 28]

Criminal Code, S.C. 1968-1969, c. 38, s. 6. [Tab 29]

Criminal Code, R.S.C. 1970, c. C-34, s. 93, 97, 98. [Tab 30]

Criminal Code, S.C. 1977, c. 53, s. 3: 106.6; 106.1. [Tab 31]

Criminal Code, R.S.C. 1985, c. C-46, s. 100(1); 109; 114.1. [Tab 32]

Criminal Code, S.C. 1991, c. 40, s. 109; 110(1). [Tab 33]

37. As noted by McIntyre J. in Schwartz v. The Queen, the importance of gun control to the peaceful growth of Canadian society "may be considered a soober 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.

M. Friedland, A Century of Criminal Justice (1984), at 125 [Tab 34]

Schwartz v. The Queen, [1988] 2. S.C.R. 443 at p. 483 [Tab 13]

38. Dr. Hudson contends that there is a right to bear arms in Canada based on the English Bill of Rights. He acknowledges that the United Kingdom has taken a very active role in the regulation of firearms. Dr. Hudson nevertheless contends that the Canadian Parliament is somehow circumscribed from regulating firearms in a manner that the British Parliament is not. Such an argument simply is not logical.

see Dr. Hudson's Factum at paras. 142-143

39. Even in the United States, which is commonly perceived as having an unfettered right to bear arms, state governments regulate gun ownership to varying degrees. Indeed, there is serious legal issue as to whether the right to bear arms found in the Second Amendment is meant only to protect the ability to maintain militias for the defence of the state.

see Parker v. District of Columbia, 478 F.3d 370, 2007 U.S. App. LEXIS 5519, (D.C. Cir. 2007) at pgs. 13 to 15 [Tab 14]

40. In Canada you are allowed by lawto possess a shot gun provided you have obtained the requisite licence and registration certificate. This restriction is consistent with the right to bear arms as articulated in the Bill of Rights 1689 (assuming that it has any application). Since the very provision which Dr. Hudson relies upon expressly provides for regulaton, it is not necessary to explore further issues, such as whether the Bill of Rights 1689 infringes s. 15 of the Charter because it confers the right to bear arms only on members of one religious denomination.

B. Gabrielson J. was correct in finding that s. 117.03 of the Criminal Code does not violate the Charter.

41. Section 7 of the Charter reads:

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

42. Dr. Hudson argues that the provisions of s. 117.03 have the effect taking away his means of personal protection, and thereby violate his right to security of the person.

43. The language of s. 7 calls for a two-part analysis, set out by La Forest J. in R. v. Beare:

To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security f the person" and, secondly, that the deprivation is contrary to the principles of fundamental justice.

R. v. Beare, [1988] 2 S.C.R. 387, at para. 28 (QL) [Tab 15]

44. The onus is on the person alleging the breach to establish both elements.

R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571 at para. 97 (QL) [Tab 16]

45. In rejecting Dr. Hudson's Charter argument, Gabrielson J. held that a) there was no evidentiary basis to found the argument that Dr. Hudson requires firearms for his personal security, and b) that no breach of fundamental justice was established.

C.(i) Deprivation of the Right

46. Gabrielson J. found that the breach of Dr. Hudson's s. 7 Charter right had not been established.

47. A party alleging a violation of a s. 7 right must be able to demonstrate a causal link between the act complained of and the deprivation. As Dickson C.J.C stated in Operation Dismantle v. The Queen at paragraph 29:

Section 7 of the Charter cannot reasonably be read as imposing a duty on the government to refrain from those acts which might lead to consequences that deprive or threaten to deprive individuals of their life and security of the person. A duty of the federal cabinet cannot arise on the basis of speculation and hypothesis about possible effects of government action. Such a duty only arises, in my view, where it can be said that a deprivation of life and security of the person could be proven to result from the impugned government act. [emphasis in original]

Operation Dismantly v. The Queen, [1985] 1 S.C.R. 441 (QL) [Tab 17]

48. Dr. Hudson argues that s. 117.03 and the associated provisions of the Firearms Act has the effect of taking away the ability to defend oneself from home invasion or other threats of physical violence. It must be emphasized, however, that the firearms legislation does not prohibit the ownership of guns or their use in self-defense, but simply requires a firearms licence and registration certificate. Gun ownership is regulated, not prohibited. Dr. Hudson has submitted no evidence to prove that his right to life security of the person has been infringed by this regulation. The fact that Dr. Hudson no longer has his shotgun is a direct result of his refusal to register it, as prescribed by law.

C.(ii) Principles of Fundamental Justice

49. Dr. Hudson argues that the 117.03 hearing before Provincial Court Judge Orr was not in accordance with the principles of fundamental justice as it lacked procedural fairness. He says this is because, inter alia, he was never charged or convicted of a crime, there was no trial by jury, and there was no right of appeal from the decision.

50. The Supreme Court of Canada has identified that the procedural elements required to satisfy the principles of fundamental justice will vary according to the circumstances of the case. As stated in Ruby v. Canada at paragraph 46:

The principles of fundamental justice do not require that the applicant have the most favourable proceedings. They do require that the proceedings be fair.

Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 (QL) [Tab 18]

51. Fairness as a general rule requires notice and participation.

Ruby, supra, at para. 40

52. Section 117.03 requires that when a firearm is seized and not claimed it be brought before a provincial court judge in order to determine whether the person from whom it was seized or its owner is lawfully entitled to possess it. This occurred in Dr. Hudson's case. To regain possession of the firearm, at such a hearing, all that is required is to produce the proper licence and registration. In this context, it is difficult to imagine how charging an individual with an offence, conducting a trial in front of a jury, or having a right of appeal would in any way enhance procedural fairness to the gun owner.

53. The Respondent submits that Dr. Hudson has not established either a deprivation of his right to life or security of the person, or a breach of a principle of fundamental justice. Therefore, Gabrielson J.'s finding that s. 117.03 does not violate the Charter is correct.

D. Gabrielson J. was correct in finding that s. 26 of the Charter would not provide a remedy.

54. Section 26 of the Charter states:

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.

55. Before Gabrielson J., Dr. Hudson argued that because the right to bear arms was included in the Bill of Rights 1689 that the right was received into the law of Canada and protected by s. 26 of the Charter. Gabrielson J. rejected this contention, primarily on the authority of R. v. MacAusland. There the Prince Edward Island Court of Appeal held that although s. 26 makes it clear that the Charter does not limit or interfere with any additional rights which exist, it does not incorporate or guarantee those rights.

R. v. MacAusland et al., (1985), 19 C.C.C. (3d) 365 (P.E.I.C.A.) at 375. [Tab 19]

56. In his factum Dr. Hudson drops the contention that s. 26 protects the right to bear arms. Instead, he argues, that this provision acknowledges that Canadians' rights are not limited to those enumerated in the Charter.

57. A plain reading of the text of s. 26 establishes that the Charter does not negate the existence of other rights. However, there still must be a legal source for any rights that are not listed.

58. Dr. Hudson cannot identify any source for the right to bear arms in Canada's constitution or any applicable legislation.

59. Dr. Hudson may be sincere in his belief that there should be an unregulated right to bear arms in Canada. However, the reality is that there has never been any such right in Canada. The degree to which firearms have been regulated has varied over time. Nevertheless, without a constitutional amendment, there simply is no right to bear arms and this appeal must be dismissed.

VI. RELIEF SOUGHT

60. It is respectfully requested that this Honourable Court dismiss the within appeal with costs.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Saskatoon, Saskatchewan, this 7th day of May, A.D. 2008

THE ATTORNEY GENERAL OF CANADA

Per: __________[signed]__________________

Scott R. Spencer
Solicitor for the Respondent
Attorney General of Canada

This document was delivered by:

Department of Justice (Canada)
Saskatchewan Regional Office
10th Floor, 101 - 22nd Street East
Saskatoon, SK S7K 0E1

Address for service is: same as above
Lawyer in charge of file: Scott R. Spencer
Telephone: (306) 975-5641
Facsimile: (306) 975-6240
File: 2-30068-4-1

 

LIST OF AUTHORITIES

Case Law

TAB

  1. R. v. Wiles, [2005] 3 S.C.R. 895.
  2. Housen v. Nikolaisen, [2002] 2 S.C.R. 235.
  3. Judge Orr decision dated December 6, 2005.
  4. Justice Hunter (then of the Court of Queen's Bench) decision dated January 19, 2007.
  5. Cheif Justice Klebuc oral decision June 5, 2007, written reasons August 2, 2007.
  6. Justice Gabrielson fiat dated December 12, 2007.
  7. Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783.
  8. Reference re Remuneration of Judges of the Provincial Court (P.E.I), [1997] 3 S.C.R. 3.
  9. Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753.
  10. Switzman v. Elbling, [1957] S.C.R. 285.
  11. New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319.
  12. R. v. Hasselwander[1993] 2 S.C.R. 398.
  13. Schwartz v. The Queen, [1988] 2. S.C.R. 443.
  14. Parker v. District of Columbia, 478 F.3d 370, 2007 U.S. App. LEXIS 5519, (D.C. Cir. 2007).
  15. R. v. Beare, [1988] 2 S.C.R. 387.
  16. R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R.
  17. Operation Dismantly v. The Queen, [1985] 1 S.C.R. 441.
  18. Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3.
  19. R. v. MacAusland et al., (1985), 19 C.C.C. (3d) 365 (P.E.I.C.A.).

Statutes

  1. s. 117.03(3) of the Criminal Code
  2. Criminal Code, S.C. 1892, c. 29, s. 105.
  3. Criminal Code, R.S.C. 1906, c. 146, s. 118.
  4. Criminal Code, S.C. 1920, c. 43, s. 2.
  5. Criminal Code, S.C. 1921, c. 25, s. 2.
  6. Criminal Code, R.S.C. 1927, c. 36, s. 118.
  7. Criminal Code, S.C. 1933, c. 25, s. 118-119.
  8. Criminal Code, S.C. 1934, c. 47, s. 1.
  9. Criminal Code, S.C. 1953-54, c. 51, s. 90, 93-94.
  10. Criminal Code, S.C. 1968-69, c. 38, s. 6.
  11. Criminal Code, R.S.C. 1970, c. C-34, s. 93, 97, 98.
  12. Criminal Code, S.C. 1977, c. 53, s. 3 : 98; 106.6; 106.1.
  13. Criminal Code, R.S.C. 1985, c. C-46, s. 100(1); 109; 114.1.
  14. Criminal Code, S.C. 1991, c. 40, s. 110(1); 109.

Other Related Material

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

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