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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File Number:____
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN)
BETWEEN:
EDWARD BURKE HUDSON
APPLICANT
AND:
THE ATTORNEY GENERAL OF CANADA
RESPONDENT
APPLICATION FOR LEAVE TO APPEAL
EDWARD BURKE HUDSON
APPLICANT
Supreme
Court Act, R.S.C. 1985, c. S-26, ss. 35 and 40
Edward Burke
Hudson
Appellant
402 Skeena
Court
Saskatoon,
Saskatchewan S7K 4H2
(306) 242-2379
edwardhudson@shaw.ca
The Attorney
General of Canada
Respondent
Scott
R. Spencer
Senior
Crown Counsel
Department
of Justice, Canada
10th
Floor, 123 Second Ave S.
Saskatoon,
Saskatchewan S7K 7E6
(306) 975-564
(306) 975-564 (fax)
scott.spencer@justice.gc.ca
-i-
TABLE OF CONTENTS
• NOTICE
OF APPLICATION FOR LEAVE TO APPEAL (FORM 25A)
Tab 1
• CERTIFICATE (FORM 25B)
Tab 2
• LOWER
COURT JUDGMENTS
► Reasons for Judgment: Provincial
Court, Craik, Saskatchewan
dated 06 December
2005 Tab 3
► Reasons for Judgment: Court
of Queen’s Bench, Saskatoon,
dated 12 December 2007 Tab 4
► Order:
Queen’s Bench, Saskatoon
dated 25 January 2008 Tab 5
► Reasons for Judgment from The Court of Appeal for
Saskatchewan
dated 21 September 2009 Tab
6
► Order: The Court
of Appeal for Saskatchewan
dated ?? October 2009 Tab 7
• MEMORANDUM
OF ARGUMENT
Tab 8
File Number:____
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN)
BETWEEN:
EDWARD BURKE HUDSON
APPLICANT
AND:
THE ATTORNEY GENERAL OF CANADA
RESPONDENT
NOTICE OF APPLICATION
FOR LEAVE TO APPEAL
EDWARD BURKE HUDSON
APPLICANT
Supreme
Court Act, R.S.C. 1985, c. S-26, ss. 35 and 40
Edward Burke
Hudson
Appellant
The Attorney
General of Canada
Respondent
TAKE NOTICE that
Edward Burke Hudson hereby applies for leave to appeal to the Court,
pursuant to Supreme Court Act, R.S.C. 1985,
c. S-26, ss. 35 and 40
from the judgment of the
Court of Appeal for Saskatchewan, 2009 SKCA 108 made 20090921. The Appellant ask that the judgment be set
aside and for the Court
to order the return of his property.
AND
FURTHER TAKE NOTICE that this application for leave is made on
the following grounds:
Ground 1:
That the Honourable Chief Justice Klebuc
of the Court of Appeal for Saskatchewan erred in law in his decision
of 21 September 2009 upholding the validity of the provision of the
Criminal Code 117.03 by failing to recognize
the vital, important constitutional status of the English Declaration of Rights, 1689.
Ground 2:
That the Honourable Chief Justice Klebuc
of the Court of Appeal for Saskatchewan erred in law in his decision
of 21 September 2009 by failing to recognize that armed self-defence is an inalienable
“natural right” or a fundamental norm that Parliament cannot unreasonably
limit.
Dated at Saskatoon, Saskatchewan, this 29th day of October 2009.
SIGNED BY
___________________
Edward Burke Hudson
402 Skeena Court
Saskatoon, Saskatchewan S7K 4H2
(306) 242-2379
ORIGINAL TO: THE REGISTRAR
COPY TO:
The Attorney General of Canada
Scott R. Spencer
Senior Crown Counsel
Department of Justice,
Canada
10th Floor, 123
Second Ave S.
Saskatoon, Saskatchewan
S7K 7E6
(306) 975-564
(306) 975-564 (fax)
scott.spencer@justice.gc.ca
NOTICE TO THE RESPONDENT: A respondent may serve and file a memorandum in response to this
application for leave to appeal within 30 days after service of the
application. If no response is filed within that time, the Registrar
will submit this application for leave to appeal to the Court for consideration
pursuant to section 43 of the Supreme Court Act.
PART I – STATEMENT OF FACTS
[1] In 1995 Parliament passed the Firearms Act that proclaimed therein at p. 54:
117.
The Governor in Council may make regulations
(a)
regarding the issuance of licences,
registration certificates and authorizations, including regulations
respecting the purposes for which they may be issued ... and prescribing
the circumstances in which persons are or are not eligible to hold licences;
...
(c)
prescribing the circumstances
in which an individual does or does not need firearms
(1) to protect the life of that individual,
or of other individuals, … .
[2] When the Province of Alberta challenged the Firearms Act as an intrusion into provincial
jurisdiction, in Reference re Firearms Act (Can) [2000] 1 S.C.R. this Honourable Court concluded:
4. … that the gun control law
comes within Parliament’s jurisdiction over criminal law. ... The intrusion
of the law into the provincial jurisdiction over property and civil
rights is not so excessive as to upset the balance of federalism.
[3] However,
this Honourable Court was emphatic in stating:
32. If the law violates a treaty
or a provision of the Charter, those affected can bring their claims
to Parliament or the courts in a separate case. The reference questions,
and hence this judgment, are restricted to the issue of the division
of powers.
[4] In order to bring a constitutional
challenge before the Courts, the Canadian Unlicensed Firearms Owners
Association (CUFOA) began on Parliament Hill on New Year’s Day 2003 a concerted, nation-wide
campaign of open, public, peaceful, non-violent civil non-compliance
against the Firearms Act.
[5] On 10 October 2003 as part of CUFOA’s continuing direct challenges
to the licensing mandate of the Firearms
Act, my associate Jack Wilson and I were out “hunting” in a rural
area north of Davidson, Saskatchewan.
[6] The Province
has specifically designated this area for hunting. Jack and I both carried
our Saskatchewan Environment Wildlife Habitat Certificates, Saskatchewan
Resident Game Bird Licences, and our Environment Canada Migratory Game
Bird Permits. We had my Labrador Retriever dog and one of my shotguns
with us.
[7] We informed
the local detachment of the RCMP where we would be, when we would be
there, and that we would not
have a firearms licence to possess the firearm.
[8] Corporal Warren
of the Craik RCMP detachment attended to our location. Corporal Warren
asked if I had a firearms licence to possess my shotgun. I replied that
I did not have a firearms licence.
[9] Corporal Warren
informed me that he was going to seize my shotgun under authority of
the Criminal Code of Canada,
section 117.03:
(1)
… a peace officer who finds
(a) a person in possession of a firearm who
fails … to produce, for inspection … a licence under which the person
may lawfully possess the firearm …
may seize the firearm,
…(2) Where a person from whom any thing is seized … claims the thing
within fourteen days after the seizure and produces …,
(a) …
a licence … the thing shall be forthwith returned to that person.
(3)
Where any thing seized … is not claimed … a peace officer shall forthwith
take the thing before a provincial court judge, who may … declare it
to be forfeited … .
I then peacefully
surrendered my shotgun to Corporal Warren, and Corporal Warren issued
me a receipt for my shotgun.
[10] Corporal Warren
informed me that I could claim my shotgun from the RCMP detachment in
Craik within 30 days if I produced a firearms licence.
[11] Since I had
previously burned my Firearms Acquisition Certificate in protest of
the Firearms Act, I did not claim my shotgun.
[12] Corporal Warren
subsequently took my shotgun before a provincial court judge, and under
authority of s. 117.03(3) asked the judge for a destruction order.
[13] I challenged
the constitutional validity of Criminal
Code s.117.03; first in Saskatchewan provincial court, then in Court
of Queen’s Bench, and ultimately in the Court of Appeal for Saskatchewan.
The Chief Justice dismissed our appeal but left unanswered the question
of the Right to have firearms for self-protection.
[14] I now seek
leave to appeal to this Honourable Court to declare unconstitutional
section 117.03 of the Criminal
Code and the enabling regulations of the Firearms
Act and order the return of my shotgun.
Part II
STATEMENT OF THE QUESTION IN ISSUE
The Issue:
[15] Parliament
claims to have the authority to invade and violate our most vital individual
Right – the Right to decide when and how we will protect our life and
the lives of our family in our homes when we are attacked.
[16] We most vigorously dispute, deny, and reject Parliament’s
specious claim.
[17] This appeal
thus raises three fundamental questions regarding the foundation of
our individual, personal Rights held against illegitimate action by
the State:
(a) Do the protections and safeguards
enumerated in the English Declaration
of Rights only apply to Parliament and the Courts, or do the Rights
declared by the English Declaration
of Rights also protect our individual, personal Rights?
(b) Does the “Rule of Law” only grant
power to Parliament and the Courts, or does the Rule of Law protect
our individual, personal Rights?
(c) Does the supremacy of God – Natural
Law – protect our individual, personal Rights against abuse by the State?
Part III -- STATEMENT OT THE ARGUMENT
Introduction
[18] In Authorson v. Canada
(Attorney General), 2003 SCC 39, this Honourable Court seemed to adhere to
the British model of absolute parliamentary sovereignty by quoting a one hundred year old lower
court decision to justify an act of Parliament that denied disabled
World War II veterans their rightful benefits:
53 This
right has long been recognized. At the turn of the century, Riddell
J. of the Ontario High Court recognized the Crown's right to take property
without compensation. … Riddell J. wrote:
In short, the Legislature
within its jurisdiction can do everything that is not naturally impossible,
and is restrained by no rule human or divine … The prohibition, "Thou
shalt not steal," has no legal force upon the sovereign body. ….(See
Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 18 O.L.R. 275,
at p. 279.)
[19] However, in Godbout
v. Longueuil (City), [1997] 3 S.C.R. 844, this Honourable Court recognized individual, personal protections and
safeguards against action by the State, stating:
The right to liberty
in (Charter) s. 7 goes beyond the notion of mere freedom from physical
constraint and protects within its scope a narrow sphere of personal
autonomy wherein individuals may make inherently private choices free
from state interference.
[20] It is this very “narrow sphere of personal autonomy” that we are
fighting to protect.
[21] We recognize and acknowledge that since the
Statute of Northampton of 1328 that Parliament has properly exercised
the authority to define and restrict the misuse of arms and that responsible
citizens shall “bring no force in affray of the peace”.
[22] We recognize and accept the many restrictions
placed upon the possession of many types of firearms.
[23] However, based solidly upon our British heritage
and Canadian culture we firmly declare that we do have the Right - albeit
a very restricted, highly circumscribed Right - to have ‘Armes for their
Defense’ to defend ourselves, our families, and our property. Licensing
violates this Right.
[24] We base our claim upon both the written principles
of positive law and the unwritten principles found within Canada’s constitutional
documents.
A.
Written Constitutional Principals: A Right Based Positive
Law
And it appears in
our books, that in many cases, the common law will control acts of parliament,
and sometimes adjudge them to be utterly void: for when an act of parliament
is against common right and reason, or repugnant, or impossible to be
performed, the common law will control it, and adjudge such act to be
void;
Lord Coke, Dr. Bonham's Case, 8 Co. Rep. 107a, 114a C.P.
1610
[25] In 1689 in Great Britain,
at a time of great turmoil when the king had fled the country, the citizens
called a Convention Parliament and after serious debate and discussion
proclaimed the English Declaration
of Rights. This Convention Parliament then presented the English Declaration of Rights to William of Orange, Stadtholder of the Dutch Republic and his wife
Mary, asking them to accept the declaration and to become King and Queen of Great Britain.
[26] Over the ensuing
years English court cases subsequent to the English Declaration of Rights affirmed the Right of responsible citizens
to have arms to defend one’s home– see Appendix A: English Common
Law.
“a Constitution similar
in Principle to that of the United Kingdom”
[27] In the provincial courts
below, we have demonstrated how the Rights enumerated in the English Declaration of Rights immigrated
to North America and became part of Canada’s culture and heritage, e.g.,
(1) The Royal Charters to the British
North American colonies,
(2) The Royal Proclamation, 1763,
(3) The British North America Act, 1867,
(4) The Canadian Charter of Rights and Freedoms, 1982.
[28] This Honourable Court has
on numerous occasions made reference to the importance of the preamble
to the British North America Act
to our Constitution and the operation in Canada of the Rights enumerated
by the English Declaration of Rights – see Appendix B: a Constitution “Similar in Principle”.
[29] In Reference re Remuneration of Judges of the Provincial
Court (P.E.I.), [1997] 3 S.C.R. 3 former Chief Justice Lamer enumerated how the preamble
has given force to many important constitutional principles and stated
that “unwritten principles can
be ‘constitutionalized’” - see Appendix C:
Unwritten Constitutional Principles.
[30] Yet while readily acknowledging
that the Supreme Court accepts great portions of the English Declaration of Rights, the courts below have disingenuously excluded
“armes for their Defence” of Article 7 of the English Declaration of Rights as being
part of our Canadian history, heritage, and Constitution.
[31] How are we to avail ourselves to our Charter s. 7 guarantee of “the right to life, liberty and security of the person”
if the State denies
us the very means necessary to defend themselves?
[32] Addressing the issue of
the principles of
fundamental justice
in R. v. Morgentaler, [1988] 1 S.C.R. 30, 1988, Wilson, J. stated,
[33] Accordingly s. 26 of the
Canadian Charter of Rights and
Freedoms clearly states that the Charter “shall
not be construed as denying the existence of any other rights or freedoms
that exist in Canada.”
[34] Thus the conclusion must
be drawn that the “true, ancient, and indubitable” Right enumerated by Article Seven of the English Declaration of Rights for responsible
citizens to have ‘Armes for their Defense’ to protect themselves, their
family, and their property within their own homes must also be operative
in Canada.
[35] If Article
Seven of the English Declaration
of Rights is not
also “constitutionalized” as part of Canada’s founding principles,
then how can we claim, e.g.,:
that election of
members of Parliament ought to be free, or,
that the freedom of speech and debates or proceedings in
Parliament ought not to be impeached or questioned in any court or place
out of Parliament;?
[36] To arrive at a conclusion that excludes
Article 7, one would have to throw out many vitally important legal
concepts, e.g.,
(a)
the “Rule of Law”,
(b)
the prohibition of “cruel and unusual punishment”, and
(c)
the succession of the Crown.
[37] To the people
of Canada, which is more important; the Right of Self-protection or
the Right to Vote in legislative assemblies?
[38] William Blackstone
answered this question in
his 1765 “Commentaries” where he underscored the most compelling reason
for the Right of individual ownership of firearms:
But in vain would
these rights be declared, ascertained, and protected by the dead letter
of the laws, if the constitution had provided no other method to secure
their actual enjoyment ... ‘auxiliary rights meant to protect all others’
is that of having arms for their defense ... the natural right of resistance
and self preservation, when the sanctions of society and the laws are
found insufficient to restrain the violence of oppression.
[39] The Right to have arms exists for the protection of all of our civil liberties.
[40] We assert that the stated, recorded British
and Canadian documents recognized by legal positivism acknowledge that
responsible Canadian citizens indeed have the Right of “having arms for their defense” to protect themselves.
Any other conclusion defies logic.
B. Unwritten Constitutional Principles
1. The Rule of
Law
Whereas Canada is
founded upon principles that recognize
the supremacy of
God and the rule of law:
[41] The theory of the ‘Rule of Law’ is well established
in Canada by Reference re Manitoba Language Rights, 1985 CanLII
33 (S.C.C.), [1985] 1 S.C.R. 721:
63 The constitutional
status of the rule of law is beyond question. The preamble to the Constitution
Act, 1982 states:
Whereas Canada is founded upon principles
that recognize the supremacy of God and the rule of law.
This
is explicit recognition that "the rule of law [is] a fundamental
postulate of our constitutional structure" (per Rand J.,
Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142). The rule
of law has always been understood as the very basis of the English Constitution
characterizing the political institutions of England from the time of
the Norman Conquest (A.V. Dicey, The Law of the Constitution
(10th ed. 1959), at p. 183). It becomes a postulate of our own constitutional
order by way of the preamble to the Constitution Act, 1982, and
its implicit inclusion in the preamble to the Constitution Act, 1867
by virtue of the words "with a Constitution similar in principle
to that of the United Kingdom".
64
Additional to the inclusion of the rule of law in the preambles of the
Constitution Acts of 1867 and 1982, the principle is clearly
implicit in the very nature of a Constitution. The Constitution, as
the Supreme Law, must be understood as a purposive ordering of social
relations providing a basis upon which an actual order of positive laws
can be brought into existence. The founders of this nation must have
intended, as one of the basic principles of nation building, that Canada
be a society of legal order and normative structure: one governed by
rule of law. While this is not set out in a specific provision, the
principle of the rule of law is clearly a principle of our Constitution.
[42] The theory of
the Rule of Law - that ‘unwritten principle’ - serves a dual purpose.
The Rule of Law not only defines limits, but more importantly, the Rule
of Law protects individual freedom.
[43] As acknowledged
in 1877 by Lord Acton in The History of Freedom in Christianity:
I
should have wished … to relate by whom, and in what connection the true
law of the formation of free states was recognized, and how that discovery
... solved the ancient problem between stability and change, and determined
the authority of tradition on the progress of thought; … the theory
that custom and the national qualities of the governed, and not the
will of the government, are the makers of the law, ... .
[44] Thus A.V. Dicey
could state in Introduction to the Study of the Law of the Constitution:
The supremacy of
the rule of law (is) the security given under the English constitution
to the rights of individuals ... . (p. 180
the “rule of law” may be used as a formula for expressing
the fact that with us the law of the constitution, the rules which in
foreign countries naturally form part of the constitutional code, are
not the source but the consequence of the rights of individuals, as
defined and enforced by the Courts. (p. 198)
2. Does
the individual have a God-given or a Natural Law Right to possess firearms?
It is odd, when one thinks of it, that there are
people in the world who, having renounced all the laws of God and nature,
have themselves made laws which they rigorously obey ... .
Blaise Pascal
[46] The concept of legal positivism that asserts that Parliament “is restrained by no rule human or divine” certainly
has severe deficiencies.
[47] Even legal positivism’s most notable proponent H.L.A. Hart struggled
with the separation of law and morals when confronted with the human
rights abuses of the Nazi laws of Germany, declared “that laws may be law but too evil to be obeyed”.
[48] Thus it is the height of arrogance for any body of men and women –
duly elected or not - to claim the authority to
“do everything that is not naturally impossible” against other people.
[49] Surely such a “legal” system that allows Parliament
to claim the authority to tell responsible citizens how they can defend
themselves in their own homes displays both “the law’s delay,
the insolence of office”, and is terribly broken.
[50] As
John Rawls asserts:
A theory however elegant and economical must
be rejected or revised if untrue; likewise laws and institutions no
matter how efficient and well arranged must be reformed or abolished
if they are unjust. Each person possesses an inviolability founded on
justice that even the welfare of society as a whole cannot override.
[51] However we would not need to reject or abolish this malfunctioning
system if the courts would simply enforce the constitutional safeguards
we already have in place.
The Sovereignty of Parliament versus the Supremacy of God
[52] While Parliament claims to be sovereign, the Constitution
clearly recognizes “the supremacy of God”. These are clearly contradictory,
mutually exclusive assertions.
[53] As
note above, the preamble to the British
North America Act is an extremely important part of Canada’s constitutions.
The preamble of the Canadian Charter
of Rights & Freedoms, 1982, is likewise exceedingly significant.
“Canada
is founded upon principles that recognize
the supremacy of God and the Rule of Law
[54] While the
phrase “Rule of Law”, like the words “supremacy of God”, is only explicitly
written in the Charter, the
“Rule of Law” enjoys almost scriptural reverence among judges (supra).
[55] If the “Rule
of Law” is so highly praised as to be foundational to Canada’s system
of law and justice, then the “supremacy of God” has to occupy at least
as an esteemed place in our parliamentary and judicial systems.
[56] If Canada’s
foundational principles truly recognize the “supremacy of God”, then
Parliament cannot at the same time be “sovereign”; or at least
Parliament cannot be “sovereign” in all
jurisdictions.
[57] God’s mandates
to defend oneself, family, and property are clear. Clearly self-protection
is an area of personal “jurisdiction” – see Appendix D: Biblical Imperatives.
[58] In R. v. Kerr, 2004 SCC 44 this Honourable Court recognized
the need of incarcerated inmates in a maximum security institution have arms for self-defence.
[59] Yet in spite
of God’s clear scriptural commands, Parliament pretends to have the
sovereignty to make regulations:
prescribing the circumstances in which an individual
does or does not need firearms to protect the life of that individual,
or of other individuals, ...
In regard to this
specific “command” to submit to Parliament and ask for permission for
our means of defence, we cannot be true to God and obey Parliament.
[60] Surely Parliament has dangerously stepped outside its constitutional
“jurisdiction” and has grievously intruded upon our individual “narrow sphere of
personal autonomy” by proclaiming a law “prescribing” the means
we may use in individual self-protection and the protection of our family
within our own homes.
[61] Therefore the
licensing mandate must be invalid.
Natural Rights versus Positive Law
Some common law Rights presumably lie so deep
that even Parliament could not override them.
[62] But even if God were dead - or even if God were proved never to have
existed - we believe we have a Natural Law moral imperative to have
arms to protect ourselves.
[63] The Right of Self-protection has been
recognized by Natural Law throughout human history – see Appendix E:
the Admonitions of the Philosophers.
[64] As Alexander Passerin d’Entreves notes, even though that the theory of Natural
Law was “declared to be dead, never to return from its ashes … natural
law still calls for discussion.”*
[65] The pernicious demands of the Firearms Act force us to examine how Natural
Law protects us.
Some common
law Rights presumably lie so deep that even Parliament could not override
them.
(b) Australian Justice Kirby’s view is dismissive:
Such extra-constitutional notions must
be viewed with reservation not only because they lack the legitimacy
that attaches to the enactments ultimately sanctioned by the people.
But also because, once allowed, there is no logical limit to their ambit.
They may thereby undermine a rule of law and invite the only effective
substitute, viz. the rule of power.
Clearly something is going on; something that cannot be dismissed
with a wave of a judicial hand. I will suggest that actually quite a
lot is going on, and that it is important. What is going on is the idea
that there exists fundamental norms of justice so basic that they form
part of the legal structure of governance and must be upheld by the
courts, whether or not they find expression in constitutional texts.
[67] Armed self-defense is a Natural Right, a moral imperative that predates
any law code, e.g.,
(a) Cicero (106 - 43 B.C.) observed:
[T]herefore, is a law, O judges, not written, but born with us,--which
we have not learnt or received by tradition, or read, but which we have
taken and sucked in and imbibed from nature herself; a law which we
were not taught but to which we were made,--which we were not trained
in, but which is ingrained in us,--namely, that if our life be in danger
from plots, or from open violence, or from the weapons of robbers or
enemies, every means of securing our safety is honourable. For laws
are silent when arms are raised, and do not expect themselves to be
waited for ... .
(b)
Hugo Grotius, the “Father of International Law” stated:
[W]hen our lives are threatened with immediate danger, it is
lawful to kill the aggressor, if the danger cannot be otherwise avoided
.... [T]his kind of defense derives its origin from the principle of
self-preservation, which nature has given every living creature ...
. For I am not bound to submit to the danger or mischief intended, any
more than to expose myself to the attack of a wild beast.
[68] Even in today’s ‘modern’ world armed self-defense
is still an individual necessity and personal responsibility. From a
practical standpoint, dialing ‘9-1-1’ is what a person does when they
see an attack, not when they are experiencing one.
[69] Citizens need arms to defend themselves not only against criminals but
also against governments. Through the ages philosophers and statesmen
have warned of the dangers of government abuse of power. The admonitions
of the philosophers were recorded for our enlightenment and protection.
[70] In Democide and Disarmament legal scholar Dr. Don B. Kates makes
a sobering statement:
More people have been murdered by
their government than by criminals.
[71] Government-sponsored genocide is not a once-in-a-millennium aberration
that disappeared with the defeat of the German Nazi war machine in May
1945. State genocide continues unabated throughout the world.
[72] In Shake Hands with the Devil retired Canadian General Roméo Dallaire
shares his personal experience with civilian disarmament:
Almost fifty years to the day that
my father and father-in-law helped to liberate Europe -- when the extermination
camps were uncovered and when, in one voice, humanity said, ‘Never again,’
-- we once again sat back and permitted this unspeakable horror to occur.
In 100 days … an estimated 800,000
men, women and children were brutally killed … The victims - many horrifically
hacked to death ... the machete-wielding government-sponsored forces...
a damning indictment of world leaders and UN bureaucrats who failed
to stop the genocide.
[73] As Dr. Kates and other authors about genocide demonstrate, insidious, false
propaganda fallaciously proclaims that firearms are inherently dangerous,
while the reality is that governments’ civilian disarmament policies
are the real problem.
[74] Professor Joyce Lee Malcolm traces how Great Britain, starting with it’s
own Firearms Act of 1920, relentlessly used that law to disarm
the population of the United Kingdom with disastrous result.*
[75] The Canadian Firearms Act contains all the elements needed for civilian disarmament.
[76] The greatest folly which could befall the citizens of Canada would be to
follow the example of the United Kingdom until, as Judge Orr disparagingly
said, “some awful and hopefully never-to-be future” has arrived and
then responsible citizens vainly have to petition the courts for the
means to protect themselves.
[77] Cicero stated,
“True Law is right reason in agreement with nature; it is of universal
application, unchanging and everlasting;”
[78]
Current world events clearly show that the Firearm
Acts is not “right reason” nor is the Firearms
Act “in agreement with Nature.”
[79] This
Honourable Court has previously found unwritten principles to support
the Right of women to the privacy of their bodies against State interference
and the Right of individuals to choose where to establish
one’s home.
[80] Thus we submit that the Rule of Law, the supremacy
of God, and Natural Law firmly establish our individual Right to have
the means of self-protection and annul and negate any claim of Parliament
to the authority to make any law that gives the government a monopoly
on the access to firearms.
Conclusion:
[81] Armed self-protection is hardwired into human
physiology whether by God or Darwinian evolution.
[82] Our Right to armed self-protection is firmly
founded upon:
(a)
our British constitutional documents,
(b)
our Canadian heritage and culture.
(c)
the Rule of Law
(d)
the supremacy of God, and
(e)
Natural Law.
[83] The courts have the authority and the responsibility
to require Parliament to adhere to its constitutional limitations before
God, before the natural principles of the universe.
[84] I respectfully ask this Honourable Court to declare
Criminal Code section 117.03
ultra vires Parliament and to order the
return of my shotgun.
Part IV SUBMISSIONS IN SUPPORT OF ORDER SOUGHT
CONCERING COST
[85] I respectfully
submit that my family and I have personally borne over ninety-five percent
of the costs involved in the court actions beginning with the Provincial
Court of Saskatchewan, the Court of Queen’s Bench, Saskatchewan, and
the Court of Appeal for Saskatchewan, and that I will be self-represented
before this Honourable Court. I warrant that I have received no support
from any government department or any agency of Saskatchewan or the
federal government of Canada.
[86] As the Chief
Justice said in Saskatoon on 12 May 2007 in discussing the heavy financial
burden that is causing more Canadians to represent themselves:
[87] I have already
paid a high financial price. Requiring me to pay costs to oppose the
Crown’s unjust action is doubly unjust.
Part V ORDER or ORDERS SOUGHT
[88] I am seeking Orders:
(1)
declaring Criminal Code section
117.03 ultra vires Parliament and of no force and effect in Canada,
(2)
directing the Court of Appeal for Saskatchewan to order the RCMP Craik
Detachment to return my shotgun, and,
(3) voiding the lower court orders
for costs.
Edward Burke
Hudson
Appendix A
English Common Law
[A1] 1739 Rex
v. Gardner, Michaelmas Term, 12 Geo. 2:
The defense objected “that a gun
is not mentioned is the statue of [the Game Act, 1706], and though there
may be many things for the bare keeping of which a man may be convicted,
yet they are only such as can used for the destruction of the game,
whereas a guns necessary for defense of a house, or for a farmer to
shoot crows.”
The court agreed with the defense and concluded:
“We are of the opinion, that a gun differs from nets and dogs, which
can only be kept for an ill purpose, and therefore the conviction should
be quashed.”
[A2] 1752
Wingfield
vers. Stratford & Osman, Hilary Term, 25 Geo.II:
Plaintiff appealed his conviction
and the confiscation of a gun and a dog, the dog being a “setting dog”
and the gun “an engine” for killing game. The conviction was overturned.
The court explained:
“It is not to be imagined, that it was the
Intention of the Legislature, ... to disarm all the People of England.
... a gun may be kept for the Defense of a Man’s House, and for divers
other lawful Purposes, ... .
[A3] 1819 King against George Dewhurst & Others:
A man has a clear
right to arms to protect himself in his house. A man has a clear right
to protect himself when he is going singly or in a small party upon
the road where he is traveling or going for the ordinary purposes of
business.
Appendix B
A Constitution
“Similar
in Principle”
[B1] Judicial
independence, Reference: re Remuneration
Judges Prov Court P.E.I., [1997] 3 S.C.R. ,p. 5, Per C.J. Lamer:
Judicial independence is an unwritten
norm, recognized and affirmed by the preamble to the Constitution Act, 1867 -- in particular
reference to “a Constitution similar in principle the that of the United
Kingdom” ... The preamble ... invites the courts to turn those principles
into the premise of a constitutional argument that culminates in the
filling of gaps in the express terms of the constitutional text ...
.
[B2]
Parliamentary privilege; Canada
(House of Commons) v. Vaid, [2005] SCC 30; p. 8, para 21 &34
Parliamentary privilege, therefore,
is one of the ways in which the fundamental constitutional separation
of powers is respected. In Canada, the principle has its roots in the
preamble to our Constitution Act,
1867 which calls for “a Constitution similar in Principle to that of
the United Kingdom” … Parliamentary privilege was partially codified
in art. 9 of the U.K. Bill of Rights of 1689, 1 Will. & Mar., sess.
2, c. 2, …
34 Historically, the legislative
source of some privileges (e.g., art. 9 of the Bill of Rights of 1689)
did not diminish the jurisdictional immunity they attracted. … .
The doctrine of privilege attaching
to a constitution “similar in Principle to that of the United Kingdom”
under the preamble to the Constitution
Act, 1867 is not displaced by the wording of s. 32(1) of the Charter.
As was pointed out in New Brunswick
Broadcasting, parliamentary privilege enjoys the same constitutional
weight and status as the Charter itself.
[B3] Democratic
principles, Reference: re Secession
of Quebec, [1998] 2 S.C.R.:
Our Constitution is primarily
a written one, the product of 131 years of evolution. Behind the written
word is an historical linage stretching back through the ages which
aids in the consideration of the underlying constitutional principles
... they are vital unstated assumptions upon which the text is based
{paragraph 49} ...
Canadians have long recognized
the existence and importance of unwritten constitutional principles
in our system of government {paragraph 52} ...
Underlying constitutional principles
may in certain circumstances give rise to substantive legal obligations
(have “full legal force and effect,” as we described in the Partition
Reference ... .{paragraph 54} ...
The evolution of our democratic
principles can be traced back to the Magna Carta (1215) and... in the
English Bill of Rights of 1689 ... and eventually, the achievement of
the Constitution itself in 1867. {paragraph 63}
[B4] Parliament’s
“inherent” self-regulating authority, Reference: Resolution to Amend Constitution [1981] 1 S.C.R.; p. 785:
It is unnecessary here
to embark on any historical review of the “court” aspect of Parliament
and the immunity of its procedures from judicial review... It would
be incompatible with the self-regulating -- “inherent” is as apt a word--
authority of Houses of Parliament to deny their capacity to pass any
kind of resolution. Reference may appropriately be made to art. 9 of
the [English] Bill of Rights of 1689, undoubtedly in force as part of
the law of Canada ... .
[B5] Nor cruel
and unusual Punishments,
R.
v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; p. 15, pra 24:
We in Canada adopted through the
preamble of our constitution the legislative restraint set out in s.
10 of the English Bill of Rights 0f 1688 (sic 1689), I Wm. & M.
sess. 2, c. 2, which states:
10. That excessive bail ought
not be required, nor excessive fines imposed; nor cruel and unusual
Punishments inflicted.
[B6] Presumption
of innocence, R. v. Demers, [2004]
2 S.C.R. 489, p. 21, para 82:
[I]n importing certain principles found
in the United Kingdom, the Constitution
Act, 1867 incorporated principles of civil liberties and human rights
embedded in English constitutional history ... “residing in the theory
of government these documents proclaim.” These documents ... were the
Magna Carta and the [English] Bill of Rights of 1689 ... .
Appendix C
Appendix D
Self-defense: A Biblical
Imperative
[D1] Abraham defending Lot (Genesis 14.13-20):
When Abram heard that his kinsman had been taken captive,
he led forth his trained men, ... went
in pursuit ... and routed them ... After his return from the [victory],
Melchizedek ... priest of the God Most High ... blessed him ... .
[D2] Moses against Pharaoh (Exodus
13.18 - 15.3), Torah v. 13.18b
and the children
of Israel went up armed out of the land of Egypt.
[D3] Deborah against the Canaanites (Judges
4.6 - 8):
Now Deborah, a prophetess, ... said to [Barak], “The
Lord God of Israel commands you, ‘Go, gather your men ... I will draw
... the general ... with his chariots and his troops; and I will give
him into your hand.’ ”
[D4] David against Goliath (I Samuel 17. 12 - 53),
vv. 37 – 46:
And David said, “The Lord who delivered me from the paw
of the lion and from the paw of the bear, will deliver me from the hand
of this Philistine ... then .... he chose five smooth stones from the
brook ... with his sling ... Then David said to the Philistine, “You
come to me with a sword and a spear and with a javelin; but I come to
you in the name of the Lord of hosts ... This day the Lord will deliver
you into my hand, and I will strike you down, and cut off your head
... that all earth may know that there is a God in Israel ... .
[D5] Nehemiah in Jerusalem (Nehemiah 4.16
- 20). vv. 11 – 15:
And our enemies said, “They ... kill [us] and stop the
work.” ... So ... I stationed the people ... with their swords, their
spears, and their bows. ... and said ... “Do not be afraid of them.
Remember the Lord, who is great and terrible, and fight for your brethren,
your sons, your daughters, your wives, and your homes.”
Harper Study Bible Harold Lindsell, Zondervan Bible
Publishers, Grand Rapids, Michigan, 1978; The Torah, Henry Holt &
Company, New York, 1996
Appendix E
The Admonitions of the Philosophers
[E1] John Locke,
Two Treatises of Government, (1680-1690):
Any
single man must judge for himself whether circumstances warrant obedience
or resistance to the commands of the civil magistrate; we are all qualified,
entitled, and morally obliged to evaluate the conduct of our rulers.
This political judgment, moreover, is not simply or primarily a right,
but like self-preservation, a duty to God. As such it is a judgment
that men cannot part with according to the God of Nature. It is the
first and foremost of our inalienable rights without which we can preserve
no other.
[E2] Algernon Sydney, Discourses Concerning Government:
[T]hey could not . . . lay more approved foundations,
than, that man is naturally free; that he cannot be justly deprived
of that liberty without cause; and that he does not resign it, or any
part of it, unless it be in consideration of a greater good, which he
proposes to himself. I:2:5
The
Liberty of a people is the gift of God and nature. III:33:406.
[E3]
Andrew Fletcher, A Discourse of Government With
Relation to Militias, (1698):
The
possession of arms is the distinction between a freeman and a slave.
He who has nothing, … needs no arms: but he who thinks he is his own
master, .., ought to have arms to defend himself … or else he lives
precariously and at discretion. And though for a while those who have
the sword in their power abstain from doing him injury; yet, by degrees,
he will be awed into submission to every arbitrary command. Our ancestors,
by being always armed, … defended themselves against the Romans, Danes
and English; and maintained their liberty against encroachments of their
own princes.
[E4] J.L. DeLolme, The Constitution of England; or an Account
of the English Government, (New York, 1792), p. 164, Swiss author’s
observation of the English government in 1755:
[It
is] absolutely necessary, for securing the Constitution of a State,
to restrain the Executive power ... it is still more necessary to restrain
the legislative. What the former can do only by successive steps (I
mean subvert the laws) …, the latter does in a moment. As its bare will
can give being to the laws; so its bare will can also annihilate them:
... the Legislative power can change the Constitution as God created
the light.
[E5] Alexis de Tocqueville, Democracy in America, Vol. I
1835 & Vol. II, 1840:
When
I refuse to obey an unjust law, I do not contest the right of the majority
to command, but I simply appeal from the sovereignty of the people to
the sovereignty of mankind. Some have not feared to assert that a people
can never outstep the boundaries of justice and reason …; and that consequently
full power may be given to the majority ... But this is the language
of a slave.
[E6] Thomas Macaulay, Critical and Historical Essays, Contributed
to Edinburgh Review, vol I (Leipzig, 1860):
The
Englishman's ultimate security depended not upon the Magna Carta or
parliament but upon ‘the power of the sword’ ... the legal check was
secondary and auxiliary to that which the nation held in its own hands
... the security without which every other is insufficient.
[E7] James Burgh, Political Disquisitions: Or, an Enquiry
into Public Errors, Defects, and Abuses, London, 1774-1775:
When
we elect persons to represent us in parliament ... We make a lodgment,
not a gift; we entrust, but part with nothing. (If) they should attempt
to destroy that constitution … they can no more be held in the rank
of representatives than a factor, turned pirate, can continue to be
called the factor of those merchants whose goods he had plundered, and
whose confidence he had betrayed. ... .
All
history shows the necessity, in order to the preservation of liberty,
of every subjects having a watchful eye on the conduct of Kings, Ministers,
and Parliament, … alarming his fellows of every attempt upon public
liberty.
[E8] James Otis, Against Writs of Assistance, February 1761:
Now,
one of the most essential branches of English liberty is the freedom
of one's house. A man's house is his castle; and whilst he is quiet,
he is as well guarded as a prince in his castle.
[E9] William Pitt, “the Younger” Speech in the House of
Commons, 18 Nov. 1783:
Necessity
is the plea for every infringement of human liberty; it is the arguments
of tyrants; it is the creed of slaves.
PART VI TABLE
OF AUTHORTIES
Paragraph
Acton, Lord John Emerich Edward Dalberg, The History of Freedom
in Christianity, An Address
Delivered to the Members of the
Bridgnorth Institute,
28 May 1877
43
Authorson v. Canada
(Attorney General), 2003 SCC 39, 18
Blackstone, Sir William, Commentaries on the Laws of England, London, 1765 38
Blaise Pascal, quote by d’Entreves,
A. P., Natural Law; An Introduction
to
Legal Philosophy Transaction
Publishers, New Brunswick (USA), 2006 > 45
British North America Act, 1867, preamble
41
Burgh, James, Political Disquisitions: Or, an Enquiry into
Public Errors,
Defects,
and Abuses, London, 1774-1775
E7
Canada (House of Commons) v. Vaid, [2005] SCC 30; p. 8, B2
Canadian Charter for
Rights and Freedoms section 7
31
Canadian Charter for
Rights and Freedoms section 26 33
Canadian Charter of Rights and Freedoms, 1982. preamble 41/53
Cicero, “In Defense of Titus Annius Milo”
(in Selected Political Speeches of
Cicero, ed. and trans. Michael Grant, 222 [1969]) 67
Cicero, De Republica, III xxxii, 33, quoted
by A.P. d’Entreves
(p.25) 77
Coke, Sir Edward, Dr. Bonham's Case, 8 Co. Rep. 107a, 114a C.P.
1610 >24
Cooke, Lord
Robin, Taylor v New Zealand Poultry Board, [1984]
2N.Z.L.R. 394, as quoted
by Justice Michael D. Kirby,
66
Criminal Code of Canada, section 117.03
9
d’Entreves, Alexander Passerin,
Natural Law; An Introduction
to Legal
Philosophy Transaction
Publishers, New Brunswick (USA), 2006, p. 13
64
Dallaire, General (Ret) Roméo, Shake Hands with the Devil, Random House,
Toronto, 2003
72
DeLolme, J.L., The Constitution of England; or an Account
of the English
Government,
(New York, 1792),
E4
de Tocqueville, Alexis, Democracy in America, Vol. I 1835
& Vol. II, 1840 E5
Dicey, A.V., Introduction to the Study
of the Law of the Constitution,
8th edition, MacMillan & Co., London,
1915 (first published 1885) 44
English Declaration
of Rights, 1689, Article Seven 30/34/35
Firearms Act, S.C. 1995, c. 39
1/58
Fletcher, Andrew, A Discourse of Government With Relation
to Militias, (1698): E3
Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 19
Grotius, Hugo, The Rights of War and Peace,
(ed. A.C. Campbell,
76 -77, [1901])
76
Hart, H.L.A., Essays in Jurisprudence and Philosophy,
Clarendon Press,
Oxford
1983. p.77
47
Harper Study Bible Harold Lindsell, Zondervan Bible
Publishers,
Grand
Rapids, Michigan, 1978;
D1/D2/D3/D4/D5
Kates, Don B., Democide and Disarmament, SAIS Review
23.1, 305-309 (2003),
p.1
70
King against George Dewhurst & Others,
1819
A3
Kirby, Justice Michael
D.,
“Lord Cooke and Fundamental Rights,”
Auckland Conference, 4/5 April 1997, at NF: #78
66
Locke, John, Two Treatises of Government, (1680-1690) E1
Macaulay, Thomas, Critical and Historical Essays, Contributed
to Edinburgh
Review,
vol I (Leipzig, 1860):
E6
McLachlin, Beverley , CJ, Unwritten Constitutional Principles: What is Going On?
Lord Cooke Lecture, Wellington, New Zealand, 01 December 2005
66
Malcolm, Joyce Lee, Guns and Violence, The English Experience,
Harvard University Press,
Cambridge, Massachusetts, 2002 74
Otis, James, Against Writs of Assistance, February 1761 E8
Pitt, William, “the Younger” Speech in House of Commons,
November 18, 1783 E9
R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045;
B5
R. v. Demers, [2004] 2 S.C.R. 489
B6
R. v. Kerr, 2004 SCC 44
58
R. v. Morgentaler, [1988]
1 S.C.R. 30, 1988
32
Rawls,
John, a Theory of Justice, the Belknap Press, Cambridge,
Massachusetts, 1971, p.3
50
Reference re Firearms Act (Can) [2000] 1 S.C.R
2/3
Reference re Manitoba Language Rights, 1985 (S.C.C.), [1985] 1 S.C.R. 721 41
Reference re Remuneration
of Judges of the Provincial Court
(P.E.I.)[1997] 3 S.C.R.
29/B1/C1/C2
Reference: re Secession of Quebec, [1998] 2 S.C.R
B3
Reference: Resolution to Amend Constitution [1981] 1 S.C.R.; B4
Rex v. Gardner, Michaelmas Term, 12
Geo. 2, 1739
A1
Statute of Northampton of 1328
21
Sydney, Algernon, Discourses Concerning Government, ed. Thomas West,
Indianapolis,
Ind.: Liberty Classics, 1990
E2
The Torah, Henry Holt & Company, New York,
1996
D1
Wingfield vers. Stratford & Osman,
Hilary Term, 25 Geo.II, 1752
A2
Legislation
1. The Firearms Act, C.39. p.4, p.54
2. English Declaration of Rights, 1689
3. The Constitution Act, 1867 - preamble
4. The Constitution Act, 1982 - preamble
APPLICANT’S MEMORANDUM OF ARGUMENT
TABLE OF CONTENTS
page
PART I STATEMENT OF FACTS
1
Part II STATEMENT OF THE QUESTION
IN ISSUE
3
Part III
STATEMENT OF THE ARGUMENT
3
Introduction
3
A. Written Constitutional Principals: A Right Based
Positive Law 4
B.
Unwritten Constitutional Principles
7
1. The Rule of Law
7
2. God-given
or a Natural Law
9
The Supremacy of God
10
Natural Rights
versus Positive Law
11
Armed self-defense - a Natural Right
12
Government-sponsored genocide
13
Civilian Disarmament 13
Conclusion
14
Part IV SUBMISSIONS IN SUPPORT OF ORDER SOUGHT
RE: COST 14
Part V ORDER OR ORDERS SOUGHT
15
APPENDICES
Appendix A: English Common Law
15
Appendix B: Constitution “Similar
in Principle”
16
Appendix C: Unwritten Constitutional Principles 17
Appendix D: Self-defense: A Biblical Imperative
18
Appendix E: The Admonitions of the Philosophers
19
Part VI TABLE OF AUTHORITIES
21
Part VII LEGISLATION
24
