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Armes for Their Defense;
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The Court of Appeal for Saskatchewan

Citation: 2011 SKCA 112
Date: 05102011

Docket: CACV2117


Edward Burke Hudson



The Attorney General of Canada



Richards, Smith and Caldwell JJ.A.


Edward Burke Hudson appearing on his own behalf
Scott Spencer and Don Klassen for the Respondent


From: 2011 SKQB 18
Heard: September 15, 2011
Disposition: Dismissed
Written Reasons: October 5, 2011
By: The Honourable Mr. Justice Caldwell
In Concurrence:

The Honourable Mr. Justice Richards
The Honourable Madam Justice Smith

Caldwell J.A.

[1] Dr. Edward Hudson appealed from the judgement of Mills J. (2011 SKQB 18) dismissing his application to have s. 117.03(3) of the Criminal Code, R.S.C. 1985, c. C-46, declared ultra vires Parliament and for an order requiring the Crown to charge Dr. Hudson with an offence pursuant to s. 92(1) of the Criminal Code. The history of this matter is set forth in 2011 SKQB 18.

[2] The issues in this appeal are twofold: (i) whether Dr. Hudson is entitled to a trial by jury before forfeiture of a seized firearm under s. 117.03(3) of the Criminal Code; and (ii) whether the Crown's decision not to charge Dr. Hudson with an offence under s. 92(1) of the Criminal Code is an abuse of prosecutorial discretion that invites court intervention.

[3] As to the first issue, Dr. Hudson did not provide any legal authority, whether constitutional or otherwise, before Mills J. or before this Court to show that he has a right to a trial by jury in the circumstances of the seizure and forfeiture of a firearm under s. 117.03(3) of the Criminal Code. Regardless, Mills J. did not err in finding that none of Canada's constitutional documents, the Canadian Bill of Rights or the requirement of due process of law mandate trial by jury in these circumstances.

[4] Dr. Hudson's second submission before Mills J. was that the court has the authority to direct the crown to charge Dr. Hudson under s.92(1) of the Criminal Code so that he might elect to be tried by a jury. Mills J. correctly recognized that he had no authority in these circumstances to order the Crown to charge Dr. Hudson under that section. The court's authority to interfere with prosecutorial discretion is restricted to instances of abuse of processes. As the evidence before Mills J. did not establish an abuse of process in these circumstances, Mill J. committed no error in dismissing the second basis for Dr. Hudson's application.

[5] As I find no reviewable error in the reasons of Mills J., I would dismiss the appeal. The Crown sought an order for its costs in this appeal. Given the history of this matter (see: 2007 SKQB 455; 2009 SKCA 108; and, 2011 SKQB 18), which includes a previous ruling of this Court that s. 117.03 of the Criminal Code is intra vires Parliament, I would order that Dr. Hudson pay the Crown's costs in this appeal, which I would fix at $1,500.

DATED at the City of Regina, in the Province of Saskatchewan, this 5th day of October, A.D. 2011.

Caldwell J.A.

I concur. [signed]
Richards J.A.

I concur. [signed]
Smith J.A.