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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Scott Spencer (Department of Justice, Canada)           For the Crown

Rochelle Wempe (Department of Justice, Canada)

Dr. Edward Hudson                                               For Himself

DECISION                                                        ORR, P.C.J.
December 6, 2005

[1]     On October 10, 2003, at Davidson District, Saskatchewan, a firearm was seized from Dr. Edward Hudson by Corporal Warren of the R.C. M. P.  Purportedly, the seizure of the firearm was pursuant to section 117.03 of the Criminal Code. That section is appended as Appendix “A.” Briefly, it states that notwithstanding section 117.02, where a peace officer finds a person in possession of a firearm who fails on demand to produce an authorization or license for possession of the firearm and a registration certificate for it; or where a peace officer finds a person in possession of a prohibited or restricted weapon, prohibited device or prohibited ammunition who fails on demand to produce an authorization or license for possession of it; the peace officer may seize the contentious object, unless its possession is authorized under Part III of the Code, or unless it is possessed under direct and
immediate supervision of another person who may lawfully possess it. Section 117.03 also provides a mechanism for a hearing before a Provincial judge, whereby the judge must afford the person from whom the contentious object was seized, or its owner, an opportunity to establish lawful possession, and by which the judge, if the facts so justify, may order the contentious object forfeited to the Crown.

[2]     The Crown has precipitated a hearing under this section.

[3]      Dr. Hudson has filed argument with the federal and provincial Crown, whereby pursuant to the Charter, and also pursuant to other arguments, he challenges the legality and constitutionality of section 117.03. Written arguments have been filed by both sides. Extensive oral arguments have been made. Dr. Hudson has filed extensive supporting material.

[4]     It must be said that the amount of supporting material filed by Dr. Hudson is impressive in scope, and so is his argument. A brief that ranges from the Jewish Talmud to seventeenth-century English constitutional history to the closing arguments of the future U.S. President, John Adams, in his defence of the British soldiers charged
with murder in the Boston Massacre of 1770-and well beyond- deserves the adjective “erudite,” and bears witness to the passion with which Dr. Hudson embraces his cause. His work, and the fine work of the Crown
lawyers, demands the courtesy of a written judgment.

[5]     I make the ruling that Dr. Hudson has standing to challenge the legality of section 117.03. I am far from sure that the Crown is accurate in arguing that “because the Applicant was not charged with an offence under the Firearms Act or the Criminal Code (sic), that his rights are not directly affected by the provisions.” If I should be
wrong in this, then I grant to Dr. Hudson public interest standing to challenge the section. The genuineness of his interest in the statute-in every sense of the word-is obvious, and I do not immediately perceive how else the matter could be brought before the court.

[6]     Dr. Hudson challenges section 117.03 on several grounds. First, he argues that the section violates the right to due process, as guaranteed by section 1 of the Bill of Rights and section 11 of the Charter, on the grounds that “Without pretense (sic) of either charge or trial, the RCMP have presumed me guilty and punished me for nine
months.” 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 t he seizure of the firearm, or by the hearing for forfeiture which we have commenced. It is trite that the police have the right, if authorized by statute of 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.

[7]     Dr. Hudson’s second argument is that section 117.03 interferes with a constitutionally mandated “ right of self-protection.” He points out that section 5 of the Bill of Rights and section 26 of the Charter import the existence of rights not specifically enumerated in the Bill of the Charter. He also suggests that the alleged interference with the right of self-protection violates section 7 of the Charter, which of course, guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with fundamental justice.

[8]     Dr. Hudson argues that the English Declaration of Rights of 1689 guarantees the right for citizens to have "armes for their defence,” and that this right still inheres in every adult Canadian, such that section 117.03 is unconstitutional. To decide this issue, it is necessary to look at the Declaration of Rights and, for reasons which
will become apparent, to place it in its historical context.

[9]     The Declaration of Rights was the result of historical events: King James II had recently come to the throne. He was a Roman Catholic in a country with a large Protestant majority. The King set about to remove sanctions against Roman Catholics, who had long suffered under legal disadvantages. He also built up a substantial army, apparently with the intention of over-awing opposition. The actions caused consternation among prominent English Protestants. And invitation was sent to the Dutch Protestant William, Prince of Orange to come to
England to rule as a Protestant King. Prince William and his wife Mary duly landed in England. The royal army melted away, joining Prince William, and King James fled, he and his heirs vanishing form British history except for a couple of unsuccessful rebellions and a number of romantic Highland ballads. Although William and Mary entered England in triumph, their assumption of the throne did not instantly occur. Parliament drew up the Declaration of Rights, elaborately enumerating what it conceived to be the rights of Englishmen. In February of 1689, the Declaration was read by Parliament to William and Mary. They “accepted” it, and became co-monarchs.

[10]    The elected legislature had effectively offered the throne conditional upon the would-be monarch’s accepting the fundamental freedoms of the subjects. For this reason, the Declaration is regarded as a fundamental milestone in English constitutional history, and so as well in nations tracing their constitutional development to England. I do not think a British legal scholar would challenge the idea that the Declaration is alive as part of British law.

  [11]  The Declaration is prefaced by the remark that King James had attempted to “Subvert and extirpate the Protestant Religion,” and stated that one of the ways in which he had done this was “By causing several good Subjects being Protestant to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” The declared rights are then enumerated. Dr. Hudson argues that one of them is imported into modern Canadian law, such that section 117.03 offends the Charter-presumably section 7. The specific right reads in this way:

“That the Subjects which are Protestant may have Armes for their defence                 
Suitable to their Condition and as allowed by law.”

[12]    As I suggested earlier in this hearing, the transparent intention of this declared right was to ensure that Roman Catholics would be placed back in the position of legal inferiority in which they had hitherto been. To what extent is it possible to give effect in modern Canadian law to a right which would discriminate against Roman
Catholics? In my opinion, none. The archaic language of the phrase “suitable to their condition” also suggests an equally unpalatable outcome-namely that the “right” to arms should be restricted to “gentlemen,” presumably males of breeding and property.

[13]    The key words in the declared right, though, are “are as allowed by law.” What does this mean? The whole point of the Declaration of Rights was arguably that it signified that thenceforth only the 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 passing of valid laws regulating it, and, second, by implication, that it was Parliament which could pass those restricting laws. For “Parliament,” we must read “the Parliament of any nation deriving its constitutional authority
historically from Britain.” Mr. Spencer points out that from the first enactment of the Criminal Code, the Parliament of Canada has enacted restrictions on firearms. So it has. Before or after the introduction of the Charter, the Declaration of Rights did not affect Parliament’s right to do this.

[14]    Dr. Hudson’s other points under this heading can be more summarily dealt with. It is undoubtedly true that Canadians have a long history of the use of firearms, and that firearms have often been used in righteous causes, such as opposing invasions and fighting foreign foes. This does not change the authority of Parliament to pass laws restricting access to firearms, or insisting upon licence provisions. Dr. Hudson’s resort to Judaic and Christian precepts, or the statements of philosophers, are interesting, but again these arguments cannot restrict Parliament’s lawful authority to legislate in this area.

[15]    Dr. Hudson argues as well that citizens require access to firearms to protect themselves against tyranny. He says, “…citizens have more to fear from their own government than from criminals.” Mr. Spencer reacted to this idea with incredulity, but it has a long and respectable pedigree, from Thomas Jefferson to Friedrich Von Hayek. It
is undoubtedly true, as Dr. Hudson said, that if the Jews of Europe under Hitler or the Soviet peoples under Stalin had had the means of self-defence, (ideally firearms) terrible crimes might have been averted or limited in scope.

[16]    The facile answer to this is that in advocating freer access to firearms, Dr. Hudson is making a philosophical and political argument which has its place in the public discourse and Parliament, but not in court. Judges, however, should not be facile. It is probably true that if Parliament were to purport to take way from Canadians the right to self-defence, that would be an infringement of section 7 of the Charter, because that would impinge unacceptably on the right of Canadians to security of person. However, as Mr. Spencer pointed out, it is simply unreasonable to argue that the provisions of section 117.03 take away the right to self-defence. It is possible that in some hypothetical future Canada where a tyranny has arisen, or, alternatively, where anarchy and lawlessness have broken out, even the relatively mild restrictions of section 117.03 would so hinder Canadians in their right of self-defence that the section might be rules by courts (if there still were any) to be an infringement of section 7. I can only comment that such social conditions do not presently exist, nor do they seem likely to exist in the foreseeable future. The courts must deal with reality as it is, not as it might be in some awful and hopefully never-to-be future. No finding is possible that the Charter is offended by section 117.03 because it hinders the right to possess arms for self-defence.

[17]    Dr. Hudson’s third argument was that in enacting section 117.03, Parliament has unlawfully extended its legislative authority. I believe that I have already dealt with this argument.

[18]    Section 117.03 of the Criminal Code is validly in force.

Dated this 5th day of December,
2005, at Moose Jaw in the
Province of Saskatchewan

David Orr
Judge of the Provincial Court of Saskatchewan