CUFOA

Canadian Unlicensed Firearms Owners Association
Association canadienne des propriétaires d’armes sans permis

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QUEEN'S BENCH FOR SASKATCHEWAN

Citation: 2010 SKQB 18

Date: 2011 01 12
Docket: Q.B.G. No. 1150 of 2010
Judicial Centre: Saskatoon

BETWEEN:

EDWARD B. HUDSON

APPLICANT

- and -

THE ATTORNEY GENERAL OF CANADA

RESPONDENT

Counsel:
Scott R. Spencer 975-5100 for the Department of Justice Canada
Edward Hudson on his own behalf

JUDGEMENT MILLS J.
January 12, 2011

[1] This application is part of an onging crusade by the applicant, Edward B. Hudson, to grant him the right to own a firearm without the necessity of a firearm licence under the Firearms Act, S.C. 1995, c. 39.

[2] For a full understanding of the history of the dispute a review of Gabrielson J.'s decision in Hudson v. AG of Canada, 2007 SKQB 455, the affirmation by the Court of Appeal in Hudson v. AG of Canada, 2009 SKCA 108, leave to appeal to the Supreme Court of Canada denied, is useful. That case describes in the context of the facts and argument presented that the applicant does not have a constitutional right to have an unlicensed firearm for self-defence by virtue of article 7 of the Bill of Rights, 1689, that possession of an unlicensed firearm for self-defence is not a natural right of fundamental norm that cannot be limited by the Firearms Act, and that s. 117.03 of the Criminal Code is intra vires the Parliament of Canada.

[3] In the previous case the applicant did not argue that Parliament has no authority to restrict the irresponsible use of firearms or to place reasonable restrictions on the acquisition or possession of certain types of firearms but that the licensing scheme under the Firearms Act is overly broad, and the violation of the Bill of Rights, 1689. The previous application was decided against Mr. Hudson. The issues raised by him in that application have been definitively decided.

[4] The factual situation arising in the previous decisions is identical to the situation which occurred here. In 2003 the applicant notified in advance the RCMP of his intention to be at Craik, Saskatchewan and Carmel, Saskatchewan in possession of an unlicensed firearm. As a consequence of that information the RCMP attended both places and on each occasion seized from the applicant a firearm pursuant to s. 117.03 of the Criminal Code. That section reads as follows:

117.03 (1) Notwithstanding section 117.02, a peace officer who finds

(a) a person in possession of a firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and a registration certificate for the firearm, or
(b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it,

may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.

(2) Where a person from who any thing is seized pursuant to subsection (1) claims the thing within fourteen days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,

(a) an authorization or a licence under which the person is lawfully entitled to possess it, and
(b) in the case of a firearm, a registration certificate for the firearm,

the thing shall forthwith be returned to that person.

(3) Where any thing seized pursuant to subsection (1) is not claimed and returned as and when provided by subsection (2), a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney General directs.

Section 107.03(3) calls for a forfeiture hearing. Such a hearing was conducted before the Provincial Court in respect of one firearm which was seized in the vicinity of Craik, Saskatchewan. That matter proceeded through the court system as described earlier.

[5] A hearing under s.117.03 in respect of the second firearm seized at Carmel, Saskatchewan was adjourned from time to time to allow the first case to proceed through to its conclusion.

[6] Following the denial of leave to appeal to the Supreme Court of Canada, the Carmel matter was brought before the Provincial Court for a hearing under s. 117.03(3) which hearing resulted in an order that the firearm be forfeited.

[7] The applicant brings this motion as a consequence thereof but has identified different legal issues that he submits were not determined by the courts in the previous application.

[8] Insofar as the applicant is restricting his relief to that contained in the notice of motion, the respondent, The Attorney General of Canada, concedes that this issue was not argued nor addressed by the court previously and as such is not res judicata.

[9] To appreciate the relief sought and the argument made, the applicant's motion pursuant to Part Fifty-two of The Queen's Bench Rules is as follows:

1. Relief Sought:
a) For an Order pursuant to Rule 664 declaring that Respondent Attorney General of Canada is without jurisdiction:

i) to request a destruction order of my firearm without a conviction by a trial by jury;

b) For an Order pursuant to Rule 664 declaring the Provincial Court of Saskatchewan in Humboldt, Saskatchewan, is without jurisdiction to make any findings of fact that would amount to a status decision concerning the applicant's firearm without a conviction by a trial by jury;

(c) For an Order pursuant to Rule 664 declaring that the Humboldt RCMP:

i) are without any authority to seize, confiscate, and hold applicant's firearm without laying charges under Criminal Code s.92(1); and shall either
ii) proceed to a trial by jury under Criminal Code s.92(1), or,
iii) return said firearm to applicant.

[10] The applicant seeks a declaration that s. 117.03 is ultra vires Parliament on the ground that it is inconsistent with the parameters of the Constitution Act, 1867. He goes on to seek further declaration that the s. 117.03 violates ss. 2, 7, 8, 9, 10, 11, 13, 15 and 26 of the Canadian Charter of Rights and Freedoms. It is clear that the previous court decision has ruled against the applicant on a substantive basis in all respects excepting the claim that he is entitled to a trial by jury before the forfeiture of his firearm.

[11] In short, the applicant's position, and that is the only position that appears to be left to him given the previous court ruling against him, is that the Crown must lay a charge under s. 92(1) of the Act which would then allow him to elect a trial by jury and such trial would have to be concluded before a destruction order could be made under s. 117.03.

[12] His application must fail. He predicates his legal argument on the theory that he is entitled to a trial by jury. He has not been able to point to any authority which gives him the specific right to a trial by jury. The applicant refers to and argues that such a right is founded in the Magna Carta, the Common Law, the Petition of Rights, 1628, the English Declaration of Rights, 1689, the British North America Act, 1867, and the Canadian Bill of Rights, 1960, the Canadian Charter of Rights and Freedoms, 1982, the Rule of Law, separation of powers and the Supremacy of God or natural law. Despite my request to have the applicant identify the specific provisions in any of those references that entitle him to a trial by jury he was unable to do so. Instead the applicant referred to the notion that the state could not confiscate his property without due process of law. He equated the notion of due process of law to trial by jury of his peers. He was unable to give any legal foundation for such a concept. The answer to his approach is found in R. v. Ontario (1970), 2 C.C.C. (2s) 469 (Ont. C.A.) as follows:

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

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

[13] The comments above although focused on the Bill of Rights apply equally to the other enactments that he relies upon excepting s. 11(f) of the Charter which does not apply in this case. He is not entitled to a trial by jury and therefore s. 117.03 is not set aside on the basis that it provides for forfeiture of an unlicenced firearm by way of due process of law which is a hearing before a Provincial Court judge. The constitutionality of that provision has been upheld by the court in his previous case.

[14] The applicant then argues that the court has the power to direct that he be charged under s. 92(1) of the Criminal Code and then pursuant to s. 11(f) of the Charter he would be entitled to a trial by jury. The Crown steadfastly refuses to charge him under s. 92(1) despite his efforts to the contrary. Instead they simply proceed under s. 117.03 for forfeiture of the firearm.

[15] The court does not have the authority to order the Crown to charge the applicant under s. 92(1). The court does not direct the prosecution. It sits as a decision-maker once the prosecution has been laid. This a fundamental principle of our judicial system that the Crown has discretion to decide who will be charged with an offence and what the nature of the offence to be charged will be. The court will then determine whether on the facts presented to it if the case has been made by the Crown. As stated by La Forest J. in R. v. Beare, [1987] 2 S.C.R. 387, at paras. 51 and 52:

51. ... Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

52. The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion.

[16] This court is not in a position to grant the application his second basis for relief, that is that he be charged with a criminal offence which would allow him to elect to be tried on that offence by jury and thus have a hearing of his peers. He equates that whole process with the requirement of due process of law for forfeiture of his firearm. That is simply misguided. The applicant's belief that he has the right to possess an unlicensed firearm, the right to have a jury trial before the firearm can be forfeited or the right to be charged with a criminal offence of his choosing all do not exist. These are not rights that accrue to him or any other member of the public. His applications are therefore dismissed.

[17] The Crown seeks costs. Although the applicant's motion was novel it was without legal foundation and was only attempted as part of the applicant's crusade to change the Firearms Act. That crusade was mortally wounded in his first application and his lifesaving technique in this application was of little value. As a result costs which are fixed at $1,000 payable to the Crown in 30 days of this decision.

________Signed________J.
R.C. MILLS