CUFOA

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

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Court of Appeal in Saskatchewan

Oral Presentation

10:45 a.m. – Noon, Thursday, 15 September 2011

Saskatoon, Saskatchewan

I. Introductions

My Lords, My Lady,

Mr. Spencer, Senior Crown Counsel for the Federal Department of Justice

My associates:
Mr. Jack Wilson from Saskatoon, and,
Dr. Joe Gingrich from Nipawin.

II. Preliminaries

Ask for permission to distribute Authorson.

Mr. Spencer has provided a partial copy of Authorson to this Honourable Court,
and
Mr. Spencer’s white coloured, plastic covered Book of Authorities, Provincial Court, Humboldt, Tab 23, contains a complete version of Authorson.
If it please the Court I have made available complete copies of Authorson.

III. Argument for Appeal

For the past ten years my associates and I have been engaged in a campaign of non-violent, peaceful civil disobedience against the licencing mandate of the Firearms Act.

In the course of our several demonstrations we have encountered the various police forces of the Provinces and the federal Governments.

I now refer to: Criminal Code s. 117.03

Please see:
Hudson Court of Appeal, Book of Authorities, Vol. II, {cream coloured book}
                                                                                                  Firearms Act, c. 39
                                                                               Criminal Code s. 117.03 p. 100

The Criminal Code of Canada section 117.03 states (in part):

a peace officer who finds

              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 …
              may seize the firearm … .

Under this presumed authority of Criminal Code section 117.03,
The Governments of two Provinces and the Government of Canada – through their agents the local police and the RCMP – have, on numerous occasions, seized and confiscated our personal property.
And on two occasions here in Saskatchewan the RCMP have used section 117.03 to obtain destruction orders for my personal property without benefit of charge, trial, or conviction.

My associates and I believe this Government action violates our Rights and Freedoms.

Therefore,
My associates and I are here today to request that this Honourable Court declare Criminal Code section 117.03 to be of “no force and effect”.

We base our request on three reasons.
We submit that:

1. s. 117.03 violates the Canadian Bill of Rights protection of Property,

2. s. 117.03 violates the Canadian Charter of Rights and Freedoms protections of our Legal Rights, sections 7 – 13,
and,
3. s. 117.03 violates our protection from Prosecutorial Impropriety.

1. Canadian Bill of Rights

Please see:
Hudson’s Court of Appeal, Book of Authorities Vol. 1, Tab 12
                                                                          {cream coloured book}

Canadian Bill of Rights

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination … the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law; … .

We submit that The Canadian Bill of Rights clearly recognizes the Right to property along with “life, liberty, and security of the person”.

I would now like to refer to:
Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40

Please see:
Mr. Spencer’s white coloured, plastic covered Book of Authorities to the Provincial Court, Humboldt, Tab 23
(or my handout)

As stated in Authorson by Mr. Justice Major for the Supreme Court of Canada at paragraph 10:

10 The Bill of Rights is a federal statute that renders inoperative federal legislation inconsistent with its protections. It protects rights that existed when the Bill of Rights was enacted, in 1960. If Parliament wishes to circumvent the protections of the Bill of Rights, it must do so explicitly by stating that the legislation in question operates notwithstanding the Bill of Rights.

And at paragraph 34:

34 With the constitutional amendment and the adoption of the Charter in 1982, many of the protections of the Bill of Rights gained constitutional status. The Bill of Rights, however, provides two protections not expressly available in the Charter.

Section 1(a) protects the enjoyment of property, the deprivation of which must occur through the due process of law. … .

We thus submit that our “enjoyment of property” is protected.

As is and our “right not to be deprived thereof except by due process of law”.

For a good working definition of “Due Process of Law” I would like to refer to:

R. v. Ontario (Provincial Court of York County) Re: Nevin; Re: DePoe

Please see:
Mr. Spencer’s green Factum for the Respondent, Court of Appeal
                                                                                                  List of Authorities, Tab 14

R. v. Ontario (Provincial Court of York County) Re: Nevin; Re: DePoe
Judgment: 16 October 1970

At paragraph 8
Addy J. of the Ontario Supreme Court:

Unlike the United States where the right to trial by jury has been enshrined in the constitution and has there indeed been made sacrosanct, trial by a Magistrate, or, in Ontario, trial by a Provincial Court Judge without a jury and without the consent of the accused is, in my view, every bit as much a part of our due process of law in the year 1970 as a trial by a Judge and a jury. A trial by a Magistrate or a Judge alone, without the consent of the accused, has been for some years before the turn of the century, in so far as the offences with which we are presently dealing, the law of the land as applied to all the rights and privileges of every person in Canada when subjected to or charged with those offences. Therefore, it must necessarily be part of the due process and there is no conflict between s. 467 of the Criminal Code and the Canadian Bill of Rights.

Please Note Well:
Justice Addy’s comment: “when subjected to or charged with those offences.”

And the Ontario Court of Appeal
Judgment 09 December 1970
Justice Jessup,
At paragraph 10:

It is true that s. 2 when read with s. 5(2) of the statue (Canadian Bill of Rights), and as construed in the Drybones case, empowers a court to strike down a particular law which denies due process or any other existing rights expressly recognized and preserved by the statue … .

And at paragraph 11:

A further consideration is that in s. 2(f) parliament has particularized the general term “due process” in the criminal law. It has provide for criminal hearings to be by a “tribunal”, a word apt to inclusively designated trial either by a judge and jury or by judge alone … .

We submit that “due process of law” requires - as a minimum a
“trial by a Magistrate, or, … a trial by a Provincial Court Judge”.

Therefore if the Government wants to confiscate our property, the Government must first charge us with an offence and provide us with a trial.

2. the Canadian Charter of Rights and Freedoms

We submit that Criminal Code section 117.03 violates our Legal Rights,
sections 7 through 13 of the Canadian Charter of Rights and Freedoms.

Please see:
Hudson’s Court of Appeal, Book of Authorities Vol. 1, Tab 13
                                                                                                  {cream colored book}

Charter of Rights and Freedoms

sections 7 - 13

Legal Rights

Life, liberty and security of person
7. 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.

These “Legal Rights” enumerated in sections 8 through 13, include protections against the Government in situations of Search or seizure, Detention or imprisonment, Arrest or detention, Proceedings in criminal and penal matters, Treatment or punishment, and Self-crimination.

We submit that all these “legal protections” of Charter sections 7 through 13 were violated in Carmel, Saskatchewan, on that October day in 2003.

I would now like to call your attention again to Friedrich A. Hayek in The Constitution of Liberty:

The chief means of coercion at the disposal of government is punishment. Under the rule of law, government can infringe a person’s protected sphere only as a punishment … .

We submit that under Criminal Code section 117.03 that we have been subjected to both Government coercion and Government punishment.

We now referring specifically to Charter section 7:

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.

And we further submit that the Government’s action violated “the principles of fundamental justice”.

Please see:
Hudson’s Court of Appeal, Book of Authorities, Vol. 1, Tab 18

Re B.C. Motor Vehicle Act, [1985] 2 SCR 486:
The judgment of Dickson C.J. and Beetz, Chouinard, Lamer and Le Dain JJ. was delivered by

Mr. Justice Lamer at paragraph 69.

69. It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law.

And in a subsequent section of Motor Vehicle Act that I inadvertently neglected to copy,
Madam Justice Wilson states at paragraph 122:

122. …
I would conclude … that if the citizen is to be guaranteed his right to life, liberty and security of the person--surely one of the most basic rights in a free and democratic society--then he certainly should not be deprived of it by means of a violation of a fundamental tenet of our justice system.

123. It has been argued very forcefully that s. 7 is concerned only with procedural injustice but I have difficulty with that proposition. There is absolutely nothing in the section to support such a limited construction. Indeed, it is hard to see why one's life and liberty should be protected against procedural injustice and not against substantive injustice in a Charter that opens with the declaration:

             Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

and sets out the guarantee in broad and general terms as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I cannot think that the guaranteed right in s. 7 which is to be subject only to limits which are reasonable and justifiable in a free and democratic society can be taken away by the violation of a principle considered fundamental to our justice system. Certainly the rule of law, acknowledged in the preamble as one of the foundations on which our society is built, is more than mere procedure. It will be for the courts to determine the principles which fall under the rubric "the principles of fundamental justice" … .

124. … the presumption of innocence protected in s. 11(d) of the Charter may be viewed as a substantive principle of fundamental justice but it clearly has both a substantive and a procedural aspect. … .

With all due respect, I submit that Justices Lamer and Wilson were endorsing the essentials of what Daniel Webster said in 1819 in defending the Trustees of Dartmouth College:

By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land.

We submit that section 117.03 makes a mockery of our Charter Rights and Freedoms.

3. Prosecutorial Impropriety

We also submit that Criminal Code section 117.03 violates our protection from Prosecutorial Impropriety.

I would like to take a moment to address the issue of the Government’s use - or misuse - of “discretion”.

Mr. Spencer has called your attention to R. v. Beare, a 1987 case in which this Honourable Court discussed discretion and police actions that are “open to random and arbitrary action”.

In the Honourable Court below in dismissing my argument the Honourable Justice Mills quoted R. v. Beare, at paragraphs 51 and 52 to defend the use of discretion by the police and RCMP.

Please see:
Mr. Spencer’s green Factum for the Respondent, Court of Appeal
                                                                                                  List of Authorities, Tab 10

I would like to call your attention also to paragraph 53 where Mr. Justice La Forest states:

53. This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice; … The Court did add that if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under section 24 of the Charter would lie, but no allegation of this kind has been made in the present case.

We have made – and DO make - that kind of allegation.

That is one of our primary complaints in this case:
That the Government has used discretion for an improper or an arbitrary motive.

Mr. Spencer offers Zhang v. Canada, 2007, the Federal Court of Appeal, as support for the unlimited use of prosecutorial discretion, and submits that the standard of review is “flagrant impropriety”.

While we may not be able today to provide paper documentation of Government “flagrant impropriety”, I think that the “evidence” is plain for all to see.

Please note the number of face-to-face encounters that we have had with the Saskatoon and Ottawa City Police, and the RCMP in Ottawa and Saskatchewan: - Eight .
The number of arrests: - Three,
The number of our firearms seized and confiscated: – Ten.

All these encounters occurred during a ten-month period from January to October in 2003.

Yet the police and RCMP have not laid a single criminal charge for the offence that we had announced publically that we were committing.

If we need to produce evidence of Government collusion, I think we could find that in the Government’s action in Ottawa on New Years Day 2003, when the RCMP charge our former president and myself with “taking a weapon to a public meeting” for our possession of the inactive, non-functional receiver section of a Canadian made, British .303 rifle.

And here in Saskatoon the City Police still hold the inactive, non-functional receiver section of a firearm that I sold to Dr. Gingrich in front of the Police headquarters.

And the RCMP detachments in Biggar and Wilkie still hold two shotguns that are the property of Mr. Wilson.

I would like to mention the significant changes made to the Criminal Code subsequent to the implementation of the Firearms Act that presume to authorize these seizures and confiscations.

Please see:
Hudson, Provincial Court Humboldt, Book of Authorities, Tab 3
                                                                                                  page 10

In the 2000 Reference re Firearms Act, at paragraph 20, the Supreme Court of Canada stated:

20 The statements of the Honourable Allan Rock, Minister of Justice at the time, … in the House of Commons, reveal that the federal government’s purpose in proposing the law was to promote public safety. (Minister Rock) stated:

The government suggests that the object of the regulation of firearms should be the preservation of the safe, civilized and peaceful nature of Canada.

And in that Reference the Supreme Court at paragraph 54 also declared:
(Page 20),

54. gun control is directed at a moral evil.

Either the mere possession of our firearms is a totally illegal activity that threatens “the safe, civilized and peaceful nature of Canada” - and is deserving of punishment under the criminal law of Canada as the Supreme Court has declared, or our continued unlicensed possession of our many firearms is totally innocuous.

Either the mere possession of our firearms is a “moral evil” that Parliament properly wants to suppress or it is not.

We submit that the Attorneys General of Saskatchewan and Canada cannot have it both ways:

We respectfully submit that the police and RCMP have both a legal obligation to enforce this “law of the land” and arrest us for our defiance to submit to it, and they have a moral obligation to eliminate a “moral evil”.

The offence that properly applies to all our demonstration activity is Criminal Code section 92(1).

Please see:
Hudson Court of Appeal, Book of Authorities Vol. II, {cream coloured book}
                                                                                                  Firearms Act, c. 39
                                                                                    Criminal Code s. 92(1) p. 78

Criminal Code section 92(1):

92. (1) … every person commits an offence who possesses a firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and … .

In everything my associates and I have done in all of our demonstration against the licencing mandate of the Firearms Act, we have been extremely clear that we possessed our firearms “knowing” that we were not the holder of a licence.

To emphasize that point as clearly and graphically as we could, we all burned our firearms licences on Parliament Hill on New Years’ Day 2003.

Then in July 2003, we personally hand-delivered signed affidavits to the office of each Attorneys General in the ten provinces across Canada.

I now refer to the affidavits that Dr. Gingrich, Mr. Wilson, and I submitted to this Honourable Court.
Please see our Affidavits:
Hudson’s Court of Appeal, Book of Authorities, Vol. 1, Tabs 23 / 24 / 25
                                                                                                  {cream colored book}

As our affidavits make clear, we have proclaimed for all to hear:

“We did not, have not, and do NOT have a licence to possess our firearms!”

This is an indictable offence with imprisonment for a term not exceeding ten years.

In dealing with a possible accusation of bias in prosecution - or more specifically bias in failure to prosecute - Mr. Spencer referred to Kostuch v. Attorney General of Alberta, a 1995 Alberta Court of Appeal case (Tab 9),
I would like to call your attention to a paragraph not copied in Mr. Spencer’s copy:

The prosecution policy established by the Attorney General of Alberta contains a twofold test: (1) the evidence must be such that there is a reasonable likelihood of conviction when the evidence as a whole is considered; (2) whether the public interest requires prosecution.

We submit that the prosecution of Dr. Gingrich, Mr. Wilson, and myself here in Saskatchewan would easily pass that twofold test.

We submit that the Government has no valid, acceptable reason not to prosecute us.

As I noted in my written submission, John Rawls considers peaceful, nonviolent civil disobedience a valuable means of public discourse noting that:

• Civil disobedience is a public act. Not only is it addressed to public principles, it is done in public. It is engaged in openly with fair notice; it is not covert or secretive. One may compare it to public speech, and being a form of address, an expression of profound and conscientious political conviction, it takes place in the public forum.

I again call to your attention that Professor Rawls considers peaceful civil disobedience a “part of the theory of a free government”, stating that:

• Civil disobedience is a crucial test for any theory of the moral basis of democracy.

We are seeking to test “the moral basis” of what we consider an unjust law.

We submit that the Government is exercising discretion “for improper or arbitrary motives”.

Therefore we respectfully submit that the Courts have an obligation to act to hold the Government accountable for their just, fair, application of the “laws of the Land”.

We would like to remind this Honourable Court that declaring section 117.03 void would not make Canadians any less safe.

Ninety-nine point nine percent of the Firearms Act would still be in effect.
My associates and I would still be subject to arrest for possession of our firearms without a licence and subject to having our firearms seized.

Before concluding I would like to emphasize a quotation from my written submission. In his text, The Rule of Law, Baron Thomas Bingham, former Lord Chief Justice of England and Wales states:

The right to a fair criminal trial has been described as ‘the birthright of every British citizen’ … the right to a fair trial has been described as ‘fundamental and absolute’.

I would also like to present a quotation from the Edmonton Journal, Lorne Gunter, 14 February 1996, entitled: “Citizens, not politicians, the true defenders of civil order”:

When the laws start to represent the elite's goals for us, … when lawmakers trample centuries-old liberties without offering an overwhelming social good in return … then respect for the law dies and the rule of law along with it.

C. In Conclusion

We have present three reasons to support our request to this Honourable Court,
that is:

1. s. 117.03 violates the Canadian Bill of Rights protection of Property,

2. s. 117.03 violates the Canadian Charter of Rights and Freedoms protections of our Legal Rights, sections 7 – 13,
and,
3. s. 117.03 violates our protection from Prosecutorial Impropriety.

We submit that only one of the three reasons stated above is sufficient reason for this Honourable Court to strike down section 117.03.

Therefore,
We respectfully ask that this Honourable Court:

(1) to declare s. 117.03 ultra vires parliament and of no force and effect.
And,

(2) to order the Humboldt detachment of the RCMP to return my shotgun.

I close with a quotation of Martin Luther King, Jr.:

Sometimes a law is just on its face and unjust in its application … such an ordinance becomes unjust when it is used … to deny citizens the … privilege of peaceful … protest.

Dr. King further states:

that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
- “Letter from a Birmingham Jail” 16 April 1963

Our purpose is to “arouse the conscience” of our community.

We respectfully ask this Honourable Court to give us that opportunity.

Edward Burke Hudson, DVM, MS
15 September 2011

List of Documents & Items Needed for Court

1. Mr. Spencer’s C of A green Factum for the Respondent, List of Authorities,
                                                                          Re: Nevin; Re: DePoe Tab 14
                                                                                                  Beare Tab 10

2. Mr. Spencer’s Book of Authorities to the Provincial Court, Humboldt
                                                                                            Authorson Tab 23

3. Hudson Court of Appeal, Book of Authorities Vol. I, {cream coloured book}
                                                                                                  Canadian Bill of Rights Tab 12
                                                                                                  Charter of Rights and Freedoms Tab 13
                                                                                                  Affidavit of Dr. Joe Gingrich, Tab 23
                                                                                                  Affidavit of Edward Hudson, Tab 24
                                                                                                  Affidavit of Jack Wilson, Tab 25

4. Hudson Court of Appeal, Book of Authorities Vol. II, {cream coloured book}
                                                                                                  Firearms Act, c. 39
                                                                                                  Criminal Code s. 117.03 p. 100
                                                                                                  Criminal Code s. 92(1) p. 78

5. Hudson, Provincial Court, Humboldt, Book of Authorities
                                                       {white coloured book}
                                                                                                  Reference re Firearms Act Tab 3

6. Hudson, Court of Queen’s Bench Book of Authorities
                                                                                Forfeiture of Offence-related Property Tab 1

7. Handout of Authorson (x 5 copies)

8. Kostuch v. Alberta, 1995 Alberta Court of Appeal

*** END DOCUMENT ***