Firearms Owners Association
My Last Day in Court
Jack Wilson and I were in Provincial Court in Biggar, Saskatchewan, on Wednesday, 18 September 2013, presenting our argument to Judge O'Hanlon that the 1995 Firearms Act that Mr. Harper and his so-called Conservative Government now endorse is "ultra vires" (beyond the powers of) Parliament.(1)
This case arises from 13 September 2003 (yes, TEN years ago) when the RCMP interrupted our duck hunt, issued Jack an Appearance Notice for unlicenced possession of a firearm, and confiscated his shotgun.(2)
Ten years ago when Jack went to Court in Biggar to answer his criminal Appearance Notice, the Crown dropped the charges, yet kept his shotgun. After ten years a new detachment leader apparently wanted to clear out his evidence storage locker and had the Saskatchewan Crown Prosecutor call Jack into Court under Criminal Code section 117.03 for a forfeiture hearing.
The Firearms Act provides for an "either/or" scenario.
With a Criminal Code 92 charge we would have all the legal protections of the Canadian Charter of Rights and Freedoms - primarily the presumption of innocence, and more importantly, the right to a trial by a jury.
When the RCMP use section 117.03 to confiscate our property, we have none of our basic Charter guaranteed human Rights. The onus shifts upon us; we must establish that we have a licence to possess our firearm. And since for the past ten years we have been telling the entire country that we refuse to submit to the firearms licencing scheme, we are burned toast in a mere forfeiture "proceeding". The Crown claims this is all that "proper procedure" requires.
Our argument is that the Firearms Act violates the "Rule of Law". This either/or provision is the manifestation of arbitrary.
At the beginning of the proceeding, without hearing a word from me, Justice O'Hanlon informed us that he agreed with a ruling of Justice Calwell of the Saskatchewan Court of Appeal "that s. 117.03 of the Criminal Code is intra vires Parliament."(3)
I objected that I had not presented this argument before Justice Calwell. I explained I would be presenting an entirely new argument using the Charter's declaration that the "Rule of Law" is one of the foundational principles of Canadian law and that the Rule of law prohibits arbitrary laws. Judge O'Hanlon allowed me to present my argument.
I highlighted the pertinent points of my written submission, emphasizing that this either/or scenario is by definition "arbitrary".
"When we speak of the ‘the rule of law’, ...
Professor A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 1885.
"The rule of law requires that the executive in its coercive action be bound by the rules which prescribe not only when and where it may be use coercion but also in what manner it can do so."
"If bills of rights are to remain in any way meaningful, it must be recognized early that their intention was certainly to protect the individual against all vital infringements of his liberty and that therefore they must be presumed to contain a general clause protecting against the government’s interference those immunities which individuals in fact have enjoyed in the past."
"The right to a fair trial is cardinal requirement of the rule of law. It is a right to be enjoyed, obviously and pre-eminently, in a criminal trial, but the rather ponderous language of this principle is choose to make clear that the right extends beyond criminal trial. It applies to civil trials, whoever is involved, … ."
"When the laws themselves may be as arbitrary as you like ... then the “protection” that the individual get at the hands of the law has turned into arbitrary tyranny of the very type that we might have hoped government would function to prevent."
"The wrong laws can kill us, and certainly impoverish us, at least effectively as no laws at all." (pp.138-139)
In the end none of this was to avail.
Judge O'Hanlon, pleasant, patient man that he appears to be, rejected my argument and stood by this original position.
The police can arrest Bruce and Donna Montague, confiscate their property, convict them, and send Bruce to prison for doing exactly what Jack and I have been doing 'Scot free' for ten years.(4)
The police can do whatever they like and call it "discretion".
And the Courts of Saskatchewan will not recognize this perversion of law as arbitrary.
Please Note Well:
The Conservative Party Policy pledges to respect " the rights of law-abiding Canadians to own and use firearms responsibly."(6)
Mr. Harper could have - should have - repealed this monstrosity of a law this past April.
I hold Mr. Harper accountable for the forfeiture and destruction of this firearm.
2. Appendix B - Notice to Biggar RCMP
3. Court of Appeal for Saskatchewan 2011
5. Mr. Harper's Promise to Firearms Owners
6. The Conservative Party of Canada Policy Declaration
PS: Professor Narveson is a Canadian philosopher;
Canadian Unlicensed Firearms Owners Association