CUFOA

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

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Appeal No. CACR 1963

IN THE COURT OF APPEAL

FOR THE PROVINCE OF SASKATCHEWAN

BETWEEN:

EDWARD BURKE HUDSON

APPELANT

-and-

THE ATTORNEY GENERAL OF CANADA

RESPONDENT

FACTUM OF THE RESPONDENT

Department of Justice (Canada)
Prairie Region, Saskatoon Office
10th Floor, 123 - 2nd Avenue South
SASKATOON, Saskatchewan
S7K 7E6

I. Introduction

1. The Appellant (Hudson) appeals from the decision of the Honourable Mr. Justice Mills of the Court of Queen's Bench, who dismissed the Appellant's application to declare section 117.03 of the Criminal Code ultra vires. (Hudson v. Canada (Attorney General), 2011 SKQB 18)
2. As noted by Justice Mills in the first paragraph of his decision, the application by Hudson was "part of an ongoing crusade... 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." Hudson has been protesting the licensing and registration requirements of the Firearms Act and related provisions, both in the courts and otherwise, for over a decade.
3. The Supreme Court of Canada has unequivocally stated that there is no right to bear arms in Canada. This principle has been followed by the Saskatchewan Provincial Court (twice), the Saskatchewan Court of Queen's Bench, and this Honourable Court in previous court proceedings initiated by Hudson.
4. Hudson now wishes to take his cause before a jury of his peers, and argues his firearm cannot be forfeited to the Crown unless he is charged with a criminal offence. His argument must fail. There is no right to a trial by jury in Canada except in criminal cases where the maximum punishment is imprisonment for five years or more. There certainly is no such right in relation to matters of personal property. Moreover, there is simply no right to be charged with an offence.

II. JURISDICTION AND STANDARD OF REVIEW

5. This Honourable Court has jurisdiction to hear this appeal pursuant to paragraph 7(2)(a) of the Court of Appeal Act, 2000, S.S. 2000, c. C-42.1:

   7(2) Subject to subsection (3) and section 8, an appeal lies to the court from a decision:

   (a) of the Court of Queen's Bench or a judge of that court;

6. This is an appeal on a question of law only. The standard of review on a pure question of law is correctness. (Housen v. Nikolaisen, [2002], 2 S.C.R. 234, para. 8)

III. STATEMENT OF FACTS

7. Hudson orchestrated a seizure of two firearms, one near Davidson, Saskatchewan (the "Davidson firearm"), and one near Carmel, Saskatchewan (the "Carmel firearm"), in an effort to ground a constitutional challenge.
8. The Davidson firearm was taken before Orr PCJ sitting in Craik, Saskatchewan. Hudson's challenge in relation to that matter was unsuccessful and his firearm was forfeited. (R. v. Hudson, 2005 CarswellSask. 964)
9. He attempted to appeal, but there is no appeal of a s. 117.03 order (Hudson v. Attorney General (Canada) 2007 SKCA82)
10. Hudson then initiated an independent constitutional challenge concerning the same issue in the Court of Queen's Bench (Saskatoon). That challenge was unsuccessful. (Hudson v. Attorney General (Canada) 2007 SKQB 455)
11. His appeal of that determination was also unsuccessful. (Hudson v. Attorney General (Canada) 2009 SKCA 108)
12. Leave to appeal to the Supreme Court of Canada was denied. (Hudson v. Attorney General of Canada, [101] 1 S.C.R. x
13. The proceedings regarding the Carmel firearm had been adjourned to allow the Davidson matter to proceed, since the facts were essentially the same and the decision would be determinative of both. The Carmel matter was then adjourned pending the decision on the previously referenced independent constitutional challenge. Hudson subsequently argued that the proceedings with respect to the Carmel firearm should be further adjourned to await the decision of the Ontario Court of Appeal in R. v. Montague (2010 ONCA 141) which involved similar arguments to those of Hudson. Leave to the Supreme Court of Canada in Montague denied September 16, 2010. ([2010] 2 S.C.R. vii)
14. The Crown believed that Hudson would accept the determinations in the above matters concerning the Carmel firearm. However, after leave was denied in the Davidson matter and after the Montague appeal was unsuccessful, Hudson expressed his intention to raise new constitutional arguments concerning the Carmel firearm. A s. 117.03 forfeiture hearing proceeded before Plemel PCJ who dismissed Hudson's challenge from the bench and ordered the Carmel firearm forfeited.
15. Hudson's appeal of the Plemel PCJ order was dismissed by Justice Mills and is the subject of the within appeal.
16. Justice Mills dismissed the application, finding at paragraphs 15 and 16 that:

    a) due process did not equate to trial by jury and Hudson was not entitled, in the circumstances, to a trial by jury; and

    b) the Court had no power to direct that Hudson be charged with an offence which would allow him to elect to be tried by jury.

IV. POINTS IN ISSUE

A. Did Justice Mills err in finding that there is no right to a trial by jury before personal property is confiscated?

B. Did Justice Mills err in finding the Court could not direct Hudson be charged with an offence?

 

V. ARGUMENT

17. Under ss. 117.03(3) of the Code, where a firearm has been seized for failure to produce a licence or registration certificate a forfeiture hearing will be held before a provincial court judge. At that hearing, the owner of the firearm has an opportunity to establish that he is lawfully entitled to possess it.
18. Such a hearing was held before Plemel PCJ, who ordered Hudson's firearm forfeited.
19. Hudson argues that this procedure is unconstitutional and that before his personal property can be destroyed he must be charged with a criminal offence and tried before a jury of his peers. These arguments are without merit. The procedure set out in subs. 117.03(3) affords due process and the decision to charge a person with an offence remains a matter of prosecutorial discretion.

A. S. 117.03 OF THE CRIMINAL CODE DOES NOT VIOLATE THAT APPELLANT'S DUE PROCESS RIGHTS UNDER SUBSECTION 1(A) OF THE CANADIAN BILL OF RIGHTS OR OTHERWISE

20. The right to trial by a jury in Canada is enshrined in subsection 11(f) of the Canadian Charter of Rights and Freedoms and is specifically liimited:

11. Any person charged with an offence has the right

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; [emphasis added]

21. There is no basis to the claim that there is a constitutional entitlement to a jury trial in relation to the forfeiture of personal property.
22. Subsection 1(a) of the Canadian Bill of Rights states:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, security of the person, and enjoyment of property, and the right not to be deprived thereof except by due process of law; [emphasis added]

Canadian Bill of Rights 1960, c. 44

23. The Bill of Rights therefore affirms property rights, but expressly states that such rights may be limited "by due process of law." (Authorson v. Canada (Attorney General) [3003] 2 SCR 40 at 51-52.)
24. The Bill of Rights does not create a right to trial by jury. Rather, the procedural rights of due process are limited to notice and an opportunity to contest a governmental deprivation of property rights before an independant court or tribunal. (Authorson v. Canada (Attorney General) [3003] 2 SCR 40 at 42.)
25. These requirements are clearly fulfuilled in the subs. 117.03(3) forfeiture hearing procedure. Orr PCJ stated this succinctly in his ruling on this issue in relation to the Davidson firearm:

[6] ... 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 the seizure of the firearm, or by the hearing for a forfeiture which we have commenced. It is trite that 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. [emphasis added]

26. The due process issue was fully canvassed before Mills J., who concluded that Hudson had submitted no legal justification for his contention that due process must be equated with trial by jury.
27. The historical and quasi-constitutional documents referred to by Hudson do not assist. To the extent that the Magna Carta, The Petition of Rights, 1628, the English Bill of Rights, 1689, Unviersal Declaration of Human Rights, and Quebec Charter of Human Rights and Freedoms make some reference to a right to property and/or a trial by jury, each document specifically qualifies that the right may be restricted "by the law of the land" or "as allowed by the law". There is clear recognition that the law may provide due process without a trial by jury.
    See Appendix "A"
28. Section 117.03 clearly provides that a firearm may only be forfeited to the Crown after a hearing before a judge of the Provincial Court in which a person has the opportunity to show that he is lawfully entitled to possess it.
29. As held by Add J. in R. v. Judges of the Provincial Court (Criminal Division) of the County of York, ex parte Nevin and DePoe, and quoted by Justice Mills, unless a hearing before a Provincial Court judge is viewed as inherently corrupt it cannot be seen as a violation of due process:

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, abridgement 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 have to assume ab initio that a hearing before a Provincial Court Judge would be likely to be unfair. It is not an abrogation, abridgement or infringement of the rights and freedoms declared in the Canadian 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 Canadian Bill of Rights.

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 Canadian Bill of Rights. Trial by jury, although enshrined for many centuries in our laws (some trace their existence back beyond Magna Carta), has always been and will always remain fundamentally a matter of procedure as opposed to a matter of substantive law. [emphasis added]

(R. v. Ontario (Provincial Court of York County) (1970) 2 CCC (2d) 469 (Ont. S.C.), 1970 CarswellOnt 41 (WL Can) at para. 5-6; affirmed 2 CCC (2d) 469 (Ont. C.A.), 1970 CarswellOnt 57 (WL Can); See also Canada v. Waddell, 1996 CarswellBC 2374 (WL Can) (BC CA) at para. 11)

B. THERE IS NO RIGHT TO BE CHARGED WITH AN OFFENCE

30. It is true that if Hudson had been charged with possession of a firearm without a licence in violation of subs. 92(1) of the Code, the criteria of subs. 11(f) of the Charter would be met and he would be entitled to a trial by jury. However, whether or not one should be so charged is not a matter that is reviewable by the courts.
31. It is trite that prosecutorial discretion, regarding whom to charge and with what criminal offences, is a fundamental principle of our justice system. As stated by La Forest J. in R. v. Beare ([1988] 2 SCR 387 at para 51-52.) and quoted by Justice Mills:

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.

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.

32. Accordingly, Canadian courts will not review prosecutorial discretion except in situations of "flagrant impropriety."
    (Zhang v. Canada (Attorney General), 2007 FCA 201, 2007 CarswellNat 1392 (WL Can) at para. 13; See also Kostuch v. Alberta (Attorney General), (1995)128 D.L.R. (4th) 440 (Alta. CA), 1995 CarswellAlta 298 (WL Can) at para. 36)
33. Hudson has raised no allegations nor presented any evidence of such impropriety. The decision to not charge him with an offence is within prosecutorial discretion, and certainly does not render s. 117.03 invalid or inoperative.

VI. RELIEF SOUGHT

34. It is respectfully requested that this Honourable Court dismiss the within appeal with costs to the Attorney General of Canada.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at the City of Saskatoon, in the Province of Saskatchewan, this 26th day of May, 2011.

 

________________________________

SCOTT SPENCER
Counsel for The Attorney General of Canada

 

This document was delivered by :

Department of Justice (Canada)
Saskatchewan Regional Office
10th floor, 123 2nd Avenue South
SASKATOON, Saskatchewan
S7K 7E6

Address for service is: same as above
Lawyer in charge of file: Scott Spencer
Telephone: (306)975-5641
Facsimile: (306) 975-6240
File: 2-30068-1-3

LIST OF AUTHORITIES

Caselaw:

1. Authorson v. Canada (Attorney General) [2003] 2 SCR 40
2. Canada v. Waddell, 1996 CarswellBC 2374 (WL Can) (BC CA)
3. Housen v. Nikolaisen, [2002] 2 S.C.R. 235
4. Hudson v. Canada (Attorney General), 2011 SKQB 18
5. Hudson v. Attorney General (Canada) 2007 SKCA 082
6. Hudson v. Attorney General (Canada) 2007 SKQB 455
7. Hudson v. Attorney General (Canada) 2009 SKCA 108
8. Hudson v. Attorney General of Canada, [2010] 1 S.C.R. x.
9. Kostuch v. Alberta (Attorney General), (1955)128 D.L.R. (4th) 440 (Alta. CA) 1995 CarswellAlta 298 (WL Can)
10. R. v. Beare,[1988] 2 SCR 387
11. R. v. Hudson, 2005 CarswellSask. 964
12. R. v. Montague,2010 ONCA 141
13. R. v. Montague, [2010] 2 S.C.R. vii.
14. R. v. Ontario (Provincial Court of York County) 1970) 2 CCC (2d) 469 (Ont. S.C.), 1970 CarswellOnt 41 (WL Can) at para. 5-6; affirmed 2 CCC (2d) 469 (Ont. C.A.), 1970 CarswellOnt 57 (WL Can)
15. Zhang v. Canada (Attorney General), 2007 FCA 201, 2007 CarswellNat 1392 (WL Can)

Acts:

16. Canadian Bill of Rights 1960, c. 44
17. Criminal Code, R.S.C., 1985 c. C-46 s.117.03
18. The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1