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No. 1150 of 2010
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF SASKATOON
EDWARD BURKE HUDSON
THE ATTORNEY GENERAL OF CANADA
Prairie Region, Saskatoon Office
10th Floor, 123 2nd Avenue South
and Law .......................................................................
of Authorities ........................................................................
- The Applicant does not agree with the licensing provisions of The
Firearms Act and related provisions of The Criminal Code of
Canada (the "Code"). He does not believe that he, or
any "law abiding citizen", should ave to hold a license or
register his weapons. He has been peacefully, although at times not
lawfully, protesting the licensing and registration requirements of
the Firearms Act and related provisions for over a decade.
- The Supreme Court of Canada has unequivocally stated that there is
no right to bear arms in Canada. This has been affirmed repeatedly in
previous court proceedings initiated by the Applicant before the Saskatchewan
Provincial Court (twice), Saskatchewan Court of Queen's Bench, and Saskatchewan
Court of Appeal.
- The Applicant now wishes to take his cause before a jury of his peers,
and argues his firearm cannot be made forfeit to the Crown in the absence
of such a trial. His argument must fail. There is no right to a trial
by jury in Canada with respect to a forfeiture of property, and there
is no right to be charged with an offence.
- The Applicant orchestrated a seizure of two firearms, one near Davidson,
Saskatchewan, and one near Carmel, Saskatchewan, in order to ground
a "constitutional challenge" to the licensing provisions.
- The "Davidson firearm" was taken before Orr PCJ sitting
in Craik, Saskatchewan. The Applicant's challenge in relation to that
matter was unsuccessful and his firearm was forfeited. He attempted
to appeal but there is no appeal of a s. 117.03 order.
- The Applicant then initiated an independent "constitutional challenge"
in the Court of Queen's Bench (Saskatoon). That challenge was unsuccessful
and his appeal of that determination was also unsuccessful. Leave to
appeal to the Supreme Court of Canada was denied.
- The proceedings regarding the "Carmel firearm" were adjourned
to allow the Craik matter to proceed on the basis that the facts were
essentially the same and that the decision would determine this matter.
This matter was then adjourned to allow the independent "constitutional
challenge" to proceed. The Applicant argued that this matter should
be further adjourned to await a similar challenge that was before the
Ontario Court of Appeal. That challenge was also unsuccessful.
v. Montague 2010 ONCA 141
- The Crown was under the belief that the Applicant would accept the
determinations in the above matters with respect to the "Carmel
firearm". However, the Applicant expressed his intention to raise
new constitutional arguments around the issue of due process and a s.
117.03 forfeiture hearing proceeded at Humboldt, Saskatchewan. Plemel
PCJ found against the Applicant and ordered the firearm to be forfeited.
- The Notice of Motion submitted by the Applicant is a response to the
s. 117.03 decision issued by Plemel PCJ. It appears to be a combination
of an appeal, a judicial review, a constitutional challenge and a reference.
- The Crown accepts that Dr. Hudson has standing to challenge ss. 117.03,
since his shotgun was forfeited pursuant to that provision, and is prepared
to respond to his motion on its merits. The Crown is further satisfied
that Rule 664 provides jurisdiction for this Honourable Court to hear
v. Beare; R. v. Higgins (1987) 56 Sask R
(C.A.), 1987 Carswell Sask 341 (WL Can)
(A) Does s. 117.03 of the Criminal Code violate the Applicant's
due process rights?
ARGUMENT AND LAW
A. S. 117.03 OF THE CRIMINAL CODE DOES NOT VIOLATE THE APPLICANT'S
DUE PROCESS RIGHTS UNDER SECTION 1(A) OF THE CANADIAN BILL OF RIGHTS
- Under ss. 117.03(3) of the Code, where a firearm has been
seized for failure to produce a licence to possess, a forfeiture hearing
will be held before a provincial court judge who must give the owner
of the firearm an opportunity to establish that he is lawfully entitled
to possess it. Such a hearing was held before Plemel PCJ, who ordered
the Applicant's firearm forfeit to Her Majesty. The Applicant aruges
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 ss. 117.03(3) adequately provides for due process
and the decision of whether or not to charge an individual with an offence
remains within prosecutorial discretion.
Trial By Jury
- The right to trial by a jury as it exists in Canada is enshrined in
section 11(f) of the Charter of Rights and Freedoms and is
specifically limited to certain circumstances:
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
- The Applicant has not been charged with an offence that meets these
requirements. There is no basis to his claim that he is constitutionally
entitled to a trial before a jury of his peers in relation to a forfeiture
- The Crown agrees that some form of due process must be adhered to,
but admits that this requirement is fulfilled by the procedure set out
in ss. 117.03(3) of the Code.
- Section 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]
Bill of Rights 1960, c. 44
- The Bill of Rights therefore affirms property rights that
existed as of its passing in 1960, but the provision expressly states
that right may be limited "by due process of law."
v. Canada (Attorney General)
2 SCR 40 and 51 - 52.
- The Bill of Rights does not contain 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 a court or tribunal.
ibid at 42
- These requirements are clearly fulfilled in the ss. 117.03(3) forfeiture
hearing procedure. Orr PCJ stated this succinctly in his ruling on this
issue in relation to the "Davidson firearm":
 ... 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 forfeiture which we have commenced. It is
trite that police have the right, if authorized by statute 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.
- The due process issue was fully argued again before Plemel PCJ, who
ruled that nothing changed the conclusion reached by Orr PCJ.
- As held by Addy J. in R. v. Judges of the Provincial Court (Criminal
Division) of the County of York, ex parte Nevin and DePoe, 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 because there is nothing 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" provsion
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]
v. Ontario (Provincial Court of York
County) (1970) 2 CCC (2d) 469 (Ont. S.C.),
CarswellOnt 41 (WL Can) at para. 5-6;
2 CCC (2d) 469 (Ont. C.A.), 1970
57 (WL Can).
v. Waddell, 1996 CarswellBC 2374
Can) (BC C.A.) at para. 11
- It is true that if the Applicant had been charged with possession
of a firearm without a licence in violation of s. 92(1) of the Code
that the criteria under s. 11(f) of the Charter would be met
and he would be entitled to a trial by jury. However, whether or not
he should be so charged is not a matter that is reviewable by the courts.
- It is trite law that prosecutorial discretion regarding who 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,:
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.
v. Beare  2 SCR 387 para 51-52.
- Accordingly, Canadian courts will not review Crown decisions to refrain
from proceeding with prosecutions except in situations of "flagrant
v. Canada (Attorney General), 2007
201, 2007 CarswellNat 1392 (WL Can)
v. Alberta (Attorney General),
D.L.R. (4th) 440 (Alta. C.A.),
CarswellAlta 298 (WL Can) at para. 36
- The applicant 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.
Section 11(c) and 11(d) of the Charter
- The Applicant's materials make some brief reference to s. 117.03 violating
the provisions of the Charter protecting individuals from self-incrimination
and the presumption of innocence. The Crown submits that s. 11 of the
Charter is not engaged on the present facts, and that even
if it is, there is no infringement.
- Section 11 of the Charter reads, in part, as follows:
11. Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against
that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial tribunal;
- As the preliminary wording of s. 11 indicates, a person must be "charged
with an offence" before its protections are engaged. The Supreme
Court of Canada in R. v. Wigglesworth acknowleged a matter
falls within s. 11 of the Charter where first, by its very nature it
is a criminal proceeding or, second, a conviction in respect of the
offence may lead to a true penal consequence. However, the Court later
ruled in Martineau v. M.N.R. that the ascertained forfeiture
process under the Customs Act is not penal in nature and does
not engage the Charter.
- Although brought under the Code, s. 117.03 is a similar
in rem proceeding that is not criminal in nature. There is no criminal
charge, information laid, person arrested, or criminal record. Also,
there is no true penal consequence such as imprisonment and a fine.
- Even if s. 11 can be said to apply to s. 117.03, there is no violation
of its protections. Although the owner of the firearm is afforded the
opportunity to establish his lawful possession, he is not compelled
to testify in violation of s. 11(c). Similarly, while it has been held
that a statutory provision which imposes a burden of proof or disproof
of an element of an offence on an accused creates an impermissable reverse
onus under the Charter, that is not the case here. At most,
the firearm owner may be required to show by the production of a firearm
certificate that s. 117.03 does not apply to him and he is exempt from
v. Schwartz  2 SCR 443 at para. 79-80.
- The Applicant is entitled to his "day in Court" to establish
that he is lawfully entitled to own the firearm that he caused to be
seized. The hearing that occurred before Plemel PCJ in Saskatchewan
Provincial Court more than adequately meets the requirements of due
- There is no "right to a jury" in relation to all matters
between state and citizen in Canada.
- There is no "right to be charged" in Canada.
- There is no "right to bear arms" in Canada.
- This application is not about the potential for tyranny or disarming
the masses. It is about licensing a lethal device. The law of the land
doesn't prohibit gun ownership, it affirms it on some reasonable conditions.
To the extent that Dr. Hudson is denied his firearm, that is the result
of his own choice. If he feels it is necessary to have the firearm or
any firearm, so be it, but he must acquire a license and register the
specific firearm. He can then possess it, hunt with it, and hope he
never needs to use it for protection.
- The "constitutional challenge" is without merit and should
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this
28th day of October, A.D. 2010.
for The Attorney
This document was delivered by:
Department of Justice (Canada)
Saskatchewan Regional Office
10th Floor, 123 2nd Avenue South
Address for service is : same as above
Lawyer in charge of file: Scott Spencer
Telephone: (306) 975-5641
Facsimile: (306) 975-6240
LIST OF AUTHORITIES
Statutes and Regulations
- Canadian Bill of Rights, 1960, c. 44.
- Canadian Charter of Rights and Freedoms.
- Criminal Code, S.C. 1995, c. 39, section 117.03.
- R. v. Montague, 2010 ONCA 141.
- R. v. Beare; R. v. Higgins (1987), 56 Sask R 173
- Authorson v. Canada (Attorney General)  2 SCR 40.
- R. v. Judges of the Provincial Court (Criminal Division) of the
County of York, ex parte Nevin and DePoe (1970) 2 CCC (2d) 469
(Ont. S.C.) affirmed 2 CCC (2d) 469.
- Canada v. Waddell, 1996 CarswellBC 2374 (BC C.A.).
- R. v. Beare  2 SCR 387.
- Zhang v. Canada (Attorney General) 2007 FCA 201.
- Kostuch v. Alberta (Attorney General) (1995) 128 DLR (4th)
440 (Alta. C.A.).
- R. v. Schwartz  2 SCR 443.