Firearms Owners Association
Appeal No. 1452
IN THE COURT OF APPEAL
FOR THE PROVINCE OF SASKATCHEWAN
EDWARD BURKE HUDSON
- and -
THE ATTORNEY GENERAL OF CANADA
FACTUM OF THE RESPONDENT
The Department of Justice (Canada)
I. INTRODUCTION ....................................................................................1
II. JURISDICTION AND STANDARD OF REVIEW .................................1
III. STATEMENT OF FACTS ......................................................................2
IV. POINTS IN ISSUE ................................................................................ 4
V. ARGUMENT ........................................................................................... 5
VI. RELIEF SOUGHT ..................................................................................16
VII. LIST OF AUTHORITIES ......................................................................17
"... possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege."
R.v. Wiles,  3 S.C.R. 895 at para. 9 [Tab 1]
1. Dr. Hudson does not believe that he, or any "law abiding citizen", should have to register his weapons. He has been peacefully, although at times not lawfully, protesting the registration requirements of the Firearms Act and related provisions for over a decade.
2. His position appears to be based on a belief that the Constitution of Canada should provide "a right to bear arms" so that any restrtiction on gun ownership, even a simple registration or licensing requirement, would be unconstitutional.
3. However, there is no constitutional provision which confers a right to bear arms in Canada. Dr. Hudson's position is more a challenge to the Constitution than a constitutional challenge to the legislation.
4. Paragraph 7(2)(a) of The Court of Appeal Act 2000, c.C-42.1, provides that an appeal lies to the Court of Appeal from a decision of the Court of Queen's Bench or a judge of that court.
5. Generally an appeal of a constitutional challenge is a question of law and the standard of review is correctness. However, the issue of whether the legislation infringes on Dr. Hudson's right to security of the person is a question of fact and law. The standard of review in relation to that issue is whether Justice Gabrielson committed a palpable and overriding error. Housen v. Nikolaisen,  2 S.C.R. 235, para. 8 [Tab 2].
6. Dr. Hudson had a FAC (Firearms Acquisition Certificate) but intentionally destroyed it.
7. His shotgun was seized by the Craik RCMP pursuant to s. 117.03 of the Criminal Code (hereafter "s.117.03"). Dr. Hudson was notified pursuant to s. 117.03(2) that his firearm would be returned when he presented a valid registration certificate. Dr. Hudson has not presented a valid registration certificate and openly admits he does not have one.
8. Subsection 117.03(3) requires the police to take a seized firearm before a provincial court judge, who may declare it forfeited to Her Majesty after affording the owner an opportunity to establish lawful possession. Accordingly, Dr. Hudson's shotgun was taken before Provincial Court Judge Orr sitting at Craik.
See Appellant's Factum, paras. 14-17
9. Dr. Hudson initiated a "Charter Challenge" by serving a Notice of Constitutional Question, filing written submissions, and making oral arguments before Judge Orr. He argued that it was unconstitutional to require him to obtain a licence to possess firearms or to require him to register his firearms.
10. Judge Orr dismissed Dr. Hudson's "Charter Challenge" by decision dated December 6, 2005 [Tab 3]. Dr. Hudson filed a Notice of Appeal at that time but the Crown objected on the basis that an appeal was premature. Dr. Hudson's appeal to the Court of Queen's Bench was adjourned pending the completion of the forfeiture hearing.
11. Since Dr. Hudson admitted that his shotgun was not registered, on May 2, 2006 Judge Orr ordered Dr. Hudson's shotgun be forfeited to Her Majesty pursuant to s. 117.03(3) of the Criminal Code [Tab 20].
12. Dr. Hudson attempted to appeal Judge Orr's decision but as there is no right of appeal from a s. 117.03 order, his appeal was dismissed by Justice Hunter (then of the Court of Queen's Bench) on January 19, 2007 [Tab 4]. Dr. Hudson's further appeal to this Honourable Court was dismissed orally for want of jurisdiction on June 5, 2007 with written reasons on August 2, 2007. [Tab 5].
13. Dr. Hudson subsequently brought a motion pursuant to Rule 664 of the Queen's Bench Rules. Despite some procedural irregularities, the Respondent, Attorney General of Canada, agreed to deal with the merits of the application and an oral hearing took place before Justice Gabrielson on October 18, 2007.
14. Dr. Hudson argued that s. 117.03 of the Criminal Code is ultra vires Parliament, and violates s. 7 and 26 of the Charter. He further requested a remedy under s. 24 and a declaration that he has a constitutionally protected right to possess firearms without a licence.
See Applicant's Brief of Reasons, paras. 17-21
15. In his fiat, issued December 12, 2007 [Tab 6], Justice Gabrielson dismissed Dr. Hudson's motion, concluding as follows:
16. Dr. Hudson appeals from this decision.
17. Dr. Hudson has identified four issues in his Appeal. The Respondent submits that they should be determined as follows:
18. The issue of whether the provisions of the Firearms Act are within the legislative power of Parliament was squarely before the Supreme Court of Canada in Reference re Firearms Act (Can.),  1 S.C.R. 783 [Tab 7]. The Court held as follows at paragraph 58:
19. Gabrielson J. properly viewed this as determinative of the issue of whether Parliament had the constitutional authority to regulate firearms, and therefore found s. 117.03 to be intra vires the jurisdiction of the Parliament of Canada.
20. Before Gabrielson J., Dr. Hudson argued that the Bill of Rights 1689 granted an inalienable right to bear firearms, and that this right had been incorporated into the constitution of Canada. He alleged the requirement in s. 117.03 of the Criminal Code that he have a licence to possess a firearm and a registration certificate for the firearm violates this right.
21. Gabrielson J. rejected this argument. He held that any right to bear arms provided by the Bill of Rights 1689 was not incorporated into the British North America Act, 1867, and that even if it was, the right granted was not intended to be absolute but could be limited by legislation.
22. There are no provisions in either the Constitution Act, 1867 or the Charter that address a right to bear arms. Dr. Hudson still argues that there must be (or should be) such a right by virtue of the preamble to the Constituion Act, 1867, which reads as follows:
23. The effect and meaning of this preamble has been considered by the Supreme Court of Canada. While the preamble may serve as an interpretive tool it carries no force by itself:
24. In Reference re Remuneration of Judges, supra, after making the statement cited above, Lamer C.J.C. goes on to discuss what effect the preamble does have on Canadian law, namely as a resource for filling in gaps in the express language of the constitution so as to give effect to its underlying logic. After discussing a series of examples Lamer C.J.C. concludes at paragraph 104:
25. Moreover, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) the argument put forward by Dr. Hudson was explicitly rejected by the Supreme Court of Canada. In that case, it was argued that the preamble of the Constitution Act, 1867 in referring to "a Constitution similar in Principle to that of the United Kingdom" incorporated article 9 of the English Bill of Rights of 1689, which provided for the legislative bodies. Writing for the majority, McLachlin J. (as she then was) expressed the following at paragraph 108:
Lamer C.J.C. reached a similar conclusion at paragraph 54:
26. Although McLachlin J. did go on to find that the wording of the preamble supported the Parliament and the legislatures possess constitutional privleges, it was based on the determination that the privileges were one of the organizing principles identified by Lamer C.J.C that could be used to fill in the gaps.
27. Dr. Hudson's argument is not that there is some ambiguos language or otherwise subtle constitutional principle that can be further developed or clarified by reference to the preamble. Rather, he contends that the phrase "with a Constitutional similar in Principle to that of the United Kingdom" is a source of positive law for an explicit individual right, the right to bear arms, that is equivalent to the other rights specifically enumerated in the Charter. This assertion is at odds with the direct statement in Reference re Remuneration of Judges that the preamble is not a source of positive law, and the finding in New Brunswick Broadcasting Co. that the preamble does not refer to a specific article of the Bill of Rights 1689.
28. In addition, the Supreme Court of Canada has explicitly stated that no constitutional right to bear arms exists in Canada.
29. In R. v. Hasselwander, which pre-dates the Reference re Firearms Act, the Supreme Court of Canada considered the forfeiture of the respondents Mini-Uzi submachine gun. Cory J. made an unequivocal statement on this issue:
30. More recently, in R. v. Wiles, supra, it was argued a mandatory weapons prohibition imposed upon conviction for the offence of production of cannabis was a violation of s. 12 of the Charter. The Court rejected this argument, with Charron J. stating as follows at paragraph 9:
31. The Respondent respectfully submits that a right to bear arms does not form part of the constitution of Canada, either explicitly or implicitly, and the Supreme Court of Canada has confirmed that no such right exists. Accordingly, Gabrielson J.'s ruling on this point is clearly correct.
32. Even if the Bill of Rights 1689 were to form a part of the constitution of Canada, which is not the case, the extent to which it grants a right to bear arms is expressly qualified. Article 7 of the Bill of Rights 1689 states:
33. Judge Orr considered this provision and concisely concluded as follows:
34. Dr. Hudson fails to appreciate that historically there has never been a categorical right to bear arms in Canada. Gun control in Canada dates back to the 1892 enactment of the Criminal Code.
35. The 1892 Criminal Code required that a permit be obtained for the purchase of handguns. Legislation was enacted in 1920 requiring a permit for all rifles and shotguns, although it was repealed shortly thereafter.
36. In 1933, further limits were placed on the possession of handguns and by the beginning of 1934 all handguns were required to be registered. The requirement to possess a licence for any firearm has existed in Canada since 1979, and long guns have been required to be registered since 1995.
37. As noted by McIntyre J. in Schwartz v. The Queen, the importance of gun control to the peaceful growth of Canadian society "may be considered a soober warning":
38. Dr. Hudson contends that there is a right to bear arms in Canada based on the English Bill of Rights. He acknowledges that the United Kingdom has taken a very active role in the regulation of firearms. Dr. Hudson nevertheless contends that the Canadian Parliament is somehow circumscribed from regulating firearms in a manner that the British Parliament is not. Such an argument simply is not logical.
39. Even in the United States, which is commonly perceived as having an unfettered right to bear arms, state governments regulate gun ownership to varying degrees. Indeed, there is serious legal issue as to whether the right to bear arms found in the Second Amendment is meant only to protect the ability to maintain militias for the defence of the state.
40. In Canada you are allowed by lawto possess a shot gun provided you have obtained the requisite licence and registration certificate. This restriction is consistent with the right to bear arms as articulated in the Bill of Rights 1689 (assuming that it has any application). Since the very provision which Dr. Hudson relies upon expressly provides for regulaton, it is not necessary to explore further issues, such as whether the Bill of Rights 1689 infringes s. 15 of the Charter because it confers the right to bear arms only on members of one religious denomination.
41. Section 7 of the Charter reads:
42. Dr. Hudson argues that the provisions of s. 117.03 have the effect taking away his means of personal protection, and thereby violate his right to security of the person.
43. The language of s. 7 calls for a two-part analysis, set out by La Forest J. in R. v. Beare:
44. The onus is on the person alleging the breach to establish both elements.
R. v. Malmo-Levine; R. v. Caine,  3 S.C.R. 571 at para. 97 (QL) [Tab 16]
45. In rejecting Dr. Hudson's Charter argument, Gabrielson J. held that a) there was no evidentiary basis to found the argument that Dr. Hudson requires firearms for his personal security, and b) that no breach of fundamental justice was established.
46. Gabrielson J. found that the breach of Dr. Hudson's s. 7 Charter right had not been established.
47. A party alleging a violation of a s. 7 right must be able to demonstrate a causal link between the act complained of and the deprivation. As Dickson C.J.C stated in Operation Dismantle v. The Queen at paragraph 29:
48. Dr. Hudson argues that s. 117.03 and the associated provisions of the Firearms Act has the effect of taking away the ability to defend oneself from home invasion or other threats of physical violence. It must be emphasized, however, that the firearms legislation does not prohibit the ownership of guns or their use in self-defense, but simply requires a firearms licence and registration certificate. Gun ownership is regulated, not prohibited. Dr. Hudson has submitted no evidence to prove that his right to life security of the person has been infringed by this regulation. The fact that Dr. Hudson no longer has his shotgun is a direct result of his refusal to register it, as prescribed by law.
49. Dr. Hudson argues that the 117.03 hearing before Provincial Court Judge Orr was not in accordance with the principles of fundamental justice as it lacked procedural fairness. He says this is because, inter alia, he was never charged or convicted of a crime, there was no trial by jury, and there was no right of appeal from the decision.
50. The Supreme Court of Canada has identified that the procedural elements required to satisfy the principles of fundamental justice will vary according to the circumstances of the case. As stated in Ruby v. Canada at paragraph 46:
51. Fairness as a general rule requires notice and participation.
Ruby, supra, at para. 40
52. Section 117.03 requires that when a firearm is seized and not claimed it be brought before a provincial court judge in order to determine whether the person from whom it was seized or its owner is lawfully entitled to possess it. This occurred in Dr. Hudson's case. To regain possession of the firearm, at such a hearing, all that is required is to produce the proper licence and registration. In this context, it is difficult to imagine how charging an individual with an offence, conducting a trial in front of a jury, or having a right of appeal would in any way enhance procedural fairness to the gun owner.
53. The Respondent submits that Dr. Hudson has not established either a deprivation of his right to life or security of the person, or a breach of a principle of fundamental justice. Therefore, Gabrielson J.'s finding that s. 117.03 does not violate the Charter is correct.
54. Section 26 of the Charter states:
55. Before Gabrielson J., Dr. Hudson argued that because the right to bear arms was included in the Bill of Rights 1689 that the right was received into the law of Canada and protected by s. 26 of the Charter. Gabrielson J. rejected this contention, primarily on the authority of R. v. MacAusland. There the Prince Edward Island Court of Appeal held that although s. 26 makes it clear that the Charter does not limit or interfere with any additional rights which exist, it does not incorporate or guarantee those rights.
R. v. MacAusland et al., (1985), 19 C.C.C. (3d) 365 (P.E.I.C.A.) at 375. [Tab 19]
56. In his factum Dr. Hudson drops the contention that s. 26 protects the right to bear arms. Instead, he argues, that this provision acknowledges that Canadians' rights are not limited to those enumerated in the Charter.
57. A plain reading of the text of s. 26 establishes that the Charter does not negate the existence of other rights. However, there still must be a legal source for any rights that are not listed.
58. Dr. Hudson cannot identify any source for the right to bear arms in Canada's constitution or any applicable legislation.
59. Dr. Hudson may be sincere in his belief that there should be an unregulated right to bear arms in Canada. However, the reality is that there has never been any such right in Canada. The degree to which firearms have been regulated has varied over time. Nevertheless, without a constitutional amendment, there simply is no right to bear arms and this appeal must be dismissed.
60. It is respectfully requested that this Honourable Court dismiss the within appeal with costs.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
This document was delivered by:
Department of Justice (Canada)
Address for service is: same as above
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