CUFOA

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

Saskatchewan Court of Appeal
08 September 2008
2:00 p.m.
Oral Presentation

My Lords, My Lady,

I would like to introduce:

1. for the Respondent

a. Scott Spencer, Senior Crown Counsel, Federal Department of Justice.

b. Don Klaassen, Assistant

2. for the Appellant

a. my friend & associate, Dr. Joe Gingrich, White Fox, SK
b. my friend & associate, Jack Wilson, Saskatoon
c. myself, Edward B. Hudson, Saskatoon

My associates and I maintain that we have the Right to have 'Armes for their Defense'.
We believe responsible Canadian citizens have the Right to acquire, own, possess, and use firearms for personal protection without a firearms licence.
We maintain that Right is basic to our Canadian heritage, culture, and constitution.

We assert that Criminal Code section 117.03 is ultra vires Parliament.

We presented the legal basis for those assertions in our Brief of Reasons and in our oral presentation here in Court of Queen's Bench before the Honourable Justice Gabrielson.

We were extremely disappointed that Justice Gabrielson did not agree with us.

As I understand the situation,
the issue before this Honourable Court is:

Did the Honourable Court below err when Justice Gabrielson concluded that 'Section 117.03 of the Criminal Code is inter vires the legislative power of the Parliament of Canada;' ?

We have properly addressed that question in a straightforward manner in our Factum.

We are confident in our position.

However, as Ronald Dworkin said in Law’s Empire,

the more we learn about Law, the more we grow convinced that nothing important about it is wholly uncontroversial. (p. 10)

There are, I believe, six controversial, but fundamental questions which need to be explored.

First question:

Do our Rights as citizens depend upon a strict written sanction from the federal government ?

That is,
do our Rights against the State rely solely upon positive law ?

In Essays on Bentham, Jurisprudence and Political Theory,
H.L.A. Hart quotes Jeremy Bentham as referring to individual Rights as:

nonsense upon stilts

Bawling upon paper

The notion of a right not created by law as a contradiction like a ‘round square, ‘a son that never had a father’, ‘a species of cold heat’, ‘a sort of dry moisture’, ‘a kind of resplendent darkness’.

Bentham said:

Rights are the fruits of the law and of the law alone;
there are no rights without law
– no rights contrary to law
- no rights anterior to law.

In Truth versus Ashhurst Bentham also expressed his disdain for the Common Law:

It is the judges (as we have seen) that make the common law.
Do you know how they make it?
Just as a man makes laws for his dog.
When your dog does anything you want to break him of,
you wait till he does it, and then beat him for it.
This is the way you make laws for your dog:
and this is the way the judges make law for you and me.

In his decision Justice Gabrielson seem to take this “positive law” view when he quoted former Chief Justice Lamer:
Reference: re Remuneration Judges Prov. Court P.E.I., [1997] 3 S.C.R.
Provincial Court, Appellant Book of Authorities, Book Two / item 5, p. 28, para 94

In other words, strictly speaking, it is not a source of positive law, ... .

There is however, an alternate view to “positive law”
which Former Chief Justice Lamer enunciated at paragraph 83:
Reference: re Remuneration Judges Prov. Court P.E.I., [1997] 3 S.C.R.
Provincial Court, Appellant Book of Authorities, Book Two / item 5, p. 26, para 83

83 ... I am of the view that judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts. The existence of that principle, whose origins can be traced to the Act of Settlement of 1701, is recognized and affirmed by the preamble to the Constitution Act, 1867.

Alternate views to positive law have a long British history:

Gilbert Burnet, Scottish theologian and historian, writing in 1688:

The degrees of all civil authority, are to be taken either from express laws, immemorial customs, or from particular oaths, ... ;
that, in all disputes between power and liberty,
power must always be proved,
but liberty proves itself;
the one founded upon positive law,
and the other upon the law of nature.

Gilbert Burnet, Inquiry into the Measures of Submission to the Supreme Authority (1688) Quoted in Harleian Miscellany, London, 1808, I, p. 446-7 (Hayek, fn#59, p. 464-5) our Factum, Appendix A, p. 53 -54

The Supreme Court recognizes unwritten law:

(3)
Respondent’s Book of Authorities, Tab 11, p. 32, paragraphs 108 & 109
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319,

Justice McLachlin (as she was then):

[T]he wording of the preamble should not be understood to refer to a specific article of the English Bill of Rights. This is not to say that that principles underlying art. 9 of the English Bill of Rights of 1689 do not form part of our law ... . (page 374)

[I]t is reasonable and correct to find that the House of Assembly of Nova Scotia has the constitutional power to exclude strangers from its chamber on the basis of
the preamble to the Constitution,
historical tradition,
and the pragmatic principle that the legislatures
must be presumed to possess such constitutional powers ... . (page 375)

(4)

“Some common law Rights presumably lie so deep
that even Parliament could not override them.”

Lord Robin Cooke of New Zealand in Taylor v New Zealand Poultry Board, [1984] 2N.Z.L.R. 394, as quoted by Justice Michael D. Kirby:
Court of Queen’s Bench, Moose Jaw, Book of Authorities, {no number}, Tab 2, (p. 6)
(not numbered)
(5)

I refer now to: Court of Appeal, Book of Authorities, Vol. 4, Tab 40

Beverley McLachlin, CJ, Supreme Court of Canada.
Paper Given at the Lord Cooke Lecture, Wellington, New Zealand, 01 December 2005
Unwritten Constitutional Principles; What is Going On?’

Clearly something is going on;
something that cannot be dismissed with a wave of a judicial hand.
I will suggest that actually quite a lot is going on, and that it is important.
What is going on is the idea that there exists fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional texts. ... . (p.2)

The Chief Justice quotes M.D. Walters “The Common Law Constitution in Canada” (2004), 51 U.T.L.J. 91 at 136

In so far as unwritten fundamental law is regarded as an assertion of the supremacy of natural law, right reason or universal principles of political morality and human rights over legislation, it is part of a rich intellectual heritage that had informed common law ... . (P. 6)

The Chief Justice continues:

If the Professor is right, and I believe he is, then this ideas is neither American nor British, but is shaped by both legal traditions and common law. (p. 6)

at page 15:

In common law countries,
it is distinctly not the case that all law must be “on the books”. ...
The Magna Carta is a fundamental text designed to provided written guarantees of fundamental principles. ... the common law fleshed out and supplemented these principles by a catalogue of largely judge-made rules. (p. 15)

Gilbert Burnet, Scottish theologian and historian, writing in 1688:

The degrees of all civil authority, are to be taken either from express laws, immemorial customs, or from particular oaths, ... ;
that, in all disputes between power and liberty,
power must always be proved,
but liberty proves itself;
the one founded upon positive law,
and the other upon the law of nature.

Gilbert Burnet, Inquiry into the Measures of Submission to the Supreme Authority (1688) Quoted in Harleian Miscellany, London, 1808, I, p. 446-7 (Hayek, fn#59, p. 464-5) our Factum, Appendix A, p. 53 -54

(6)

Brief of Reasons, Queen’s Bench, Appendix F, The Admonitions of the Philosophers, p. 56

William Blackstone, Commentaries on the Laws of England, (1765 - 1769):

The fifth and last auxiliary right ... is that of having arms for their defense, ... the natural right of resistance and self-preservation, ...
to the right of having and using arms for self-preservation and defense.
[I]t is our birthright to enjoy entire; ... .

Second Question:

What constitutes the Constitution of Canada?

Referring again to:

Respondent’ Book of Authorities, Tab 11, pp. 33 & 34
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319,

Are the documents of our Canadian Constitution restricted to the thirty items listed in the schedule referred to in section 52(2) of the Constitution Act, 1982?

Does the Constitution of Canada exclude:

the Royal Proclamation of 1763, the Quebec Act of 1774, the Constitutional Act of 1791, and the Union Act of 1840, and other vital documents ?

p. 33, para 112

Professor Hogg has postulated:

Canada's gradual evolution from colony to nation has denied it any single comprehensive constitutional document.

Was he correct ? p. 34, end of para 112

Justice McLachlin suggests that the Constitutional List is "not exhaustive" :

[T]he Schedule to section 52(2) of the Constitution Act, 1982, ...
is not clearly meant to be exhaustive.

p. 34, para 114

Third Question:

What does the 'rule of law' mean?

Provincial Court, Book of Authorities, Book One, Tab 1

Reference re Manitoba Language Rights, 1985 CanLII 33 (S.C.C.), [1985] 1 S.C.R. 721

In discussing the theory of the ‘Rule of Law’ in Reference re Manitoba Language Rights, the Supreme Court stated at paragraph 63: (p. 14)

The constitutional status of the rule of law is beyond question. The preamble to the Constitution Act, 1982 states:

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

This is explicit recognition that "the rule of law [is] a fundamental postulate of our constitutional structure" ...
The rule of law has always been understood as the very basis of the English Constitution ... from the time of the Norman Conquest ...
It becomes a postulate of our own constitutional order by way of the preamble to the Constitution Act, 1982, and its implicit inclusion in the preamble to the Constitution Act, 1867 ... .

64 ... the principle is clearly implicit in the very nature of a Constitution. ...
The founders of this nation must have intended, as one of the basic principles of nation building ...
one governed by rule of law.
While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution.

Does the 'rule of law' mean simply what Joseph Raz claims?:

" `The rule of law' means literally what it says: ...
people should be ruled by the law and obey it ... ."

Manitoba Language Rights, paragraph 62. : (p. 14)

Or, as Friedrich A. Hayek demonstrates in The Constitution of Liberty,
does the 'rule of law' protect a citizen's individual Liberty ?

our Factum, Appendix A, The Rule of Law

Edmond Burke, 1766 (p. 55)

It would be hard to point to any error more truly subversive of all order and beauty, of all the peace and happiness, of human society, than the position, that any body of men have a right to make what laws they please; ...
No arguments of policy, reason of State, or preservation of the Constitution, can be pleaded in favor of such a practice. ...
All human Law are, properly speaking, only declamatory; they may alter the mode of application, but have no power over the substance of original justice.

Edmond Burke, Tracks Relative to the Laws against Popery in Ireland, Works, IX, p. 350 (Hayek fn#6, p. 458)

Lord Acton: (p. 57)

I should have wished, in order that my address might not break off without a meaning or a moral, to relate ... (the) theory, ...
that Constitutions are not made, but grow,
the theory that custom and the national qualities of the governed,
and not the will of the government, are the makers of the law, ... .

Lord John Emerich Edward Dalberg Acton, The History of Freedom in Christianity, An Address Delivered to the Members of the Bridgnorth Institute, 28 May 1877. (Hayek fn@ p. 493)

Question Four:

What does “The supremacy of God” mean in our modern, pluralistic Canadian society?

“Whereas” meaning of:

“It being the fact that ... .”
“It being the case that ... .”
“Considering that ... .”

Canada is founded upon principles that recognize the supremacy of God

I refer again to:
Chief Justice McLachlin, Unwritten Constitutional Principles; What is Going On?’:
Court of Appeal, Book of Authorities, Vol. 4, Tab 40

The contemporary concept of unwritten constitutional principles can be seen as a modern reincarnation of the ancient doctrines of natural law. (p. 5)

Throughout Western history, legal philosophers have expressed the ideals of natural law.

I refer to:
Brief of Reasons, Court of Queen’s Bench, Saskatoon, Appendix F, The Admonitions of the Philosophers.

John Locke, (1632-1704): (p. 52)

Any single man must judge for himself whether circumstances warrant obedience or resistance to the commands of the civil magistrate;
we are all qualified, entitled, and morally obliged to evaluate the conduct of our rulers.

This political judgment, moreover, is not simply or primarily a right,
but like self-preservation, a duty to God.

As such it is a judgment that men cannot part with according to the God of Nature.

It is the first and foremost of our inalienable rights without which we can preserve no other. Two Treatises of Government, (1680-1690)

Algernon Sydney (1623 – 1683) (p. 53 -54)

English political writer executed by Charles II:

That which is not just, is not Law;
and that which is not Law, ought not to be obeyed

[T]he principle of liberty in which God created us . . .
includes the chief advantages of the life we enjoy, ..., I:2:5
The Liberty of a people is the gift of God and nature. III:33:406.

Discourses Concerning Government, ed. Thomas West, Indianapolis, Ind.: Liberty Classics, 1990

When we speak of Rights and Freedoms , “the supremacy of God” would seem to refer to much more than a bare minimum.

Therefore,

If we acknowledge “the supremacy of God”
then it would seem logical that
the commands of the Torah and the Bible must sometimes take precedence over the laws of Parliament,

If we acknowledge “the supremacy of God”
then it would seem logical that
Canadian courts must sometimes have a duty - an ethical responsibility - to nullify the laws of the Government.

Question Five:

What is the significance of Charter section 26 ?

The guarantee in this Charter of certain rights and freedoms shall not be construed
as denying the existence of any other rights or freedoms that exist in Canada.

Respondent's Book of Authorities Vol. II, Tab 19, p. 8

R. v. MacAusland (1985), 19 C.C.C. (3d) 365 (P.E.I. S.C.), the Prince Edward Island Court of Appeal held at page 375:

((involved an illegally acquired search warrant for a liquor still in a person’s home))

... That section [s. 26] of the Charter acknowledge that rights guaranteed in the Charter are not in lieu of any other rights that exist in Canada.

Therefore, all Canadians continue to enjoy the protection provided for in the Canadian Bill of Rights which they had before the Charter as well as the rights and freedoms as guaranteed in the Charter.
...
Section 26 only indicates that the Charter is not limiting or interfering with any additional rights which already existed, ... .

Section 26 thus acknowledges we have other unenumerated Rights.

and,

Question Six:

In answering these questions whose theory of justice do we follow?

Do we follow Thomas Hobbes, John Austin, H.L.A. Hart, and John Finnis ?

Or do we follow Algernon Sydney, John Locke, John Rawls, and Ronald Dworkin ?

John Rawls equates “justice with fairness”.
In A Theory of Justice he states:

They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. (p. 11)

Based on historical origins and ancient acts of the British Parliament,
the Supreme Court has found unenumerated Rights for:

(1) the financial independence of Judges,
and
(2) Privilege for Parliamentarians in Ottawa.

The Supreme Court found these Rights "fundamental" to Canada.

In this discussion of constitutional justice and fairness,
which would be more fundamental to the survival of humans;
parliamentary privilege or self-protection ?

In Summary:

Brief of Reason Court of Queen’s Bench, Appendix F, p. 60

Cesare Beccaria (1738-1794)

A principal source of errors and injustice are false ideas of utility. ...

who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience;

who would deprive men of the use of fire for fear of their being burnt,
and of water for fear of their being drowned;

The laws of this nature are those which forbid to wear arms,
disarming those only who are not disposed to commit the crime which the laws mean to prevent. ...

Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator?

And does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty?

It certainly makes the situation of the assaulted worse,
and of the assailants better,
and rather encourages than prevents murder, ... .

Cesare Beccaria,
Of Crimes and Punishments, 1764, Translated by Edward D. Ingraham. 2nd American ed. Philadelphia, Philip H. Nicklin 1819

In Conclusion

Provincial Court, Book of Authorities, Book One, Tab 1
I refer again to Reference: Manitoba Language Rights,

at paragraph 48, (p. 12):

The Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government.
It is, as s. 52 of the Constitution Act, 1982 declares, the "supreme law" of the nation, unalterable by the normal legislative process, and unsuffering of laws inconsistent with it. The duty of the judiciary is to interpret and apply the laws of Canada and each of the provinces, and it is thus our duty to ensure that the constitutional law prevails.

and paragraph 49, (p. 12)
where the Supreme Court affirmed its position in Amax Potash Ltd. v. Government of Saskatchewan [1977] 2 S.C.R. 576, at p. 590::

A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom of legislative will. As a broad statement of principle that is undoubtedly correct, but the general principle must yield to the requisites of the constitution in a federal state. By it the bounds of sovereignty are defined and supremacy circumscribed.
The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power.

Reference: Manitoba Language Rights, [1985] 1 S.C. R. 721

We submit that with Criminal Code s. 117.03 Parliament has engaged in an “illegal exercise of power”.

Therefore,

We respectfully petition this Honourable Court to:

(1) negate the decision of the Court of Queen’s Bench of 12 December 2007,
(2) set aside the Provincial Court’s decision of 06 December 2005,
(3) declare Criminal Code section 117.03 ultra vires Parliament, and
(4) order the Craik Detachment RCMP to return my shotgun forthwith.

Thank you for you time and attention.

Respectfully,

Edward B. Hudson DVM, MS