There is no unfettered right to possess firearms in Canada, notwithstanding the preamble of the British North America Act, 1867, which the applicant suggested incorporated the English Bill of Rights, 1689, allowing Protestant subjects to have firearms for their defence. There was a legislative history in Canada that heavily regulated gun ownership, and s.117.03 of the Criminal Code, allowing for seizure and destruction of an unlicensed firearm was intra vires the federal Parliament, as the regulation of the possession of a firearm was within the sphere of its criminal law power. This provision did not violate the applicant’s rights under ss.7 and 26 of the Charter, and there was no evidentiary basis that the applicant needed the firearm for his personal security. There was also no breach of the applicant’s fundamental justice, even if the 1689 Bill of Rights was part of the Canadian Constitution, s.26 of the Charter did not guarantee the rights therein.

Administrative law – Firearms registration – Legislation – Criminal code – Ultra vires – Judicial review – Compliance with legislation – Charter of Rights and Freedoms – Right to bear arms

Hudson v. Canada (Attorney General), [2007] S.J. No. 693, Saskatchewan Court of Queen’s Bench, December 12, 2007, N.G. Gabrielson J.

The applicant, a doctor of veterinary medicine and an activist against firearm licensing, staged a demonstration that resulted in the seizure of his shotgun by the RCMP. A Provincial Court judge ordered forfeiture of the shotgun pursuant to s.117.03(3) of the Criminal Code. The applicant appealed the forfeiture order to the Court of Appeal, which dismissed his appeal. The applicant then then applied for a declaration that s.117.03 of the Criminal Code was ultra vires of Parliament in that it violated the Canadian Constitution and was also contrary to the provisions of the Canadian Charter of Rights and Freedoms.

The Court dismissed the application. The Court rejected the applicant’s argument that there was an inalienable right to possess firearms in Canada, arising from The Bill of Rights, 1689 which allowed Protestant subjects in England to have arms for the defence suitable to their conditions and as allowed by law. The applicant argued that the Bill of Rights, 1689 was operative in Canada based on the terms of the British North America Act, 1867, which incorporated into Canada certain British constitutional principles. The Court found that these principles are not laws, and the Supreme Court of Canada has confirmed that there is no constitutional right to bear arms. As well, it was clear that even in England, under the Bill of Rights, 1689, the right to bear arms was not unqualified. Parliament had the constitutional powers to pass s.117.03 of the Criminal Code as this section is a regulation of the possession of a firearm and its use which the Supreme Court of Canada has determined comes within the sphere of the criminal law power. Therefore, s.117.03 of the Criminal Code is intra vires the jurisdiction of the Parliament of Canada.

The Court also rejected the argument that s.117.03 violated the applicant’s rights under ss.7 and 26 of the Charter. Despite the applicant’s suggestion that, while it may be unnecessary at present, at some future time firearms may be necessary to protect an individual from the tyranny of government, there was no evidentiary basis to suggest that the applicant needed the firearm in question for his personal security. Finally, there was no breach of any principle of fundamental justice. Even if the 1689 Bill of Rights was part of the Canadian Constitution, Section 26 of the Charter did not guarantee the rights therein.

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