Doherty et al. v. Attorney General of Canada; Federal Court File No. T-677-20

Published February 1, 2021

On January 18, 2021, the Federal Court heard the injunction motion argued by the Applicants’ lawyer, Arkadi Bouchelev. The interim injunction was filed by a group of private applicants to allow owners of firearms affected by the Order in Council to continue enjoying their private property while this case is being litigated. Arguments in favor of the injunction were also made by the Canadian Coalition for Firearms Rights (CCFR) counsel, Laura Warner, and the self-represented litigant, Christine Generoux. The Court has reserved judgment and we are waiting for the Associate Chief Justice to release her decision.

The virtual hearing, which was open to the public, had a limit of 1,000 participants. Over 2,300 individuals registered to observe the proceeding, making it the highest attended Federal Court hearing in history and suggesting a high degree of public interest in the case.

In his submissions to the court, Mr. Bouchelev pointed out the fact that there is no legal definition of the terms “variant” or “modified version”, which has resulted in widespread confusion among the public. Even firearms experts cannot agree on what those terms mean. Neither term is defined in the Criminal Code, Firearms Act or any of the regulations. Murray Smith, the former manager of the RCMP Specialized Firearms Support Services division, who testified on behalf of the government, was unable to provide a clear and unambiguous definition. Mr. Smith also confirmed that the RCMP opposed defining the term “variant” in the Criminal Code when the Standing Joint Committee on the Scrutiny of Regulations (a joint house of commons/senate committee that looks at flaws in regulations) recommended that a definition be established.

This lack of clarity creates a potential legal trap for as many 2.2 million Canadian gun owners. Since the term “variant” has no fixed meaning, it’s definition can be stretched to cover virtually any firearm. Travis Bader, a renowned firearms expert from British Columbia and the owner of the Silvercore training facility, provided an affidavit citing several examples of the RCMP classifying firearms as prohibited variants even though they could not be considered as such based on their technical design.

A similar legal trap is created by the similarly vague “bore diameter” and “muzzle energy” restrictions contained in the new Regulation. Mr. Bouchelev argued that the way the Regulation is written, innocent gun owners could end up unknowingly violating the law and being charged with serious criminal offences. For these and other reasons, the Applicants asked the Court to stay the Regulation while their main application is making its way through the court systems.

While we are all eagerly awaiting the decision of the Associate Chief Justice, it is important to remember that this injunction application is just one step in what is turning out to be a lengthy and expensive legal fight with the federal government. The Applicants are not businesses seeking financial compensation from the government. They are also not asking for special exemptions that would only benefit them. The Applicants are nine regular guys who said, “enough is enough” and are fighting to overturn Regulation for the benefit of all Canadian gun owners.

The Applicants do not have deep pockets and rely on continued support from the public to stay in this fight.

Editor’s Note: The OLA asks that you consider making  a donation at https://www.gofundme.com/f/93sve-gun-ban-court-challenge-judicial-review.

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