OIC Challenge Advances to Supreme Court

The legal challenge to the government's prohibition of millions of formerly non-restricted long guns by Order in Council will be heard by the Supreme Court of Canada (SCC).

The case, which has been previously dismissed by the Federal Court and the Court of Appeal, revolves around a section of the Criminal Code of Canada that stipulates:

"(2) In making regulations, the Governor in Council may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes." 

In plain language, the above section basically reads: "The Minister of Public Safety cannot issue an OIC prohibiting anything that is, in their own opinion, something that is reasonable for Canadians to use for hunting or sporting purposes."

And while the obvious argument against such regulatory bans finds its fulcrum in the well-documented history of non-restricted and restricted rifles being used for hunting or sporting purposes in this country, unfortunately, equally obvious is that, according to the wording of the law, none of that matters if the Minister of Public Safety is of the opinion that the rifles in question aren't reasonable for hunting or sporting purposes.

This caveat seems to create a conflict within the law, as its wording seems to indicate that it seeks to limit the ability of the government to prohibit hunting and sporting firearms, but also provides limitless license to the government to opine on what the definition of "reasonable for Canadians to use for hunting or sporting purposes.” And in doing so, it effectively renders itself moot, as no Minister of Public Safety would issue an Order in Council prohibiting firearms and then admit holding the opinion that those same firearms are reasonable for hunting or sporting purposes.

And although the Supreme Court of Canada has not provided any specifics of the legal clarity that they seek to provide in hearing this case, given this particular section of law is worded in such a manner as to make it effectively null and void, it is likely that the Court will be examining the potential spirit of the law, versus the letter of the law, in an effort to ensure the section's future applicability. In other words, it is reasonable to expect their deliberations to largely focus on how firearms are determined to be reasonable for hunting and sporting purposes, and what the Governor in Council's role is in making that determination - with the knock-on effect being that their ruling will determine the legal legitimacy of the Orders in Council issued by the Trudeau government that have seen millions of long guns prohibited.

What's Next?

With leave having been granted, the next step in the process is for the Supreme Court to hear the appeal and provide a decision. Decisions can be provided orally immediately after the appeal hearing (known as a decision from the bench) or reserved and delivered in writing at a later date. Decisions from the bench are becoming the more common outcome, but matters that may encounter a higher degree of dissent among the Supreme Court's judges (as opposed to unanimous decisions), or that may be more nationally significant than others, are more likely to see the verdict delivered in writing after further deliberation. In either case, a decision is probably over a year away. Additionally, it is worth noting that, statistically speaking, Supreme Court outcomes are effectively a coin toss: the chances of an appeal being granted or dismissed are roughly 50/50.

And that the legality of a policy that’s been at the core of the Liberal government for six years now comes down to a coin toss puts undeniable pressure on the government. If the SCC grants the appeal, the ramifications would be both severe and far-reaching: The existing long gun bans would be considered illegal and immediately struck down, a precedent would be set that would limit future governments’ ability to ban firearms by Order in Council, and the government would be exposed to significant financial damages sought by businesses whose revenues were negatively impacted by the bans.

How the government reacts to that pressure remains to be seen. In the near term, it’s very likely that the amnesty protecting owners from criminal charges will be extended, as a failure to do so would greatly increase the likelihood of the court issuing an injunction against the bans to prevent owners from being jailed for contravening a regulation that the SCC may eventually deem to be itself illegal.

But on a broader perspective, while extending the amnesty is a band-aid solution, it would not solve the government’s overarching problem of facing accountability for potentially being found to have illegally banned millions of firearms. To that, there are only two remedies: Striking a deal that would see the appellants* agree to discontinue their appeal in exchange for the cancellation of the long gun bans, or passing amendments to the Firearms Act that would prohibit the impacted firearms legislatively, rather than by regulation/OIC. The former would prevent the SCC from finding the prohibitions illegal, thereby negating any potential political and financial liability that may arise from such a decision, while the latter would indemnify the government against the same, regardless of the SCC’s eventual decision.

*Appellants: 

Canadian Coalition for Firearm Rights, 
Maccabee Defense Inc.,
Wolverine Supplies Ltd.,
O’Dell Engineering Ltd.,
Burlington Rifle and Revolver Club,
Montreal Firearms Recreation Centre Inc.,
Rodney Giltaca,
Ryan Steacy,
Christine Generoux,
John Perocchio,
Vincent Perrochio,
Michael John Doherty,
Nils Robert Ek,
Richard William Robert Delve,
Lindsay David Jamieson,
Mark Roy Nichol,
Peter Craig Minuk,
Jennifer Eichenberg,
David Bot,
Leonard Walker.