Federal Court Holds First Meeting With Teams Fighting Gun Bans

Judge met with lawyers for the five teams challenging the Liberal confiscation order.

29 July 2020

4 min read

(Update Aug. 02: Adds links to download Motions to Intervene.)

TheGunBlog.ca — The five teams fighting the governing Liberal Party of Canada’s gun-confiscation order in federal court had their first meeting with the Ottawa-based Federal Court today.

“You have a really good handle on this. Very impressive.”

Private comment by one of the lead lawyers after reading this report

Details

  • This was the so-called “case management conference” for the five “Applications for Judicial Review” of the Liberal cabinet’s May 1 Order in Council for mass firearm confiscations.
  • See Canada Gun News: Week of 2020 July 13.
  • Conference call started at 1 p.m. Ottawa time, and lasted 1.5 hours.
  • I was on the call.

Who Was on the Call

Federal Court Presiding Judge

  • Associate Chief Justice Jocelyne Gagné

Applicant Lawyers (For Gun Owners Against Confiscation)

  • Arkadi Bouchelev (For Doherty)
  • Edward Burlew (For Hipwell)
  • Solomon Friedman (For Parker)
  • Christine Generoux (For Generoux)
  • Laura Warner and Michael Loberg (For CCFR)

Government/Respondent Lawyers (For Confiscation)

(Names copied from Federal Court summary.)

  • Kerry Boyd, Bruce Hughson and Jordan Milne (Against CCFR)
  • Robert MacKinnon and Zoe Oxaal (Against Parker, Generoux)
  • Andrew Law and Samantha Pillon (Against Hipwell, Doherty)

What Happened

  • Gagné asked the lawyers for the five applicants to summarize their cases, their desired outcomes, and their views on combining the cases.
    • They took turns on each topic, there was a lot of back-and-forth, follow-up, clarifications and elaboration.
  • Gagné invited the government lawyers to respond on each point.
  • The applicant lawyers agreed to proceed jointly and in collaboration where it makes sense, without merging their cases into one.
    • Reason: Many common points, and also many unique points. (I am guessing it was also to increase the workload for the government lawyers.)

Interlocutory Injunction: A Big Mountain to Climb

  • A major topic is a possible “Interlocutory Injunction” to block any confiscations until the Federal Court decides the cases.
  • “Win or lose, an injunction can have an enormous impact on the future course of the litigation,” Steven Mason, a partner at McCarthy Tetrault law firm, said in an undated report. “A successful injunction will have the immediate effect of preventing the other party from doing what it set out to do (or forcing it to do something it does not want to do).”
  • The Federal Court uses three key criteria to decide on an injunction, according to Mason:
    1. “Is there a serious issue to be tried?
    2. “Will the applicant suffer irreparable harm if the injunction is not granted?; and
    3. “Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits? (often called ‘balance of convenience’)”
  • A lawyer on today’s call told me after the meeting:
    • The injunction would stay [i.e., block or halt] the Order in Council until the full hearing.
    • What stay that would be is unknown. Could it be the stay is to leave it as is? Or to set it aside temporarily?
    • The correct term is: Interim declaration that the OIC is invalid. No injunction can be made against the Federal Government. That is clear law.
    • That is a BIG mountain to climb.
    • There has to be Irreversible Harm, Harm that cannot be replaced with monetary damages.
    • The injunction hearing will be before the motions to intervene.
  • No date was set for the injunction hearing.
  • Related (Steven Mason, McCarthy Tetrault): Interlocutory Injunctions: Practical Considerations

Motions to Intervene

Personal Impressions: Asymmetrical Poker

  • This is my first time covering a case like this.
  • It felt like I was eavesdropping on a game of poker, where one side takes all the risk and its best possible outcome is the status quo, while the other side risks nothing.
    • Nothing happens to the Confiscators (Justin Trudeau and Bill Blair) if they lose.
    • If we lose, we lose big. If we win, we just live to fight another day.
    • It’s a completely perverted and unjust “Asymmetry of Accountability and Consequences.”
    • #RestoreJustice
  • Every player knows their hand, knows the outcome they want, and has a plan for the tactics they want to use.
  • The Five Justice Warriors want the Lone Confiscator to fold.

Anecdote: Negotiating the First Deadline

  • There was a negotiation on the deadline for the government to produce the evidence on its rationale for the May 1 attack.
  • The Five Justice Warriors (My Team) wanted it ASAP. Mid-August!
  • The Lone Confiscator (Not My Team) played the Covid + Summer Holiday + “It’s Complicated” card to run the clock and drag things out. How about the end of September?
  • My Team (My Translation): Are you kidding? You knew this was coming from Day One. We might go to jail on 30 April 2022. Hand over the documents pronto! (The actual exchange was measured and courteous.)
  • They compromised on Sept. 11.

More Impressions

  • No substantive issues were discussed about the merits or flaws of the confiscation order or the challenges seeking to block it.
  • It was formal and procedural, without being stiff.
  • The lawyers addressed Gagné as “Associate Chief Justice.” They addressed her, not each other.
  • Some of the lawyers referred to themselves as “Mr.” So-and-So or “Ms.” Such-and-Such.

What’s Next

  • Aug. 14: Deadline (for applicants?) to submit draft procedural orders.
  • Aug. 26: Next case management conference.
  • Sept. 11: Deadline for government to provide documents showing rationale for confiscation, under Rule 317.
  • Date Not Set: Hearing on Interlocutory Injunction
  • Date Not Set: Hearing on motions to intervene

Summary Table of Cases

Court NumberDate Filed (2020)Lead PartyLead Lawyer
T-569-20May 21Cassandra ParkerSolomon Friedman
T-577-20May 26CCFRMichael Loberg
T-581-20May 27John HipwellEdward Burlew
T-677-20Jun 29Michael DohertyArkadi Bouchelev
T-735-20Jul 10Christine GenerouxChristine Generoux
T-905-20Aug 11Jennifer EichenbergEugene Meehan

Related

Corrections and Updates

  • July 29: Corrects name of Laura Warner.
  • July 30: Corrects name of Bruce Hughson. Adds context on injunction and motions to intervene, and fixes date of August meeting.
  • July 31: Adds names of more government lawyers, adds more dates.
  • Aug. 02: Adds links to download Motions to Intervene

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