(Update Sept. 18: Adds Edward Burlew comment.)
TheGunBlog.ca — Canada’s Liberal Party-led government refused to provide the Federal Court with documents behind its May 1 attack against innocent citizens, citing “confidentiality.”
The government’s legal team had agreed to a Sept. 11 deadline to either share the contents or to say they object to sharing them.
They said they object.
Applicants in six court challenges to stop the Liberal mass confiscations or incarcerations had requested the material to show the crackdown is unconstitutional, illegal and unjustified.
Government Quote
The material “is a confidence of the Queen’s Privy Council for Canada, which cannot be disclosed because of its confidentiality,” the Privy Council Office said in a letter dated Sept. 10 to the Federal Court.
Rule 317
All challengers who filed an Application for Judicial Review of the Liberal cabinet’s Order in Council received a similar letter from the government lawyers.
The applicants asked for the materials under Federal Courts Rule 317, and the government refused the request under Rule 318.
Criminalize and Confiscate
Cabinet suddenly made it a crime on May 1 for Canada’s 2.2 million federally licensed gun owners and 2,400 businesses to buy, sell, move or use hundreds of thousands of their instantly blacklisted rifles and shotguns.
They also risk jail unless police seize the gear by 30 April 2022.
The Liberals drafted the mass criminalizations in secret with the federal police.
Editor’s View
“Nothing can justify these attacks on honest Canadians, and that’s what the Liberals offered the court: nothing,” said Nicolas Johnson, the editor of TheGunBlog.ca.
Arkadi Bouchelev Explains
Arkadi Bouchelev, the lawyer for a group of nine gun owners challenging the Liberals, explained the government move.
They are asserting parliamentary privilege and will not produce the documents that the decisionmaker relied on in making the decision. Not only documents, but also communications and other materials.
Remember, this is a judicial review of a decision. We are asking the court to review a decision made by the Governor in Council.
Rule 317 allows you to request anything that the government looked at as the basis for its decision. Normally you would be eligible to review the documents. In this case, they’re using parliamentary privilege and not providing the requested documents.
Arkadi Bouchelev, Response to TheGunBlog.ca, 16 September 2020
Bouchelev Motion on Oct. 2
Bouchelev, who spoke yesterday in a phone interview with TheGunBlog.ca, declined to share the response he’s planning.
“That will be the subject of a motion that will be brought forward on Oct. 2,” he said. “We anticipated that this might happen, so we built in a motion to account for this.”
Department of Justice Comment
Ian McLeod, a spokesman for the Department of Justice in Ottawa, e-mailed the following to TheGunBlog.ca today in response to our questions.
Under the Federal Court Rules, material relevant to an application that is in the possession of a tribunal whose order is the subject of the application may be requested by a party to the application. The tribunal or a party may, for a number of reasons, object to provide some or all of the material requested. After having heard submissions, the Court issues an order specifying what material must be provided. In this particular case the Attorney General has objected to providing material that include cabinet confidences.
The Rules and the Order from Associate Chief Justice Gagné are available from the Federal Court.
Department of Justice, Response to TheGunBlog.ca, 17 September 2020
Edward Burlew Comment
Edward Burlew, the lawyer representing John Hipwell, the founder of Wolverine Supplies Ltd., e-mailed the following to TheGunBlog.ca today in response to our questions.
The Federal Appeal Court has ruled in other cases that if the tribunal fails to provide the evidentiary record they based their decision on, that they must either not have one or that the evidentiary record did not support the decision.
Here, the decision is to ban 1,500 models of firearms.
Without that evidentiary record, the court seems duty bound to vacate the tribunal’s decision.
Edward Burlew, Response to TheGunBlog.ca, 17 September 2020
Inside Insight: Behind the Scenes on the Rule 317 Deadline
- The government’s legal team agreed to the Sept. 11 deadline for the Rule 317 materials during the Federal Court’s first meeting on the court challenges, July 29. It was confirmed at the second meeting, on Aug. 26.
- Associate Chief Justice Jocelyne Gagné, who is managing the case, ran both conference-call meetings. The editor of TheGunBlog.ca was on the calls.
- The government lawyers pushed for a deadline at the end of September given the quantity of materials to review, Covid-19, summer holidays, etc. Lawyers for the gun owners pushed for an earlier date. Both sides finally agreed on Sept. 11.
- Did the government lawyers know at the time that they would refuse the Rule 317 request, and were playing to take up time before the confiscation deadline? That would be a smart tactic for their side.
- Their job in this case isn’t to protect innocent Canadians from confiscation or incarcerations, it’s to help the confiscators and incarcerators.
- Related: See our July 29 analysis of the court case as Asymmetrical Poker.
Going Deeper: Rule 151
One lawyer said the Federal Court could possibly receive confidential materials under Rule 151. The court regularly considers confidential documents in its decisions.
Federal Courts Rule 151 says:
Filing of Confidential Material
Motion for order of confidentiality
151 (1) On motion, the Court may order that material to be filed shall be treated as confidential.
Demonstrated need for confidentiality
(2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
Federal Courts Rules, SOR/98-106
Government Lawyers Respond to CCFR Challenge
All six parties received a similar response last week.
Timeline: Next Steps
- Sept. 18: New deadline for applicants to file affidavits to support their injunction application.
- Oct. 2: Deadline for applicant motions on outcome of Rule 317 request from Sept. 11.
- Oct. 26: Next Federal Court case management conference with lawyers for the applicants and the government.
- Jan. 18, 2021: Hearing on Interlocutory Injunction. A decision could come quickly or take months.
- After Jan. 18 (Date Unspecified): Hearing on Motions to Intervene from:
- National Firearms Association
- Coalition for Gun Control
- Canadian Taxpayers Federation
- Justice Centre for Constitutional Freedoms
Federal Court Summary Table
| Court Number | Date Filed (2020) | Lead Party | Lead Rep/Lawyer |
|---|---|---|---|
| T-569-20 | May 21 | Cassandra Parker | Solomon Friedman |
| T-577-20 | May 26 | CCFR | Michael Loberg |
| T-581-20 | May 27 | John Hipwell | Edward Burlew |
| T-677-20 | Jun 29 | Michael Doherty | Arkadi Bouchelev |
| T-735-20 | Jul 10 | Christine Generoux | Christine Generoux |
| T-905-20 | Aug 11 | Jennifer Eichenberg | Eugene Meehan |
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