Law Times

lAw Times • April 27, 2009 S Gun debate erupts anew his rural base in Western Canada and stands to make electoral gains later this year in isolated areas of rural Eastern Canada where there is proud and considerable oppos- ition to registering one's guns. First, Harper is trying again to abolish the 10-year-old gun registry. But strangely he is using the Senate this time rather than the Commons where he has failed twice before. Second, he wants to extend for tephen Harper wants to weaken gun control in Can- ada. He wants to strengthen another year the amnesty for gun owners who disobey the law and refuse to register their weapons. Th e current amnesty is set to ex- pire May 16. And third, Conservative mem- The Hill By Richard Cleroux Th e Bloc followed it up the next day with a motion against Harper's amnesty for law-breaking gun owners. Th e motion easily passed. Harper will likely ignore it and extend his amnesty. MP Dave MacKenzie, parlia- ber Garry Breitkreuz has intro- duced private bill, C-301. He wants to loosen controls on hand- guns, semi-automatic weapons, shotguns, and assault rifl es used for hunting non-humans. Apart from the amnesty exten- sion, everything appears dead in the water because Harper lacks a majority. But Harper's purpose is cleverly mentary secretary to the minister of Public Security and Emergency Preparedness, said the registry is not the answer. Th e real answer to fi ghting gun crime is to put more people in jail, people who commit gun crimes. Th is frightens other people away from gun crimes. Defenders of the gun registry also more political than ideological. He has targeted pockets of pro- gun support in about 10 Eastern Canada ridings held by the Liberals and New Democrats. Th ey are in northern Ontario, farmland On- tario, rural New Brunswick, and Nova Scotia. By using the Senate where things move slowly, instead of the Commons, Harper keeps the gun debate alive for the rest of the year and will not be blamed in the Commons for being more inter- ested in talking about guns than the withering economy. Th e Opposition, with its eyes on Canada's three biggest cities, Toronto, Montreal, and Vancouver, where fear of guns is greatest, is pre- tending there is a real threat from Harper to loosen gun control. Nowhere does gun control sell as well as in Quebec; people there are overwhelmingly in favour of it. So this past week, the Bloc Québé- cois undertook a campaign against Harper's gun policies. Th eir campaign was led by Bloc got into the act, especially women's groups. Rifl es and shotguns are the weapon of choice in domestic dis- pute killings in Canada. Women are usually the victims. Th e Canadian Police Associa- tion and the Canadian Associa- tion of Police Chiefs came to the defence of the gun registry. For them it's protection. Th ey like to check the computer to fi nd out if there are guns registered where they are going. Th ey use the registry about 5,000 times a day. Th ere are about eight million stay" the counterclaim against him based on a lack of jurisdiction. Th e Superior Court of Jus- tice granted the motion and ordered a "stay" of the counterclaim. Both the remedy sought and the remedy granted in this case were incorrect. In this regard the case is not diff erent from dozens of other recent examples of Ontario courts stay- ing or permanently stay- ing proceedings when the correct remedy is in fact to dismiss them. In civil litigation, a stay and a dismissal are not the same thing and a permanent stay is a creature of fi ction, an oxymoron like an open secret or an unbiased opinion. In civil proceedings, the temporary element I n First Gulf Bank v. Collavino Inc., Khaled "Karl" Chebil, a defendant by counter- claim, brought a motion to "permanently of a stay is its dominant characteristic. It is dif- fi cult to identify a situation in which it would make sense to interpret a stay as a permanent remedy. Th is is most clear when considering the language of R. 21.01(3), where "stay" appears alongside "dismiss." To take the drafters at their words, "dismissed" must have a diff erent mean- ing than "stayed." Looking at the ordinary meaning of these MP Serge Ménard. He's a former provincial minister of public secur- ity and a champion Crown prosecu- tor who made a reputation busting criminal gangs. Last Wednesday night on Par- liament Hill, the Bloc screened Denis Villeneuve's prize-winning Quebec fi lm Polytechnique which depicts the Dec. 6, 1989, slaugh- ter of 14 young women at the École Polytechnique in Montreal by madman Marc Lépine. It was an all-party event. About 50 MPs attended, in- cluding Michael Ignatieff and Jack Layton. Only one Conserva- tive showed up, Levis-Bellechasse MP Steven Blaney. Harper did not attend, nor reply to a written invitation. Th e Bloc pulled out all the stops, even bringing in the mother of one of the slain women. She had never seen the fi lm before and was in tears. It was a powerful and under- standably brutal fi lm. Some MPs left the room shocked and unable to speak. registered guns in Canada. It cost a fortune — about $1 billion — to build the registry 10 years ago and tens of millions a year to keep it up to date, until three years ago when Harper brought in his amnesty. Since then the registry is increas- ingly less accurate although it is calculated that about 80 per cent is still accurate. Some gun owners vol- untarily register. It helps track down their weapons if they are stolen. Po- lice do their best with it. Th ey were the ones who fi rst cranked up the cost. Th ey insisted they wanted all criminal records included and then all medical records of mental illness too, and some cops even wanted all police visits and calls to gun owner homes listed as well, and constant updates every time a gun owner changed address. And police checks had to be done on every entry. In- credibly time consuming. With about fi ve million gun owners in Canada, the cost quickly became phenomenal. It is estimat- ed that by 2015, if Harper had not brought in his amnesty, the total cost would have reached $2 billion. Th e big debate in the U.S. is over handguns. In Canada hand- guns were banned in 1934. Here the debate is rural-urban, opposite mirror images of each other. No guns in the city, guns in the country. Since Canada is 80-per-cent urban, the gun control group wins easily. It's this ideological split that words should help to resolve any ambiguity. Th e seventh edition of Black's Law Dictionary defi nes "dismissal" as "[t]ermination of an action or claim without further hearing, esp. before the trial of the issues involved," which connotes a permanent resolution to the proceeding. In con- trast, Black's Law Dictionary defi nes "stay" as "1. Th e postponement or halting of a proceeding, judgment, or the like. 2. An order to suspend all or part of a judicial proceeding or a judgment re- sulting from that proceeding." Postponement or suspension of an action does not have the same sense of fi nality as does dismissal. A proceeding that is postponed or suspended can be revived at a later time, while a dismissed proceeding has been stopped completely. COMMENT Should I stay or should I dismiss? BY STEPHEN G.A. PITEL & CHERYL D. DUSTEN For Law Times be appropriate. Th is is because if all of the issues between the parties are not resolved in the other proceeding, the parties should be able to revive the Ontario action in order to continue their dis- pute on those points. Th us, a temporary measure in the form of a stay would be appropriate. Th is interpretation accords with the practi- Speaker's Corner cal realities of litigation. A stay of proceedings should be reserved for those cases where the ef- fect is indeed intended to be temporary. Spe- cifi cally, if a court decides that it does have ju- risdiction simpliciter in an action but that Ontario is not the forum conveniens, the proper approach is to stay the proceeding rather than dismiss it. Th is is be- cause the court in the for- eign jurisdiction that the PAGE 7 As such, a stay is not the right remedial re- sponse to several jurisdictional challenges fre- quently advanced by litigants. Where the chal- lenge is that the court has no jurisdiction over the subject matter of the action, under R. 21.01(3) (a), a motion for dismissal would be appropriate but a motion to stay would not. Th is is because a court that does not have jurisdiction over the subject matter of an action will not somehow de- velop that jurisdiction in the future. Conversely, where the ground of the motion is that another proceeding is pending in another jurisdiction between the same parties in respect of the same subject matter, under R. 21.01(3)(c), a motion to have the action stayed, not dismissed, would Ontario court thought was the convenient fo- rum may in fact refuse to hear the action. If this happens, the parties should be able to revive the suspended Ontario proceeding because Ontario does, after all, have jurisdiction simpliciter. If the court had dismissed rather than stayed the ac- tion, the parties would be forced to commence an entirely new proceeding in Ontario following a refusal by the foreign court to hear the dispute. Given the possibility of an expired limitation period preventing the re-commencement of the proceeding in Ontario, a dismissal cannot be the appropriate remedy. An interpretation of "stay" which centres on a postponement or suspension of the action is supported by numerous cases in which courts have indicated that a stay may be lifted in cer- tain circumstances, allowing the Ontario action to then continue. Th ermasteel V (Canada) Inc. v. Macsteel Commercial Holdings (Pty) Ltd. is an excellent example, as is Kocsis v. Sprague. Th e interpretation of a stay as a temporary concept is oddly enough reinforced by cases in which courts have stated that they were "per- manently" or "perpetually" staying an action. In Deakin v. Canadian Hockey Enterprises, the court made an order "staying the Ontario ac- tion perpetually" after fi nding that the court did not have jurisdiction due to a lack of a real and substantial connection. At a minimum, the judge appreciated that a stay is only a temporary remedy, and was not satisfi ed that such a remedy was the right remedial response to the defendant's challenge. However, the right remedy is not to inject a contradictory notion of permanence into a stay of proceedings by adding the modifi er "permanent" or "perpetual." Rather, the right remedy is to dismiss the action for lack of jurisdiction. LT Stephen G.A. Pitel is an associate professor at the faculty of law of the University of Western Ontario. His e-mail address is spitel@uwo.ca. Cheryl D. Dusten is an associate in Fasken Martineau Du- Moulin LLP's litigation and dispute resolution department. Her e-mail address is cdusten@tor. fasken.com. creates electoral opportunities for politicians. Th at's why Harper keeps on trying to loosen gun control, and that keeps the debate going. LT Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. www.lawtimesnews.com

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