Trigger Warning: Canada's Gun Problem

Is Canada really safer from gun violence—or just legally blind to the problem? 

Gavin Tighe and Stephen Thiele dive deep into Canada’s hidden handgun crisis, the porous border with the U.S., and the legal implications of a groundbreaking class action lawsuit against gun manufacturer Smith & Wesson. 

Framed by the tragic 2018 Danforth shooting in Toronto, the conversation explores the dramatic rise in gun violence, the role of smart gun technology, and whether Canadian courts can hold American companies accountable. 

Gavin and Stephen take listeners on a tour through the complex landscape where crime, technology, public safety, and constitutional principles collide.

Listen For:

3:26 Do Gun Bans Actually Work

7:11 Toronto Shootings The New Normal

10:49 The Danforth Tragedy and Class Action Origins

15:18 Smart Guns Could They Have Prevented This

21:34 Should Car Makers Be Sued Like Gun Makers

28:09 The Enforcement Problem with US Companies

Price v Smith and Wesson Corporation

Ontario Court of Appeals 452

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Contact Us

Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Gavin Tighe (00:00):

But the problem with handguns in Canada is you can have all the laws you want. It's the illegal handguns that are the problem. So you can have telephone books full of regulations on how to legally deal with handguns. But if I'm a criminal, I really don't care because I'm a criminal and I don't follow the law. Therefore, in Canada, I think we have a bigger problem to some extent because in Canada, generally speaking, only the criminals have guns. Hello and welcome to Beneath the Law. My name's Gavin Tighe here with Stephen Thiele. Stephen, how are you in this fine Sunday morning here in July in Ontario.

Stephen Thiele (00:42):

It's beautiful day. Gavin, downtown Toronto. Very sunny, very hot, but we'll survive.

Gavin Tighe (00:51):

I have to say I'm blessed to be out of the city today up in the Hinterland. I was thinking to myself this morning, we complain about the weather a lot here in Canada, but for about two months of the year, I think it's the nicest place on the planet. The other 10, I don't know. Sometimes I say not so much, but whatcha going to do. Anyways, today we're going to talk about one of the things that I think Canadians sometimes naively believed, kind of looked down their noses on our neighbors to the South. And one of the really distinctive issues to my mind of what defines a Canadian as opposed to an American, to a large extent, we have a lot of things in common, that's for sure. But one thing that we seem to diverge on is guns. Americans certainly have a, generally speaking, a very different view of guns than Canadians, generally speaking do in the United States.

(01:52):

Of course, the notion of the right to own a firearm, the right to carry a firearm, seems to almost be a religious belief in the minds of many Americans in the right to bear arms. We can argue about that for hours of what that part of the Constitution means, but has certainly been elevated in the United States to, as I said, an almost religious belief, a mythical issue in the eyes of many Americans. Canadians not so much. We don't really, for the most part, I think there are exceptions, obviously, but most Canadians, if a poll were taken, would agree that people shouldn't be walking around carrying guns.

Stephen Thiele (02:39):

I don't disagree with that. Look, the United States culture is a lot different. Their constitution has a provision in it. As you mentioned. There's certainly, I think in Canada there's a distinction between handguns and long guns or rifles. Governments have tried to restrict even rifle firearms to a lot of pushback from people who live in more rural communities in Canada. But with respect to handguns, I agree with you. I mean, we don't have the same real interest in wanting to carry handguns or use handguns, and even our government, I guess, in 2021, banned the sale of handguns,

Gavin Tighe (03:26):

Right? So I mean, it's interesting. We can decry all of these things, but governments oftentimes will bring in policies that a lot of people don't agree with. But generally speaking, they bring in policies that most people do agree with because they want to get reelected. And the reality of banning handguns, I have my own view on frankly, the uselessness of a law to ban handguns. Because the problem with respect to handguns in Canada, and anyone who thinks we don't have a problem is I think sorely mistaken. But the problem with handguns in Canada is you can have all the laws you want. It's the illegal handguns that are the problem. So I can have telephone books full of regulations on how to legally deal with handguns, but if I'm a criminal, I really don't care because I'm a criminal and I don't follow the law. Therefore, in Canada, I think we have a bigger problem to some extent because in Canada, generally speaking, only the criminals have guns

Stephen Thiele (04:36):

For the most part. I mean, look, there are legal gun owners prior to the regulations coming into place. There are shooting clubs. People use guns, handguns there, and I don't think there's anything wrong with that, but people carrying handguns, walking down the street with a handgun is a problem. And you're right, that people who are carrying those handguns in general are criminals or gang members using smuggled guns from over the border. I mean, as far as I'm aware, I don't think there's any gun manufacturer in Canada. Most guns are made in the United States or elsewhere. And other than the legitimate sales of rifles and handguns previously prior to this restriction that was implemented by government, most of those handguns come into our country through cross border smuggling.

Gavin Tighe (05:41):

Yeah, I mean, Canada, let's face it. I mean, we can talk about our relationship with the United States all we want, but we have the longest border in the world. I think undefended border, certainly in the world, undefended for the moment with the United States, and it's a porous border. It is a massive landmass with a border across it. North America and to the south of us is probably the largest cachet of weaponry ever known to human civilization. I think there was some statistic that there are more guns in the United States per capita than anywhere else on the planet. I mean, every single individual, I think would have the equivalent of about 10 firearms. So you've got literally millions and millions of guns in the US sold in various places with very little generally speaking regulation. We hear about gun shows, et cetera, where you can walk in there and they say, do you have a pulse? Here's your gun. So you've got, and basically millions of cars come across the border every day and guns come across the border, and they generally are being sold or trafficked to people who want guns and who wants guns? Well, criminals,

Stephen Thiele (07:07):

Yeah, people, criminals

Gavin Tighe (07:08):

Like crimes.

(07:11):

The reality of that is, so unfortunately what we've got is a illicit handgun trade here in Canada. We have substantial issues with respect to the illegal use of firearms. I mean, I know that just anecdotally speaking, I mean, hearing about a shooting in Toronto 30 years ago would've been shocking. People would've been absolutely appalled that there had been any kind of a shooting in Toronto. Now, I think it's a rare occasion when you don't hear at least five reports a night where people are blowing off handguns all over the place, and now we're kind of immune to it. I think

Stephen Thiele (07:57):

In some respects, we are. Look, there's no doubt that from a statistical standpoint, from what I understand, since 2009, there has been an 81% increase in violent offenses involving guns.

Gavin Tighe (08:17):

That's

Stephen Thiele (08:18):

Astounding. So that's staggering, right? And look, a handgun only really has one purpose, and that's to injure somebody or kill somebody. Well, I guess that's two purposes, but that's what they do.

Gavin Tighe (08:36):

I think that I have a great, I'm not trying to offend anyone in the gun gun community, if I can call it that, the firearms community, but the reality of it is it's a weapon. Weapons are made for one purpose. They can be defensive or offensive, but they are generally speaking, made to injure somebody. I mean, a brass knuckles have one purpose. They are a weapon. They are not, oh, I'm a brass knuckle collector. It's no knives have other purposes maybe in the kitchen, but certain types of knives are made to hurt people. Guns are made to hurt people. Now, that may be we need guns, I suppose, for police officers and such, but we need guns because police officers need to at least have some sort of level playing ground with the criminals, because criminals frankly, sometimes have better guns than the police.

Stephen Thiele (09:37):

Well, semi-automatic handguns and handguns that get, I suppose, modified in certain respects, look, there's no doubt that these things are problem problems. Our podcast is really why we're doing this podcast on handguns is the Ontario Court of Appeal certified a case, a class action lawsuit against a gun manufacturer Smith and Wesson, which will, I guess, going forward, should this case go forward. We don't know if there's going to be an appeal sought to the Supreme Court of Canada on this, but this class proceeding will determine, I think for the first time in Canada, whether a gun manufacturer is liable for people being injured and killed because of the unauthorized use of a gun, a gun that was stolen and that killed two people injured 13 in a mass shooting on the Danforth here in Toronto in July of 2018.

Gavin Tighe (10:49):

And I mean, let's just sort of rewind a bit. I mean, we've had lots of comments and keep 'em coming by the way on this podcast. But we are putting this out for a very broad section of listeners. I mean, some of whom are lawyers and are probably quite bored at a lot of the things we talk about and others are going, what the heck are they talking about? So let's talk about a class action just really, really quickly. So class proceedings, of course, people have heard of these class actions, et cetera, and what they are I think is pretty important. So to the understand the context. So basically what a class proceeding allows to happen is it allows a group of individuals who on their own may or may not have the wherewithal to put forward a lawsuit to sue someone. In fact, oftentimes they'll see class proceedings where the individual losses of the individual class members isn't really a whole heck of a lot, but when cumulatively when you put it all together, it turns into a pretty big number.

(11:52):

So while nobody would sue, let's say, for bother bringing a lawsuit for the a hundred dollars that they're out, but if there were 5 million people that lost a hundred dollars, all of a sudden you get the picture that it makes it sense to aggregate those interests into a class. So what we have is legislation in Ontario, and actually I think every province in Canada, except for Prince Edward Island, which apparently doesn't have class proceedings acts, but in Canada and the United States, there are class actions whereby a representative plaintiff is allowed to bring out action in the name of the entire class or group of people who would be similarly affected, and one lawyer or one law firm or group of law firms then represent that class. So what they do is they seek to what's called certified as a class. So they go to court and they say, Hey, hey, your Honor, this is a class of people that we represent, that it's proper, that this be brought as a class proceeding.

(13:02):

What they say is, look, there's an identifiable group of people. They have common issues and that I'm a suitable representative for that group of people. And generally speaking, it's their first battleground in a class action. But it's really the starting point for a class proceeding. It really is to say, Hey, court, let this claim proceed as a class proceeding. So the certification motion is a big deal in class actions because if the class action is certified, that opens up a whole series of opportunities for that class proceeding to go forward. And defendants will very much dig in and try to fight these certification motions because defendants don't want, for the most part, class actions against them. And Smith and Wesson was no different. So here we had a, and you can tell our listeners a bit about what this particular claim was, but we had a representative plaintiff going to court and saying, certify this claim against Smith and Wesson in regards to this Danforth Avenue shooting as a Class Smith and Wesson saying, no, no, no, it doesn't meet the test.

Stephen Thiele (14:17):

Right? And it's important to note that a class certification motion really puts the court in the position of gatekeeper. And to that extent, the tests have developed with respect to class proceedings that all the plaintiff really needs to show is some basis in fact that they have a cause of action. They don't need to prove the merits of their case. And that's why this certification is so important because the original motion judge who heard the certification motion actually denied the certification and essentially the reason, so the Ontario Court of Appeal overturned that decision. And the reason for that is that the motions judge applied a merits based analysis to the causes of action that were claimed,

Gavin Tighe (15:18):

And we could tell a little bit about what the cause of action, I think is pretty novel. So the cause of action is that as with any number of devices that we now have, I mean your phone, there's smart what's called smart technology, which says, when I go to look at a message on my phone, my phone looks at now recognizes my face, poor phone and can open up or fingerprint or something of that nature. There's biometrics that are built into all sorts of devices that we have that now identify us as the authorized user. So when I go, it's not even a password anymore, it's a biometrical type switch, if I can call it that, turns my phone on or allows me access to it. And similarly, you can incorporate that into a firearm such that the firearm would recognize the fingerprints of the authorized user, or I don't think you want to point the gun at your face so it recognizes you, but hopefully that's not the technology. I'm not that familiar with it. Another one I've heard about, which I thought might've been a little bit more useful, frankly, although you get back into it again, it's one where you have a watch, kind of like an iWatch or whatever it is, do you wear, and the gun will only work when it's in proximity to the watch or some other device. So there's a key mechanism, and that technology, I suppose, is adaptable to guns, but gun manufacturers for, you can explain that to our listeners why, but don't use it.

Stephen Thiele (16:59):

Yeah. So smart gun technology, let's call it, that certainly has been talked about probably for more than a decade now, whether it's a fingerprint or a palm print or as you say, using some other device that you have to have near the gun in order to use it and for it to fire. It's been around for some time, and there have been a lot of mass shootings, as we know from news reports in the United States, Sandy and Canada. Yeah. Well, yeah, in Canada as well, but less the Sandy Hook shooting at schools and come to mind,

Gavin Tighe (17:47):

It was just one the other week in Idaho where someone set a fire and then waited for the firefighters to come and started shooting them. Oh, gosh.

Stephen Thiele (17:55):

Just

Gavin Tighe (17:55):

Horrific. I mean, it's crazy.

Stephen Thiele (17:58):

Absolutely. And anyway, so with civil claims being brought in the us, Smith and Wesson actually entered into a preliminary agreement as part of a settlement that they would adopt smart gun or authorized user technology in their handguns to lessen these kinds of events. And then a few years later, US Congress granted them immunity from third party liability for shootings. And so then they never implemented this technology, and that's really what the lawsuit is all about here in Canada, that this weapon that was used in the Dan force shooting the shooter, which was stolen, which was stolen the

Gavin Tighe (18:46):

Shooter from a legal cache of guns by a firearm dealer at the time

Stephen Thiele (18:52):

In Saskatchewan, and the gun wound its way into Toronto, that the smart gun technology did not exist for this weapon. And so therefore, the plaintiffs have brought a claim. The only claim that was certified was a negligence claim against Smith and Wesson for their failure to implement a smart gun technology in their firearm. The weapon that was used was actually one that was made for police and military purposes, and the shooter got hold of it and shot people coming out of shops and restaurants on the Danforth, people who were just going about their business. Innocent victims. Yeah, absolutely terrible. And so a law firm representing people and families decided to bring this class proceeding against Smith and Wesson. And like I said, the Ontario Court of Appeal reversed the original motion judge's decision, which did not certify the class action and has now certified it for that negligence claim.

Gavin Tighe (20:09):

Yeah, I mean, the certification motion, again, just so everyone understands, is merely, as you point out, the gatekeeper function. And in my own mind when I think about it as a very simplified version of the test that is applied is there's no finding by any stretch that this action will succeed in the sense that it will be successful. The court has sort of left it to look at it and say it might succeed. It's possible. It's theoretically okay, if all of these facts come together, then yeah, that could survive. That case could be potentially successful. But to my own mind, there's so many aspects of the claim that just seem so tenuous, and I'm putting it in different contexts beyond guns. I mean, guns are such a, I hate to use the word trigger to people because they just send everybody into one camp or the other. I mean, it is a very divisive issue, but there are lots of other technologies, for example, in lots of other devices that frankly kill a lot more people than guns do, at least in Canada, I'm thinking of automobiles, for example, apple. There are certainly devices that you could put on an automobile that would prevent someone from starting the car if they were intoxicated.

(21:34):

There's a breathalyzer thing that you can use as an ignition starter. They put it on as sort of a, and why would that not apply? So why would not everyone who was killed by a drunk driver not sue auto manufacturers for not installing that technology in car? Because if the technology was there, then the drunk driver wouldn't have been able to start the car and those people wouldn't have been hurt or killed.

Stephen Thiele (21:59):

Would

Gavin Tighe (21:59):

That not fly?

Stephen Thiele (22:02):

I see that as being a little bit distinguishable from the gun issue in terms of cars today are actually made with a lot of smart technology to prevent people from getting into accidents,

Gavin Tighe (22:19):

Not from drinking and driving.

Stephen Thiele (22:21):

Well, I don't disagree with that, but not at

Gavin Tighe (22:24):

Least my car doesn't have a straw that pops out of the steering wheel. But I don't know, maybe that I can blow into, but I mean, maybe it should.

Stephen Thiele (22:32):

You know what? Look, it's very interesting, but looking at it from the opposite side, if this proceeding can be certified, why couldn't someone who was killed by a drunk driver bring a claim against an auto manufacturer for not, if it's a newer car and the technology exists, why isn't not implemented by auto manufacturers?

Gavin Tighe (22:56):

I mean, I don't know what the difference is. I mean, to me, well, I mean just in a general, I mean, there's a lot of differences, obviously, but it is technology designed to prevent the harmful use of a piece of equipment, the illegal use of a piece of equipment that theoretically is not that complicated to put in place.

Stephen Thiele (23:20):

No, and look, from the gun manufacturer standpoint, if the technology is not very expensive to implement it, why wouldn't you?

Gavin Tighe (23:30):

So I'm thinking here, Stephen, why don't we run out and start a class action against every auto manufacturer? It's Sunday now. We can start that Monday morning. We better get it up before the podcasters or a whole whack of plaintiff class action lawyers will be beating us to our own. Yeah, what a good idea, Gavin.

(23:48):

Quick, quick. We're going to have to stop this podcast right now while we run off and draft a claim, find ourselves a representative. Plaintiff, unfortunately, sadly, probably somebody injured by a drunk driver. Not a joking matter, but literally when you think about it, there are any number of pieces of equipment that theoretically could have safety mechanisms put on them that would, if in place, have prevented all sorts of injuries. I mean, I don't know, chainsaw guards, well, you name it. You could go on and on and on about everything that injure people, and there's some sort of device, I suppose, that would prevent or minimize that risk.

Stephen Thiele (24:27):

Yeah, look, lawsuits generally can influence product manufacturers. You have product liability cases, automobiles, cigarettes is certainly probably the biggest equivalent. We know cigarettes cause cancer. Why did cigarette companies not issue warnings in terms of their product? Why are they marketing a product that causes so much money to be spent in our healthcare system? And look, my uncle died. He was a heavy smoker, so he ended up getting heart disease and died from that many years ago. Everybody

Gavin Tighe (25:12):

Knows someone,

Stephen Thiele (25:13):

At least

Gavin Tighe (25:13):

One person.

Stephen Thiele (25:14):

So here we are in terms of gun manufacturers. You've got smart technology. It doesn't seem to be something that costs a lot to implement, so why can't you? Right.

Gavin Tighe (25:28):

But yeah, I mean, we get into this whole, now we come back again, you mentioned it in passing, but they were given what I'll call an amnesty from the requirement to do this by the US Congress. And we came into that back again to the cultish religious, almost fervor around guns because it was a theoretical, theoretically, the gun manufacturer said this was an infringement on people's right to bear arms in the US because it was a limitation on that in some way. I mean, I don't really understand the argument, I guess, isn't a safety switch on a handgun? And look, I'm not a firearms person. Any firearms people will be rolling their eyeballs listening to me talk about it. But isn't there a safety switch on every gun that stops it from firing? Is that not, this is just an electronic version. Having said that, I don't dunno about you, but it seems to me every time I'm kind of anxious to see an email and I see it pop up and then I got to open my phone, that's the time that my phone says, oh, your face not recognized.

(26:34):

Insert your password. So that would probably be me as someone was breaking into my house if I were in the us. And so people who are sitting there going, well, I need the gun. I don't want the gun to lock up with these crazy safety features when I need to use it. I need to use it. And I guess there's some kind of merit to that. I mean, I think if you're a legitimate gun owner, I mean, or a police officer, when you need to use your gun, you need to use it. You don't need to have time to input your password before you use it.

Stephen Thiele (27:09):

Yeah. Look, I think there are some practical considerations there. One of the practical issues that strikes me about this certification, if we play out the string, let's assume that the plaintiffs are successful. How are they ever going to enforce a judgment? They're not, right? Right. You're looking at a company that is located in the United States of America. They do 95% of their business in the United States. I don't think they're making a heck of a lot of money in Canada selling their guns to police forces and military. If you're looking at a wrongful death suit with family law claims, I mean a class action lawsuit could generate millions and millions of dollars in damages. And then you need to enforce this in the us and it's really against their public policy to hold a gun manufacturer liable because they have immunity or amnesty.

Gavin Tighe (28:09):

So

Stephen Thiele (28:10):

A court in the United States is probably going to be inclined to not permit the enforcement of a Canadian judgment against a US-based gun manufacturer based on US legislation.

Gavin Tighe (28:25):

Yeah. I mean, look, it's difficult enough to try to enforce a Canadian judgment in the United States, even an innocuous judgment, a contract claim to take it to the us. You basically have to start another proceeding in the United States, Canada. It's much, much easier, frankly, to take an American judgment and enforce it here. We're quite open to that. But it is difficult to enforce a Canadian judgment. American courts don't necessarily automatically recognize the validity of Canadian judgments. They should. But this one, I think there's zero chance that a US Court would enforce a Canadian judgment against a gun manufacturer where there is amnesty in the United States for the very issue that the gun manufacturer is being found liable for in Canada.

Stephen Thiele (29:15):

And look, we're running out of time here, but that's why we're talking about beneath the law, because you can look at the face value of this judgment, and I'm sure

Gavin Tighe (29:26):

It looks like a good idea on its face. Exactly. When you get down to the nitty gritty, when can I cash my check? The answer is never, because there's never going to be a check, in my view, unless they have assets here in Canada that you could somehow seize. And I would think that they would be long gone by the time, or they would go through bankruptcy proceedings if there was sufficient judgment. But in any event, that is ultimately civil judgments, class proceedings or otherwise. Ultimately, the only thing that comes out of them is a damage award. And a damage award says you, Mr. Defendant, shall pay plaintiff X dollars. That's it. Nobody's going to jail. Nobody's losing their kids. Nobody's losing that type of their liberty or respect to it. It's just pay the money. And if you can't collect the money, the judgment isn't worth very

Stephen Thiele (30:16):

Much. Right? It's a paper judgment. Paper judgment.

Gavin Tighe (30:27):

Once again, Stephen, great talk. A very, very interesting, a loaded discussion. Pardon the pun. Doug wanted me to give one so I couldn't leave him hanging. Doug Downs. By the way, our producer, thanks so much for another wonderful episode, and Stephen, great to see you as always. And always remember, if no one is above the law, then everyone is beneath it.