Would federal ‘red flag’ gun laws have stopped the Nova Scotia mass murder?

HALIFAX—The gunman in Canada’s worst mass shooting was known by both neighbors and by police to have physically abused his common-law wife repeatedly, dating back as far as 2013.

The pattern of abuse extended even further, in fact, to his ex-wife, who was a victim of his domestic violence as far back as the 1990s.

Though the abuse of his common-law was reported to police by at least one of his Portapique neighbours, no action was taken, no “red flags” were raised and the multiple firearms that were known — by neighbors and police — to be at his residence stayed there.

On April 18 and 19, 2020, Gabriel Wortman took those weapons and murdered 22 people, over 13 hours in northern Nova Scotia.

Had the red-flag provisions in the government’s newly proposed Bill C-21 been in place in April 2020, the tragic story might have very different.

Those provisions in the proposed bill are designed, in government words, to address “intimate partner violence, gender-based violence, and self-harm involving firearms.”

They would give the courts power to require that people flagged as being likely to harm others or themselves surrender their firearms.

In practice, the red-flag provisions would allow anyone — civilian or law enforcement — to ask a judge to suspend a firearms license or take away weapons from people who pose a threat. Those provisions would also give the courts the means to protect the identity of the applicant.

But it goes further than that: On passage of the bill, anyone already subject to a current restraining order involving intimate partner violence, gender-based violence or domestic violence or subject to a future such restraining order would automatically have their firearm license suspended.

“The purpose of introducing the red-flag laws, along with some other tools, is to address the alarming rise in domestic abuse in connection with gun violence,” Public Safety Minister Marco Mendicino told the Star.

“This would be another layer of protection, especially for women and survivors, where increasingly we’re seeing that violence visited upon them in conjunction with guns.”

That much of it gets a thumbs-up from anti-domestic violence advocates. That’s good policy, they say, given that studies show that the presence of guns in the home is the greatest risk factor for lethal domestic violence situations.

According to Statistics Canada, between 2009 and 2020, one in four female victims of firearm-related violent crime was victimized by an intimate partner.

And victims of intimate partner violence are about five times more likely to be killed when a firearm is present in the home. Other studies show that access to a firearm in the home closely correlates with risk of completed suicide and homicide.

Alongside the bill, Mendicino says that on May 27, he sent a new mandate letter to RCMP commissioner Brenda Lucki, in which he directed the RCMP to “allocate the necessary resources to respond immediately and to make it a priority to respond to those cases and calls where intimate partner violence and domestic abuse are in play and where a gun is present.”

Andrea Gunraj of the Canadian Women’s Foundation calls the red-flag law a “good step in the right direction.”

Not only would it go some way to reducing lethal violence in a home, she said, but it would mitigate it outside of the home as well.

“The evidence shows that people who are abusive in private spaces can be very abusive and violent in public,” she said. “It’s another of those things that we see that people have private domestic violence and they would go on to do mass shootings and hate-crime situations.”

The difficulty, she said, is often in raising the red flag in the first place.

What is reported in terms of domestic violence is merely the type of a giant iceberg, said Gunraj. There’s a huge “dark figure of crimes” of domestic violence and gender-based violence that never gets reported, never comes to police attention and never results in the kind of a court appearance where a judge might red-flag an offender and order them to surrender their firearms.

That “dark figure” might be tempered somewhat by the new RCMP mandate allocating more resources and more attention to domestic violence calls, especially where guns are involved.

And the provision to provide anonymity for people coming forward in theory removes one of the disincentives for domestic violence victims, or other applicants who come to the courts looking for a red-flag decision.

But it also provides a bit of a legal stumbling ground.

“I would point out that these are not full-blown trials,” said Mendicino. “These are motions which are intended to be heard very quickly with a decision to be issued very quickly, so that we can protect the community from someone who may pose a risk to it who’s in possession of a gun.”

The bill gives judges the option to close a red-flag hearing’s proceeding to the public and media, to seal those court documents for up to 30 days, or to remove any information that could identify the applicant from those documents.

But while the intent is pretty clear, the details on how the court might actually proceed are a bit fuzzy. While Bill C-21 may be ready for Parliament, it’s not clear that it is ready for the courts.

And that makes legal experts hesitant to weigh in on it.

At the least, there’s little clarity so far on how the accommodations for protecting applicants’ identities might clash with Charter-enshrined open court principles, said Errol Mendes, professor at the University of Ottawa’s Faculty of Law.

One existing precedent for rapid closed-court proceedings is in anti-terrorism legislation, where an intelligence service can apply to a judge in a closed court for a warrant to disrupt pending terrorist activities, he said.

But even in that situation, there is debate among legal experts about whether that violates Canadian Charter rights.

“There has to be legislation that clearly defines what the process is,” said Mendes, about future red-flag court proceedings. Is it an open court? Does the target know? Can the target answer?

“There’s a lot of stuff to be looked at.”

Further, while the idea of ​​taking guns out of the hands of dangerous people is an excellent one, it’s not a new one, said one gun control advocate. And legislation means little without solid implementation.

Existing legislation already provides a mechanism for the firearm owners to have their licenses reviewed, said Wendy Cukier, president of the Coalition for Gun Control. But over the years, she said, that mechanism has been diluted — she has seen the bar for incidents that would flag dangerous gun owners raised and has seen disconnects between concerns being raised and police action being taken — the Nova Scotia killings being a prime example .

“All I’m saying is that there are all these gaps. Those are not legislation issues; those are implementation issues.”

Those gaps, it seems, are what Mendicino’s letter for the RCMP is attempting to address, and much hinges on how much the police step up to their new mandate.

“I would argue that it’s the police’s responsibility to keep guns away,” she said. “It’s not private citizens’ responsibility. In my view, private citizens should be able to notify the police of someone is at risk and expect the police to take action.”

Whether the new bill, with its red-flag provisions and the accompanying new mandate for the RCMP, would have prevented the Nova Scotia massacre will remain one of those enduring “what-if?” questions.

Portapique neighbors might have gone straight to a judge to red-flag Wortman and have his weapons seized. RCMP officers might have been a little more diligent about following up reports of domestic violence and weapons at the residence.

No single piece of legislation is going to eradicate gun violence, admitted Mendicino. Instead, C-21 has to work in concert with other measures, including addressing some of the social determinants — better access to housing, health care and education — and the increase in domestic violence and gender-based violence.

“There is no way to wind back the clock and undo the losses that (the victims’ families) have had to endure,” said Mendicino. “But what we are very much hoping to do with Bill C-21 is to prevent another unspeakable tragedy like this from occurring again.”

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