This article originally appeared in the Hamilton Spectator on July 8, 2021.
America’s largest gunmaker has been given a rude awakening by Ontario’s Superior Court of Justice.
In a recently released landmark ruling, Superior Court Justice Paul Perell shot down an attempt by U.S. gun giant Smith & Wesson Corp. to have a Canadian class action lawsuit against it thrown out.
The judge ruled that the lawsuit can go forward on the basis that the company might be found liable for choosing not to include safety features in its handguns that could have prevented a deadly shooting spree with a stolen gun on the Danforth in Toronto in 2018.
Such a lawsuit could never happen in the U.S. That’s because in 2005, under pressure from the powerful U.S. gun lobby, a compliant U.S. Congress passed the Protection of Lawful Commerce in Arms Act under which Smith & Wesson and other gun makers there have enjoyed absolute immunity from civil lawsuits arising from the criminal or unlawful misuse of their products.
If Smith & Wesson expected Canadian Courts to be as compliant as U.S. legislators, Justice Perell has sharply disabused the company — and its fellow merchants of death — of any such illusion.
In allowing the lawsuit to proceed, the judge reinforced the centuries-old legal principles that heralded the modern law of negligence and the heightened duties of care owed by manufacturers of products that are dangerous in themselves — such as handguns.
The victims’ case is that Smith & Wesson was negligent in choosing not to build “smart gun” technology into its guns when it knew that such technology was available and could prevent them from being used by unauthorized persons for criminal purposes.
In his clear and well-reasoned ruling, the judge emphasized that Smith & Wesson cannot be blamed for the Danforth shooting itself. Nevertheless, he left the door wide open for the court to determine at trial whether the company was culpably careless in the way it manufactured the stolen killing machine used by the shooter.
Justice Perell noted that smart gun technology has existed since the 1970s and that as early as 1998, Smith & Wesson itself began developing authorized user technology and created a series of inventions and filed patent applications for safety features such as biometric skin sensors that scan a gun user’s fingerprints and prevent a weapon from being fired if they don’t match an authorized user.
In 2003, Smith & Wesson entered into an agreement with the U.S. government in which it acknowledged that over 200,000 firearms are stolen from authorized users in the U.S. every year and that the company’s weapons were not equipped to fully block unauthorized users.
Smith & Wesson agreed to commit a percentage of its annual firearms sales revenues to developing smart gun technology — and the company even promised to incorporate such technology into all new firearms designs within 36 months of the agreement.
However, within two years of that agreement, the U.S. Congress came to the gunmakers’ rescue by enacting the Protection of Lawful Commerce in Arms Act. A more accurate name would have been The Gunmakers’ Protection Act.
Once Congress had its back, Smith & Wesson never complied with the agreement. The judge found that the company let its authorized user patents lapse and never adopted authorized user technology or other feasible safety measures.
With no risk of being sued in the U.S., gunmakers had little commercial incentive to incur the cost of such technology. Congress had given them a free pass.
As for the gun lobby, it cannot have escaped its notice that stolen guns are good for gun sales. After all, in the gun-crazed U.S.A., if your gun gets stolen, you’ll be more afraid than ever — and keen to replace it.
Good for business? Maybe. But certainly not good for the public at large. Citing a report from the U.S. Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, the Canadian Judge noted that: “Lost and stolen firearms pose a substantial threat to public safety and to law enforcement. Those that steal firearms commit violent crimes with stolen guns, transfer stolen firearms to others who commit crimes, and create an unregulated secondary market for firearms, including a market for those who are prohibited by law from possessing a gun.”
Justice Perell got it right. Gunmakers don’t get a free pass here. An industry that has the wherewithal to make its dangerous product safer but still chooses not to can expect to be held accountable by Canadian courts.
The judge’s ruling is a stark reminder of how precious our civil justice system is — and that, as Ralph Nader taught General Motors more than half a century ago, if you negligently endanger citizens with your product, a lawsuit can make you pay.
Only in Canada, you say? Pity.
Dermot Nolan is a Certified Specialist in Civil Litigation and partner at Nolan, Ciarlo LLP, Hamilton Lawyers.