Student’s case may define gun rights

Fight headed to Ontario Court of Appeals, but firearms already sold, lawyer says

The legal fight over the seizure of guns from a University of Ottawa student is headed to the Ontario Court of Appeal in a case that could define what constitutes a “legitimate concern” about when a gun owner lacks the responsibility and discipline to possess firearms.

But no matter what the appeal court decides, Boris Vardomskiy won’t be getting back his $15,000 collection of guns.

Vardomskiy, 24, has already agreed to transfer the 11 guns to a third party and they’ve been sold, according to his lawyer.

He intends to use the money from the sale to pay his mounting legal costs, said Solomon Friedman.

“This is about his ability to own guns now, not the guns themselves,” Friedman said.

“He is fighting for his ability to own firearms.”

Police seized Vardomskiy’s guns on a judge’s order after he wrote “TAP, RACK, BANG” on a 2011 ecotoxicology exam as well as a slur about a female student sitting in front of him who he believed was “behaving in a wanton manner, almost slut/whore like. Despicable!”

Vardomskiy’s case has already been the subject of a pair of court hearings.

Last year, Ontario Court Justice Dianne Nicholas banned Vardomskiy from owning firearms for two years and ordered the guns seized by police be forfeited. Nicholas acknowledged Vardomskiy was a “conscientious, safe and responsible target shooter and gun collector,” but she disregarded a psychiatrist’s finding that Vardomskiy didn’t pose a risk to himself or others. Instead, Nicholas said Vardomskiy didn’t make a good impression on her and she believed he was disingenuous and manipulative before concluding he hadn’t convinced her the guns should be returned.

But Superior Court Justice Brian Abrams overturned that decision last month, concluding that Nicholas had made “serious errors” in her legal analysis and ordered a new hearing in front of a different judge.

In overturning Nicholas’ ruling, Abrams concluded that Nicholas reversed the onus, requiring that Vardomskiy prove he was a responsible gun owner instead of requiring the Crown to prove he was a danger.

Vardomskiy wasn’t charged with any crime, and was properly licensed.

And he stored his registered guns and ammunition in a manner that exceeded legal requirements, Abrams said.

Last week, the Crown appealed Abrams’ decision, indicating in their notice of appeal that they would argue Abrams was the one who erred in finding that Nicholas reversed the burden of proof.

They also argued he treated the matter like a criminal trial and substituted his own view of the evidence.

Abrams misinterpreted and misapplied the test under the section of the Criminal Code dealing with the seizure of firearms for public safety, the Crown argues.

The guns were seized under a section of the Criminal Code that allows police to obtain a warrant to search a home when they believe on reasonable grounds that a person possesses a firearm and that it is not in the interest of public safety for the person to have it.

That is different from a traditional search warrant, which requires proof that a crime has been committed and that there are grounds to believe evidence will be found during the search.

During the hearing in front of Abrams, assistant Crown attorney Moiz Karimjee asked whether someone who couldn’t control his own hands to keep himself from writing sexually inappropriate and gun-related remarks on an exam should be trusted with a gun.

Karimjee argued that Vardomskiy’s conduct created “legitimate concerns” that Vardomskiy — who initially lied to police — lacked the responsibility and discipline the law requires of a gun owner.

If the Ontario Court of Appeal hears the case, it is believed it will be the first time they will have to interpret the precise meaning of a “legitimate concern.”

Friedman, Vardomskiy’s lawyer, said Vardomskiy is fighting as a “matter of principle.”

“He strongly believes that Justice Nicholas was in error,” said Friedman.

Friedman said once someone is prohibited from owning firearms — even for two years — it is “extremely unlikely” the Chief Firearms Officer will permit them to ever have a license again.

That makes the stakes very high for Vardomskiy, an avid target shooter.

Friedman said the Crown’s appeal is “very, very broad.”

“It looks like they think a bad precedent has been set for the police and the Crown here,” said Friedman, who has co-authored the Annotated Firearms Act and testified before Parliamentary and Senate committees.

“My client is certainly disappointed that this odyssey at great financial cost for him continues,” said Friedman.

“For someone who has never been charged with a criminal offence and is simply trying to retain the privilege of owning firearms has spent in excess of $15,000 defending that.”