affiliated to the International Association of Constitutional Law
On the afternoon of December 6, 1989, Marc Lépine entered the École Polytechnique in Montréal. Over the course of about 30 minutes, Lépine prowled the corridors, classrooms and cafeteria, rifle in hand. He shot and killed fourteen women before turning his gun on himself. Fourteen others were wounded.
That horrific event still has significant political salience in the province of Québec. It forms something of a backdrop against which to consider a dispute between Québec and Canada’s federal government. The dispute centres on whether information about rifles and other long-guns should be stored in a database which can be accessed by the authorities for law-enforcement purposes.
Nobody seriously questions the requirement that gun owners be licensed. Nor does anybody seriously question the registration – or outright prohibition – of handguns and automatic weapons. The current dispute is about one thing only: the registration of long guns.
Registration of these weapons by the federal authorities began only in the late 1990s, under the Firearms Act. That legislation established an interlocking scheme: both federal and provincial officials contributed to the scheme’s operation. An agreement between the federal and provincial governments regulated how data was collected, used and accessed.
Last year, Stephen Harper’s Conservatives were returned to the federal Parliament with a majority. One of the planks of their platform was the abolition of the long-gun registry. Its critics decried the registry as ineffective in combating crime and effective only at exposing law-abiding citizens to criminal sanctions. Defenders of the registry countered that it is used by police officers on a daily basis. And in Québec the lingering psychic effects of the Polytechnique massacre mean that stringent registration requirements have significant symbolic value.
Earlier this year, Bill C-19 was introduced in the federal Parliament. It received Royal Assent in April. The legislation, entitled An Act to amend the Criminal Code and the Firearms Act, prospectively abolished the requirement to register long guns. More dramatically, section 29 provided for the destruction “as soon as feasible” of all the data that had been collected during the operation of the long-gun registry.
The Québec government sprang into action, attacking the constitutionality of the federal legislation, with the ultimate goal of establishing its own long-gun registry. Shortly after passage of the legislation, it successfully invoked the inherent jurisdiction of the Québec superior court and obtained an injunction preventing the destruction of the data. After a subsequent hearing on the merits, section 29 was held to be unconstitutional, but only as it applied to data from Québec: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 1734.
Meanwhile, in Ontario, a charitable organization unsuccessfully sought a more radical injunction compelling the federal government to maintain the long-gun registry: Barbra Schlifer Commemorative Clinic v. HMQ Canada, 2012 ONSC 5271.
My focus here will be on the latter two decisions. Of those, the Québec decision is of greater importance: the federal government has already appealed to the Québec Court of Appeal. Review by the Supreme Court of Canada is a strong possibility.
One final preliminary remark is necessary. Canada is a federation. Jurisdiction is regulated by the provisions of the Constitution Act, 1867, especially sections 91 and 92. Section 91 sets out the powers of the federal government: trade and commerce, creation of criminal laws, and banking are some representative examples. Those of the provinces are set out in section 92: for example, taxation within the province, solemnization of marriage and – broadest of all – property and civil rights in the province.
Guns fall comfortably within the very broad understanding of property and civil rights in the province. From where, then, did the federal government get the authority to establish the long-gun registry in the first place? In 2000, the Supreme Court of Canada upheld the constitutionality of the Firearms Act on the basis that it was a legitimate exercise of the federal government’s power to pass criminal laws. Regulation of firearms was said to have a “double aspect”. Accordingly, it was open to either the federal or provincial authorities to enact legislation, under the criminal law and property and civil rights jurisdictions respectively.
For the Québec and Ontario courts, the questions raised by the data-destroying legislation were novel, revolving around the federal government’s power to decriminalize some types of behavior (i.e., not registering one’s weapon) and to undo unilaterally a registry which had been created, in reliance on the double aspect doctrine, in cooperation with the provinces.
In Québec (Procureur général) c. Canada (Procureur général), Québec claimed that the federal government had no jurisdiction to destroy the long-gun registry data. The federal government’s response was straightforward: just as it could invoke the criminal law power to establish the long-gun registry in the first place, so too could it invoke the criminal law power to repeal the existing law.
Unfortunately for the federal government, Conservative politicians had crowed rather too loudly about the destruction of the long-gun registry. Blanchard J. seized on remarks which suggested that the whole purpose of Bill C-19 was to prevent the provinces from creating their own long-gun registries. Given that gun registration clearly falls within provincial jurisdiction over property and civil rights, these remarks revealed a naked attempt on the part of the federal government to interfere in the governance of the provinces. This rendered the purported exercise of the criminal law power ultra vires the federal government.
Moreover, Blanchard J. held that the unilateral destruction of the long-gun registry data violated the principle of cooperative federalism. This principle aims at harmonious coexistence between the federal and provincial governments, and indeed underpins the double aspect doctrine that allowed the federal government to create the long-gun registry in the first place. For one level of government to deliberately stand in the way of another to prevent it from legislating within its area of competence was to violate the principle of cooperative federalism.
Finally, Blanchard J. considered the question of ownership of the long-gun registry data. Striking down the provision authorizing the destruction of the existing data would have represented merely a symbolic victory for Québec. To establish its own long-gun registry, it needed in addition an order compelling the federal government to transfer the data to it. Blanchard J. concluded that the agreement between the federal government and the provinces did not identify any “owner” of the data. However, he held that because of its contribution to the collection of the data, Québec had as much of an interest in the data as any other entity. Accordingly, Blanchard J. ordered the federal government to transmit them to Québec.
Meanwhile, in Ontario, the Barbra Schlifer Commemorative Clinic, a body set up in memory of an Osgoode Hall law student murdered in the 1980s, did not fare so well in Barbra Schlifer Commemorative Clinic v. HMQ Canada.
With the other provinces shying away from asserting claims to ownership of the long-gun registry data, the Clinic’s claim was inevitably different in nature. It was also weaker.
The Clinic relied on the Canadian Charter of Rights and Freedoms: section 7, which protects life, liberty and security of the person, and section 15, which guarantees equal treatment. The Clinic argued that the abolition of the long-gun registry imperiled bodily integrity, and in a way that would disproportionately impact on women, because long-guns are instruments of domestic violence.
Just as Québec had initially done, the Clinic sought an injunction to prevent the federal government from destroying the data. This fell to be analyzed under the familiar American Cyanamid principles – serious case, irreparable harm and balance of convenience – which apply universally in Canada. The federal government countered with a motion to strike the Clinic’s claim.
The federal government successfully characterized the logical conclusion of the Clinic’s argument as the imposition of a positive obligation to maintain a long-gun registry. This was an entirely novel argument. If the Clinic were to demonstrate that prospective abolition of the long-gun registry breached sections 7 and 15 of the Charter, the federal government would have to legislate for the registration of long guns. At such an early stage of the litigation, Brown J. was reluctant to strike the Clinic’s claim entirely. Nevertheless, the federal government’s characterization of the Clinic’s claim influenced Brown J.’s decision not to grant an injunction.
After a thorough analysis of the Clinic’s arguments and the statistical evidence adduced in support, Brown J. held that the Clinic had raised a serious question to be tried, but only just: the statistical evidence it could muster was weak. Domestic homicides have been, on Brown J.’s reading of the statistics, on a long decline to which the long-gun registry seemed not to have contributed. The weakness of the statistical evidence also tended to suggest that no irreparable harm would be suffered were the injunction to be denied.
Brown J. also noted that, if the Clinic succeeded on the merits in imposing a positive obligation to maintain a long-gun registry, the result would be a financial burden on the taxpayer rather than the infliction of irreparable harm.
Finally, for the purposes of the balance of convenience analysis, the Clinic could not demonstrate any public interest that would be furthered by granting the injunction. This conclusion may seem odd, but Brown J. noted that legislation is presumed to promote the public interest for the purposes of the balance of convenience analysis. Critically, unlike Québec, the Clinic could not demonstrate any ownership interest in the data, and it did not itself have any authority to create or recreate a long-gun registry.
One nuance that can be perceived in Blanchard J.’s judgment does not appear to have influenced his Ontario counterpart, Brown J. There is arguably a distinction between imposing a prospective positive obligation to criminalize acts or omissions and imposing a restriction on destroying existing data. Indeed, a restriction on destroying existing data can stand independently of a prospective positive obligation. The significance of the distinction is that if the present federal government were prevented from destroying the existing data, it would leave the door open for a future federal government of a different ideological bent to repatriate the data to the provinces or to reanimate the long-gun registry. This might have been enough to ground a sufficient ownership interest in the existing data. Since these decisions were handed down, however, the October 1 deadline to commence destruction of the data has passed. The data having been destroyed, the point is now moot.
We have thus reached the anomalous position that all of the long-gun registry data has been deleted, except for that relating to the province of Québec. This data remains in the hands of the federal government. Its ultimate fate will lie in the hands of the Québec Court of Appeal and Supreme Court of Canada.
Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at firstname.lastname@example.org. He blogs at administrativelawmatters.blogspot.com.
Suggested citation: P. Daly, ‘Clinging to Gun Data’, UK Const. L. Blog (22nd November 2012) (available at http://ukconstitutionallaw.org).