Justice Marc-André Blanchard, of Québec’s Superior Court has ruled that the federal government’s attempt to destroy the data from the now-defunct long-gun registry is unconstitutional. (I have written extensively about this case; all of my posts about it are collected here.) The CBC’ has the story, and has helpfully posted a copy of the judgment online.
The judgment begins with a review of the history and functioning of the long-gun registry. The key point is that the registry was, from its creation to its abolition, a joint venture between the federal and the provincial government. Various provincial organizations contributed the data they collected to the registry; the federal government administered it; and both federal and provincial police forces used the data. Justice Blanchard concludes this review by observing that “Québec does not start on the adventure of setting up the registry with the knowledge that it could be subsequently deprived of the fruits of its contribution to the registry’s creation” (par. 35; translation mine, here and throughout).
Justice Blanchard starts the analysis of the constitutionality of s. 29 of the Ending the Long-gun Registry Act, which provides for the destruction of the long-gun registry data by acknowledging that (as the Supreme Court held in Reference re Firearms Act (Can.), 2000 SCC 31,  1 S.C.R. 783) the creation of the registry was a valid exercise of Parliament’s criminal law power. So is its abolition, since Parliament is free to change its mind. But the issue in this case is not the abolition of the registry, but the destruction of the data it contained, in the face of Québec’s request that the data, so far as it concerns guns in Québec, be handed over to the province. Justice Blanchard finds that Parliament wants not only to abolish the federal gun registry, as it is entitled to do, but also to prevent Québec from using the data it contains to set up a provincial registry. And so the real question is whether pursuing this specific project infringes on the provincial competence regarding property and civil rights, and the principle of federalism itself, including the requirements of co-operative federalism, of which the registry, during its existence, was an example.
Justice Blanchard concludes that the destruction of the gun registry data does not pursue any criminal law objective. Its aim is rather to prevent Québec from exercising its uncontested, power to create a gun registry of its own, using its competence over property and civil rights, which of course include guns and their ownership. Nor can the destruction of the data be justified as ancillary to a valid criminal law purpose. It “infringes to a very substantial, even to an exorbitant, extent on the powers of the provinces and … there is no rational or functional justification or any necessity for doing so” (par. 135). Indeed, none of the previous attempts to abolish the gun registry included a provision requiring the destruction of the data.
The next question is whether Québec is entitled to use the data of the federal gun registry to create a registry of its own. According to Justice Blanchard, “it defies common sense, not to say the common good, that Québec can be prevented from using data which it participates in compiling, analyzing, organizing, and modifying” (par. 151). The data does not belong to the federal government alone; Québec is entitled to access and use it.
The last issue is that of the appropriate remedy. Justice Blanchard has several options. One is simply to declare s. 29 unconstitutional; another is to declare it unconstitutional as applied to data relative to Québec’s citizens; still another is to grant Québec a constitutional exemption from its effect. The judge chooses the second option, because the evidence before him only concerned the relationship between Québec and the federal government in the running of the gun registry; he does not know whether the situation of the other provinces―notably their own participation in the constitution of the registry―is identical to that of Québec.
The federal government asked for, and gets, 30 days to transfer the data relative to Québec to the provincial authorities. What happens during that period? Québec wants the federal government to keep updating the gun registry, but the federal government says there is no reason for it to do so, since the constitutionality of the provision putting an end to the collection new data was never in question. Justice Blanchard sides with Québec, concluding that the data to which it is entitled would be useless if not kept up to date. For the 30-day transitional period, the data collection must go on.
It’s an interesting, albeit occasionally confusing, judgment. I will try to post some thoughts on it tomorrow.
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