I wrote yesterday about the judgment of the Québec Superior Court holding that the destruction of the gun-registry data concerning Québec is unconstitutional. As promised, I would like to volunteer some thoughts on the decision. In a nutshell, I think the outcome is sound, but the reasoning not the best that could have been offered.
Justice Blanchard was right to note that the federal government was free to discontinue the gun registry, but right also to consider the decision to destroy the data it contains in the context in which it was actually made―that is to say, in spite of Québec’s request to hand it over. And he is right, above all, to note that Québec has made crucial contributions to the setting up and the operation of the registry.
What he is wrong to do―and my summary of the opinion under-emphasizes the extent to which Justice Blanchard does it―is to insist on how useful and important the gun registry data are for Québec. Justice Blanchard quotes copiously the passages of the Supreme Court’s Reference re Firearms Act (Can.), 2000 SCC 31,  1 S.C.R. 783 that describe the importance of firearms registration, stressing that this is a legal conclusion that is binding on him. It is, but―as he recognizes―Parliament remains free to conclude that registration is not, after all, a good idea, or that it is a violation of gun owners’ rights. The courts must accept that conclusion as a given. The Supreme Court’s musings on the importance of registration serve only to show that a federal registry is, or rather was, and would be, constitutional, so they are not particularly relevant to the issue of the destruction of the data, which was the only one Justice Blanchard faced.
Justice Blanchard is also wrong, in my view, to emphasize just how badly Québec wants and needs the gun registry data to set up a registry of its own. It is somewhat misleading to say that the federal government’s destruction of the gun-registry data prevents Québec from creating a registry of its own. It merely makes this much more expensive, which is not the same thing. That Québec wants the existing data is of course important; there would be no litigation otherwise. Nonetheless, the convenience for Québec to get the data and the expense to which it would be put if it decided to create a gun registry from scratch are of no consequence for the outcome of the legal dispute. That someone wants something badly does not give him a right to it. Indeed, I think that Justice Blanchard’s emphasis on these things makes his decision appear improperly political, in the sense of advancing his preferred policy outcomes.
That is too bad, because there is, I believe, a solid and purely legal argument to support his conclusion. It is that, as he observes, the gun-registry data that concerns Québec belongs to the province as well as to the federal government. Québec contributed to the registry, and incurred substantial expenses in doing so; like a partner in a joint venture, it should, in the absence of a stipulation to the contrary, be entitled to its proceeds. Whether we call this right ownership or perhaps something like a constructive trust probably does not matter much. The point is simply that Québec has a claim on, an entitlement to the fruit of its own labour.
If the federal government had created the gun registry on its own, without provincial participation, and then decided to scrap it and destroy the data it contained, I don’t think Québec could have claimed the data for itself. It would have had no title to it. But the registry was a common effort, the fruit of an exercise in co-operative federalism, and it would be improper and unjust to say that one of the co-operating parties was, all along, at the mercy of the other’s decision to destroy what they had been working on. (In the same way, I think it would be unjust for one of two co-authors to burn the manuscript of their work without asking the other, although it not unjust for him to withdraw from the collaboration.) Justice Blanchard is, ultimately, right to conclude that the law does not countenance this injustice.