You Didn’t Build That

The Québec government is not entitled to obtain and keep the Québec-related data of the now-defunct federal gun registry: so holds the a unanimous five-judge panel of the Québec Court of Appeal in a judgment delivered today, reversing the Superior Court, which had ruled for the province last fall.

The Court of Appeal is not impressed with the trial judgment. The judge misunderstood the operation of the firearms registration scheme, it says, exaggerating the role played by the provinces in the creation and operation of the gun registry. Provincial authorities are not actually involved in the registration of individual firearms. This, the Court says, is “palpable” but not “overriding” error. More importantly, “there can be no question that this area falls within federal jurisdiction, and there lies the error of law justifying the reversal of the trial judgment” (par. 33).

The Court holds that Parliament had the power to abolish the gun registry which it had itself created. And it is not persuaded by the trial judge’s finding that the real purpose of destroying the registry data was to prevent provinces from setting up registries of their own. Rather, Parliament “in no way seeks to prevent provinces from enacting their own registries, although it does not wish to participate” in their doing so (par. 42). Parliament’s reason for destroying the gun registry data is not a desire to harm the provinces, but a wish “not to unduly risk the disclosure of information the government no longer needs” (par. 43) ― and the Court makes a point of observing, in a footnote, that Québec’s own legislation requires the destruction of records the provincial government no longer has the need for. As for co-operative federalism, it is an interpretive principle, but does not change the distribution of powers between Parliament and provincial legislatures. It cannot serve to make invalid an otherwise constitutional exercise of Parliament legislative power.

Furthermore, “Québec has no property right in the [gun registry] data” (par. 55). The fact that its public servants exercised some “administrative functions” with respect to it ― for which Parliament compensated the province ― does not change this. They had no control over the data and did not even contribute to it. The provincial contribution was limited to information about firearms license holders, which is not affected by the abolition of the gun registry. The Court concludes that “[l]egally, there is no real partnership between the federal government and the government of Québec concerning the gathering and preservation of data” which Québec is now trying to obtain (par. 63).

In short, the Court’s response to the government of Québec is “you didn’t build that. And since you didn’t build it, those who did can take it away from you.” Although the Court claims that the problem with the trial judge’s decision was an error of law regarding the powers of Parliament, the real issue seems to be the understanding of the legislative scheme pursuant to which the gun registry had been set up and operated. This, I think, is as it should be. Parliament obviously could terminate the gun registry if it wished to, and the province’s only claim to its data could rest on its contribution to its collection. If there was no real contribution, then the claim has nothing to rest on. As for who, between the Court of Appeal and the trial judge, is right about the extent of the provincial contribution to the gun registry, it may well be that the Supreme Court will have the final word ― Québec’s government has already said that it will appeal.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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