After the Québec Court of Appeal held that the federal government did not have to hand over the data of the now-defunct long gun registry to Québec, which says that it wants to set up its own registry to replace the federal one, the Québec government sought leave to appeal to the Supreme Court. It also applied for a stay of the Court of Appeal’s decision allowing the federal government to delete the existing gun registry data and stop collecting information on gun sales in Québec to keep it up to date. On Tuesday, the Court of Appeal rejected the stay application in Québec (Procureur général) c. Canada (Procureur général), 2013 QCCA 1263.
The criteria for a judgment of the Court of Appeal to be stayed pending a final resolution of the dispute by the Supreme Court are the existence of a serious question in dispute, the possibility that the party requesting the stay will suffer irreparable harm if the stay is not granted, and the balance of convenience.
On the first criterion, Justice Dalphond is quite clearly skeptical, but willing to refer to the Supreme Court’s opinion on Québec’s “variable-geometry constitutional argument” (par. 35; translation mine) to the effect that Parliament had to take its interests and intentions into account in enacting the legislation abolishing the gun registry and requiring the destruction of the data it contained.
However, Justice Dalphond concludes that Québec will not suffer irreparable harm if the gun registry data are destroyed before the Supreme Court rules on Québec’s appeal. The prejudice Québec alleges it will suffer if the data are destroyed is essentially financial ― it will become more expensive to set up a provincial registry. But financial harm is not irreparable, since it can always be compensated by a repayment. As for the claim that the work of Québec’s police will be impeded if the data are destroyed, it is unproven. The police forces of the rest of the country seem to be doing fine without the gun registry, and there is no evidence of a rise in long-gun crime since its abolition.
Nor does the balance of convenience favour Québec’s application. Though it will experience the inconvenience of higher costs if the data are destroyed, the federal government too must incur costs if it is to preserve the registry for Québec pending the final resolution of the case ― and, since the enactment of the legislation abolishing the gun registry there is no money earmarked for that. The federal government would also be forced to act contrary to that legislation, which must be presumed to be in the public interest.
I suppose that the decision is correct, though as I said last year, when Québec sought and obtained an interlocutory injunction forcing the federal government to retain and keep collecting gun registry data, I have doubts about the idea that Québec could obtain financial compensation if Parliament is found to have acted unconstitutionally. At the time, the Superior Court concluded that
To claim, as Canada pleads, that a subsequent financial compensation … could adequately constitute an adequate remedy, partakes of a totally theoretical rhetoric, and I say this … with respect, rather of a reasonable application of the principles applicable to such matters.
It seems not unreasonable to assert that to assert that a monetary remedy in a constitutional controversy concerned with division of powers … seems bizarre” (par. 59-60; translation mine)
I was not convinced that this is right, and I still am not, but I think that it is a more serious possibility than Justice Dalphond seems to believe. (He does not even pause to ask himself whether a monetary remedy, however adequate, would be available, and on what basis, should the Supreme Court find in Québec’s favour.)
Be that as it may, Québec’s application has failed, and the federal government is free to destroy what is left of the gun registry data. As La Presse reported, it has announced that it will, after all, not do so just yet. However, the story does not suggest that the federal government is going to keep collecting new data. This means that what is left is going to be increasingly out of date. The gun registry is still not quite buried, but it is dead and already decomposing.
Double Aspect 