This morning the Supreme Court heard the oral argument regarding Québec’s demand for the long-gun registry data which the federal government wants to destroy, pursuant to the legislation which abolished the registry two years ago. I have uploaded a very rough (and probably somewhat incomplete) transcript of the argument here. In this post, I will summarize it and offer some more or less random thoughts.
Québec argued that the gun registry had always been a joint venture between the federal government and the provinces. That’s how it was “sold” by the federal government when it was set up, and that’s how all the parties involved, including for example the RCMP, had always seen it. Federal and provincial firearms regulations are inextricably linked. Thus the Chief Firearms Officer in Québec, although appointed pursuant to federal law to execute tasks set out in federal law, is a high-ranking provincial police officer, and also executes tasks under provincial legislation.
Accordingly, the principle of co-operative federalism required that even if the federal government was no longer interested its own objectives through that venture, it allow Québec to pursue its own. The federal government, Québec pointed out, doesn’t dispute that the province could set up a gun registry of its own, to pursue purposes related to health and safety, crime prevention, and the administration of justice. It should not be able to frustrate the realization of these purposes by destroying the gun registry data.
And in response to the federal government’s claim that the destruction of the data is necessary to protect gun-owners’ personal data, Québec argued that not only was the data that would actually be destroyed ― the guns’ serial numbers ― not very significant, but its own data-protection regime was as good as the federal one, and indeed better. (Québec’s lawyer pointed out, with a bit of snark, that the provision requiring the destruction of the gun registry data precluded the application of some of the federatol data-protection legislation.)
The federal government’s main argument was that it was Parliament that had created the gun registry, and Parliament was free to change its mind as to the registry’s effectiveness and usefulness. Having changed its mind, it was free to abolish the registry ― which meant destroying it ― and did not have to consult the provinces. Imposing a duty to consult the provinces before enacting legislation that affects them would not be an application of the principle of co-operative federalism, which is limited to making it possible for federal and provincial law to operate simultaneously in the same area ― it would transform the structure of Canadian federalism. It would also run counter to the principle of Parliamentary sovereignty, which makes a legislature free to overturn any agreement entered into by the executive, even if implemented in legislation enacted by a previous legislature. And, having chosen to abolish the registry, Parliament logically had to destroy the data. Even the former Privacy Commissioner confirmed that the principles of privacy law require the destruction of any personal data one no longer has use for.
The federal government tried hard to counteract the impression that the gun registry was anything like a joint venture between it and the provinces. It contended that even though its operation involves a provincial employee acting as a Chief Firearms Officer, that person executes tasks set out in federal legislation and regulations, and the province is fully compensated for the time she spends doing so. In any event, it is the federal Registrar of Firearms who controls the gun-registry data.
The federal government also made a point of questioning Québec’s need for the data it wants to destroy. It pointed to the recent decision in Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140 (about which I blogged here), where the Superior Court found that the efficacy of the registry in preventing domestic violence had not been established, and that even police officers disagreed about the effectiveness of the registry. It also pointed out that, unlike for handguns, the registry did not indicate where a long gun was stored, so that the police could not rely on it alone to find out whether a person was likely to have a gun in a particular place or not.
The bottom line, for the federal government, is that if Québec wants to create its own registry, it must do so on its own, without federal help. Parliament was committed to the conclusion that the registry had been an unwarranted and unnecessary intrusion upon the privacy of law-abiding citizens everywhere ― including in Québec. It did not wish to go back on that commitment. If Québec wants to set up a registry for its own ends, it should assume the political and financial costs of doing so.
It is difficult to know what the Court will do with this, if only because so many the judges were silent during the argument. Not a single one of the non-Québec judges asked a question of Québec’s lawyer, and, among them, only the Chief Justice and, once or twice Justice Abella, questioned the federal government’s lawyer. The Québec judges, who did thus almost all of the questioning, seemed somewhat sympathetic to the province’s position, and skeptical of the federal government’s claim that it could act unilaterally. Such skepticism would, indeed, be in keeping with the Supreme Court’s usual preference for requiring agreement between the different levels of government. But the federal government’s arguments based on Parliamentary sovereignty were quite powerful, and they may have had some effect.
It may all come down to the Court’s comprehension of how the registry operated. Will it, like Québec’s Superior Court, agree with the province that it really was a joint venture, so that one of the partners is entitled entitled not only to keep it going despite the other losing interest, but also to receive the other partner’s help for doing so? Or will it agree with the federal government’s characterization of the provincial role in the operation of the registry as very limited and thus insufficient to support any duties once the decision to discontinue the registry has been made, as the Québec Court of Appeal concluded? Even among the judges who spoke this morning, it is very difficult to say who thought what on this point.
But the Court may also look for a way out of the dilemma. Early on in Québec’s argument, Justice Wagner asked whether the Court might simply declare that the parties had a duty to negotiate. Québec’s lawyer seemed skeptical, although he eventually said that if the declaration had enough force to make the federal government hand over the data, he would be happy with it. Yet I find it difficult to see how that would work. Declaring a duty to negotiate might have worked (hypothetically of course) in the secession context, where the end point of a successful negotiation would be clear (i.e. a peaceful separation), although the details would need to be worked out. Here, the parties have an irreconcilable disagreement over what the end state would be (data handover or data destruction). What can they negotiate about?
It seems to me that the court cannot fudge ― either Québec is entitled to the registry data, or the federal government can destroy it. As in a hockey shootout, there can be only one winner here.