As promised, a few thoughts on Québec’s claim that the destruction of the long-gun registry data is unconstitutional,In no particular order:
- This case forces the courts to grapple with the constitutional issues presented by co-operative federalism, of which the working of the gun registration regime seems to have been an example. Québec’s claim is based on its participation in the administration of the federal regulatory scheme; it would not hold up, or at least would be very weak, if Québec had not been involved in its running. If the long-gun registry had been a purely federal venture, there would have been no reason why Parliament, which had started it up, could not also put an end to it. But it is at least not crazy to say, as Québec now does, that provincial involvement in the regime’s operation means that the venture was not an exclusively federal one, so that provincial interests have to be taken into account in considering and implementing its termination.I don’t think our federalism jurisprudence, as it now stands, can sustain this claim. Perhaps the most relevant Supreme Court decision is the now-20 year old Reference Re Canada Assistance Plan (B.C.),  2 SCR 525, which dealt with the unilateral modification by Parliament of an agreement to help pay the costs of provincial social programmes. The Supreme Court stressed parliamentary sovereignty, and concluded that Parliament could do what it pleased. If that precedent applies to this case, Québec’s odds do not look good (and I do not recall Québec addressing it at all in its argument). But there might be a distinction between pure-cost sharing and a programme where the federal and provincial administrations are both involved. And in the last few years the Court has been emphasizing the importance of co-operative federalism, which, arguably, cannot work particularly well if either side is able, on a whim and despite protests from its erstwhile partner, to end its involvement in a co-operative project. Perhaps the questions about the best workings of a system of co-operative federalism are purely political; that seems to be the result of the Canada Assistance Plan case. But maybe it is time for Courts to start working out a legal framework.
- The claim that the government holds its property – which in this case means data rather than physical assets – more or less as a trustee for the people sounds interesting and quite possibly right as a matter of political morality, but it is not so clear what it entails in practice. Even if we agree that the government has to use its property in the public interest, there is presumably no higher authority than Parliament in deciding what the public interest is. If Parliament decides that it is in the public interest to destroy the long-gun registry data, how can courts second-guess it?
- If Québec succeeds in getting s. 29 of the Ending the Long-gun Registry Act declared unconstitutional, no long-gun registry data can be destroyed. The federal government is stuck with this data, which it does not want. What happens then?
With the angrily named Ending the Long-gun Registry Act, formerly known as Bill C-19, now law, Québec is fighting a rearguard battle to try to save “its” part of the registry. It is asking the Superior Court to declare unconstitutional s. 29 of Act, which provides for the destruction “as soon as possible” of the registry data, and to order the federal authorities to transfer to it the data relative to the firearms owned by Québec residents.
Radio-Canada has posted a copy of Québec’s lengthy application for an injunction (en français, bien entendu); it also reports that Québec has succeeded in obtaining a safeguard order which will prevent, at least until the argument on the merits next week, the destruction of the data Québec is trying to obtain.
Very briefly, the basis for Québec’s argument is that firearms legislation has both federal and provincial aspects, so that it is constitutionally competent to create its own registry. Instead of doing so, it participated in the administration of the federal one, so long as it existed; but now, if the federal government does not want to keep its registry, Québec wants to have one of its own. The destruction of the data, which it helped amass and transferred to the federal government, would thus frustrate its legitimate legislative objective; indeed, the real purpose of s. 29 is to prevent provinces from constituting their own registries, and thus to prevent the exercise of a legitimate provincial power. S. 29 goes beyond what is justified by Parliament’s criminal law power, because it is an attempt to “cover the field” of long-gun registration regulation. Furthermore, the long-gun registry data belongs to Québec as well as to the federal government, and the latter is not entitled to destroy it. If it has no use for it, it must transfer the data to Québec, because in keeping with its obligations as a fiduciary of the data (as of any other government property).
The claim as a whole and Québec’s arguments in its support raise some very interesting constitutional questions, some of which I hope to outline in a post tomorrow.
Anyone who considers starting a blog must ask him- or herself whether there is really a need, or at least a remotely decent reason for doing it. There are (almost) hundreds of millions of blogs out there, so why add to this mass? Shameless self-promotion is tempting of course, but it’s not a very good reason, is it? And yet, after searching for some time now, I am unable to find a blog that would present commentary on Canadian constitutional law in the way, say, The Volokh Conspiracy does in the United States. If such a blog existed, I would probably have been content to follow it. But there seems to be a hole in the blogosphere, and perhaps I can, in a very modest way, try to fill it.
What makes me think so? I certainly have nothing like the credentials or the expertise of the people at Volokh, or at other American blawgs that I follow. I am still a student, in the NYU JSD programme, and have published a grand total of one article. Still, I like to think that I know a thing or two about Canadian constitutional law, and maybe a few other subjects, such as legal and political philosophy, which are the focus of my doctoral work. So hopefully I will have something intelligent and/or interesting to say every now and then.
Well, that will be justification enough for now for me. If others think it’s not, I’ll make up some righteous reasons as I go along.