Cooperative, or competitive?

The critics of the Supreme Court’s decision in the long-gun registry case, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14,  have lamented the majority’s failure to make good on what seemed like the promise of cooperative federalism in the Court’s recent jurisprudence. In La Presse + today, Jean Leclair argues that the judges in the majority “most certainly weaken the principle of cooperative federalism, which they had so extolled” (translation mine). Striking a more optimistic note over at I-CONnect, Paul Day hopes the dissent will “become the point of departure for Canadian courts and commentators interested in exploring ‘cooperative federalism’.” There certainly has been much talk about cooperative federalism in connection with this case, and more broadly in recent years. But what if the phrase were not an apt description for the Supreme Court’s actual concerns? I am, very tentatively, inclining to the idea that it would have been more accurate to speak not of cooperative, but of competitive federalism.

Now, the “competitive” part of competitive federalism usually refers to “horizontal” competition between the components in a federation (e.g. the States in the United States or the provinces in Canada). The idea is that these components will compete with each other by enacting different policies on the same subject. Individuals and businesses will “purchase” these different policies by moving from one jurisdiction to another one, whose policies they prefer and, similarly to what happens in the marketplace, this competition will show whose policy is the most attractive one, or allow a differentiation between the regulators allowing the preferences of persons with different tastes to be satisfied.

Applying this idea to the “vertical” context of competition between the federation and the components is not straightforward, because in the vertical context, the central legislature will normally hold a trumping power (e.g. through the Supremacy Clause under the U.S. Constitution or the paramountcy doctrine in Canadian constitutional law). The competition is not entirely fair, since one of the competitors can pretty much declare himself the winner. And that’s when the competition can take place at all. Because the two levels of legislatures have different legislative powers, there are many areas over which they cannot compete.

But, in the Canadian context at least, vertical competitive federalism is not impossible. Indeed, under the guise of encouraging “cooperative federalism,” the Supreme Court has actively promoted it. As prof. Daly notes, the Court

has employed cooperative federalism as an interpretive principle to reshape constitutional law: most notably, the doctrine of interjurisdictional immunity–premised on the existence of exclusive zones of federal and provincial authority in the areas of competence set out in the Constitution Act, 1867–has been reduced to virtually nothing.

While I do not think that “virtually nothing” is quite correct, because interjurisdictional immunity still applies, at least, in “situations already covered by precedent” (Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22, at par. 77), the Court’s unwillingness to expand its application is indeed the most significant consequence of what it describes as its embrace of the cooperative federalism principle. But it seems to me that the limitation of interjurisdictional immunity is conducive to competition rather than cooperation. So, too, are the Court’s insistence on interpreting the notion of conflict between federal and provincial law narrowly, so as to limit the scope of potential application of the paramountcy doctrine, and the application of the “double aspect” doctrine, which allows concurrent jurisdiction over “matters” deemed to be at once federal in one “aspect” and provincial in another. Together, these principles in the Supreme Court’s federalism jurisprudence counteract, in part, the two factors that make vertical competition in a federation difficult. Limiting the scope of interjurisdictional immunity expands the areas over which Parliament and the provincial legislatures have concurrent jurisdiction and which both can regulate, while limiting the application of the paramountcy doctrine results in fewer occasions on which Parliament’s regulation prevails simply by virtue of being Parliament’s.

Of course, the vertical competition for which the Court thus makes room isn’t quite the same as horizontal federal competition. The option of moving away from a set of policies one doesn’t like is off the table, because Parliament’s policies are applicable throughout the country. But voters still have the option of rewarding the government that enacts the policies they support, and punishing the one that doesn’t. The competition between the two levels of government is thus not for citizens and businesses who can move from one jurisdiction to the next, but for the political benefits that result from enacting policies that citizens want to see enacted.

This brings me back to the gun registry issue. Québec presented the registry as the product of federal-provincial cooperation; the dissenting judges at the Supreme Court, as well as their academic supporters such as profs. Leclair and Daly accepted that characterization. But isn’t it at least as plausible to regard the federal registry as the product of competition between Parliament and the legislatures for the political benefits of satisfying the citizenry’s preferences in the area of gun control? Parliament created the registry because it, or its masters in the executive, thought that this would have political benefits for them. Now, however, a differently constituted Parliament, catering to a different electoral coalition, thinks that it will benefit from enacting a different policy.

Seen from this perspective, the issue for the Supreme Court was not whether a partner in a cooperative venture had acted disloyally, but whether one competitor had to assist the other in implementing a policy it chose to discard. Imposing a requirement to do so would have restricted the freedom of the market for policies and might conceivably have deterred entrants, contrary to the Court’s apparent policy of encouraging vertical regulatory competition within the Canadian federation.

Now it is still arguable that competition in a federal context must be loyal, and that Parliament had failed to respect that requirement, or indeed that competition has no place in this context. Either way, you can endorse my re-interpretation of the case, as an analytical matter, and still believe that its outcome was a mistake. But I would suggest that the majority’s decision is at least more consistent with the Court’s previous cooperative competitive federalism jurisprudence than its critics allow, and that, conversely, the dissent’s position involves a greater departure from the previously accepted principles than defenders claim.

How to Be Good Neighbours

Sometimes, the soundness of a position only becomes apparent by comparison with the alternative. So it has been, for me, in the gun registry litigation, which has finally concluded this morning with the Supreme Court’s decision in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. The majority finds that contrary to Québec’s claims, the federal government was entitled to destroy the long gun registration data it had accumulated while registering such guns was mandatory, regardless of provincial objections. The dissenters, for their part, would have held that the statutory provision requiring the destruction of the data is unconstitutional ― but that Québec is not constitutionally entitled to the data, whose fate must be settled by a political negotiation. The dissenters present their position as the more realistic one ― yet their proposed remedy is, in my view, so unpragmatic as to show that this position is unsound.

* * *

The majority, in terse reasons by Justices Cromwell and Karakatsanis, with whom the Chief Justice and Justices Rothstein and Moldaver agree, mostly relies on the principles of federalism ― understood, primarily, as a clear division of legislative powers ― and parliamentary sovereignty. The principle of co-operative federalism, which Québec invoked, can it the majority’s view serve

to provide flexibility in separation of powers doctrines, such as federal paramountcy and interjurisdictional immunity. It is used to facilitate interlocking federal and provincial legislative schemes and to avoid unnecessary constraints on provincial legislative action. [17]

But it neither amounts to a self-standing constraint on the exercise of legislative powers by either the federal Parliament or the provincial legislatures, nor “impose[s] a positive obligation to facilitate cooperation where the constitutional division of powers authorizes unilateral action.” [20] Furthermore, the province cannot invoke its reliance on or expectation of the continued existence of the gun registry. Parliament must remain free to abolish what it had previously created. The majority also concludes that provincial participation in the operation of the registry was limited and merely a part of the framework established by federal law.

The majority holds that the provision of the legislation abolishing the long gun registry which requires the destruction of the data was within Parliament’s legislative competence. As the creation of the registry was valid legislation in relation to criminal law, so must be its abolition, and so also must be provision settling the question of what is to happen to the now-unneeded data. The reasons that motivated Parliament to settle that question in the particular way it did rather than otherwise are irrelevant. Nor does a desire to make life more complicated, at a practical level, for the other level of government translate into a constitutionally cognizable harm:

[a]n intention on the part of one level of government to prevent another from realizing a policy objective it disagrees with does not, on its own, lead to the conclusion that there is an encroachment on the other level of government’s sphere of exclusive jurisdiction. [38]

Since Québec could not “validly enact legislation that deals with what will happen with the data of the repealed scheme,” [40] Parliament’s enactment of such legislation does not impede the exercise of any provincial powers.

* * *

In contrast to the majority’s, the dissenting reasons, jointly written by Justices Lebel, Wagner, and Gascon, with the agreement of Justice Abella, try to convey the impression of careful attention to the real-life background of the dispute. The dissent starts with a history of gun control in Canada, and includes repeated reference to the Polytechnique Massacre and the importance of gun control to Québec. It emphasizes the statements of various federal politicians (including the future prime minister Stephen Harper) and officials regarding the collaborative nature of the Canadian gun control regime. It also delves deeply into the mechanics of that regime’s operation, and details the ways in which provincial officials contribute information to and rely on its linchpin, the Canadian Firearms Information System database, highlighting the fact that, although legislation suggests that provincially- and federally-collected data ought to be distinct, they are, in reality, very much intertwined.

This leads the dissent to the conclusion that the long gun registry, as part of the broader gun control regime, is the fruit of a “partnership” between the federal government and Québec. This partnership “is consistent with the spirit of co‑operative federalism,” having

enabled the federal and provincial governments to work together, rather than in isolation, to achieve both federal (criminal law) and provincial (public safety and administration of justice) purposes. [149]

Upholding the principle of (co-operative federalism) thus requires “protect[ing]” such partnerships

both when they are implemented and when they are dismantled. It would hardly make sense to encourage co‑operation and find that schemes established in the context of a partnership are valid while at the same time refusing to take this particular context into account when those schemes are terminated. [152]

A legislature that wants to dismantle a partnership must “tak[e] into account the reasonably foreseeable consequences of the decision to do so for the other partner” [153] ― and so must the courts, when they consider the constitutionality of the resulting legislation.

The dissent’s final approach to the issue in the case still takes the form of a traditional division of powers analysis. It concludes that the “true purpose” of the provision requiring the destruction of the gun registry data without offering it to the provinces “is to ensure that the information on long guns can no longer be used for any provincial purposes.” [176] But because registration falls, fundamentally, under the provincial power over property and civil rights, this provision does too, and is thus, in “pith and substance,” not valid federal legislation in relation to criminal law. Nor can it be justified as ancillary to the broader, valid, exercise of the criminal law power resulting in the abolition of the registry. For one thing, it is not necessary, in order to abolish the federal registry, to refuse to hand over the data to the provinces; for another, in the context of the Canada-Québec “partnership,” the encroachment on the provincial powers is too serious to be justified as ancillary.

The dissent accordingly concludes that the provision at issue is unconstitutional, being beyond Parliament’s legislative powers. However, it also finds that Québec “has not established a legal basis for its claim to the data.” It is not the courts’ role to order the federal government to hand over the gun registry data. Rather, as the data are the “fruit” of a partnership, it is for the partners themselves to decide, as a political matter, how to dispose of them. The province, no more than the federal government, cannot make that decision unilaterally. Since they failed to make that decision at the moment of creating the partnership, they must do so now, by means of a negotiation.

* * *

As I mentioned at the outset, I believe that the majority has the better of the argument here. I find its argument that, since the province could not itself decide what is to happen to the data, the data’s destruction cannot be frustrating the exercise of a provincial legislative power compelling. By contrast, the dissent’s claim that Parliament is “encroaching” on provincial jurisdiction strikes me as unpersuasive. All that Parliament does is to make an eventual exercise of the provincial legislative power more costly (financially and, perhaps, though unlikely in this case, politically). The province is still free to act, so long as it is willing to pay the price. That might not be nice of Parliament but, as I will presently explain, I don’t think that Parliament is under a duty to be nice here.

Before doing so, I want to return to my point about the dissent’s proposed remedy. As I wrote after the oral argument, where Justice Wagner had floated his and his colleagues’ eventual proposed solution,

[d]eclaring 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 is striking that, at the conclusion of an opinion that presents itself as attuned to the political realities, a pragmatic rebuttal to a rather dogmatic majority judgment the dissenters propose a remedy that would utterly fail to solve the dispute before it and result in protracted, acrimonious, and ultimately futile negotiations. This is not pragmatism, but either naïveté or a rather cynical bet that, as the negotiations drag on and on, the current federal government will be replaced by one more favourable to Québec’s claims later this year. More importantly though, in my view, the dissent’s proposed remedy amounts to an acknowledgement that Québec’s claim was ultimately political, not legal. “Co-operative federalism” was an attempt to bridge the gap between the two, but even for the dissent, it was not enough.

Still, doesn’t the idea have some value? Shouldn’t there be, in a federation, a sense of good-neighbourliness preventing the two orders of government from exercising their powers in a manner which, though superficially legitimate, imposes serious costs ― something like the neighbourhood disturbances or nuisances of private law ― on each other? Well, perhaps. But there is an important requirement of good-neighbourliness that the majority opinion actually serves much better than the dissent. The majority’s reasoning means that both the federal government and the provinces are clear about their own, and the other’s, entitlements when they embark on a joint venture. If they go ahead, they know the risks. The dissent’s reasoning would only have served to generate confusion about who may do what, and under what circumstances. It is good fences that make good neighbours.

Beavertail Western

Suppose you are the sheriff of a remote town in the Wild West. John, the man who used to run the town’s saloon ― the only saloon within a hundred-mile radius as it happens ― passed away, and left the saloon to a son of his, name of Steve. However, unlike John, who was never fewer than two sheets in the wind himself, Steve is a teetotaller, and abhors the bottle. So he decides to close down the establishment ― not to sell it, but to close it down altogether, and smash the bottles to smithereens. And he told everybody who’ll listen without shooting him (which isn’t a great many people, but they talk, so word spread and you heard all about it) that the point is to make sure nobody will open another saloon anytime soon, so as to get the townsfolk to stop drinking already, repent their sins, and start living like decent, law-abiding citizens.

Now, just as Steve is about to embark on the bottle-smashing fun, a guy rides in and demands that he hand over some of the alcohol, so that he can open a saloon of his own. Not that he has a building, or personnel, or much of anything ready, but never mind that. And as Steve refuses, the stranger barges in and demands that you call up the posse and put the fear of God into that obnoxious moralizer.

Steve is telling you it’s his booze, and he’s entitled to do whatever he wants with it. The guy is telling you that by doing that, he’s preventing him from doing something that he is perfectly entitled to do ― opening up a saloon that is ― and that since he has no use for the stuff anyway, it’s just mean and in bad faith. So what do you do? Never mind the law. You are the law, and there’s no other to be had. You’re going on first principles here. If you think that Steve ought to hand over the booze this guy is demanding, you’ll tell Steve that he’s got to do it ― or else. Will you?

As you’re thinking about it, and maybe have even come to a decision, the guy reveals that he is Steve’s estranged brother Phil. You hadn’t recognized him, because he’d been away for a while, but now that he’s told you, you know it’s true. A brother. Family and all that. So, does that change your answer? And then Phil tells you that he’d actually helped John collect those bottles. Would ride around all day to buy the finest moonshine in the state and bring it to pops. Steve retorts that not only is Phil exaggerating the extent of his involvement, but John also paid him for what little work he did put in, and he’s got the books to prove it. Do you think it matters? Are you going to investigate just what Phil did and didn’t do, and whether he was compensated for it?

Over to you, Sheriff.

The Shootout

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.

More Dead than Ever

While the Supreme Court is getting ready for the oral argument in Québec’s challenge to the abolition of the long-gun registry by the federal government (set for October 8), a different challenge to the constitutionality of the Ending the Long-Gun Registry Act was dismissed by Ontario’s Superior Court of Justice earlier this month in Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140. Justice Morgan held that, contrary to the Clinic’s claims, the abolition of the gun registry did not infringe the right of women either to the security of the person or to equality, and thus did not contravene sections 7 or 15 of the Charter.

Justice Morgan began his s. 7 analysis by discussing the “state action problem” with the Clinic’s argument. The Clinic claimed that the abolition of the gun registry infringed s. 7 because it increased the risk that women would suffer gun violence, in particular from their domestic partners. In its view, its argument was similar to those that prevailed in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 (the Insite case) and in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, where the Supreme Court found, respectively, that a denial of an exemption from drug laws to a safe-injection clinic and the prostitution-related provisions of the Criminal Code infringed s. 7 by increasing the risks to which the clinic’s users and sex workers were subject. But the fact a government policy fails to reduce a risk to which a person is exposed as much as possible is not enough, Justice Morgan found:

[c]ontemporary society is permeated by risk, including the risk of violent crime and injurious use of firearms, but unless that risk is a creation of state intervention it is not within government’s constitutional responsibilities. (Par. 25; emphasis mine.)

There is, furthermore, a crucial difference between the alleged increase of risk as a result of the abolition of the long-gun registry and the facts of the Insite case and Bedford, in that in those cases the government had prevented people from taking steps, on their own, to minimize the risks they were subject to, whereas the gun registry is a government-created risk mitigation scheme (if indeed it is that). The upshot of the Insite case and Bedford is that the government cannot prevent people from reducing the risks they run, not that it has a duty to do it by itself. Indeed, Justice Morgan pointed out,

[t]he Supreme Court indicated in Bedford, at para 88, that while the state cannot make prostitution even riskier than it is, the claimants [in that case] were “not asking the government to put into place measures making prostitution safe” (par. 34).

When Parliament itself creates a risk-reduction scheme, it can expand or limit it as it in its wisdom sees fit. So long as it doesn’t interfere with people’s autonomous risk-reduction endeavours, it does not act unconstitutionally.

The Clinic’s position also suffered, according to Justice Morgan, from a “baseline problem.” As he saw it, the Clinic

use[d] the 1995 Firearms Act [which had created the long-gun registry] as a baseline against which to measure the [new] licensing and registration system … , and finds the latter lacking. In the Applicant’s characterization, while the regulatory regime that existed from 1995 until … 2012 “provided an essential element in the effective protection for the s. 7 rights of women”, the “[Ending the Long Gun Registry] Act’s purpose appears to relate primarily to political aims”. (Par. 41)

But a statutory scheme cannot be made into a constitutional standard in this way. The gun registry’s creation was no more “politically neutral” than its abolition (par. 45). It was a choice of policy and politics, and it can be reversed or revised.

Justice Morgan then turned to the evidence which the Clinic adduced in support of its s. 7 claim, and found it insufficient. That evidence seems mainly to have consisted of statistics showing that gun violence declined in Canada while the long-gun registry was in operation. But, Justice Morgan said, gun violence had been declining before the registry was set up, and the early indications are that gun violence against women has not increased after it was abolished. In fact, as the government argued, there is a long-term trend towards the reduction of violent crime, so that what the Clinic showed was correlation, but not causation. Furthermore, police officers ― including those who served as the Clinic’s expert witnesses ― suggest that the effectiveness of gun registration (as opposed to licensing and background checks, which the abolition of the registry does not affect) is debated and, at best, limited. Thus even if an increase of risk resulting from the abolition of the long-gun registry were a constitutionally cognizable harm, the Clinic, in Justice Morgan’s view, had not demonstrated that the abolition had that effect.

Justice Morgan found that similar evidentiary problems undermined the Clinic’s claim that the abolition of the long-gun registry infringed the Charter’s equality guarantee becaused it would disproportionately affect women would be the victims of domestic gun violence. Again, there is evidence that gun both violence and domestic violence are decreasing. But given the multiplicity of causes likely to be involved, it is very difficult to isolate the gun registry’s role, if any, in these processes. The point, Justice Morgan said, is “not that there is no place for statistical data, but rather that statistical data can rarely, if ever, do the work of proof on its own” (par. 100). Nor was there anything to show that whatever effects the abolition of the gun registry might have on women were discriminatory in the sense of stereotyping or perpetuating past disadvantage. The overall statutory scheme for regulating firearms still tries to reduce gun violence, including in particular gun violence against women. Changing the mix of criminal and regulatory elements in that scheme was not, Justice Morgan said, discrimination.

I think this is the right decision. Justice Morgan’s point about the “state action problem” and the “baseline problem” are well taken, and his concerns about the insufficiency of the evidence to show that the gun registry’s abolition would have the disastrous consequences its supporters expect are justified.

I don’t know whether the Clinic intends to appeal his decision, but its chances of success would be very low indeed, given the Supreme Court’s insistence, in Bedford, that a trial judge’s assessment of social science evidence in constitutional cases is entitled to as much deference on appeal as any other form of fact-finding. Even if Justice Morgan were wrong in has approach to the issue of state action (and I don’t think that he is), his conclusions regarding the evidence would still stand.

For better or worse, this is the brave new world of Charter litigation ― a world in which cases live and die depending on the lawyers’ ability to assemble an evidentiary record and to convince a trial judge of this record of that record’s persuasiveness. And as I wrote here in discussing the potential dangers of this approach, “[t]he government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it.” So here the government was able to show that the general trends in crime reduction, and its other (purportedly) crime-preventing policies meant that it was not possible to establish the effects of the gun registry’s abolition or continued existence with any degree of certainty.

This is not to say that I regret the outcome of this particular case, though others will find it regrettable. I will, however, note the irony of the government’s reliance on statistics showing a long-term general decrease in crime to defend this one element of its criminal-law legislative programme while implementing other, “tough-on-crime,” policies with a total disregard for these statistics. I hope that the courts which will consider the constitutionality of these measures will take good note. The gun registry is more dead than ever ― though the Supreme Court might still resurrect it in Québec. But in killing it, the government might just have inflicted some collateral damage on its other policies. No regrets from me there, either.

The End (Almost)

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.

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.

Thanks for Nothing

Last week, the Superior Court of Ontario has issued a ruling on two important motions in a challenge to the constitutionality of the abolition by Parliament of the long-gun registry brought by an Ontario NGO, the Barbara Schlifer Commemorative Clinic, which I first mentioned here. The decision, Barbra Schlifer Commemorative Clinic v. Canada, 2012 ONSC 5271, deals with the government’s motion to strike the application and the applicant’s motion for an interlocutory injunction prohibiting the destruction of the gun registry data pending the ruling of the court on the merits of the application. Justice Brown denied both these motions.

The government’s motion to strike was based on two grounds.

First, the government argued that the constitutional challenge was outside the court’s jurisdiction because the abolition of the gun registry is functionally identical to a refusal to set one up in the first place, and courts cannot entertain a challenge to a legislature’s failure to legislate. Justice Brown makes rather short work of this claim. The abolition of the gun registry is provided by an Act of Parliament; that Act, no less than any other, must be constitutional, and its constitutionality is subject to judicial review.

The government’s second argument was that the Clinic’s application disclosed no reasonable cause of action. The application is based on infringements of ss. 7 and 15 of the Charter, protecting respectively the rights to life, liberty, and security of the person, and equality rights. On s. 7, the government contended that the law abolishing the gun registry in no way touches on Charter rights of women victims of violence which the Clinic says it infringes. The law simply abolishes the gun registry; any use of newly-unregistered guns in violence against women is not the Parliament’s doing and thus not the courts’ concern. The courts cannot impose on Parliament an obligation to keep a law on the books. After pointing out that the Clinic alleges that the abolition of the gun registry will cause violence against women to increase and that it is arbitrary and grossly disproportionate, and that if it can prove these allegations, it will prima facie make out a violation of s. 7 of the Charter, Justice Brown turns to the question whether, in any case, the decriminalization of conduct, such as the abolition of the requirement to register a firearm is, can amount to a violation of the Charter. On the one hand, Parliament is generally free to choose which conduct it criminalizes, and which it doesn’t. On the other, suppose Parliament decriminalized murder―or, say, the murder of some part of the population. Would potential victims not have a Charter recourse? Perhaps, concludes Justice Brown, the Charter does impose a positive requirement that Parliament criminalize certain conduct. “With Canada’s constitutional forest populated with living trees, how can one say with certainty that the interpretation of section 7 of the Charter advanced by the Clinic stands no hope of success?” (Par. 72) As for the s. 15 claim, while Justice Brown seems rather skeptical of its prospects, he also points to the absence of authorities directly on point and decides that the government hasn’t shown that it has no chances of success.

Justice Brown then turns to the Clinic’s motion for an injunction to prevent the destruction of the gun registry data while litigation is ongoing. He takes note of the Québec Superior Court’s judgments in the case about Québec’s bid for the gun-registry data, which first granted an interlocutory injunction and then an injunction-like declaration preventing the destruction of Québec-related gun-registry data, but points out that Québec’s claim was based on federalism, not the Charter. He thinks that it means that the Québec court’s reasoning is not applicable to this case.

Applying the test for granting an interlocutory injunction, Justice Brown finds that there exists a serious issue to be tried, but only in the limited sense that the case brought forward by the Clinic is not frivolous, vexatious, or bereft of any chance of success. It is, otherwise, very weak:

[t]he statistical evidence filed on this motion provides little forensic support for the Clinic’s allegation that a causal relationship existed between the enactment of the long-gun registry and the most serious type of violence against women – homicide – and, therefore, that the repeal of the registry would increase the risk of such violence. (Par. 136)

This conclusion also influences Justice Brown’s view of the second prong of the test, the existence of irreparable harm, which is that the Clinic hasn’t established that women will actually suffer violence―and thus an irreparable harm―if the registry data is destroyed before the resolution of the case. And the registry can always be recreated if the Clinic’s challenge succeeds, albeit at a cost to the taxpayers, so the loss of data is not an irreparable harm either. Nor has the Clinic proven that balance of convenience favours its position.

Thus the Charter challenge to the abolition of the gun registry survives to live another day, but only just, and it is not clear what the fruit of a victory would be. The gun registry data will be destroyed well before the case is resolved. Recreating a new registry from scratch is always possible, as Justice Brown says, but if past experience is any guide, it will be an embarrassingly long and expensive process. And although theoretically this should not be so, one cannot help but suspect that this fact will colour the courts’ judgment when the case is decided. It would have been one thing to order the government to keep going an already-existent legal regime. It will be something else to order it to incur massive start-up costs to re-build one from scratch.

Keeping Judges Busy

The Globe and Mail reports that the federal government will go to the Supreme Court to review the constitutionality of its Senate Reform project. Opponents of the reform have dared it to do so for years. They’ll get their wish now. The Supreme Court’s was already asked to rule on Senate reform project once, by Pierre Trudeau’s cabinet. The result was Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54―a somewhat vague and inconclusive decision, because the government then did not have a specific reform project, and referred only vague questions to the Court. This time will be different. I won’t comment on the substance of the case just yet, but for those interested in the subject, the text of the bill, as it now stands, is here. And here are the comments of Peter Hogg, the most prominent Canadian constitutionalist, and of Fabien Gélinas, who taught me constitutional law at McGill, on a previous Senate reform bill.

The government also announced today that it will appeal the decision of Québec’s Superior Court in Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202, the gun registry case, which I summarized and commented on last week. As I wrote then, I think that the decision should stand, albeit that Justice Blanchard’s opinion was far from the best that could have been written.

So the government is keeping judges―and lawyers of course, not to mention us humble bloggers―well occupied. Which reminds me: it will be four months tomorrow since Justice Deschamps announced her resignation from the Supreme Court. Since the government likes to keep the courts busy, it should also make sure they are fully staffed.


Property and Propriety

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, [2000] 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.