Québec Wins Gun-Registry Battle

Justice Marc-André Blanchard, of Québec’s Superior Court has ruled that the federal government’s attempt to destroy the data from the now-defunct long-gun registry is unconstitutional. (I have written extensively about this case; all of my posts about it are collected here.) The CBC’ has the story, and has helpfully posted a copy of the judgment  online.

The judgment begins with a review of the history and functioning of the long-gun registry. The key point is that the registry was, from its creation to its abolition, a joint venture between the federal and the provincial government. Various provincial organizations contributed the data they collected to the registry; the federal government administered it; and both federal and provincial police forces used the data. Justice Blanchard concludes this review by observing that “Québec does not start on the adventure of setting up the registry with the knowledge that it could be subsequently deprived of the fruits of its contribution to the registry’s creation” (par. 35; translation mine, here and throughout).

Justice Blanchard starts the analysis of the constitutionality of s. 29 of the Ending the Long-gun Registry Act, which provides for the destruction of the long-gun registry data by acknowledging that (as the Supreme Court held in Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783) the creation of the registry was a valid exercise of Parliament’s criminal law power. So is its abolition, since Parliament is free to change its mind. But the issue in this case is not the abolition of the registry, but the destruction of the data it contained, in the face of Québec’s request that the data, so far as it concerns guns in Québec, be handed over to the province. Justice Blanchard finds that Parliament wants not only to abolish the federal gun registry, as it is entitled to do, but also to prevent Québec from using the data it contains to set up a provincial registry. And so the real question is whether pursuing this specific project infringes on the provincial competence regarding property and civil rights, and the principle of federalism itself, including the requirements of co-operative federalism, of which the registry, during its existence, was an example.

Justice Blanchard concludes that the destruction of the gun registry data does not pursue any criminal law objective. Its aim is rather to prevent Québec from exercising its uncontested, power to create a gun registry of its own, using its competence over property and civil rights, which of course include guns and their ownership. Nor can the destruction of the data be justified as ancillary to a valid criminal law purpose. It “infringes to a very substantial, even to an exorbitant, extent on the powers of the provinces and … there is no rational or functional justification or any necessity for doing so” (par. 135). Indeed, none of the previous attempts to abolish the gun registry included a provision requiring the destruction of the data.

The next question is whether Québec is entitled to use the data of the federal gun registry to create a registry of its own. According to Justice Blanchard, “it defies common sense, not to say the common good, that Québec can be prevented from using data which it participates in compiling, analyzing, organizing, and modifying” (par. 151).  The data does not belong to the federal government alone; Québec is entitled to access and use it.

The last issue is that of the appropriate remedy. Justice Blanchard has several options. One is simply to declare s. 29 unconstitutional; another is to declare it unconstitutional as applied to data relative to Québec’s citizens; still another is to grant Québec a constitutional exemption from its effect. The judge chooses the second option, because the evidence before him only concerned the relationship between Québec and the federal government in the running of the gun registry; he does not know whether the situation of the other provinces―notably their own participation in the constitution of the registry―is identical to that of Québec.

The federal government asked for, and gets, 30 days to transfer the data relative to Québec to the provincial authorities. What happens during that period? Québec wants the federal government to keep updating the gun registry, but the federal government says there is no reason for it to do so, since the constitutionality of the provision putting an end to the collection new data was never in question. Justice Blanchard sides with Québec, concluding that the data to which it is entitled would be useless if not kept up to date. For the 30-day transitional period, the data collection must go on.

It’s an interesting, albeit occasionally confusing, judgment. I will try to post some thoughts on it tomorrow.

Another Gun-Registry Case

I have written profusely about Québec’s attempt to obtain from the federal government the Québec-related data accumulated in the now-defunct federal long-gun registry. (My summary of the claim is here, and my comments on it are here.) Québec’s claim is based, in effect, on its alleged co-ownership of the data; it does assert that the abolition of the gun registry by Parliament is itself unconstitutional.

But, as I have now learned, there is another case going on, in Ontario, in which the plaintiff asserts just that. The Barbara Shlifer Commemorative Clinic, an NGO which assists women who are victims of domestic violence, contends that the abolition of the gun registry violates the Canadian Charter of Rights and Freedoms, more specifically its guarantees of security of the person (s. 7) and equality (s. 15), by disproportionately exposing women to an increased risk of firearm violence.

The federal government has moved to quash the application as disclosing no reasonable cause of action; this motion has been argued, but no decision has yet been delivered. The clinic has filed a motion for an injunction to prevent the destruction of the gun-registry data pending a decision on the merits, which will be argued in September. Furthermore, the City of Toronto has asked for leave to intervene in support of the application. The federal government opposed that motion, but it has now been granted by the Superior Court of Justice, in Barbara Shlifer Commemorative Clinic v. Canada, 2012 ONSC 4539 (the decision from which I learned about the case).

I will be following the developments in this case with interest.

Gun-Registry Hearing Today

Something almost as exciting as the Euro has started today in Montreal: the merits hearings in the gun-registry litigation, which I have been covering extensively. As I am not in Montreal, I am totally dependent on the media for any information about it. Things are not very encouraging so far. The reports by Radio-Canada and La Presse do not give us any information on today’s argument. I suppose we’ll have to wait until the judgment comes out to learn anything of substance.

In case you’re looking for a refresher on what the fuss is all about, I have an overview of Québec’s application; my comments on it;  some further thoughts; and a report and comment on the decision granting an interlocutory injunction to stay the destruction of the gun-registry data pending the hearing on the merits – which starts today.

Gun-Registry Litigation News

I know, I know, you are as I excited as I am to read about the progress of Québec’s lawsuit to get its hands on the gun-registry data the federal government wants to destroy. So here goes. (If, for reasons beyond my comprehension, you are not breathlessly excited about this, rest assured that I have even more interesting stuff in the pipeline.)

Almost two weeks ago now – I’m late, I know – Justice Blanchard of the Superior Court of Québec issued a decision rejecting a motion Québec brought for an order compelling Canada to show to the Court that it was complying with the interlocutory injunctions the issued in the case, which require the federal government to keep collecting and maintaining the gun-registry data for the province of Québec. Québec analogized the case with that of Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3,  in which the Supreme Court upheld an order granted by Nova Scotia’s Supreme (i.e. trial) Court directing the province’s authorities to report to the court about the efforts they were making to discharge their constitutional duty to provide secondary education in French. Justice Blanchard was having none of it.

He observed that this is not – unlike Doucet-Boudreau – a Charter case, so that the broad grant of remedial powers in subs. 24(1) of the Charter does not apply. Nor was it a case, like Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, in which the party against whom the order was sought had a demonstrated history of bad faith. In the circumstances, “the Court’s role of constitutional umpire must not make it into an active participant in the litigation, unless, in exceptional circumstances, the very integrity of the Court or of the administration of justice, generically understood, is called into question” (par. 18). If Québec thinks that Canada is up to no good, it has both the means and the responsibility to find out and tell the court. The Court’s power to order a party to report on its compliance with its decisions must remain exceptional.

Sounds right to me.

Judicial Review and Co-operative Federalism

I would like to return to Justice Blanchard’s reasons for judgment granting the injunction preventing destruction of Québec-related gun-registry data pending judgment on the merits in this case, about which I posted here a couple of days ago.

The case, says Justice Blanchard, is “exceptional,” “a first in Canadian judicial history” (par. 21). The reason it is exceptional is the opposition between the “diametrically opposed views of what is usually called the common good.” I think this is wrong. While the conflict between the federal and a provincial governments’ views of the common good might be especially clear in the gun-registry data litigation, there is nothing exceptional about it. Most federalism cases, certainly all cases that pit a province against the federal government, involve a similar conflict between views of the common good. For example, the federal government thinks that the common good requires a national securities regulator; Québec and Alberta think that it is best served by provincial regulators. The result is a court case. When the two levels of governments agree on a vision of the common good, the co-operate and don’t go to court, the constitution be damned. Healthcare is the prime example: neither s. 91 nor any other provision of the Constitution Act, 1867 give Parliament any role regulating and paying for healthcare, but it does both, because (and perhaps only so long as) the provinces share its view of the public good in this area, and have no inclination to challenge it in court.

What is in fact (almost) unique in the gun-registry litigation is that, as I argued in my first comments on the topic, it actually stems from a co-operative relationship – but one that has broken down. “Normal” federalism cases involve conflicts over who has the power to decide whether and how to regulate certain areas of human activity. Who, of Parliament and provincial legislatures, for example, has the power to decide (whether and) how the securities industry should go about its business. (Not, by the way, who should have this power, as a matter of economic policy; but who actually has it under the specific constitutional arrangements we have in place.) In these cases, courts are called upon to regulate the competitive aspects of federal-provincial relations. The gun-registry litigation is different because what it really is about is not competition for the power to regulate (indeed it is acknowledged that, on the one hand, Parliament has the power not to regulate gun registration if it does not want to, and provincial legislatures have the power to regulate gun registration if they feel like it); it is about “fair terms of co-operation” between the two levels of government, to borrow a phrase from John Rawls (who of course uses it in a different context).

Courts are not often called upon to police the fairness of the terms of co-operation between the federation and its constituent units, and it seems not to be sufficiently theorized. For example, critics of federalism-based judicial review (who are many in the United States, including for example Larry D. Kramer in this article) do not pay any attention to it; Jeremy Waldron’s criticism of judicial review, which is primarily (but not exclusively) directed to rights-based judicial review, is similarly incapable of addressing it. (Some judicial and academic attention in the United States has been directed at one specific problem which arises from co-operative federalism: the tendency of the federal government to attach stringent conditions to grants of funds to sub-federal units, which the Supreme Court of the U.S. addressed in South Dakota v. Dole and will address again in ruling on the constitutionality of “Obamacare.”) Yet judicial review of the fair terms of federal co-operation deserves attention as a distinct constitutional phenomenon. To give but one example, and return, in conclusion, to the gun-registry litigation, Justice Blanchard’s incredulity at the idea of an award of damages as a remedy in a federalism dispute would probably be appropriate if the dispute were, as usual, about competitive federalism; but it might be unfounded in a dispute about the fair terms of federal co-operation.

More on the Gun-Registry Litigation

Having sought – and obtained – cheap popularity with my potty-mouthed post yesterday, I now return to the (extra)ordinary world of constitutional law, and to my favourite topic so far: Québec’s attempt to gets its hands on the gun-registry data the federal government wants to destroy.

I just came across – a bit late – on the reasons for the decision of Justice Marc-André Blanchard, granting Québec’s motion for an interlocutory injunction to stay the application of the federal legislation requiring the destruction of the gun-registry data, about which I posted here and here.

The most important thing in the decision that I, at any rate, had missed in the media reports is that the injunction Blanchard J. granted not only prevents the destruction of existing gun-registry data but also requires that new data continue to be compiled, as if the registry were not abolished, at least until the trial. Québec is not challenging the power of Parliament to put an end to data collection in its merits claims; it only seeks the preservation of the status quo pending the outcome of this litigation and the possible establishment of Québec’s own gun-registry using the federal data. Blanchard J. agrees that, in case Québec succeeds in obtaining the federal government’s gun-registry data, it would make no sense to leave a gap in the data between the moment the federal government stops collecting data and Québec’s own registry is put in place, which cannot possibly be done right away.

I will note two other things. First, Blanchard J. insists on the fact that this case is an important ways novel and exceptional, especially because it results from conflicting interpretations of the public good advanced by two legislatures, both of them democratically legitimate. I think I hinted at this problem, though not exactly in the way Blanchard J. does, in the second of my observations on Québec’s claim.

And second, the federal government argued that the injunction should not issue because Québec’s harm was not irreparable since any expenses involved in re-collecting unconstitutionally destroyed data could be compensated by an award of damages. Blanchard J. rejected this claim on the basis that “it appears not unreasonable to assert that a monetary remedy in a constitutional controversy concerned with division of powers … seems bizarre” (par. 60; translation mine). Now I’m not at all convinced that this is right in the present case, which is, as the judge points out, highly unusual. But what I find really interesting is that it is none other than the federal government who seems to answer in the affirmative the question I raised on this blog: could a province recover damages for the federal government’s destruction of the gun-registry data, if that is found to be unconstitutional? I’m pretty proud I saw that one, although I still have doubts about the possibility of such a claim, and I suspect that if one were brought, the federal government’s lawyers would have doubts too.

Another Gun-Registry Litigation Update

Radio-Canada reports that the safeguard order preventing the destruction of Québec-related gun registry data has been extended until the end of the hearing on the merits in June. I thought that this had already been the case, but I suppose that the previous extension was only good until the issuance of today’s opinion.

Further Gun-Registry Litigation Update

Radio-Canada reports that the safeguard order preventing the destruction of the long-gun registry data relative to Québec has been extended, presumably until the merits hearings now due to be held in June. The federal government had claimed that the safeguard order was not necessary because no data would be destroyed before August – yet both Radio-Canada’s report and the CBC indicate that the process has already started, except for Québec.

This raises an interesting issue, which I already referred to. Québec argues that the unilateral destruction of the gun-registry data by the federal government is unconstitutional. If it prevails at the merits hearings (and eventually on appeal, if any), then it will turn “turn out” that the federal government acted unconstitutionally in destroying the data. Would this have any legal consequences? Perhaps not. For now, it seems that no one, except the Québec government, is very interested in the data. But suppose a newly elected government in an other province wants to create a provincial registry. Because of the destruction of the data, this is going to be complicated and expensive. Could it sue the federal government for acting unconstitutionally (and recklessly so, since Québec’s suit ought to have alerted it to the dubious constitutionality of its actions), and try to recover damages to pay some of the costs? Would the federal government argue that the province is estopped, not having itself raised the issue (and joined Québec’s suit)? Off the top of my head, I do not recall any remotely similar cases, but this could get interesting.

Gun Registry Litigation Update

There is news regarding Québec’s attempt to obtain “its” long-gun registry data before it is destroyed by the federal government, about which I wrote here and here. The merits hearing was supposed to take place today. However, Radio-Canada reports that  the judge was concerned that the matter is too complex and there is not enough time to deal with it now. The La Presse story seems to confirm that the merits hearing will now take place in June.

The question now is what happens to the safeguard order, which prevents the federal government from destroying the gun-registry data until tomorrow (when the merits hearing was originally scheduled to end). The federal government asks that it not be extended, and claims that it is not necessary because no data destruction will take place before August. The news reports do not make Québec’s position clear, but it is safe to assume that it is opposed. Indeed, if the federal government is right that it is not going to do anything before August, one may wonder why they oppose the extension of the safeguard order.

There is no news of the judge’s decision yet, but I will update or have a new post when it comes out.

UPDATE: The hearing will continue tomorrow.