About Those Social Values

In its judgment in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, the majority of the Supreme Court notoriously found that one of the roles played by the Court’s Québec judges is to ensure “the representation of Quebec’s … social values on the Court.” [56] In the majority’s view, a disconnect from “Québec social values” was one reason for excluding former members of the Québec bar, such as the judges of the federal courts, from eligibility to the Supreme Court.

Perhaps the three Québec judges had this passage in mind when they wrote their joint dissent in the recent gun registry decision, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. Although, of course, they ultimately disagreed with the majority on legal grounds ― specifically, about the meaning and normative force of the “cooperative federalism” principle ― their opinion seemed to invoke these “social values” too. For example, it referred to “[t]he tragedy at the École Polytechnique in Montréal on December 6, 1989” [54] ― a reference which every Québécois reader will understand, but which might not have such resonance in the rest of Canada. Perhaps more significantly, it emphasized the Québécois’ support for the gun registry, from the moment it was proposed ― “[i]n Quebec, there was a consensus that the program would be useful” [57] ― to its abolition, which “[t]he Quebec government” opposed, according to the dissent, “with the support of … much of its population.” [66]

The empirical claim about the support of “much of [Québec’s] population” for the government’s position is unsupported. Perhaps the dissenters thought it unseemly to cite a poll in a judicial opinion, though I’m not sure it would have added very much to the unseemliness of invoking popular sentiment in the first place. But the danger in making such a claim without sourcing and, if I may speculate, probably without even checking it, is that it can turn out to be false. And, as it happens, rather like Justice Cromwell’s recent suggestion, without evidence or justification, that armed robberies have “become depressingly routine,” the claim about the consensus in support of gun registration in Québec is indeed false.

This is perhaps the most interesting finding of a Léger opinion poll released by Le Devoir this morning. At p. 17 of the report, we learn that 48% of the respondents actually oppose the creation of a made-in-Québec gun registry, while only 41% support it. This, despite the fact that all the political parties represented in the National Assembly support a Québec gun registry, as do trade unions, and much of the rest of “civil society.” But what concerns me here is not the fact that Québec’s political and chattering classes who, as André Pratte recently pointed out, do not so much argue for the creation of the registry as assert its necessity and invoke the fictitious consensus in its favour, are apparently out of touch with much of Québec’s society (or, more specifically, much of Québec’s society outside of Montreal).

What does interest me is that the representatives of “Québec’s social values” on the Supreme Court also seem disconnected from the values and opinions actually held by Québec’s citizens. Of course, it may conceivably be that while the citizenry opposes the creation of a new registry, it really was as attached to the old one as justices Lebel, Wagner, and Gascon claimed. But it seems to me more likely that even the federal registry was not much nearer and dearer to the Québécois’s hearts than the prospect of the creation of a provincial one. Why are the Québec judges unaware of this?

If I were really mean, I would say that it’s because, by the logic of the majority’s judgment in l’Affaire Nadon, which implies that leaving the courts or the bar of the province of Québec automatically makes one lose touch with Québec’s social values the sitting Québec judges cannot actually possibly discharge their mandate as Québec’s representatives. (It’s worth pointing out that, as I noted here, the Québec government accepts this logic, and has argued before the Québec Court of Appeal that one of the Supreme Court’s Québec judges could not sit at the province’s Court of Appeal. It will be interesting to see whether it sticks to its guns before the Supreme Court, and whether the Court itself accepts this implication of its holding.) However, as those who recall my criticism of the majority’s opinion in l’Affaire Nadon will have guessed, I do not subscribe to this view.

Rather, this situation seems to me to highlight the flaws of the logic that animated that opinion. For one thing, as the findings of the Léger poll suggest, there is not necessarily a great deal of consensus about what Québec’s social values are. This is not at all surprising ― the same could be said of any other open society. While nationalists ― again, in Québec as elsewhere ― like to exaggerate the degree to which the members of society agree among themselves and disagree with outsiders, we should be wary to claims to this effect. And in the absence of consensus about what “Québec’s social values” are, it is, to say the least, not clear how the people who are somehow supposed to “represent” them are supposed to do that. And then, there is the fact ― which most observers of the legal system seem to take for granted, but which somehow escaped the notice of the Supreme Court’s majority ― that judges, of all people, do not make very good representatives of their society. As I noted here, “[e]ven the average judge should be nothing like the average Joe, or the average Jane.” Judges ― especially the judges of the Supreme Court ― are members of a professional elite and, more broadly, of an urban upper class. It is not realistic to expect them to be attuned to the “social values” of their fellow citizens.

The Supreme Court’s decision in l’Affaire Nadon was badly wrong. Some of its negative consequences ― notably its  effects on the federal courts ― will be very difficult to mitigate. But there is no need for the Québec judges to take the idea of “representing” their province’s purported “social values” too seriously. They could not do it with the best will of the world, and even it were an appropriate thing for a judge to do. They should not even try.

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.

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.

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.