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,  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,  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.
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.
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.
As promised, a few thoughts on Québec’s claim that the destruction of the long-gun registry data is unconstitutional,In no particular order:
- This case forces the courts to grapple with the constitutional issues presented by co-operative federalism, of which the working of the gun registration regime seems to have been an example. Québec’s claim is based on its participation in the administration of the federal regulatory scheme; it would not hold up, or at least would be very weak, if Québec had not been involved in its running. If the long-gun registry had been a purely federal venture, there would have been no reason why Parliament, which had started it up, could not also put an end to it. But it is at least not crazy to say, as Québec now does, that provincial involvement in the regime’s operation means that the venture was not an exclusively federal one, so that provincial interests have to be taken into account in considering and implementing its termination.I don’t think our federalism jurisprudence, as it now stands, can sustain this claim. Perhaps the most relevant Supreme Court decision is the now-20 year old Reference Re Canada Assistance Plan (B.C.),  2 SCR 525, which dealt with the unilateral modification by Parliament of an agreement to help pay the costs of provincial social programmes. The Supreme Court stressed parliamentary sovereignty, and concluded that Parliament could do what it pleased. If that precedent applies to this case, Québec’s odds do not look good (and I do not recall Québec addressing it at all in its argument). But there might be a distinction between pure-cost sharing and a programme where the federal and provincial administrations are both involved. And in the last few years the Court has been emphasizing the importance of co-operative federalism, which, arguably, cannot work particularly well if either side is able, on a whim and despite protests from its erstwhile partner, to end its involvement in a co-operative project. Perhaps the questions about the best workings of a system of co-operative federalism are purely political; that seems to be the result of the Canada Assistance Plan case. But maybe it is time for Courts to start working out a legal framework.
- The claim that the government holds its property – which in this case means data rather than physical assets – more or less as a trustee for the people sounds interesting and quite possibly right as a matter of political morality, but it is not so clear what it entails in practice. Even if we agree that the government has to use its property in the public interest, there is presumably no higher authority than Parliament in deciding what the public interest is. If Parliament decides that it is in the public interest to destroy the long-gun registry data, how can courts second-guess it?
- If Québec succeeds in getting s. 29 of the Ending the Long-gun Registry Act declared unconstitutional, no long-gun registry data can be destroyed. The federal government is stuck with this data, which it does not want. What happens then?