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.

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.

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.

Thoughts on Québec’s Bid for Gun-Registry Data

As promised, a few thoughts on Québec’s claim that the destruction of the long-gun registry data is unconstitutional,In no particular order:

  1. 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.), [1991] 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.
  2. 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?
  3. 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?