Tuesday, 29 May 2012

Why Destroying the Long-Gun Registry Data is Unconstitutional

The literature on the establishment and operation of administrative agencies is voluminous. Even the destruction of agencies – deregulation – has inspired eloquent words. Less ink has been spilled about the consequences of deregulation. The impending argument over the abolition of the Long-Gun Registry is an example of destruction and deregulation giving rise to litigation.

In this post, I argue that the means chosen by the federal government for destroying the data contained in the Long-Gun Registry is unconstitutional; Québec should, in my view, prevail in its constitutional challenge. It has already prevailed in winning an injunction preventing the destruction of the data, and the substance of its challenge will be heard shortly in the Superior Court. An appeal by the losing party to the Court of Appeal and thence the Supreme Court of Canada is inevitable, unless the federal government and Québec reach some sort of agreement in the meantime.
In this post, I am concerned only with the federalism argument being made by Québec, and not with the interesting Charter challenge that has recently been launched.

To begin, a light dose of Canadian constitutional law doctrine. Canada has two levels of government: a central federal authority, and provincial governments dotted around the country. Both levels of government are confined to various fields of legislation laid out in sections 91 and 92 of the Constitution Act, 1867. For example, the federal government is responsible for legislation pertaining to banks and banking; but the provincial governments provide and regulate education. To be valid, a law passed by either level of government must, in its “pith and substance”, fall into one of these fields.

Conflicts often arise because of the capacious definition given to the provincial governments’ power to regulate “property and civil rights in the province”. One commentator has observed that this power covers “most of the legal relationships between persons in Canada”, including property law, succession law, the family, contracts and torts. But laws passed by the federal government may entrench on this (or other fields of provincial competence), because some areas of regulation are common to both provincial and federal fields of competence. Where validly enacted provincial legislation runs into validly enacted federal legislation, the federal law prevails under the doctrine of paramountcy. As one can imagine, conflicts between the two levels of government require the courts to perform a delicate balancing act.

When the federal government proposed to set up the Canadian Firearms Registry in the 1990s, the provinces protested on the basis that the requirements that firearms owners be licensed and that all individual firearms be registered related to property and civil rights in the province. The response of the federal government relied on its broad power to enact criminal laws. Where there is a criminal law purpose backing up a criminal prohibition with penalties, the federal government may legislate. Here, failures to license or register carried penalties. In the Firearms Reference, the Supreme Court of Canada upheld the federal government’s authority to establish the Registry on this basis, even though there were effects on property and civil rights in the provinces.

How did the Registry operate? Section 82 of the Firearms Act required the appointment of a Registrar of Firearms. Under s. 83, this individual was to maintain the Canadian Firearms Registry. Amongst other things, records of all licenses and registrations and applications for licenses and registrations were to be kept. So far, so federal. However, s. 87 imposed obligations on chief firearms officers – who are provincial officials – to keep records of licenses and authorizations and applications for licenses and authorizations.

Indeed, the functions of licensing were primarily performed by provincial officials. Registration was in the domain of the Registrar. Section 54 spelled out the division of responsibility for licenses, registration certifications and authorizations. Applications had to be made to:

(a) a chief firearms officer, in the case of a licence, an authorization to carry or an authorization to transport; or

(b) the Registrar, in the case of a registration certificate, an authorization to export or an authorization to import.

Moreover, as evidenced by s. 90, the Registry scheme was an interlocking one: the Registrar had the power to look at the records kept by the chief firearms officer, and vice versa. Tellingly, s. 95 provided for the payment by the federal government of compensation to the provinces in respect of administrative costs incurred by the provinces in relation to the Registry. Co-operation was to be the order of the day.

It is the interlocking and co-operative nature of the scheme which gives rise to difficulties in disposing of the data and to Québec’s constitutional challenge.

Part of the Conservative Party’s platform at the last federal election was the abolition of the Registry. So it is that s. 29 of the Ending the Long-Gun Registry Act provides that both the Registrar and all chief firearms officers “shall ensure the destruction as soon as feasible of all records under their control”. No criminal prohibition is attached to the duties imposed under s. 29. Its power to enact criminal laws cannot avail the federal government on this occasion.

Notably, s. 84 of the Firearms Act gave an express power to the Registrar to destroy data held in the Registry. Why the federal government did not utilize this provision before enacting the new law must remain a mystery – though presumably the challenge I am about to describe could have been made to any decision or direction to destroy data.

This challenge is not aimed at the entirety of the Ending the Long-Gun Registry Act. Only s. 29 suffers from the constitutional infirmities I am about to outline. Three such infirmities afflict the approach of the federal government.

The first is disarmingly simple. Section 29 in its “pith and substance” is an attempt to regulate property and civil rights in the province. It is concerned entirely with records relating to items of property held by individuals in provinces. Guns are clearly property. And information relating to guns held in the provinces clearly comes within the field of property and civil rights in the province. Both the purpose and effect of s. 29 is to destroy information relating to property and civil rights in the province. This violates the test laid out by the Supreme Court in the Firearms Reference: “if the effects of the law, considered with its purpose, go so far as to establish that it is mainly a law in relation to property and civil rights, then the law is ultra vires the federal government”. Section 29 is “mainly a law” regulating property and civil rights. As it cannot plausibly be said to fall into any federal field of legislative competence, the federal government has no power to enact s. 29.

The second is vigorously relied upon by Québec. It is that s. 29 is a deliberate attempt to impair its ability to establish its own firearms database. While this would not be impossible, it would be expensive and time-consuming. On its own, the fact that re-constituting the database would be costly is not convincing evidence that the federal government is mounting an attack on Québec’s ability to regulate property and civil rights in the province. However, in its “requête introductive”, Québec lays out with relish a number of bullish government statements which lend strong credence to its argument. Deliberate impairment of provincial power to regulate matters clearly within provincial jurisdiction is hard to prove but constitutionally problematic; indeed, in the Firearms Reference, one of the reasons the Supreme Court upheld the Registry was that the Firearms Act did not “significantly hinder the ability of the provinces to regulate the property and civil rights aspects of guns”. Section 29 does not deserve such charity.

The third is also relied upon by Québec. It is based on the principle of co-operative federalism, which aims to strike a balance between federal and provincial power. Latterly, the courts have taken “a more flexible view of federalism that accommodates overlapping jurisdiction and encourages intergovernmental cooperation”. Rather than treating the fields of legislative competence as hermetically sealed compartments, the Supreme Court has emphasized that in some areas, both levels of government may validly regulate: “a court should favour, where possible, the ordinary operation of statutes enacted by both levels of government”. Gun control is one of those areas.

However, having allowed it to avail of the principle of co-operative federalism to establish the Registry, a process in which the provinces played an important role, the courts should not now permit the federal government to disregard the principle. Enacting s. 29 flies in the face of the spirit of co-operation between the levels of government that enabled the Registry to function in the first place. Far better either to remit the information to the provinces if they wish to receive it, or simply maintain the information in a safe place until such time as an agreement about its use can be reached between the federal and provincial governments.

Signing off at the end of last year in its opinion on the constitutionality of federal securities legislation, the Court urged co-operation between the federal government and provinces:

Such an approach is supported by the Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.  The backbone of these schemes is the respect that each level of government has for each other’s own sphere of jurisdiction. Cooperation is the animating force. The federalism principle upon which Canada’s constitutional framework rests demands nothing less.

Applying the same logic to the Ending the Long-Gun Registry Act, s. 29 must be struck down as unconstitutional.

Whether, if s. 29 is ultra vires the federal government, the provinces have a property right in the information collected is a different, and trickier, question. But even if Québec does not succeed in having the data remitted to it immediately, it can wait until a party more favourable to its interests takes power in Ottawa. Recognizing the unconstitutionality of s. 29 would facilitate such a compromise.