A COURT DIVIDED
Quebec judges show dissent over ruling that allows Ottawa to destroy gun-registry data
The Supreme Court of Canada’s decision upholding the federal government’s right to destroy the last data from the federal longgun registry appears to be a political victory for Prime Minister Stephen Harper and for gun rights advocates.
But it also exposes fault lines on the top bench over the powers of the provinces and those of the federal government.
Harper seemed pleased as he spoke to reporters in Quebec on Friday after the ruling. “We have made a commitment to the people across Canada, but particularly in rural areas … and we intend to respect our promise” to kill the entire registry and all of its records, he said.
Scrapping the registry in 2012 fulfilled a long-standing promise by Ottawa to decriminalize the non-registration of long guns. It ended what the Conservatives saw as an inefficient and costly program that violated the privacy rights of long-gun owners.
The elimination of the remaining data from the registry, now sanctioned by the court, will not reduce public safety, Harper said.
“Yes we’ve abolished one registry, but we have registration of all gun owners already, we have registration of all handguns already, we have registration of all restricted weapons already,” he said.
“Our view is we simply don’t need another very expensive and not effective registry. What we have needed are severe or strong and more effective penalties for people who commit criminals acts using guns and that’s what we’ve done.”
He did not comment on the court’s dissenting opinion. Four of the court’s nine justices said that explicitly denying Quebec the use of the registry records on that province’s long-gun owners will have “harmful consequences.”
Among the dissenters were the three Quebec justices: Clément Gascon, Richard Wagner and Louis LeBel, since retired. They came down on the side of the Quebec government, which had sought access through the courts to provincial gun-registry data so it could set up its own registry even if the federal one was scuttled.
Quebec Public Security Minister Lise Thériault said her government cannot accept the Supreme Court ruling and will still proceed with its own gun registry.
The federal registry was established in 1995, largely in response to the Dec. 6, 1989, Montreal massacre at École Polytechnique, in which 14 women were killed. There remains strong and emotional support for gun control in the province.
But gun control has also turned into a rural, election-year wedge issue the federal Conservatives want to turn against the Liberals, who created the registry under Jean Chrétien.
Quebec MP Françoise Boivin, the NDP’s justice critic, suggested that eliminating the registry, then explicitly
refusing to transfer to Quebec the Quebec data in the registry, could damage federalism there.
“I don’t think the Conservative government and especially Stephen Harper, who promised Quebecers in 2006 a new kind of federalism, should be proud today,” Boivin told reporters. “It’s just being buck-head(ed). It is a political decision.”
“All this saga has been is an example of what centralism, federalism has been all along under the Liberal years and now again with the Conservatives.”
The case represents a rare recent victory for the federal government before the high court. Over the past 16 months, the court has handed down judgments in 11 major cases, with just one clear win for the federal government.
Friday’s judgment should help begin to thaw what some legal experts feared was a growing Cold War between the federal government and the nation’s top court.
The court found that the federal government does not have to relinquish its gun-registry database to
Quebec, affirming Parliament’s constitutional right over criminal law.
In the split decision, the court ruled that the principle of co-operative federalism — collaborative intergovernmental schemes for the national good — does not limit the federal government’s constitutional powers to legislate in matters of criminal law.
“Quebec has no legal right to the data,” said the majority decision, authored by Justices Thomas Cromwell and Andromache Karakatsanis.
The Conservative government’s 2012 legislation to end the federal gun registry — and destroy its database — “is a lawful exercise of Parliament’s criminal law legislative power under the Constitution.”
The court seemed to acknowledge as much: “As has been said many times, the courts are not to question the wisdom of legislation but only to rule on its legality.
“In our view, the decision to dismantle the long-gun registry and destroy the data that it contains is a policy choice that Parliament was constitutionally entitled to make.”
After the Conservative government unveiled its Ending the Long-Gun Registry Act (ELRA), including the contentious Section 29 ordering destruction of the registry’s database — the government of Quebec objected and took the federal government to court. The Quebec Superior Court upheld the province’s objection and gave the central government 30 days to transfer the information to Quebec. It also issued an injunction preventing destruction of the Quebec data. (Data for other provinces and territories was destroyed in October 2012.)
The Conservatives appealed to the province’s highest court. The Quebec Court of Appeal ruled the province had no right to the data.
Quebec appealed, putting three issues before the Supreme Court:
Does the principle of co-operative federalism prevent Parliament from legislating to dispose of the data?
Does Quebec have the right to obtain the data?
Does Section 29 of the ELRA exceed Parliament’s criminal law power?
The top court ruled that Quebec’s position has no foundation in Canada’s constitutional law and is contrary to previous court judgments on the issue of co-operative federalism.
“We conclude that the principle of co-operative federalism does not prevent Parliament from exercising legislative authority that it otherwise possesses to dispose of the data.”
The four dissenting judges, including Justice Rosalie Abella, countered that both the collection of the long-gun data and broader initiatives aimed at regulating the use of such guns were the result of a partnership with the provinces, including Quebec.
Legislating the destruction of the records, they concluded, “has harmful consequences for the federal government’s partners,” is therefore unconstitutional and should be declared to be invalid.
“It is hard to imagine how a provision whose purpose is to put an end to this co-operation and that is enacted with an intention to cause harm to a partner can be rational,” the dissenters wrote.
It’s very bad federalism not to co-operate with the province in giving the data. STÉPHANE DION, Quebec Liberal MP You can track a package that you’re sending from here to anywhere in the world and yet we will not have information about (long) guns in the province of Quebec. The technology is there, it’s not expensive. It just requires political will. WENDY CUKIER, presiden to fthe Coalition for Gun Control We lost an asset, a very big asset and we believed in that asset. Quebecers registered their long guns, they followed the rules. What we are learning is that when the federal government decides something, it decides it unilaterally even if they built the system with provincial partners. NATHALIE PROVOST, survivor of the massacre at École Polytechnique
It’s a long-held decision of this government that this type of data is not necessary for the continued safety of Canadians. JUSTICE MINISTER PETER MACKAY We want for our future generations to inherit a country that is safe and is not going down the path of the United States. Unfortunately for Canada, we’re going in the opposite direction, in fact, today there is less control than there was 25 years ago at the time of the shooting at École Polytechnique. HEIDI RATHJEN, École Polytechnique survivor We have a strong system of gun control in Canada, and our government has toughened laws and penalties for those who commit crimes with guns. JEREMY LAURIN, spokesman for Public Safety Minister Steven Blaney