Special Issue of Constitutional Forum on the Gun Registry Case
The Centre for Constitutional Studies’ Constitutional Forum has published a special issue on cooperative federalism and the gun registry case heard by the Supreme Court of Canada last week.
My contribution (in French) is on the relevance of unwritten constitutional principles to the resolution of the case. There are also papers from my colleague Jean-Francois GaudreaultDesBiens (on federal duties of loyalty) and Hugo Cyr (on autonomy, subsidiarity and solidarity as a normative basis for cooperative federalism). All three papers argue that Quebec is entitled to have transferred to it the data that the federal government wishes to destroy.
I have long been interested in the case. In a paper to be published presently in the National Journal of Constitutional Law, “Dismantling Regulatory Structures: Canada’s Long-Gun Registry as Case Study” I argued that the law ordering the destruction of the data is ultra vires Parliament. In its submissions to the Court, Quebec relied heavily on the existence of a collaborative scheme of regulation — a finding of fact by the first-instance judge — but I demonstrate in the paper that the legislation is unconstitutional regardless of whether or not there was a partnership between the federal and provincial governments.
In the paper for the special issue of Constitutional Forum, I take up the same theme, this time relying on the unwritten constitutional principles of federalism and democracy to argue that unilateral destruction of the data by the federal government is unconstitutional and that the data ought to be transferred to Quebec. Again, it is not in my view necessary for the purposes of this argument to demonstrate that there was a formal partnership, though I emphasize the first-instance judge’s findings of fact. One might also observe that one section of the impugned legislation orders provincial officials to destroy data they possess, a rather obvious indication that there was collaboration between the federal and provincial governments on the collection of the data.
Here is the abstract:
Section 29 of the Ending the Long-Gun Registry Act orders federal and provincial officials to destroy gun-registration records collected collaboratively over a period of two decades. By reference to the unwritten constitutional principles of federalism and democracy I argue that the unilateral destruction of the data is outside the scope of Parliament’s power over criminal law.
Purporting to destroy the records unilaterally cuts short public debate on the use of the data. Contrary to the principles of democracy and federalism, it reduces to one the number of forums in which individuals and interest groups can have their say.
Unilateral destruction of records collected collaboratively also runs counter to the Supreme Court of Canada’s recent endorsements of cooperative federalism. Without the sanctioning of unilateral action that harms collaborative schemes it will be difficult to persuade the federal government and provinces to regulate cooperatively to solve pressing social problems.
Parliament’s power to repeal laws should thus be interpreted narrowly. Where a regulatory scheme requires cooperation between the federal and provincial levels of government, its dismantling should also require cooperation. Moreover, an obligation of good faith should be imposed on both parties, an obligation breached in this instance by the federal government.
And here is the abstract for my other paper on dismantling regulatory structures:
The story of the creation and destruction of Canada’s long-gun registry tells us much about the legal framework for deregulation, a topic which has received little consideration. The abolition of the registry and the destruction of the data created during its operation have led to an important court challenge, two very interesting judgments and, potentially, a hearing before the Supreme Court of Canada. The issues canvassed will be of interest not only to Canadian public lawyers, but all those interested in administrative and constitutional law in the common law world, especially those jurisdictions with a federal structure.
I begin with a brief overview of gun control in Canada, including a description of the basic regulatory structure and the legal challenges it has withstood. I move on to consider the long-gun registry established in the 1990s and, again, the legal challenge it withstood. I turn then to the steps taken to dismantle the long-gun registry before considering the two key legal issues that arise: One, the scope of the power to repeal legislation; Two, the means of dismantling a regulatory structure. I conclude with some thoughts on the application of the principles of federalism.
The dismantling of Canada’s long-gun registry is an interesting case study on deregulation, especially deregulation effected in a federation. Political concerns are never far from the surface and they had a great deal of influence on the means of deregulation chosen by Parliament. The legality of the means employed, however, is questionable. I should not hide my ultimate conclusion: the attempt to destroy the long-gun registry data is unconstitutional; the constitutionally appropriate action would be to transfer the remaining data to the provinces.
I briefly summarized both arguments in a recent op-ed for the Ottawa Citizen. Here is an excerpt:
First, there is an analytical and a legal distinction between prospectively abolishing the registry and destroying everything held in it. Analytically, the two actions are different. Tearing up a lease is one thing; destroying everything produced by the leaseholder is quite another. Legally, they are also different. In the 1980s, the Supreme Court recognized this in a case involving power generated at Churchill Falls. Newfoundland’s decision to repeal a statutory lease was one thing; but its attempt to expropriate Hydro Québec’s assets was quite another.
Accordingly, the federal government needs to demonstrate an independent constitutional basis for its destruction of the gun-registry data. But it cannot do so. If anything, the data relates to “property and civil rights”, a matter of provincial jurisdiction, not something falling within federal competence. Nothing in the Constitution authorizes this sort of coup de théatre.
Second, allowing one partner to a collaboration between the federal government and the provinces to withdraw and unilaterally destroy the possibility of future regulation would set a dangerous precedent. It would imperil the principle of cooperative federalism. Without the sanctioning of unilateral action that harms collaborative schemes it will be difficult for the federal government and provinces to regulate cooperatively to solve pressing social problems.
This content has been updated on October 18, 2014 at 14:21.