Data Destruction and Public Law: Part II

You may be baffled by the gun registry decision, even having read my earlier explanatory post. You might think along the following lines: the federal government set this registry up in the first place, using its power to enact criminal laws, by making it an offence not to register certain weapons. If that is so, the federal government is surely entitled to subsequently decide to close the registry and destroy the data. They made it, so they can unmake it, right? You can’t just leave all that data lying around!

The federal government made an argument along these lines. If the criminal law power was a valid means of creating the registry, it must remain a valid means of repealing and destroying the registry. Repealing the law and destroying the data created under it were exercises of the criminal law power.

Moreover, it also relied on the “ancillary powers” doctrine. Even if destroying the data was not an exercise of the criminal law power, it was ancillary to a legitimate exercise of the criminal law power. The federal government had the authority to repeal the legislation and to do all things necessary to achieve repeal, including the destruction of the data. So, the legislation as a whole was justified under the criminal law power and s. 29 (the specific provision requiring the data destruction) was ancillary to it.

This argument is flawed, in my view, though not for the reasons given by Blanchard J. Where Blanchard J. went wrong was in accepting too readily the federal government’s claim that in repealing the law, it was exercising its criminal law power.

I am not sure this is accurate. A valid exercise of the criminal law power requires three Ps: a i) prohibition, backed by a ii) penalty, for a iii) criminal law purpose. As Blanchard J. ultimately recognized, the specific provision requiring the destruction of the data had none of these three characteristics. Thus, the criminal law power could not be properly invoked.

But we can go further. In Canada, a law can only be enacted if the federal or provincial government (as the case may be) has specific authority to enact it. Repealing a law, however, does not require similar authority. It is simply the other side of the coin: the power to enact a law must also contain the power to repeal a law.

However, this is not an aspect of the division of powers between federal and provincial. It is an aspect of the sovereignty of parliament which, as Dicey observed, is the power “to make or unmake any law whatever” (my emphasis). Authority to repeal is, one might say, inherent in the authority to enact. From first principles, the federal government did not need to rely on the criminal law power to repeal the Firearms Act.

This view also makes sense from a doctrinal perspective. Strictly speaking, if the criminal law power were at issue, it would have to be accompanied by the three Ps. But it surely cannot be the case that every repeal of a criminal law requires a prohibition, penalty and purpose. At least, I doubt that most repeals of criminal laws are passed in such form.

Even if you disagree with my argument from first principles, there is a further problem for the federal government. Repealing a law is one thing. Undoing the consequences of what occurred pursuant to a law is quite another. So even if you accept that repeal of the Firearms Act was an exercise of the criminal law power, the specific provision that sought to destroy the data must be independently supported by the criminal law power (here, it was not, as Blanchard J. observed). Repealing statutes and rewriting history are not the same thing.

In most cases, the distinction between repealing statutes and undoing consequences will not be problematic. In areas of exclusive federal jurisdiction, a statute that “tidies up” a situation created by a previous federal law will also be a legitimate exercise of federal power (as would a “tidying up” provision in a particular statute). Abolishing copyrights, to take an extreme example, would not be problematic. But as we have seen, the criminal law power was not properly invoked in this case (and probably could not have been).

Beyond that, some “tidying up” might be accomplished without specific constitutional or statutory authority. Let us imagine that, with respect to the registry, there is a dedicated “Firearms Registry Building”. Does the federal government need to rely on specific authority to dispose of that building? Or to remove the name of the “Chief Firearms Officer” from a federal website? Clearly not. The federal government is entitled to manage its own property and run its departments. If it does not have specific constitutional authority, such authority would readily be implied. In the final analysis, it can always rely on its inherent or “third source” powers.

Here, however, the data concerns information about weapons held by citizens in the provinces of Canada. In other words, it is a matter of “property and civil rights in the province”, which is reserved entirely to the provincial governments. The “pith and substance” of any statutory provision requiring the data to be destroyed is “property and civil rights in the province” and beyond the authority of the federal government. It is beyond the federal government’s legislative authority, and it is also beyond any implied or inherent authority, because these powers must be exercised in conformity with the division of powers. Again, from first principles, the federal government cannot be allowed to accomplish by executive action what it would not be allowed to accomplish by legislation.

I explained this in May:

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.

Finally, let me address the ancillary powers argument raised by the federal government. If you disagree with everything I have said so far, you must think that there is no distinction between repealing a statute and undoing its consequences and that repealing the Firearms Act was a valid exercise of the criminal law power. Now, you have to accept that s. 29 itself lacks the three Ps, but you say that s. 29 is ancillary to an otherwise legitimate use of the criminal law power to repeal the statute. Even if you accept my distinction between repealing and undoing, you can still rely on the ancillary powers doctrine.

Of course, if you are with me so far, you must conclude that the ancillary powers argument is not available. After all, if there has been no valid exercise of the criminal law power, there can be no valid exercise of powers ancillary to it.

I am not aware of any authority which supports the use of the ancillary powers doctrine to prevent regulation. Its whole purpose is to facilitate regulation by ensuring that incidental enroachments on provincial (or federal) authority as a result of an overall statutory scheme do not cause the whole statute to be unconstitutional. Again, from first principles, there is no basis for invoking the ancillary powers doctrine in a manner entirely opposed to its purpose.

And very finally, even if you disagree with that argument, there is a doctrinal hurdle to overcome. Reliance on the ancillary powers doctrine must be either rationally related or necessary to the overall purpose of the legislation. We need not ask whether the test of rational connection or necessity applies here, because s. 29 satisfies neither of them. Destroying the existing data is not even rationally connected to abolishing the registry and it is certainly not necessary. The data can simply be conserved, like other data, but need not be used. Destroying the data is completely unconnected to the goal of prospectively abolishing the registry. (It is intimately connected to the goal of preventing the provinces from establishing their own registries, but such a motive is unconstitutional.)

For all the talk of the importance of the principle of “co-operative federalism”, it is unnecessary to the conclusion that Blanchard J. reached on the jurisdictional issue. It certainly supports the result, but that result can be reached by application of first principles of constitutional law.

So, in sum:
1. Repealing the existing legislation is not necessarily an exercise of the criminal law power.
2. In this case, the conditions for exercise of the criminal law power are not met in any event.
3. The federal government has ample powers to manage its own property without resorting to legislation, although it can do so in areas of exclusive competence.
4. Section 29 is in pith and substance a regulation of “property and civil rights in the province”.
5. The ancillary powers doctrine cannot save s. 29.

This may eventually make it into a published paper, but in the meantime, I cannot claim it meets publication standard. If (as is possible) I have overlooked any relevant material, please let me know: paul dot daly at umontreal dot ca.

This content has been updated on June 11, 2014 at 09:47.