L’abolition du registre des armes d’épaule : le rôle potentiel des principes non écrits

I have a short paper on SSRN on the gun registry case that will be heard by the Supreme Court of Canada in the Fall.

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.

You can download it here. It is in French.

My earlier paper on the case is also available for download: Dismantling Regulatory Structures: Canada’s Long-Gun Registry as Case Study. Here is the abstract:

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.

This content has been updated on July 11, 2014 at 22:13.