Tuesday, 11 September 2012

Data Destruction and Public Law: Part I

Major kudos must go to the Québec government's team of lawyers, who masterminded the challenge which resulted yesterday in the grant of a permanent injunction against the destruction of the long-gun registry data by the federal authorities.

The challenge was not taken seriously by most public lawyers when it was first mooted. Personally, I always had doubts about the means used by the federal government, as I frequently reminded anyone unfortunate enough to be within earshot (see, for example, my post from May here). But it is easy to stand on the sidelines, cheering, and much harder to put a coherent case together. So, serious kudos to Québec's lawyers.

Some of that initial skepticism may be colouring the reaction to Blanchard J.'s decision: for example, take this vibrant discussion between my colleague Daniel Turp, Sébastien Grammond and journalist Anne-Marie Dussault.

You can read (in French) the decision for yourself, but it is important to explain its two key holdings. For background on the nature of the registry and an explanation of why both the federal and provincial governments have authority to create gun registries, please consult my earlier post. In this post, I will give a brief overview of the reasoning that led Blanchard J. to declare Ottawa's attempt to destroy the registry data unconstitutional and compel the federal government to transfer the data to Québec.

There were two questions before the court. First, did Ottawa have the authority to pass a law containing a specific provision which ordered the destruction of the data collected over the years of the operation of the registry? Second, if not, did Québec have an ownership right in the data?

On the first question, Blanchard J. found as a matter of fact that the federal government's motivation in passing the law was to prevent Québec from exercising its undoubted authority to create a provincial gun registry. Several juicy statements from senior conservatives, including the Prime Minister, were adduced in support of this finding. As a result, the federal government's invocation of its criminal law power to justify the data destruction was an illegitimate attempt to interfere with provincial jurisdiction.

This is the central factual and legal finding. There is nothing remarkable about this conclusion, which is based on the well-established doctrine of "colourability". Given its factual basis, incidentally, it will be difficult to overturn on appeal.

Blanchard J. rejected the federal government's argument that it had validly exercised its criminal law power. I think this may be a weak point in his judgment, and I will address it in a subsequent post. But his decision stands independently of his treatment of this argument. Once he found that the true motivation was to prevent the creation of gun registries by Québec and the other provinces, it must follow that the federal government had acted outside its authority.

Blanchard J. subsequently referred to the principle of "co-operative federalism" to underpin his conclusion. Having relied on a partnership with the provinces to establish and maintain the registry, the federal government could not subsequently turn around and unilaterally destroy the data. This point will surely strike a chord with intelligent laypersons who will hear in it strains of the principle of fair play, but it was not central to Blanchard J.'s decision.

On the second question, Blanchard J. held that Québec did have an ownership right in the data.  Interpreting the agreement entered into between the federal government and Québec to develop and maintain the database, Blanchard J. concluded that neither could claim exclusive ownership of the data. Given that Québec now wished to use the data for the same purpose as that for which it was originally collected, they could not be prevented from doing so. Central here was Blanchard J.'s interpretation of the agreement and the manner (again, as a matter of fact) in which it had operated, in light of the principle of co-operative federalism. Again, while it was relevant, the principle of co-operative federalism was not decisive.

I hope this summary of Blanchard J.'s long and complex decision is accessible to most readers.

In my next post, I will address the strongest challenge to Blanchard J.'s reasoning: "If the feds had the power to create this registry in the first place, surely they must also have the power to destroy it!" Not so. Stay tuned.