Thursday, 14 March 2013

Some Thoughts on Oral Argument in the Long-Gun Registry Appeal

The hearing of the federal government's appeal of the decision granting Québec an injunction to prevent the destruction of long-gun registry data and ordering the federal government to return data relating to Québec to the province finished up this morning.

I did not make it to this morning's hearing (made up of the tail end of Québec's submissions and respective replies), but I sat through yesterday's proceedings. Here are some thoughts.

First, the hearing did not go especially well for Québec, which struggled for traction with its legal submissions. By contrast, the federal government did a good job, especially in its factual analysis of the operation of the long-gun registry. It managed to make out a convincing argument that the Firearms Act established watertight compartments, which were distinct even if they were accessible through a comprehensive computerized system.

This is significant, because it provides a relatively simple route to resolving the case. The easiest way out for the Court of Appeal, in a case where the legal issues concerning the division of powers between the federal and provincial levels of government are complex and novel, would be to say that the gun registry data was always under the control of the federal government, which is now entitled to destroy it because the underlying requirement to register long guns has been abolished. This argument is underpinned by the fact that the original Firearms Act itself contained a power to destroy data contained in the long-gun registry.

If I had to guess, based on the hearing and the written submissions, I would say that a majority of the Court of Appeal will probably take a view along these lines. I would also say that there is a good chance that the decision will be unanimous. Indeed, if there is a unanimous, narrow decision turning essentially on the interpretation of the Firearms Act, the Supreme Court of Canada may elect not to take the case at all.

It should be clear from my previous posts on the subject that I think s. 29 of the Ending the Long-Gun Registry Act is unconstitutional. The very able arguments I heard yesterday have not shaken me from that view.

There is one issue which I have not commented on previously, but which deserves some analysis. 
One of the legal issues that the Court of Appeal was hung up on yesterday was whether the fact that federal legislation makes it harder for the provinces to regulate in their sphere of competence has any bearing on the constitutionality of the federal legislation. The answer must be no: if a federal or provincial legislature, acting within its powers, makes things difficult for the other level of government, that is pretty much tough. There is no such thing as making it "unconstitutionally hard" to regulate: some obiter, but nonetheless persuasive, comments in the Canada Assistance Plan Reference are the authority for this. (Harm is important in other ways, though, as I discuss below.)

However, the Court of Appeal should resist the superficial lustre of this argument. It presupposes that the federal government had competence to legislate in the first place.

Churchill Falls makes it quite clear, on my reading, that the abolition of extant items (gun data in this case, assets of a company in that one) can only be accomplished by use of a distinct head of legislative power. The power to repeal legislation is not itself enough. So, here, s. 29 has to be supported by a head of legislative power. Unfortunately for the federal government, no head of federal legislative power applies to s. 29. If anything, s. 29 relates to property and civil rights in the province, a provincial head of power.

Moreover, the difficulty Québec will face in creating its own long-gun registry surely speaks to the purpose and effect of s. 29, which the Court must evaluate in determining the pith and substance of the provision. If Québec's ability to do so is harmed, this must, at least in part, be a result of the enactment of s. 29. This tends to demonstrate that the pith and substance of s. 29 is property and civil rights in the province, rather than something falling under a federal head of power. Any harm caused to Québec might also be relevant in any analysis under the auxiliary powers doctrine, but the federal government's lawyers made a persuasive distinction between interference and harm; the former is prohibited, but not the latter.

These are just some initial thoughts. As threatened, I will have a more comprehensive analysis in the coming months, which I will update as soon as the Court of Appeal gives its decision. My thinking has evolved along the way, so whatever eventually emerges will not just be a restatement of what I have written here.

Teaser: the argument yesterday failed to touch on an important Canadian data-destruction precedent. When I finally getting around to publishing a draft of my article on SSRN, you will find out what it is! I don't think it is determinative for either side, but it is surprising that it did not get a mention.

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