Ted's Blog

Supreme Court of Canada rules Quebec has no constitutional right to gun registry data.

"Adopted in 1995, the Firearms Act created a comprehensive scheme requiring the holders of all firearms — including long guns — to obtain licences and register their guns. It also made it a criminal offence to possess an unregistered firearm. The Firearms Act provided for the creation of two types of registries: the Canadian Firearms Registry (“CFR”), maintained by the Registrar of Firearms and containing records of the registration certificates for all prohibited firearms, restricted firearms, and long guns acquired, transferred, or possessed in Canada, and a registry kept by the Chief Firearms Officer (“CFO”) designated for each province and territory, containing records of every firearm’s licence and authorization issued or revoked. The Registrar and the CFOs could access all records through a single electronic database but the statutory authority of CFOs only permitted them to contribute and modify data in their specific licensing registry.

In 2012, Parliament enacted the Ending the Long‑gun Registry Act (“ELRA”), which repealed the registration requirement for long guns and decriminalized the possession of an unregistered long gun. Section 29 of the ELRA requires the destruction of all records contained in the registries related to the registration of long guns. In reaction, Quebec expressed its intention to create its own long‑gun registry and asked the federal authorities for the data connected to Quebec contained in the CFR. Canada refused and made clear that it intended to permanently destroy all long‑gun registration data. In light of this refusal, Quebec sought a declaration that s. 29 of the ELRA is ultra vires and that Quebec has a right to obtain the data.

The Superior Court of Quebec declared s. 29 of the ELRA unconstitutional as it applies to data connected with Quebec and ordered Canada to transfer that data to the province. The Quebec Court of Appeal reversed that decision."

Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (35448), the SCC held (with two judges writing joint reasons, in which three others concurred; and three other judges writing dissenting reasons, in which one other judge concurred) that the appeal is dismissed, section 29 of the ELRA is constitutional, and Quebec has no legal right to the data.

In joint reasons, Justices Cromwell and Karakatsanis wrote as follows (at paras. 3-4):

"We agree with the conclusions of the Quebec Court of Appeal and would dismiss the appeal. The principle of cooperative federalism does not constrain federal legislative competence in this case, Quebec has no legal right to the data, and s. 29 of the Act to amend the Criminal Code and the Firearms Act(short title Ending the Long-gun Registry Act (“ELRA”)), is a lawful exercise of Parliament’s criminal law legislative power under the Constitution. We add this; to some, Parliament’s choice to destroy this data will undermine public safety and waste enormous amounts of public money. To others, it will seem to be the dismantling of an ill-advised regime and the overdue restoration of the privacy rights of law-abiding gun owners. But these competing views about the merits of Parliament’s policy choice are not at issue here. As has been said many times, the courts are not to question the wisdom of legislation but only to rule on its legality. In our view, the decision to dismantle the long-gun registry and destroy the data that it contains is a policy choice that Parliament was constitutionally entitled to make.

We note that our conclusion in this case partly rests on the fact that the Canadian Firearms Registry (“CFR”) flows directly from federal legislation and is not dependent on any provincial statutes. Different considerations might arise in a case involving a truly interlocking federal-provincial legislative framework. However, the CFR is not, in our respectful view, such a scheme. Therefore we need not consider what might follow if it were."

And in dissent, Justices LeBel, Wagner and Gason (all from Quebec) wrote as follows (at paras. 50, 52):

"We are of the opinion that the appeal should be allowed, but only in part. This conclusion is dictated by the exceptional circumstances in which long-gun regulation was implemented in Canada. In our opinion, and this is where we diverge from our colleagues’ view, both the collection of the data with respect to long guns and the broader initiatives aimed at regulating the use of such guns were the result of a partnership with the provinces, including Quebec. Where an integrated scheme such as this requires the exercise of both federal and provincial legislative powers, the analytical framework for questions related to the division of powers must be adapted and applied accordingly. Whether the means the federal government adopted to terminate this partnership were constitutional can be measured, in particular, in terms of the effect they will have on its partners’ powers.

Although we find that s. 29 is unconstitutional, the AGQ has nonetheless failed to establish a legal basis for his request for a compulsory transfer of the data. The conditions applicable to such a transfer are a matter for the governments concerned, not the courts."

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.