Last week, a 5-4 majority of the Supreme Court of Canada held that the federal government is constitutionally permitted to destroy the data it obtained from the former long-gun registry.
Quebec (Attorney General) v. Canada (Attorney General) is a classic federalism case that deals with Parliament’s power to regulate criminal law under section 91(27) of the Constitution Act, 1867. In 2012, Parliament enacted the Ending the Long‑gun Registry Act. Section 29 of the Act requires the destruction of all records contained in the long-gun registry. Quebec decided to create its own long-gun registry and requested the data from the federal registry. When the federal government refused, Quebec sought a declaration that section 29 of the Act was ultra vires Parliament. The Supreme Court found the Act to be constitutional. The crux of the majority’s decision is that there is “no significant legal distinction” between repealing an Act and providing for what will happen to the data upon repeal. Since the Act itself was clearly within the ambit of the criminal law power, there could be no doubt that this included the destruction of the data.
At paragraph 3 of the majority’s decision, Justices Cromwell and Karakatsanis eloquently articulated the Court’s role in deciding the case:
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.
The only unfortunate aspect of this decision is that only five judges signed on to it. The four dissenting judges rejected the majority’s textualist approach, adopting instead an interpretation based on “unwritten constitutional principles.” The dissenting opinion was jointly written by Justices Lebel, Wagner and Gascon, the three Quebec judges on the Court. They argued that Canadian courts have moved toward a more flexible “cooperative federalism” in recent decades, as opposed to the “watertight compartments” of classical federalism, which had been favoured for most of Canadian history. While co-operation between the federal government and the provinces is certainly a laudable goal, the text of the Constitution Act, 1867 explicitly grants each order of government the power to “exclusively make Laws” in relation to the matters enumerated in sections 91 and 92 respectively. There are many instances where these powers will overlap, but there is nothing in the text to indicate that the two orders of government must collaborate and cooperate with one another. As the majority rightly pointed out at paragraph 18, “The primacy of our written Constitution remains one of the fundamental tenets of our constitutional framework.”
The dissent also argued that the dismantling of the data constituted a violation of the provincial power to regulate “Property and Civil Rights in the Province” under section 92(13) of the Constitution Act, 1867. With respect, this is curious argument. On the one hand, the dissent takes the position that we need to look beyond the words themselves and embrace the unwritten principle of co-operative federalism; on the other, they put forth a strict interpretation of the constitutional heads of power that would effectively undermine co-operative federalism.
A fair reading of section 91 and 92 of the Constitution Act, 1867, and the volumes of case-law that have interpreted those sections, does not place any restriction on Parliament to do what it did. It simply cannot be the case that Parliament has the power to create a registry and dismantle that registry, but lacks the power to control the data it collected.
We at the ARL are pleased that the majority of the Court, albeit a slim one, grounded their decision in the ordinary meaning of our Constitution.