Thanks for Nothing

Last week, the Superior Court of Ontario has issued a ruling on two important motions in a challenge to the constitutionality of the abolition by Parliament of the long-gun registry brought by an Ontario NGO, the Barbara Schlifer Commemorative Clinic, which I first mentioned here. The decision, Barbra Schlifer Commemorative Clinic v. Canada, 2012 ONSC 5271, deals with the government’s motion to strike the application and the applicant’s motion for an interlocutory injunction prohibiting the destruction of the gun registry data pending the ruling of the court on the merits of the application. Justice Brown denied both these motions.

The government’s motion to strike was based on two grounds.

First, the government argued that the constitutional challenge was outside the court’s jurisdiction because the abolition of the gun registry is functionally identical to a refusal to set one up in the first place, and courts cannot entertain a challenge to a legislature’s failure to legislate. Justice Brown makes rather short work of this claim. The abolition of the gun registry is provided by an Act of Parliament; that Act, no less than any other, must be constitutional, and its constitutionality is subject to judicial review.

The government’s second argument was that the Clinic’s application disclosed no reasonable cause of action. The application is based on infringements of ss. 7 and 15 of the Charter, protecting respectively the rights to life, liberty, and security of the person, and equality rights. On s. 7, the government contended that the law abolishing the gun registry in no way touches on Charter rights of women victims of violence which the Clinic says it infringes. The law simply abolishes the gun registry; any use of newly-unregistered guns in violence against women is not the Parliament’s doing and thus not the courts’ concern. The courts cannot impose on Parliament an obligation to keep a law on the books. After pointing out that the Clinic alleges that the abolition of the gun registry will cause violence against women to increase and that it is arbitrary and grossly disproportionate, and that if it can prove these allegations, it will prima facie make out a violation of s. 7 of the Charter, Justice Brown turns to the question whether, in any case, the decriminalization of conduct, such as the abolition of the requirement to register a firearm is, can amount to a violation of the Charter. On the one hand, Parliament is generally free to choose which conduct it criminalizes, and which it doesn’t. On the other, suppose Parliament decriminalized murder―or, say, the murder of some part of the population. Would potential victims not have a Charter recourse? Perhaps, concludes Justice Brown, the Charter does impose a positive requirement that Parliament criminalize certain conduct. “With Canada’s constitutional forest populated with living trees, how can one say with certainty that the interpretation of section 7 of the Charter advanced by the Clinic stands no hope of success?” (Par. 72) As for the s. 15 claim, while Justice Brown seems rather skeptical of its prospects, he also points to the absence of authorities directly on point and decides that the government hasn’t shown that it has no chances of success.

Justice Brown then turns to the Clinic’s motion for an injunction to prevent the destruction of the gun registry data while litigation is ongoing. He takes note of the Québec Superior Court’s judgments in the case about Québec’s bid for the gun-registry data, which first granted an interlocutory injunction and then an injunction-like declaration preventing the destruction of Québec-related gun-registry data, but points out that Québec’s claim was based on federalism, not the Charter. He thinks that it means that the Québec court’s reasoning is not applicable to this case.

Applying the test for granting an interlocutory injunction, Justice Brown finds that there exists a serious issue to be tried, but only in the limited sense that the case brought forward by the Clinic is not frivolous, vexatious, or bereft of any chance of success. It is, otherwise, very weak:

[t]he statistical evidence filed on this motion provides little forensic support for the Clinic’s allegation that a causal relationship existed between the enactment of the long-gun registry and the most serious type of violence against women – homicide – and, therefore, that the repeal of the registry would increase the risk of such violence. (Par. 136)

This conclusion also influences Justice Brown’s view of the second prong of the test, the existence of irreparable harm, which is that the Clinic hasn’t established that women will actually suffer violence―and thus an irreparable harm―if the registry data is destroyed before the resolution of the case. And the registry can always be recreated if the Clinic’s challenge succeeds, albeit at a cost to the taxpayers, so the loss of data is not an irreparable harm either. Nor has the Clinic proven that balance of convenience favours its position.

Thus the Charter challenge to the abolition of the gun registry survives to live another day, but only just, and it is not clear what the fruit of a victory would be. The gun registry data will be destroyed well before the case is resolved. Recreating a new registry from scratch is always possible, as Justice Brown says, but if past experience is any guide, it will be an embarrassingly long and expensive process. And although theoretically this should not be so, one cannot help but suspect that this fact will colour the courts’ judgment when the case is decided. It would have been one thing to order the government to keep going an already-existent legal regime. It will be something else to order it to incur massive start-up costs to re-build one from scratch.

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