More Dead than Ever

While the Supreme Court is getting ready for the oral argument in Québec’s challenge to the abolition of the long-gun registry by the federal government (set for October 8), a different challenge to the constitutionality of the Ending the Long-Gun Registry Act was dismissed by Ontario’s Superior Court of Justice earlier this month in Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140. Justice Morgan held that, contrary to the Clinic’s claims, the abolition of the gun registry did not infringe the right of women either to the security of the person or to equality, and thus did not contravene sections 7 or 15 of the Charter.

Justice Morgan began his s. 7 analysis by discussing the “state action problem” with the Clinic’s argument. The Clinic claimed that the abolition of the gun registry infringed s. 7 because it increased the risk that women would suffer gun violence, in particular from their domestic partners. In its view, its argument was similar to those that prevailed in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 (the Insite case) and in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, where the Supreme Court found, respectively, that a denial of an exemption from drug laws to a safe-injection clinic and the prostitution-related provisions of the Criminal Code infringed s. 7 by increasing the risks to which the clinic’s users and sex workers were subject. But the fact a government policy fails to reduce a risk to which a person is exposed as much as possible is not enough, Justice Morgan found:

[c]ontemporary society is permeated by risk, including the risk of violent crime and injurious use of firearms, but unless that risk is a creation of state intervention it is not within government’s constitutional responsibilities. (Par. 25; emphasis mine.)

There is, furthermore, a crucial difference between the alleged increase of risk as a result of the abolition of the long-gun registry and the facts of the Insite case and Bedford, in that in those cases the government had prevented people from taking steps, on their own, to minimize the risks they were subject to, whereas the gun registry is a government-created risk mitigation scheme (if indeed it is that). The upshot of the Insite case and Bedford is that the government cannot prevent people from reducing the risks they run, not that it has a duty to do it by itself. Indeed, Justice Morgan pointed out,

[t]he Supreme Court indicated in Bedford, at para 88, that while the state cannot make prostitution even riskier than it is, the claimants [in that case] were “not asking the government to put into place measures making prostitution safe” (par. 34).

When Parliament itself creates a risk-reduction scheme, it can expand or limit it as it in its wisdom sees fit. So long as it doesn’t interfere with people’s autonomous risk-reduction endeavours, it does not act unconstitutionally.

The Clinic’s position also suffered, according to Justice Morgan, from a “baseline problem.” As he saw it, the Clinic

use[d] the 1995 Firearms Act [which had created the long-gun registry] as a baseline against which to measure the [new] licensing and registration system … , and finds the latter lacking. In the Applicant’s characterization, while the regulatory regime that existed from 1995 until … 2012 “provided an essential element in the effective protection for the s. 7 rights of women”, the “[Ending the Long Gun Registry] Act’s purpose appears to relate primarily to political aims”. (Par. 41)

But a statutory scheme cannot be made into a constitutional standard in this way. The gun registry’s creation was no more “politically neutral” than its abolition (par. 45). It was a choice of policy and politics, and it can be reversed or revised.

Justice Morgan then turned to the evidence which the Clinic adduced in support of its s. 7 claim, and found it insufficient. That evidence seems mainly to have consisted of statistics showing that gun violence declined in Canada while the long-gun registry was in operation. But, Justice Morgan said, gun violence had been declining before the registry was set up, and the early indications are that gun violence against women has not increased after it was abolished. In fact, as the government argued, there is a long-term trend towards the reduction of violent crime, so that what the Clinic showed was correlation, but not causation. Furthermore, police officers ― including those who served as the Clinic’s expert witnesses ― suggest that the effectiveness of gun registration (as opposed to licensing and background checks, which the abolition of the registry does not affect) is debated and, at best, limited. Thus even if an increase of risk resulting from the abolition of the long-gun registry were a constitutionally cognizable harm, the Clinic, in Justice Morgan’s view, had not demonstrated that the abolition had that effect.

Justice Morgan found that similar evidentiary problems undermined the Clinic’s claim that the abolition of the long-gun registry infringed the Charter’s equality guarantee becaused it would disproportionately affect women would be the victims of domestic gun violence. Again, there is evidence that gun both violence and domestic violence are decreasing. But given the multiplicity of causes likely to be involved, it is very difficult to isolate the gun registry’s role, if any, in these processes. The point, Justice Morgan said, is “not that there is no place for statistical data, but rather that statistical data can rarely, if ever, do the work of proof on its own” (par. 100). Nor was there anything to show that whatever effects the abolition of the gun registry might have on women were discriminatory in the sense of stereotyping or perpetuating past disadvantage. The overall statutory scheme for regulating firearms still tries to reduce gun violence, including in particular gun violence against women. Changing the mix of criminal and regulatory elements in that scheme was not, Justice Morgan said, discrimination.

I think this is the right decision. Justice Morgan’s point about the “state action problem” and the “baseline problem” are well taken, and his concerns about the insufficiency of the evidence to show that the gun registry’s abolition would have the disastrous consequences its supporters expect are justified.

I don’t know whether the Clinic intends to appeal his decision, but its chances of success would be very low indeed, given the Supreme Court’s insistence, in Bedford, that a trial judge’s assessment of social science evidence in constitutional cases is entitled to as much deference on appeal as any other form of fact-finding. Even if Justice Morgan were wrong in has approach to the issue of state action (and I don’t think that he is), his conclusions regarding the evidence would still stand.

For better or worse, this is the brave new world of Charter litigation ― a world in which cases live and die depending on the lawyers’ ability to assemble an evidentiary record and to convince a trial judge of this record of that record’s persuasiveness. And as I wrote here in discussing the potential dangers of this approach, “[t]he government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it.” So here the government was able to show that the general trends in crime reduction, and its other (purportedly) crime-preventing policies meant that it was not possible to establish the effects of the gun registry’s abolition or continued existence with any degree of certainty.

This is not to say that I regret the outcome of this particular case, though others will find it regrettable. I will, however, note the irony of the government’s reliance on statistics showing a long-term general decrease in crime to defend this one element of its criminal-law legislative programme while implementing other, “tough-on-crime,” policies with a total disregard for these statistics. I hope that the courts which will consider the constitutionality of these measures will take good note. The gun registry is more dead than ever ― though the Supreme Court might still resurrect it in Québec. But in killing it, the government might just have inflicted some collateral damage on its other policies. No regrets from me there, either.

One thought on “More Dead than Ever

  1. Pingback: The Shootout | Double Aspect

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