OTTAWA — A bitter legal battle between the Conservative government, the RCMP and the federal information commissioner over the right of Canadians to access government records has arrived at a legal standoff that may not be resolved before this October’s election.
The Mounties on Tuesday delivered an external hard drive containing a complete set of Quebec long-gun registry records to the Federal Court, in compliance with an emergency court order.
By preserving a copy of the only remaining records from the long-defunct gun registry, the court helped ease the immediate urgency behind the legal challenges — and thus set the stage for a potentially lengthy constitutional fight.
It wasn’t the only significant development Tuesday.
Information commissioner Suzanne Legault is launching a charter challenge to elements of Bill C-59, the Conservative omnibus budget bill that formally became the law of the land Tuesday afternoon.
What is at stake, she says, is the quasi-constitutional right of Canadians to access government documents.
There’s also the “perilous precedent” of allowing the RCMP and the government to simply ignore the jurisdiction of independent officers of Parliament, and to retroactively rewrite that officer’s powers when they are called out for breaches of the law.
Bill C-59 rewrites the way the Access to Information Act applies to the old gun registry, removing Legault’s jurisdiction and granting immunity, retroactively, to anyone who broke the old law as it applied to registry documents.
The charter challenge, however, never got off the ground Tuesday before Ontario Superior Court Judge Charles Hackland punted the whole mess off to a three-judge Divisional Court panel — after flatly stating he was not prepared to intercede on a piece of national legislation.
“Surely a three-judge panel should deal with a matter as important as you have raised,” Hackland told Legault’s lawyer Richard Dearden.
Dearden, who on Monday likened the legal battle to a “chess match,” agreed. But first he pushed Hackland to issue an order preserving more gun registry records, including all documentation related to the destruction of the registry.
In a special report to Parliament last month, Legault asserted that the sweeping, retroactive immunity in the budget bill would capture not just registry data but all records related to the destruction. The budget bill, moreover, backdates the immunity to October 2011 when the bill to kill the long-gun registry was introduced in Parliament.
That amounts to a “black hole” that rewrites history, she said.
Not so, government lawyer Robert MacKinnon told the court Tuesday.
The new bill is not meant to capture documents other than the old gun registry data itself, he said — a critical point that had not been publicly expressed through several weeks of argument and controversy.
At Dearden’s insistence, MacKinnon agreed to put that in writing as part of the agreement to transfer the constitutional challenge to Ontario’s Divisional Court, where it may not be heard for months.
In Quebec City, the Quebec government welcomed the preservation of the provincial registry records, but said it will go ahead with its own registry whether or not it ever sees the old, sealed data.
“We will not wait for this data before tabling our bill this fall,” Jean-Philippe Guay, a spokesman for Public Safety Minister Lise Theriault, told The Canadian Press.
“If the data is available, we’ll take it. But we don’t know in what shape it will be.”
Last March, the Supreme Court ruled against Quebec’s bid to take ownership of the provincial registry records, saying in a split decision that Parliament had the power to order their destruction.
That’s the one point federal Public Safety Minister Steven Blaney continually stresses.
“The will of Parliament has been clear on multiple occasions; all copies of the obsolete registry are to be destroyed,” Blaney’s spokesman Jeremy Laurin said in an email Tuesday.
“While complying with the order of the court, we will always stand up for law-abiding firearms owners.”
With files from Melanie Marquis