[Note: This post originally appeared on CanLII Connects.]

What Parliament giveth, Parliament can taketh away? Parliament’s power to make policy choices in the criminal law was a key theme of Justice Morgan’s recent decision in Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140, in which he dismissed a Charterchallenge to the 2012 Act that eliminated the registry for non-restricted firearms (commonly referred to as “long guns”).[1] According to Justice Morgan, Parliament “in its wisdom” amended the firearms scheme in a way it “deemed most effective,”[2] and it is not up to the courts to “micromanage” Parliament’s policy choices.[3]

The Act in question

In 2012, Parliament enacted An Act to amend the Criminal Code and the Firearms Act, SC 2012, c 6. What did the Act do? Most importantly, the Act eliminated the requirement that non-restricted firearms had to be registered, which was first set out in the 1995Firearms Act[4] and came into force in 1998.[5]

The government had made clear its view that the registry was “ineffective and burdensome,”[6] and created “red tape” for “honest, law-abiding citizens.”[7]

What the Act did not do was just as important for Justice Morgan’s decision:

The Act did not amend those provisions in the Firearms Act or Criminal Code that related to the licensing and storage of firearms, or to the registration of prohibited and restricted weapons, and did not eliminate or revise any existing offenses or punishments for other offenses committed with firearms.[8]

The current scheme maintains requirements for firearms licences; participation in the firearms safety course; background checks; and limits on transfers, and a firearms licence can still be revoked for “good and sufficient reason.”[9]

Justice Morgan noted that the scheme created in the Firearms Act was relatively new, all things considered,[10] and stated: “This relatively short history makes the impact of the registry very difficult to assess…”[11]

According to the Applicant, however, eliminating the registry did have a real impact: It infringed Canadians’ Charter rights. The Applicant centred its Charter challenge on section 7 (which protects rights to life, liberty, and security of the person) and section 15(1) (which protects the right to equality). Both challenges were unsuccessful, as will be seen.

The section 7 challenge

Justice Morgan held that the Applicant had not proven “a deprivation of life, liberty, and security of the person,”[12] and even if it had, there was no violation of the principles of fundamental justice.[13]

The Applicant’s section 7 submission was based on risk reduction: It argued “that a law that fails to reduce risk of serious physical or psychological harm is contrary to section 7 of the Charter.”[14]

This argument brought up the longstanding debate regarding whether section 7 imposes positive obligations on the state to take certain action. Justice Morgan cited McLachlin CJC’s suggestion from Gosselin that the answer seems to be “no.”[15] He also cited Wilson J’s speed limit example from Operation Dismantle:

It may be argued, for example, that the failure of government to limit significantly the speed of traffic on the highways threatens our right to life and security in that it increases the risk of highway accidents. Such conduct would not, in my view, fall within the scope of the right protected by s. 7 of the Charter.[16]

In response to this body of law, the Applicant argued that recent jurisprudence of the Supreme Court, including Canada (Attorney General) v PHS Community Services Society (a successful challenge to the government’s refusal to grant a new exemption for a safe injection facility) and Canada (Attorney General) v Bedford (a successful challenge to the prostitution provisions of the Criminal Code), had “relaxed the state action requirement.”[17]

Justice Morgan disagreed, finding the Applicant’s submission “inherently flawed.”[18] Unlike in this case, there was direct state action involved in both PHS and Bedford:

While there is some merit to that observation, state action has never been dispensed with altogether as a requisite element in an infringement of section 7. In recent years, the Court emphasized not the risk of harm that exists independent of the state, but the fact that the state actively blocked the claimant from taking steps to reduce the risk. InPHS Community Services, the impugned legislation prevented the operation of a supervised drug facility and thereby blocked access to a risk reduction program; likewise, in Bedford, the challenged statutory provision made a lawful activity more risky by denying access to security-enhancing safeguards.[19]

In this case, eliminating the long-run registry was not state action that blocked individuals from “taking steps to reduce the risk” of exposure to gun violence.[20] Justice Morgan stated:

Contemporary 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.[21]

Through the 2012 Act, Parliament modified its approach to reducing the risk of gun violence;[22] it did not create a new risk. The Applicant’s section 7 position was really based on criticism of that policy choice.[23]

There was no constitutional imperative requiring Parliament to maintain the registry: Just because Parliament in 1995 established a comprehensive scheme in the Firearms Act did not turn the content of that regime into a minimal constitutional requirement. As Justice Morgan explained: “The prior piece of legislation cannot form a constitutional baseline for all further revisions and amendments to the legislative policy.”[24]

In any event, Justice Morgan found, the Applicant had not provided sufficient evidence that the 2012 Act led to an increased risk of gun violence.[25]

Despite finding that there was no deprivation, Justice Morgan went on to consider the Applicant’s argument that the Act was “arbitrary and grossly disproportionate,” contrary to the principles of fundamental justice.[26] Again, though, there was insufficient evidence to support this claim:[27]

The most that can be said on the evidence in the present Application Record is that the effects of the Act are indeterminate; indeed, much of the statistical and expert evidence indicates that the effects are potentially minimal or non-existent. It is therefore not possible to say that they are “grossly disproportionate” to anything.[28]

Justice Morgan reiterated the theme that Parliament is free to make its own policy choices:

Having considered the policy options at its disposal as well as a wide array of social science, statistical, and expert evidence, Parliament made a policy choice to eliminate the long-gun registry and certain related measures. While that may run counter to the choice preferred by the Applicant and its experts, it was not flawed in any way which would implicate the fundamental justice requirement of section 7.[29]

The section 15 challenge

Under section 15(1), the Applicant argued that the Act discriminated against women “by putting them at greater risk of injury and death by firearms, especially in situations of domestic or intimate partner violence.”[30] The problem with this claim, as well, was the lack of supporting evidence.[31] Justice Morgan noted: “There is conjecture but no reliable evidence that women will be especially disadvantaged by the registry’s elimination.”[32] (He also made the oft-mentioned point that, sadly, many firearms used in violence against women are illegal and would not have been captured by the registry anyway.)[33]

That was not to say Parliament had ignored the problem of violence against women – it had just chosen other policy mechanisms to address it:

[114]      The post-amendment Firearms Act has numerous provisions that remain intact that are designed to ameliorate the circumstances of women who may be subject to intimate partner violence. These include licensing requirements for all firearms owners, spousal consent to all firearms license applications or renewals, spousal notification during the application process, mandatory safety training for firearms licensees, and continuous eligibility screening for firearms licensees. As the Parliamentary Secretary for the Minister has stated, these measures reflect the government’s, and Parliament’s, carefully considered policy choices for addressing the problem of domestic violence: Candace Hoeppner, MP, House of Commons Debates, No. 146 (October 27, 2011), at p. 2576.

Section 1

Justice Morgan would have upheld the Act as constitutional under section 1, if he had otherwise found a Charter infringement:[34]

  • The objectives of the firearms legislative scheme identified in the Firearms Reference were pressing and substantial, and also animated the 2012 Act – including the repeal of the registry. These were “the deterrence of the misuse of firearms, general controls on persons given access to firearms, and controls placed on specific types of firearms.”[35]
  • There was a rational connection between achieving these objectives and abolishing the registry: Eliminating the registry was “a self-contained, surgical repeal” that “leaves the rest of the scheme intact and which is done in order to augment the effectiveness of the overall legislation.”[36]
  • Elimination of the registry was carefully tailored to Parliament’s goals of preserving the effective aspects of firearms regulation but getting rid of the ineffective measures, meeting the minimal impairment part of the section 1 Oakes test.[37]
  • Finally, there was overall proportionality: On the evidence before the Court, “the benefits of decriminalizing the non-restricted firearms registry and bolstering the balance of the firearms regime outweigh … any potential deleterious effects.”[38]

Conclusion

Justice Morgan’s reasons reveal a clear deference to Parliament and its policy choices in the area of firearms regulation, a controversial topic since the Firearms Act was first introduced in the 1990s. While he managed to distinguish recent Supreme Court Charter cases on the facts and evidence of this case, the Applicant’s argument was nevertheless an interesting test of section 7’s boundaries especially. Just how far section 7 should go is one debate that’s far from over.