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Brief Presented to the Standing Committee on Public Safety and National Security House of Commons

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Brief Presented to the Standing Committee on Public Safety and National Security House of Commons Brief Presented to The Standing Committee on Public Safety and National Security House of Commons Regarding Bill C-71 An Act to Amend Certain Laws and Regulations Relating to Firearms Bill Clennett Gatineau, QC May 2018 Table of contents Introduction .......................................................................................................................................... 3 The Harper government’s unprecedented attack on the right to information .................................... 3 Introduction of subsections 67.1(1) and (2) in the Access to Information Act ..................................... 5 Scandals involving contaminated blood and the Canadian Armed Forces in Somalia ......................... 6 Criminal investigation into the destruction of the Long-gun Registry data .......................................... 7 Division 18 of Bill C-59 .......................................................................................................................... 8 Dangerous precedent ........................................................................................................................... 9 Bill C-71 as a remedy ........................................................................................................................... 10 Other considerations .......................................................................................................................... 11 2 Introduction This brief deals mainly with Part 2 of Bill C-71, which amends the Ending the Long-Gun Registry Act. This part of the bill currently being studied is intended to correct the actions of Stephen Harper’s Conservative government with regard to an access to information request I submitted. Since I am directly concerned with Bill C-71, I feel it is my responsibility to provide you with my comments. The subject of my access to information request was the Firearms Registry. I wanted to obtain data from the registry in order to inform and contribute to the public debate on firearms control. I am therefore also interested in Part 1 of Bill C-71, and at the end of this brief, I will provide some comments on the firearms-related proposals. The Harper government’s unprecedented attack on the right to information On 7 December 2011, I filed an access to information request with the Royal Canadian Mounted Police (RCMP) to obtain a copy of the Firearms Registry. In a letter dated 20 January 2012, the RCMP informed me that I would have to pay $1,150 to cover expenses related to the records search and preparation, but excluding costs for reproduction. Faced with such a requirement, I was late in responding, and my application was rendered null and void due to the statutory deadlines. On 27 March 2012, I filed a new access to information request for a copy of the Firearms Registry, just days before the Royal Assent and coming into force of Bill C-19 to end the Long- gun Registry. Even though this new Act prescribed the destruction of the information I had requested, pursuant to subsection 67.1(1) of the Access to Information Act, it was unlawful to destroy information that was the subject of an ongoing, unresolved request. The RCMP again tried to assess fees of $1,150. There was also an exchange regarding the information that I was looking for, so by the end of October, I still had not received a response to my access to information request. I was still awaiting an answer from the RCMP when I was surprised to learn from a Radio- Canada report on 1 November 2012 that the federal government had indicated that the data in the Long-gun Registry had been destroyed, except for those in Quebec that were protected by a decision of the Superior Court.1 This destruction meant that most of the information I was seeking no longer existed. 1 Radio-Canada, “Ottawa a détruit les données du registre d’armes d’épaule, sauf celles du Québec,” Thursday, 1 November 2012. 3 On 11 January 2013, in response to my access to information request, the RCMP sent me a CD accompanied by a letter that stated: “Please find attached a copy of all the information to which you are entitled.”2 [Translation] What I received was a copy of information that had already been made public, and which was unsatisfactory. I therefore complained to the Information Commissioner, both about the incomplete response to my request and the destruction of data in violation of subsection 67.1(1) of the Act. The Information Commissioner completed her investigation in May, concluding that the RCMP’s response to my request was indeed incomplete, and recommending that the Minister of Public Safety and Emergency Preparedness take corrective measures. She also concluded that the RCMP had destroyed the files that were the subject of my request, despite the fact that she had informed the Minister of Public Safety and the Commissioner of the RCMP that an investigation was underway. She therefore decided to refer the matter to the Attorney General of Canada.3 Following this referral to the Attorney General, an investigation was undertaken to determine whether charges should be laid under subsection 67.1(1). In a letter to the Information Commissioner, Dave Truax, the lead investigator on the case, confirmed that a number of potential offences had been considered, including obstructing the right of access (subsection 67.1(1) of the Access to Information Act) and mischief to computer data (paragraph 430(1.1)(d) of the Criminal Code).4 This action was short-lived, however, because in June the Conservative government adopted an omnibus bill, C-59, which contained controversial and unprecedented provisions. These provisions had the effect of making the destruction of data lawful even when there was an outstanding access request, granting amnesty to the persons responsible for this destruction, retroactively exempting from application of the Access to Information Act all records relating to the registration of non-restricted firearms and ultimately, preventing any request, complaint, investigation, application for review, judicial review or appeal regarding this retroactive measure. Illegal destruction of registry data A year and a half earlier, on 13 April 2012, Suzanne Legault, the Information Commissioner of Canada, had written to the Minister of Public Safety, Vic Toews, with a copy to the 2 Michael Jeffrey, Departmental Coordinator, Access to Information and Privacy Branch of the Royal Canadian Mounted Police, Letter to Bill Clennett, 11 January 2013, (See Appendix). 3 Office of the Information Commissioner of Canada, Appendix 1: Final Report of Facts and Findings and Recommendations, May 2015. 4 Dave Truax, Director, Ontario Provincial Police Criminal Investigation Services, Letter to Suzanne Legault, Information Commissioner of Canada, 22 September 2015, (See Appendix). 4 Commissioner of Royal Canadian Mounted Police, to inform them of an ongoing investigation and prevent the destruction of the Long-gun Registry data: I request that you inform me by April 30, 2012 whether you agree not to destroy any records in the Canadian Firearms Registry related to the registration of non- prohibited and non-restricted firearms that are responsive to requests under the Act received by the RCMP before the coming into force of subsection 29(1) of the new Act requirement (the destruction of records under the Ending the Long-gun Registry Act).5 In correspondence dated 2 May 2012, Minister Toews responded in the affirmative to this request from the Information Commissioner of Canada: I have provided a copy of your correspondence to the Royal Canadian Mounted Police (RCMP)... With respect to your question on destruction of records in the CFIS, please be assured that the RCMP will abide by the right of access described in section 4 of the Act and its obligations in that regard.6 Notwithstanding this commitment, on 5 November 2012, even before responding to the access to information request, Minister Toews said in the House of Commons: Mr. Speaker, our Conservative government is proud to say that, as of Wednesday night [(October 31], all contents of the long gun registry have been destroyed, except those related to Quebec data.7 What must be concluded is that the destruction of the data in the gun registry was intentional, despite the written commitment from the Minister of Public Safety that they would not be destroyed. Introduction of subsections 67.1(1) and (2) in the Access to Information Act The government of Pierre Elliott Trudeau introduced Bill C-43, the Access to Information Act, which passed third reading in the House of Commons on 28 June 1982. In a speech during the final debate, Francis Fox, Minister of Communications, commented: Mr. Speaker, this afternoon, the House will be asked to vote on an extremely important bill, perhaps one of the most important pieces of legislation to appear on the Order Paper of the House during this session. It’s important, Mr. Speaker, because it will make changes in our parliamentary institutions, changes which will 5 Suzanne Legault, Information Commissioner of Canada, Letter to Vic Toews, Minister of Public Safety of Canada, 13 April 2012. 6 Vic Toews, Minister of Public Safety, Letter to Suzanne Legault, Information Commissioner of Canada, 2 May 2012. 7 House of Commons, Debates, 1st Session, 41st Parliament, 5 November 2012. 5 have long-term consequences for our democracy. The mere fact, however, that the legislation is on the books will lead government officials to be as forthcoming and as responsive as they would be if the requests had been filed
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