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

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.

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).

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.

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 under the act. This brings me to my second point. The Access to Information Act will bring about a very major change of thinking within government. Departments and agencies will be more sensitive to inform the public of what they are doing. At any rate, the bill contains such a wide array of checks against abuse that government will have no choice but to apply the legislation in a reasonable and open fashion.8

This optimism about the government’s sensitivity to transparency proved premature. A series of scandals, which government authorities had attempted to conceal from the Canadian public, confirmed that the new Act had unfortunately not been taken seriously. With a view to correcting this deplorable situation, Colleen Beaumier, Member of Parliament for Brampton West– Mississauga, tabled Bill C-208, An Act to amend the Access to Information Act. She offered the following explanation when introducing her bill on 26 September 1997:

This bill would provide stiffer penalties against any person who improperly destroys or falsifies government records in an attempt to deny right of access to information under the Access to Information Act. This bill is about the protection of our public records.9

Scandals involving contaminated blood and the Canadian Armed Forces in Somalia

During second reading debate, Ms. Beaumier provided more details about the serious problem she was seeking to address with Bill C-208:

Testimony at the Somalia and Krever inquiries have led Canadians to believe it is not uncommon for officials to lose, destroy or tamper with documents. Those cases are only the two recent examples which have raised the public’s ire.10

Using information provided to her by Ken Rubin, an advocate for the right to information, Ms. Beaumier offered examples of disregard for the Access to Information Act. On the subject of contaminated blood, she explained the story behind Health Canada’s destruction of compromising documents:

The most dramatic example of this occurred with the 1989 destruction of the Canadian blood committee records. It was only with the release of the Information Commissioner’s report in January 1997 that Mr. Rubin learned that his first of

8 House of Commons, Debates, 1st Session, 32nd Parliament, 28 June 1982. 9 House of Commons, Debates, 1st Session, 36th Parliament, 26 September 1997. 10 House of Commons, Debates, 1st Session, 36th Parliament, 5 December 1997.

several requests in the fall of 1987 for records related to private blood banks along with requests from a Globe and Mail reporter for information on the safety of Canada’s blood supply had been the initial spark that had unfortunately led Health Canada to destroy the Canadian blood committee’s records.

The Krever inquiry final report helps put the CBC record destruction episode in perspective. The real victims were those inflicted with tainted blood infusions, condemned in many cases to die and who could not have access to the crucial transcripts of the Canadian blood committee meetings to know why action had not been taken quickly enough to save them from infection.11

As for the scandal involving Canadian Forces members implicated in torture and murder, Ms. Beaumier recalled the officials’ attempts to hide this information from the public:

As an access requester filing numerous requests on the 1993 Canadian forces event in Somalia on the aftermath, Mr. Rubin became aware of the attempted record destruction of national defence transitory response to media inquiries and the deceptive alteration of those records into shorter media response lines in order to respond to the requests of the CBC reporter. This other well known incident of record tampering is documented in the Somalia inquiry commission 1997 report.12

Ms. Beaumier also discussed the manipulation of Agriculture Canada reports on meat inspections and the safety of various meat packing establishments, changes to the minutes of Atomic Energy Control Board meetings, a request by Health Canada for a scientist to destroy a draft report criticizing breast implants that was the subject of an access to information request, and a refusal by Transport Canada to acknowledge the existence of a memo in its possession regarding past safety deficiencies of Nationair airline operations.13

Faced with such evidence that the Act was not working, the House of Commons voted unanimously to pass Bill C-208, the bill introduced by the member for Brampton West– Mississauga.

Criminal investigation into the destruction of the Long-gun Registry data

In a May 2015 letter presenting her special report to Andrew Scheer, Speaker of the House of Commons, Suzanne Legault, Information Commissioner of Canada, wrote:

I also concluded that the RCMP destroyed records responsive to the request with the knowledge that these records were subject to the right of access guaranteed by subsection 4(1) of the Act. As a result, as well on March 26, 2015, I referred the

11 House of Commons, Debates, 1st Session, 36th Parliament, 5 December 1997. 12 Ibid. 13 Ibid.

matter to the Attorney General of Canada for possible obstruction of the right of access under section 67.1 of the Act.14

Detective Dave Truax of the Ontario Provincial Police, who was assigned to investigate the RCMP, acknowledged that a number of offences had been considered, including obstructing the right of access under subsection 67.1(1) of the Access to Information Act and mischief to computer data under subsection 430(1.1) of the Criminal Code. In a letter to Suzanne Legault dated 22 September 2015, he indicated that he was unable to continue his investigation following the coming into force of the retroactive provisions of Bill C-59:

... I am of the view that the retrospective aspect of the Bill C-59 amendments, completely remove any criminal liability in relation to deletion of Long-gun Registry data by the RCMP.15

Division 18 of Bill C-59

Division 18 of Bill C-59 contained the retroactive provisions that ended the criminal investigation into the actions of the RCMP. These provisions had the effect of retroactively amending the Ending the Long-gun Registry Act.

With Division 18, the Harper government eliminated the right to make an access to information request, the complaint process, the investigative power of the Commission, the Federal Court review process and the obstruction offences, all in order to avoid responding to a request for data it had almost completely destroyed two and a half years earlier:

The Access to Information Act, including sections 4, 30, 36, 37, 41, 42, 46, 67 and 67.1, does not apply, as of October 25, 2011, with respect to the records and copies referred to in subsections (1) and (2) or with respect to their destruction.16

For greater certainty, any request, complaint, investigation, application, judicial review, appeal or other proceeding under the Access to Information Act or the Privacy Act with respect to any act or thing referred to in subsection (4) or (5) that is in existence on or after October 25, 2011 is to be determined in accordance with that subsection.17

Preventing application of the Act to information that would normally be accessible would be in itself a serious attack on the Access to Information Act, but Division 18 of Bill C-59 goes even further. It makes the change retroactive and eliminates all rights of appeal.

14 Suzanne Legault, Information Commissioner of Canada, Letter to the Speaker of the House of Commons, May 2015. 15 Dave Truax, Director, Ontario Provincial Police Criminal Investigation Services, Letter to Suzanne Legault, Information Commissioner of Canada, 22 September 2015, (See Appendix). 16 Statutes of Canada, Chapter 36, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 and other measures. 17 Ibid.

Division 18 also provides amnesty to the State agents who destroyed the Long-gun Registry data:

No administrative, civil or criminal proceedings lie against the Crown, a Crown servant, the Commissioner of Firearms or a chief firearms officer, or any person acting on behalf of or under the direction of any of them, with respect to the destruction, on or after April 5, 2012, of the records and copies referred to in subsections 29(1) and (2).18

Dangerous precedent

Whereas Francis Fox believed that the Access to Information Act would benefit Canadian democracy, and Colleen Beaumier believed she had found a solution to the circumvention of and disregard for the Act by government officials, Stephen Harper’s Conservative government created a dangerous precedent by completely precluding application of the Act for political purposes.

This precedent is problematic for at least two reasons. First, it opens the door to any future government arbitrarily preventing application of the Access to Information Act. Today we are dealing with data from the Long-gun Registry; tomorrow it could be data about the environment, or perhaps contracts with friends of the government. It could have an immediate impact, or be retroactive as is the case here.

This misuse of the Access to Information Act constitutes an attack on the right to information. It is worth recalling here that in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, the Supreme Court of Canada recognized in June 2010 that access to information has quasi-constitutional status. In that decision, McLachlin CJ and Abella J. (with the concurrence of justices Binnie, LeBel, Fish, Charron and Rothstein) recognized that in certain circumstances, access to information may be a necessary precondition for the exercise of freedom of expression:

In sum, there is a prima facie case that s. 2 (b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. As Louis D. Brandeis famously wrote in his 1913 article in Harper’s Weekly entitled “ What Publicity Can Do”: “Sunlight is said to be the best of disinfectants ... .” Open government requires that the citizenry be granted access to government records when it is necessary to meaningful public debate on the conduct of government institutions.19

The other reason Division 18 of C-59 represents a dangerous precedent is the amnesty that was retroactively granted to those responsible for the destruction of the Long-gun Registry data. First, this legislative amnesty constitutes an admission, or at least recognition, of an illegal act. This means that the government was aware that it was wrong to destroy the data. Moreover, it was

18 Statutes of Canada, Chapter 36, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 and other measures. 19 Supreme Court of Canada, Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23.

9 explicitly warned of this by the Information Commissioner in her letter to Minister Toews.

Beyond the specific case of the destruction of Long-gun Registry data, this amnesty opens the door for any other situation in which the State might act illegally and then protect itself behind an amnesty law. The rule of law itself is being called into question.

Bill C-71 as a remedy

Part 2 of Bill C-71, An Act to amend certain Acts and regulations in relation to firearms, which is currently being studied, is intended to correct as much as possible this damage caused by the Conservative government of Stephen Harper. Obviously, the illegally destroyed data are irretrievable. Nor can we change the fact that a Canadian government was responsible for such a legislative aberration. What can be done, however, is to recognize this wrong and correct the situation.

Ironically, it is necessary to once again resort to retroactive legislation to restore the application of the Access to Information Act to the Ending the Long-gun Registry Act and the resulting remedies. Clause 23 of Bill C-71 states:

(1) Subsection 29(3) of the Ending the Long-gun Registry Act is deemed never to have been amended by section 230 of the Economic Action Plan 2015 Act, No. 1.

(2) Subsections 29(4) to (7) of the Ending the Long-gun Registry Act are deemed never to have come into force and are repealed.20

As for the amnesty granted to those responsible for the destruction of Long-gun Registry data, clause 24 states:

Section 30 of the Ending the Long-gun Registry Act is deemed never to have come into force and is repealed.21

As I understand it, these amendments will have the effect of restoring my rights that were violated. My access to information request would therefore be reactivated with all my rights of appeal. Given that there are still data covered by my request that have not been destroyed, this is not just an academic question.

As for the processing of my request, I am pleased to see that clause 28 authorizes the Information Commissioner to consult the Firearms Registry:

The Commissioner of Firearms shall permit the Information Commissioner to view — for the purpose of settling the Federal Court proceeding Information Commissioner of Canada v. Minister of Public Safety and Emergency

20 Bill C-71, An Act to amend certain Acts and Regulations in relation to firearms. 21 Ibid.

Preparedness, bearing court file number T-785-15 — any record that was in the Canadian Firearms Registry on April 3, 2015.22

I presume that with the amendment to the amnesty provision, the Ontario Provincial Police may reactivate its investigation into the destruction of data by the RCMP. While I understand the necessary separation between the legislature and the justice system, I sincerely believe that reopening the investigation is in the public interest.

For all these reasons, I support the passage of Bill C-71.

Other considerations

I would also like to support the offer made to the Quebec government under clause 29(1):

The Commissioner of Firearms shall — for the purpose of the administration and enforcement of the Firearms Registration Act, chapter 15 of the Statutes of Quebec, 2016 — provide the Quebec Minister with a copy of all records that were in the Canadian Firearms Registry on April 3,2015 and that relate to firearms registered, as at that day, as non-restricted firearms, if the Quebec Minister provides the Commissioner with a written request to that effect before the end of the 120th day after the day on which the Commissioner sends written notice under subsection (2).23

Although Quebec was not successful in arguing before the Supreme Court that Ottawa should share the data in the Firearms Registry as per the principle of cooperative federalism, justices Cromwell and Karakatsanis, writing for the majority, acknowledged that such sharing was possible, even if there was no obligation.

[E]ven if, as Quebec submits, there is no legal obstacle to the federal government transferring the data to Quebec, the absence of a legal obstacle to undertaking a given action does not, alone, create a legal obligation to do so.24

According to this judgment, the Conservative government of Stephen Harper was entitled to refuse the request of the Quebec government. By the same token, Justin Trudeau’s Liberal government may legitimately choose to accede to this request.

As for Part 1 of Bill C-71, “Amendments to the Firearms Act, the Criminal Code and the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunitions and Projectiles as Prohibited, Restricted or Non-Restricted,” I invite the Standing Committee on Public Safety and National Security to pay particular attention to the views of victims of gun violence. I am thinking in

22 Bill C-71, An Act to amend certain Acts and Regulations in relation to firearms. 23 Ibid. 24 Supreme Court of Canada, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14.

particular of Poly Remembers, which is a group of students and graduates of the École Polytechnique who advocate for gun control.

December 6 is the National Day of Remembrance and Action on Violence Against Women. It was established by the Parliament of Canada to mark the brutal murder of 14 young women by an armed man because they were women. It also encourages us to combat violence against women. That is what the Poly Remembers group has been doing since this heinous killing. Among other things, through its work with the Coalition for Gun Control, Poly Remembers was successful in bringing about firearms registration with the adoption Bill C-68 in 1995.

The fact that the current government has brought in this legislative proposal is due in large part to the sustained and thoughtful interventions of victims of gun violence, who have once again mobilized in response to the irresponsible choices of the Conservative government and to multiple killings related to domestic violence, as well as the shootings at Dawson College on 13 September 2006, at the Metropolis on 4 September 2012, in Moncton on 4 June 2014 and at the Québec City Mosque on January 29, 2017.

I share the concerns and appreciation of Poly Remembers with regard to Bill C-71. One of the issues it raises involves assault weapons, which Prime Minister Trudeau addressed in his mandate letter for the Minister of Public Safety and Emergency Preparedness:

In particular, I expect you to work with your colleagues and through established legislative, regulatory and Cabinet processes to deliver on your top priorities ...

Take action to get handguns and assault weapons off our streets by working with the Minister of Justice to strengthen controls on hand-guns and assault weapons, and including by repealing some elements of Bill C-42.25

If the intent really is to “get assault weapons off our streets,” the provisions contained in Bill C-71 are not the answer. One of the difficulties with this objective is the vague definition of assault weapon. Add to that the current classification system and it becomes clear that the terms of reference must be reviewed in order to find ways to get assault weapons off the streets in Canada.

I would like to submit for your consideration the idea of adding all semi-automatic weapons to the prohibited category. Specifically, I propose changing the definition of prohibited firearm in subsection 84(1) of Part III of the Criminal Code on Firearms and Other Weapons. This would simply be a matter of adding a paragraph (e) to include semi-automatic weapons.

25 Prime Minister of Canada, Minister of Public Safety and Emergency Preparedness Mandate Letter, 12 November 2015.

Automatic weapons are already prohibited firearms, and the government would be justified in adding semi-automatic weapons to this category for essentially the same considerations of public safety.

I realize that such a change opens the question of acquired rights, and I believe it would be reasonable to allow current owners of semi-automatic firearms to keep them, but with certain conditions attached. First, the conditions that apply to restricted firearms should also apply to all non-restricted semi-automatic firearms subject to acquired rights. Second, the rules on transporting them should be tightened. To that end, I support the recommendation of Poly Remembers to repeal the changes brought in by Bill C-42.26 Licensed owners of restricted firearms should obtain an Authorization to Transport (AT) for each legitimate route (e.g., between the owner’s home and the gun range where he or she is a member). And third, the transfer of acquired rights to another family member on the death of the owner should not be permitted.

Finally, I feel that the government must consider the United Nations Declaration on the Rights of Indigenous Peoples in implementing the proposed changes related to firearms.

26 Poly Remembers, Brief on Bill C-71.

Appendix

January 11, 2013

Dear Sir:

I am writing in response to your request under the Access to Information Act, which was received on 27 March 2012, requesting access to the firearms registry database.

We conducted a records search in Ottawa based on the information you provided. Please find attached a copy of all the information to which you are entitled.

Please note that lost, stolen and recovered dates are not the actual dates that firearms were lost, stolen or recovered, but in fact the dates that the information in the system was changed in the Firearms Registry database to reflect the change in status.

Please be advised that you are entitled to file a complaint about this matter with the Information Commissioner within 60 days of the date you receive this notice. Should you choose to avail yourself of this right, you must send your complaint to the following address:

Office of the Information Commissioner of Canada Place de Ville, Tower B 112 Kent Street, 22nd Floor Ottawa, Ontario K1A 1H3

If you would like more information regarding your request, please contact Ms. Suzanne Barber by telephone at 613-843-6835, or write to [email protected] or the address indicated below. Please be sure to quote the reference number provided in this document.

Sincerely,

Michael Jeffrey Ministerial Coordinator Access to Information and Privacy Branch