The National Firearms Association and a Quebec-based pro-gun lobby group failed to put a stop to Quebec’s provincial long-gun registry after Quebec Superior Court held that the registry was constitutionally valid.
In a 26-page ruling that did not take any constitutional experts by surprise, Quebec Superior Court Justice Lukasz Granosik held that Bill 64, Firearms Registration Act, does not infringe on federal jurisdiction because it essentially is about public safety, which is related to provincial jurisdiction on issues of property and civil law as well as the administration of justice.
“The Supreme Court of Canada held (in Quebec (Attorney General) v. Canada (Attorney General),  1 SCR 693) that the federal government has the jurisdiction to have its own gun registry,” noted Stéphane Beaulac, a constitutional law professor at the Université de Montréal. “But it also held that there is nothing to prevent provinces, by virtue of its jurisdiction on property and civil law, to legislate such matters which includes having a provincial registry.”
The Quebec government began plans to establish its own long-gun registry after the federal Conservative government abolished the federal database for non-restricted guns in 2012. The province was embroiled in a legal battle against Ottawa in a bid to preserve Quebec data from the federal registry, but it lost its case before the SCC in March 2015. In the so-called long-gun registry decision, Quebec (Attorney General) v. Canada (Attorney General),  1 SCR 693, the SCC held that the Quebec government had no right to insist that the federal government hand over — before destroying all data in the now defunct federal long gun registry –to it data relating to Quebec resident long-gun owners. In the meantime, the Quebec government enacted Bill 64, which is still not in force.
The gun lobby sought an injunction against Bill 64, arguing that it was ultra vires because it infringed on the federal jurisdiction on criminal matters, as per s. 91(27) of the Constitution Act, 1867. They also maintained that article 13 of the Quebec Firearms Registration Act should be declared void because it runs into conflict with the federal Firearms Information Regulations (Non-restricted Firearms).
Justice Granosik dismissed both arguments. Following guidance by the SCC in a couple of decisions, notably in Canadian Western Bank v. Alberta,  2 SCR 3, Justice Granosik began his analysis of the constitutionality of Bill 64 by considering its purpose and its effects to determine whether it is a “colourable,” that is, whether the law may say that it intends to do one thing and actually does something else.
Justice Granosik notes that the SCC held in Reference re Firearms Act (Can.),  1 SCR 783 that the regulation of guns as dangerous products is a “valid purpose within the criminal law power.” But, he adds, that in order for a law to be classified as a criminal law, it must possess three perquisites: a valid criminal law purpose backed by a prohibition and a penalty.
Justice Granosik found that Bill 64 does not prohibit the possession of firearms but rather seeks to provide the Quebec Minister of Public Security with information over the existence of firearms and allow public authorities to know where they are located.
“There is reason therefore to conclude that the Act seeks to make the work of law enforcement safer and the implementation of court orders more effectively,” held Justice Granosik in Association canadienne pour les armes à feu c. Procureure générale du Québec 2017 QCCS 4690. “There is no compelling evidence, neither intrinsic or extrinsic, to conclude that the law is colourable.”
He also highlighted that the Attorney General of Canada did not intervene in the case, suggesting that it does not contest Quebec’s powers to adopt its own long-gun registry.
“I am hugely disappointed and am in disagreement with the judge’s reasons,” remarked Guy Lavergne, a Montreal lawyer who plead the case for the gun lobby. “I argued that the registration of firearms has always been viewed as falling under criminal law jurisdiction in Canadian constitutional law. Although there are aspects of firearms that may fall under provincial jurisdiction, this is not one.”
After heeding guidance from the SCC’s Alberta (Attorney General) v. Moloney,  3 SCR 327 to determine whether the “operational effects” of provincial legislation are incompatible with federal legislation, Justice Granosik Justice Granosik held that article 13 of the Quebec Firearms Registration Act does not run into “real conflict” with federal legislation. He found that federal legislation targets the “obtainment and maintenance of firearm permits” while the Quebec law deals with registration and management of stocks.
According to constitutional law professor Maxime St-Hilaire, the gun lobby was doomed to fail in its bid to stop Quebec from establishing its own gun registry. He points out that the SCC already dealt with the issue, the federal government is not opposed to provincial governments enacting its own gun registry laws, and arguments that rely on the doctrine of federal paramountcy were destined to fail in this case.
“I am not at all surprised by the decision,” said St-Hilaire. “The federal government never held that the Quebec government could not create its own firearm registry. Then there’s the long-gun registry decision by the SCC which held that provinces could establish their own firearm registry.”
The gun lobby is considering filing an application for leave to appeal.
“This decision could open the door for other provinces to follow suit but so far no other province has expressed a willingness to go ahead with a provincial registry,” said Lavergne. “But political landscapes do change, and this is a highly political matter. That is one of the fears that it could give rise to additional legislation emanating from the provinces.”
This story was originally published in The Lawyer’s Daily.