Retroactive Tory law on gun records in limbo

Former Prime Minister Stephen Harper.
Former Prime Minister Stephen Harper. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA – A constitutional challenge of a retroactive Conservative law that got the Mounties off the hook for illegally destroying gun registry records is in limbo.

However three Liberal ministers have requested a meeting with federal information commissioner Suzanne Legault to discuss the suspended case, suggesting a resolution may be in the works.

Legault is pursuing the court challenge on behalf of Bill Clennett, whose 2012 request for gun registry records was ultimately thwarted when the RCMP destroyed the data — in direct violation of the Access to Information Act.

The former Harper government cleared the Mounties and quashed an investigation into their activities by the Ontario Provincial Police by passing a retroactive law just before Parliament was dissolved last summer.

READ MORE: Bill casts veil of secrecy over long gun registry’s destruction

Legault’s challenge of the constitutionality of the retroactive law — which legal scholars say is unprecedented — was set to begin court hearings in December but was suspended for three months at the request of the new Liberal government.

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That three-month postponement has been extended.

“On the consent of the parties, the timetable for the next steps in this litigation has been suspended pending settlement negotiations,” says a notice posted on the Information commissioner’s web site, dated March 9.

A spokesman for Public Safety Minister Ralph Goodale said Tuesday that three ministers, including Goodale, Treasury Board president Scott Brison and Justice Minister Jody Wilson-Raybould, have requested to meet Legault to discuss “a mutually satisfactory resolution.” Dan Brien said a date for the meeting has not been confirmed.

“I’m hoping something will happen shortly,” Clennett told The Canadian Presss.

READ MORE: Court filing alleges Conservative duplicity in handling gun registry data

“The clock is running. We made a deal to put things off but I don’t think that’s going to stand for long.”

Legault’s office would only say that “as with any litigation, these negotiations are carried out confidentially,” and provided no further comment.

Legal observers, including 12 of Canada’s 13 provincial and territorial information commissioners, say the retroactive legal changes undermine both the rule of law generally and government access-to-information systems specifically.

Upholding the Conservative legal move “would have far-reaching implications for criminal law principles,” says a brief by the Criminal Lawyers’ Association seeking intervener status in the court case.

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Legault herself issued a special report to Parliament last spring calling the Conservative move a “perilous precedent” that cleared the way for future governments to retrospectively rewrite laws to place troublesome investigations out of bounds.

While Liberals have been quick to drop several controversial constitutional challenges mounted by the previous government, correcting the retroactive changes on the gun registry that were woven into a Conservative omnibus budget bill may require more action.

READ MORE: Are Canada’s gun laws being whittled away without debate?

Clennett believes the Liberals will need to pass legislation overturning the Conservative changes.

The omnibus budget bill exempted any “request, complaint, investigation, application, judicial review, appeal or other proceeding under the Access to Information Act or the Privacy Act,” related to the old gun registry records, and backdated the law by almost four years to October 2011 when the Conservative legislation to end the registry was first introduced in Parliament.

Only the Quebec data now remains, sealed on a hard drive under the care of the court after a judge ordered the RCMP to hand it over.

Clennett noted he’s barred from even going to court over that remaining data until the constitutionality of the retroactive legislation is settled.

“It’s a very dangerous precedent, and that goes beyond whether one is for or against the (gun) registry,” he said.

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“That was the starting-off point. To go that far … if they do it for that (issue), other governments can do it for something else.”