Letter to the Speaker of the Senate

May 2015

Senator Leo Housakos
Speaker of the Senate
Ottawa ON  K1A 0A4

Dear Mr. Speaker:

Pursuant to section 39 of the Access to Information Act (the Act), I have the honour to submit to Parliament a special report on an investigation into an access to information request for the Canadian Long-gun Registry.

As Information Commissioner, it is incumbent upon me to inform Parliament about my investigation which findings can be found in Appendix 1.

The genesis for the complaint was a request made on March 27, 2012, before the coming into force of the Ending the Long-gun Registry Act, for:

An electronic copy of: a) all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and are under the control of the Commissioner of Firearms; and b) all records related to the registration of firearms that are neither prohibited firearms nor restricted firearms that are under the control of each chief firearms officer. [translated]

The request was further clarified to “I would like to have access to the Firearms Registry database.” [translated]

On April 13, 2012, I wrote to the then Minister of Public Safety and Emergency Preparedness, the Honourable Vic Toews, to inform him that any records for which a request had been received under the Act were subject to the right of access and could not be destroyed until a response had been provided under the Act and any related investigation and court proceedings were completed. Minister Toews responded on May 2, 2012 providing assurances that the RCMP would abide by the right of access described in section 4 of the Act. See Appendix 2.

Between October 25 and October 29, 2012, the RCMP destroyed all electronic records of non-restricted firearms, with the exception of those belonging to Quebec residents.

On January 11, 2013, the RCMP provided a response to the requester.

On February 1, 2013, my office received a complaint alleging that additional records should exist following the response provided by the RCMP. Specifically the complaint made three allegations:

  1. That the information provided was incomplete (missing both columns and registrations);
  2. That the RCMP did not justify the incomplete response;
  3. That by destroying the responsive records, the RCMP obstructed his right of access, pursuant to section 67.1 of the Act.

After a lengthy investigation, I concluded that the response was incomplete. I made the following recommendations to the Minister of Public Safety and Emergency Preparedness, the Honourable Steven Blaney on March 26, 2015:

  • Process the information relating to the registration of non-restricted firearms in the province of Quebec (64 fields identified in the course of my investigation) and include this information in a new response to the requester.
  • Process all images of the registration and transfer applications that still exist within the Canadian Firearm Information System (CFIS) pertaining to non-restricted firearms and include this information in a new response to the requester; and
  • Preserve these records until the conclusion of my investigation and any related proceedings.

The Minister’s response can be found in Appendix 3.

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 matter to the Attorney General of Canada for possible obstruction of the right of access under section 67.1 of the Act. I have not received a response to this letter of referral.

In order to preserve the rights of the complainant, pursuant to section 42 of the Act, I will also file a court application before the Federal Court.

On May 7, 2015, the government introduced Bill C-59 in Parliament, entitled the Economic Action Plan 2015 Act, No. 1. Sections 230 and 231 of the Bill amend the Ending the Long-gun Registry Act (the ELRA). Section 29 of the ELRA authorized the destruction of records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms (commonly referred to as the Long-gun Registry).

Section 230 of Bill C-59 amends section 29 of the ELRA to exclude the operation of the Access to Information Act (the Act) retroactive to October 25, 2011, the date on which the ELRA was introduced in Parliament. It ousts the application of the Act, in particular the provisions guaranteeing the right of access (s.4), the right to make a complaint (s.30), the Commissioner’s investigative powers (s.36), the Commissioner’s power to make recommendations and report on the findings of an investigation (s.37), and the right of requesters and the Information Commissioner to seek judicial review before the Federal Court (ss. 41, 42 and 46). It also retroactively ousts the offence of obstructing the Commissioner in the performance of her duties and functions (s.67) and the offence of obstructing the right of access, including by destroying records (s.67.1).  

Section 230 also requires that any request, complaint, investigation, application, judicial review, appeal or other proceeding under the Access to Information Act, in existence on or after October 25, 2011, must be determined in light of the fact that the ELRA, as amended, retroactively excludes the operation of the Act. This would effectively render any action taken under the Act in relation to the Long-gun Registry void.

Section 230 also provides that the ELRA retroactively supersedes any other Act of Parliament in the event of any inconsistency and that the destruction of the records shall take place despite any requirements to retain the records or copies contained in any other Act.

Finally, section 231 provides that no administrative, civil or criminal proceedings lie against the Crown for the destruction of the records related to the Long-gun Registry from the date the ELRA came into force, April 5, 2012. This section also provides that no administrative, civil or criminal proceedings lie against the Crown for any act or omission done in purported compliance with the Act between October 25, 2011 and the coming into force of section 231.

The proposed changes in Bill C-59 will deny the right of access of the complainant, it will deny the complainant’s recourse in court and it will render null and void any potential liability against the Crown.

Bill C-59 sets a perilous precedent against Canadians’ quasi-constitutional right to know.

I submit this special report to Parliament in the hopes that parliamentarians will carefully consider the implications of Bill C-59. I am available to appear before any committee considering Bill C-59.

Yours sincerely,

 

 

 

Suzanne Legault
Information Commissioner of Canada