Barbra Schlifer Commemorative Clinic V. Canada – Application Dismissed

Barbra Schlifer Commemorative Clinic v. Canada
CanLII

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
Barbra Schlifer Commemorative Clinic
Applicant
– and –

Her Majesty The Queen In Right of Canada as represented by The Attorney General of Canada, The Commissioner of Firearms, The Registrar of Firearms and The Chief Firearms Officer

Respondents

Shaun O’Brien, Elichai Shaffir, Nadia Lambek, for the Applicant

Gina Scarcella, Christine Mohr, Andrea Bourke, for Her Majesty The Queen In Right of Canada as represented by The Attorney General of Canada, The Commissioner of Firearms, The Registrar of Firearms

S. Zachary Green, for The Chief Firearms Officer
HEARD: June 10-12, 2014

 

E.M. MORGAN J.
[1] In April 2012, Parliament passed Bill C-19, An Act to Amend the Criminal Code and the Firearms Act, S.C. 2012, c. 6 (the “Act”). The effect of this legislation was, inter alia, to keep intact the existing licensing requirements and various prohibitions on the use of firearms, but to repeal the long-gun registry system that had since 1995 required, on threat of criminal sanctions, the registration of non-restricted firearms.

[2] The Applicant challenges the constitutionality of the Act. It submits that by eliminating the requirement of registration for non-restricted firearms, the Act is contrary to section 7 (fundamental justice) and section 15 (equality rights) of the Canadian Charter of Rights and Freedoms, part I of the Constitutional Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”).
[3] The Respondents, Her Majesty The Queen In Right of Canada as represented by the Attorney General of Canada, the Commissioner of Firearms, and the Registrar of Firearms (the “Crown”), oppose the Application. The Respondent, the Chief Firearms Officer (“CFO”), makes limited submissions with respect to his role in regulating firearms, but otherwise takes no position on the constitutional challenge.

[4] In my view, the Supreme Court of Canada’s observation in R v Malmo‑Levine, [2003] 3 SCR 57 about the power of the federal legislature to define the substantive content of criminal law is apt. As the Court put it, at para 140, “Parliament may, as a matter of constitutional law, determine what is not criminal as well as what is” [emphasis in the original]. Just as Parliament could decide that “[firearms] control falls within the criminal law power”, Reference re Firearms Act (Canada), 2000 SCC 31 (CanLII), [2000] 1 SCR 783, at para 45, Parliament can decide that the registration scheme for non-restricted firearms falls outside of the criminal law and should be eliminated.

I. Legislative history and scheme

[5] Until 1995, the offenses and restrictions pertaining to certain prohibited and restricted weaponry contained in the Criminal Code, RSC 1985, c. C-46, were Canada’s only statutory firearms control measures.

[6] It was the Firearms Act, 1995, SC 1995, c. 39 (the “Firearms Act”), that for the first time legislated a comprehensive licensing and registration scheme for all firearms, including prohibited and restricted weapons as well as non-restricted firearms (i.e. long-guns). It created a registry and the office of a Registrar to manage the registration system. The Firearms Act was accompanied with enforcement measures in sections 91-92 of the Criminal Code, which created offenses and imposed prison sentences on persons who possess firearms but who fail to comply with the licensing and registration requirements.

[7] As indicated above, the Act eliminates the Firearms Act’s registration requirement for non-restricted firearms, and, as a corollary, revises the Criminal Code possession offenses insofar as they pertained to the registration of non-restricted firearms. In addition to a number of other incidental amendments, the Act also required the destruction of all registration records pertaining to non-restricted firearms that had previously been compiled by the Registrar under the Firearms Act.

[8] The Act did not amend those provisions in the Firearms Act or Criminal Code that related to the licensing and storage of firearms, or to the registration of prohibited and restricted weapons, and did not eliminate or revise any existing offenses or punishments for other offenses committed with firearms. The policy of the Act, as enunciated by the government members who tabled the legislation, was to increase the effectivity of existing licensing requirements for all firearms and registration requirements for prohibited and restricted guns by, inter alia, eliminating what was perceived to be the ineffective and burdensome registration requirement for non-restricted firearms.
[9] As the Minister of Public Safety put it in introducing the Act to Parliament:

In essence, Bill C-19 retains licensing requirements for all gun owners, while doing away with the need for honest, law-abiding citizens to register their non-restricted rifles or shotguns, a requirement that is unfair and ineffective…

The bill before us today is about making sure that we invest in initiatives that work. It is about making sure we continue to protect the safety and security of Canadians without punishing people unnecessarily because of where they live or how they make a living.

Hon. Vic Toews, House of Commons Debates, No. 37 (October 26, 2011, at p. 2535.

[10] The firearms scheme in place after enactment of the Act requires all persons who possess or acquire new firearms to obtain a license from the CFO of his or her province of residence or, in those provinces which have not appointed a CFO, from the Royal Canadian Mounted Police (“RCMP”). It requires all licensees to have first passed the Canadian Firearm Safety Course, and contains a number of eligibility requirements. These include the licensee’s identification information and declarations by a number of individuals who have known the licensee for several years indicating that there is no known reason to deny the license.

[11] Further, the current firearms legislation requires background checks on a potential licensee’s criminal record and history of encounters with the police and/or violent behaviour. It also requires the CFO or RCMP to give notice of the license to the licensee’s spouse and/or former spouse and/or all persons with whom the licensee has had a conjugal relationship during the past two years.

[12] The eligibility criteria are followed up by a number of statutory controls on the transfer of firearms and by continuous eligibility screenings where a licensee has had some involvement with law enforcement. All encounters by a licensee with police are to be forwarded to the relevant CFO or RCMP, who are responsible for investigating and determining whether further action is required in respect of the person’s firearms license.

[13] The Act provided for enforcement mechanisms for all firearms measures to be either preserved, revised, or added to accompanying sections of the Criminal Code. In addition, the Act preserves those sections of the Firearms Act that contain detailed provisions for the revocation of a license at any time for any “good and sufficient reason”.

[14] The relevant information contained in a license application, including the identifying information for the licensee and the class of firearm that he or she is licensed to possess, is contained in a centralized database that is accessible to all Canadian law enforcement agencies. Just under 2,500 licenses were revoked pursuant to these provisions in 2012.

[15] Counsel for the Crown points out that the Act – with all that it amends and all that it leaves intact – has not been enacted in a vacuum, but rather has formed part of the government’s broader criminal justice legislative agenda and must be analyzed accordingly. In addition to the many existing Criminal Code provisions aimed at reducing armed crime and violence, in 2008 Parliament enacted the Tackling Violet Crime Act, SC 2008, c. 6, which, inter alia, created a number of new firearms offences and raised mandatory prison sentences for existing firearms offenses. It also made bail provisions more onerous for those accused of firearms offences, and reformed sentencing and monitoring of high risk offenders. This was supplemented by the Safe Streets and Communities Act, SC 2012, c. 1, which, inter alia, provided for more stringent sentencing for youth crime and for sexual assault, serious drug offences, and criminal harassment.

II. Life, liberty, and security of the person

[16] The Applicant submits that the Act is unconstitutional as it has decreased Canadians’ personal security and increased the risk of death by firearms.

[17] Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[18] At the first stage of the section 7 analysis the Applicant must show a deprivation of the identified rights, which deprivation must be supported in the evidentiary record and given meaning by the Court: Singh v Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177, at 205. If there is such a deprivation, the analysis shifts to the principles of fundamental justice which form “a qualifier of the right not to be deprived of life, liberty and security of the person”: Reference Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486, at para 24.

a. The state action problem

[19] The nature of the Applicant’s claim raises a threshold issue of state action. Citing the Supreme Court of Canada’s decisions in Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101 and Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII), [2011] 3 SCR 134, counsel for the Applicant submits that a law that fails to reduce risk of serious physical or psychological harm is contrary to section 7 of the Charter.

[20] The Applicant submits that Canadians face the risk of injury and death from firearms, especially from intimate partners and other individuals with whom they closely interact. Counsel for the Applicant puts the point most succinctly it in their factum:

The s. 7 right to life and security of the person protects both the physical and psychological integrity of the individual. Long-guns and other non-restricted firearms are used by domestic partners both to threaten and in acts of direct violence against their victims, leading to physical and psychological trauma, and in many cases death. As a result, regulation of these firearms engages s. 7 rights.

[21] In response, the Crown contends that the absence of measures aimed at reducing an existing risk of harm does not amount to a state-imposed deprivation, as specifically required by section 7 of the Charter. Citing Malmo-Levine, at paras 96-97, counsel for the Crown submits in their factum that a claimant seeking to demonstrate a violation of section 7 of the Charter must prove:

(a) that a law or action of the state deprives a person of the right to life, liberty and security of the person; and

(b) that the deprivation is inconsistent with one or more principles of fundamental justice.

[22] The Supreme Court of Canada observed in RWDSU v Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 SCR 573, at para 38, that “it is difficult and probably dangerous to attempt to define with narrow precision that element of governmental intervention which will suffice to permit reliance on the Charter…” What is clear, however, is that for a claim under section 7 of the Charter to succeed, some state-imposed burden or state-implemented deprivation of rights is necessary. As McLachlin CJC has put it:

Section 7 speaks of the right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice. Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these.

Gosselin v Quebec (Attorney General), 2002 SCC 84 (CanLII), [2002] 4 SCR 429, at para 81 [emphasis in the original]

[23] Either “positive state actions” or “a prohibition on certain types of actions” may satisfy the criteria of governmental deprivation inherent to the section 7 right: Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519. However, “[t]here is no freestanding right to life, liberty and security of the person”: Canada v Bedford, 2012 ONCA 186 (CanLII), 2012 ONCA 186, at para 88.

[24] Accordingly, for the Applicant to be successful under section 7, it must avoid framing its challenge in terms of risk of harm alone. This has been clear since the Supreme Court of Canada’s first section 7 decision, Operation Dismantle v The Queen, 1985 CanLII 74 (SCC), [1985] 1 SCR 441, where Wilson J. observed at para 99:

The concept of ‘right’ as used in the Charter must also, I believe, recognize and take account of the political reality of the modern state. Action by the state or, conversely, inaction by the state will frequently have the effect of decreasing or increasing the risk to the lives or security of its citizens. It may be argued, for example, that the failure of government to limit significantly the speed of traffic on the highways threatens our right to life and security in that it increases the risk of highway accidents. Such conduct would not, in my view, fall within the scope of the right protected by s. 7 of the Charter.

[25] Contemporary society is permeated by risk, including the risk of violent crime and injurious use of firearms, but unless that risk is a creation of state intervention it is not within government’s constitutional responsibilities. While the Supreme Court has been flexible in defining the nature of the deprivation for the purposes of section 7, it has insisted that the Charter right encompasses “a notion of personal autonomy involving, at the very least, control over ones bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress”: Rodriguez, at 587-88 [emphasis added].

[26] The Applicant contends that the Supreme Court has over time relaxed the state action requirement. While there is some merit to that observation, state action has never been dispensed with altogether as a requisite element in an infringement of section 7. In recent years, the Court emphasized not the risk of harm that exists independent of the state, but the fact that the state actively blocked the claimant from taking steps to reduce the risk. In PHS Community Services, the impugned legislation prevented the operation of a supervised drug facility and thereby blocked access to a risk reduction program; likewise, in Bedford, the challenged statutory provision made a lawful activity more risky by denying access to security-enhancing safeguards.

[27] In PHS, at para 92, the Court found that, “[w]here a law creates a risk to health by preventing access to health care, a deprivation of the right to security of the person is made out.” In Bedford, at paras 66-67, the Court found that, “the law prevented them from taking steps to reduce the risks they face and negatively impacted their security of the person.” While these were cases in which the underlying risks were caused by non-state actors and actions, they also were cases in which risk reduction was available through non-state mechanisms which were then actively countered by the state. The Court in both instances was clear that it was an interventionist step by government that caused the harm since it was government that blocked access to a remedy and that effectively imposed the risk anew.

[28] Counsel for the Applicants attempt to bring the present challenge into the ambit of the PHS and Bedford judgments by characterizing the elimination of the long-gun registry as a form of state intervention into individuals’ attempts to minimize the risk of harm. To this end, they submit in their factum that that Act “engages s. 7 because it infringes the physical and psychological integrity of women by eliminating life-saving protections in the Firearms Act…”

[29] However, the Applicant’s attempt to analogize its position to this line of Supreme Court jurisprudence is inherently flawed. While the argument in the present case is rhetorically similar to those in PHS and Bedford, it actually follows a different logic.

[30] The Court in PHS and Bedford took it as a given that but for the governmental intervention, the risks encountered by the claimants would be less than they are. The risks of infectious disease from drug injections and of violent injury from actively engaging in prostitution were perceived as higher as a result of the state’s actions (shutting down supervised injection centres and preventing the hiring of drivers and security guards).

[31] In the present case, the harm results from non-state action – i.e. violence perpetrated by persons with firearms – while the state intervention takes the form of an amendment to another piece of legislation which is itself characterized as a risk-reduction intervention. Unlike in PHS and Bedford, where government blocked access to risk-reduction mechanisms, here the government created the risk-reduction mechanism and is now modifying it. The Applicant’s complaint is not that the state has intervened to create harm or to increase risk; instead, it is that the state has intervened to ameliorate harm and to decrease risk, but not enough or not as much as before.

[32] The upshot of the Applicant’s position is that the state is obliged to maximize life, liberty, and security of the person, and not just to refrain from depriving persons of those rights.

[33] The courts have consistently rejected that type of claim. In Ontario, it has been held that the right to social assistance [Masse v Ontario reflex, (1996), 134 DLR (4th) 20 (Div Ct), leave denied [1996] OJ No 1526 (Ont CA)], school autism programs [Wynberg v Ontario 2006 CanLII 22919 (ON CA), (2006), 82 O.R. (3d) 561 (Ont CA)], out-of-province medical benefits [Flora v Ontario Health Insurance Plan 2008 ONCA 538 (CanLII), (2008), 91 OR (3d) 412 (Ont. CA)], electricity and other public utilities [Clark v Peterborough Utilities Commission 1998 CanLII 7133 (ON CA), (1998), 40 O.R. (3d) 409 (Ont CA)], and other such state-created devices do not exist as of constitutional right. Since there is no constitutional entitlement to their existence, their elimination or reduction is not an infringement of Charter rights.

[34] The Supreme Court indicated in Bedford, at para 88, that while the state cannot make prostitution even riskier than it is, the claimants were “not asking the government to put into place measures making prostitution safe.” The question under section 7 is “whether the impugned laws make this lawful activity more dangerous” than it would be absent state intervention altogether. Ibid., at para 87.

[35] Furthermore, the Act is not, as the Applicant would have it, properly characterized as an underinclusive one that leaves out a certain class of persons; that type of legislative program might well run contrary to Charter rights in that the state would have effectively disentitled some persons to what others are entitled: see Ontario (Attorney General) v Fraser, [2011] SCR 3, at para 72. By contrast, the Firearms Act, as amended by the Act, is a statutory licensing, reporting, and registration scheme that has been defined and limited in ways that Parliament, in its wisdom, has deemed most effective.

[36] In Dunmore v Ontario, [2001] SCR 1016, at para 24, Bastarache J. stated that, “claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime.” Since section 7 does not grant the Applicant, or anyone else, an inherent right to a gun registry, the lack of inclusion of long-guns is not grounded in a fundamental Charter freedom.

[37] The Applicant’s argument is therefore the equivalent of the argument rejected by the Supreme Court in Chaoulli v Quebec (Attorney General), 2005 SCC 35 (CanLII), [2005] 1 SCR 791, at para 108: “[t]he question in this case, however, is not whether single-tier health care is preferable to two-tier health care.” It is, in other words, a critique of statutory policy that lacks a constitutional footing.

[38] In creating a licensing and registration scheme for firearms, and then amending it to make it inapplicable to non-restricted long-guns, Parliament has not ‘acted’ in a way that is analogous to the state action in the PHS and Bedford cases. That is, it has not denied persons a risk-reduction mechanism that could be accessed but for the state’s intervention; rather, it has created, and then modified, a risk-reduction mechanism that would not otherwise exist.

b. The ‘baseline’ problem

[39] Much as counsel contends that the Applicant “does not seek to ‘constitutionalize’ the 1995 Firearms Act”, that is in fact an accurate description of the section 7 claim. Perhaps more precisely, what the Applicant’s position amounts to is a version of what Yale Law School scholar Cass Sunstein has referred to as a baseline problem.

[40] As Lord Sankey’s “living tree” metaphor suggests, constitutional law is designed to ensure growth and flexibility of interpretation, while maintaining the ultimate stability of the legal regime: Edwards v Attorney General of Canada, [1930] AC 124 (PC). Rights and entitlements may expand over time from a stable constitutional foundation. “But this does not support the far more extreme claim that existing distributions should be taken as the baseline from which to decide whether there has been partisanship or neutrality.” C. Sunstein, The Partial Constitution (Cambridge, MA: Harvard U. Press, 1993), at pp. 129-130.

[41] The Applicant’s section 7 challenge uses the 1995 Firearms Act as a baseline against which to measure the licensing and registration system under the Act, and finds the latter lacking. In the Applicant’s characterization, while the regulatory regime that existed from 1995 until the coming into force of the Act in 2012 “provided an essential element in the effective protection for the s. 7 rights of women”, the “Act’s purpose appears to relate primarily to political aims”. To put it in a way that harks back to Professor Sunstein’s point, the Applicant asserts that while the 1995 version of the Firearms Act reflects a neutral constitutional standard, the 2012 Act and its amended version of the Firearms Act reflects a partisan deviation from that standard.

[42] This argument is similar to that made by the applicants in Ferrel v Ontario (Attorney General) 1998 CanLII 6274 (ON CA), (1998), 42 OR (3d) 97 (Ont CA), who challenged the Ontario government’s repeal of the previous employment equity law and its requirement that all information collected under the prior statutory regime be destroyed. The Court of Appeal provided a thoughtful analysis of the proper constitutional methodology, and, at para 47, cast doubt on whether a Charter right necessarily entails “a correlative positive duty on governments to give effect to the right in the form of legislation”.

[43] The Court in Ferrel also came to the conclusion that a statutory measure cannot be perceived as a standard, or baseline, against which its own details are measured. As Morden, ACJO put it at para 48, “[i]t is a question that is not justiciable. Legislatures require substantial freedom in designing the substantive content, procedural mechanisms, and enforcement remedies in legislation of this kind.” As in the present case, it was for the political branches, not the court, to determine the contours of the regulatory regime in issue.

[44] A similar view was expressed by Sharpe J. (as he then was) at first instance in Dunmore v Ontario (Attorney General) 1997 CanLII 16229 (ON SC), (1997), 37 OR (3d) 287, at 301 (Gen Div): “In my view, if the legislature is free to decide whether or not to act in the first place, it cannot be the case that once it has acted in a manner that enhances or encourages the exercise of a Charter right, it deprives itself of the right to change policies and repeal the protective scheme.”

[45] It is not the case that the Firearms Act was politically neutral and therefore constitutionally permissible, while the Act amending the Firearms Act was politically partisan and therefore constitutionally impermissible. Had Parliament in 1995 created a firearms registry for handguns but not for long-guns, it would have been a legitimate policy choice in support of potential victims of gun violence. For Parliament in 2012 to decide that the long-gun registry is ineffective and to eliminate it but to keep in place a handgun registry is no less of a legitimate policy choice; neither version is more neutral or political than the other. The prior piece of legislation cannot form a constitutional baseline for all further revisions and amendments to the legislative policy.

c. The evidentiary record

[46] In addition to the legal impediments to the section 7 claim, the Applicant also confronts significant hurdles in terms of the evidentiary record.

[47] At an earlier stage of this litigation, the Applicant was unsuccessful in seeking an interlocutory injunction preventing the termination of the long-gun registry: Barbra Schlifer Commemorative Clinic v Canada, 2012 ONSC 5271 (CanLII), 2012 ONSC 5271 (SCJ). The problem at that stage, as summarized by Pardu J. (as she then was) in her judgment denying leave to appeal to the Divisional Court, was that “the motion judge concluded that there was scant evidence that repeal of the requirement to also register individual non-restricted firearms would have any effect on the risk of violence towards women”: Barbra Schlifer Commemorative Clinic v Canada, 2012 ONSC 5577 (CanLII), 2012 ONSC 5577, at para 11 (Div Ct).

[48] As counsel for the Applicant point out, the record has been supplemented since the injunction motion was argued. Nevertheless, there still does not appear to be a causal link established between the changes brought in by the Act and an increased risk of harm.

[49] It should be noted that although enacted in 1995, the Firearms Act did not come into force until 1998, and the registration requirement for non-restricted firearms commenced in 2003. There was then an amnesty with respect to registration in 2006. This relatively short history makes the impact of the registry very difficult to assess, and inevitably renders any assessment questionable.

[50] In any case, much emphasis has been placed by the Applicant on statistical data relating to firearms in Canada. This has been presented in an effort to establish that the registration system established by the Firearms Act was responsible for a reduction in gun violence, particularly in domestic settings, and that, consequently, the Act is, or will be, responsible for an increase in the risk of violence, particularly against women.

[51] The historic trends in respect of gun violence generally, and gun violence by intimate partners specifically, do not bear out the Applicant’s point. This is not to detract from the seriousness of the matter of intimate partner violence which the Applicant is dedicated to help eradicate; it is only to observe that the statistics about gun violence in the record do not establish a link to the existence of the registry system for non-restricted long-guns.

[52] In a series of Statistics Canada reports, the Crown has demonstrated that, in fact, there has been a long term, gradual decline in gun violence in Canada, including in domestic settings, regardless of the existence of the Firearms Act. In S. Perreault, Homicides in Canada, 2011 (Statistics Canada, Dec. 4. 2012), at p. 4, the overall trend is summarized as follows:

Beginning in the mid-1960s, the homicide rate increased steadily for ten years, peaking in 1975 with a rate of 3.03 per 100,000 population. Since then, despite annual fluctuations, the homicide rate has generally declined until stabilizing over the past decade. The 2011 homicide rate is similar to what was observed over much of the past decade.

[53] Moreover, for 2012, with implementation of the Act and the termination of the registration requirement for non-restricted firearms, there was no discernable increase in firearms-related violence or in intimate partner gun violence against women. This most recent pattern is noted in J. Boyce and A. Cotter, Homicides in Canada, 2012 (Statistics Canada, Dec. 19, 2013), at p. 5:

There were fewer homicides committed against both males and females in 2012. While the homicide rate for males reached its lowest point in more than 40 years in 2012 (2.24 per 100,000 male population), the homicide rate for females in 2012 (0.88 per 100,000 female population) was, for the most part, similar to rates recorded in recent years (Chart 2). Regardless, males continued to account for the majority of homicide victims in 2012 (71% versus 29% for females).

[54] The statistics show that female homicide victims by non-restricted firearms were at a low of 13 deaths in 2003, when the registry first started running; the numbers were more or less at the same place with 15 deaths in 2011, the last full year of the long-gun registry’s operation. This data has led Professor Philip Stenning, an international criminology expert whose affidavit forms part of the record, to conclude that the registration requirement in the Firearms Act was largely irrelevant to gun violence at large as well as to gun violence against women in the domestic setting:

27(1) The implementation of universal long gun registration did not contribute significantly to the reduction either in firearms homicides or in firearms suicides between 1988 and 2009 which are evident from the Causes of Death data.

27(2) These data provide no evidence that the implementation of universal long gun registration provided more protection from death by firearms to women than to men; the corollary of this conclusion is that there is no reason, based on these data, to believe that the abolition of long gun registration will put women more than men at risk of firearms death. This is because men have always been, and continue to be, more at risk of death from long guns than women.

[55] These trends appear to be consistent with data from the United States. Professor Gary Kleck, the dominant U.S. social scientist on the impact of firearms and gun control on violence, also submitted an affidavit in these proceedings. While Professor Kleck supports licensing and background checks for purchasers as effective means of stemming gun violence, his research has caused him to be highly skeptical of the effectivity of registration schemes:

The results of this body of U.S.-based cross-sectional research are extremely consistent regarding gun registration; indeed, they are unanimous. Firearms registration laws show no statistically significant violence-reducing effect on any type of violence.

[56] The Applicant has produced its own expert affiants, most notably of Professor Wendy Cukier of Ryerson University, who take the opposing position. Professor Cukier expresses the view that even if the declining trend in gun violence began before the advent of the long-gun registry, the fact that the decline continued during the registry’s currency shows the success of the 1995 legislation.

[57] More specifically, Professor Cukier asserts that there is a causal connection between the registry and the reduction in homicide rates. As she stated in cross-examination, “without registration you don’t have that accountability and it’s not possible to enforce licensing.”

[58] The effectivity of gun registration, however, is not an opinion that is universally held, even among police officers who are the registry’s most consistent users. David Griffin, a police expert produced by the Applicant, conceded as much under cross examination:

Q: So, you would agree with me, then, that the value of the long-gun registry has been an issue of debate within the police community?

A: It’s an issue that’s been debated in the police community.

[59] Likewise, Mark Chalk, an RCMP officer and witness produced by the Applicant, testified that at most the registry was only one tool in an investigator’s arsenal, and not an indispensable one at that. He indicated that a proper investigating officer would still have to do a physical search to find all of a person’s firearms, and that a search could be done as well before as after the registry’s repeal. Sgt. Chalk therefore concluded that the registry neither helped nor hampered an investigation.

[60] This conclusion was reiterated by Superintendent Christopher Wyatt of the Ontario Provincial Police, who deposed that a search of the relevant person is done in any case, and is more reliable than any firearms registry. Likewise, Inspector Clifford O’Brien of the major crimes unit, Calgary police, testified that, “A database is not a replacement for good police work. In fact, I believe reliance on a database, such as the firearms registry, can lead to lazy policing.”

[61] This logic applies with equal force to intimate partner violence. As Inspector O’Brien put it: “I believe good police work is the most important tool for solving violent crimes, including domestic homicides, the majority of which do not involve firearms.”

[62] The police-supplied evidence on the impact of the elimination of the long-gun registry to date is also equivocal. Inspector Anil Anand of the RCMP testified for the Applicant that in 2012, with the disappearance of the registry, there was a significant drop in firearms seizures by the police nationwide; under cross-examination, however, Inspector Anand conceded that the statistics mix handguns, which are not affected by the amendments brought in by the Act, with long-guns. He also testified that gun control is a very complex matter to analyze, and that there are numerous other factors that could cause or contribute to a decline in firearms seizures.

[63] Chief Justice McLaughlin explained in Bedford, at paras 75-76, that, “[a] sufficient causal connection is sensitive to the context of the particular case and insist on a real, as opposed to a speculative link.” This insistence on non-speculative evidence harks back to the earliest days of section 7 jurisprudence. Dickson J. (as he then was) summarized the point in Operation Dismantle, at para 29:

A duty of the federal cabinet cannot arise on the basis of speculation and hypothesis about possible effects of government action. Such a duty only arises, in my view, where it can be said that a deprivation of life and security of the person could be proven to result from the impugned government act.

[64] The evidence in the record before me does not meet this standard. As counsel for the Crown states in their factum, to be successful the Applicant “must demonstrate through credible and reliable evidence that the registry had positive measurable effects prior to April 2012… The Applicant must also prove that the elimination of the registry will result in harm or an increased risk of harm.”

[65] This level of proof has eluded the Applicant. The upshot of the evidence is that the Act’s effects, especially the repeal of the registration requirement for non-restricted firearms, are debatable at best. At most, the Act arguably makes police investigations more burdensome, and even that is not a universally held view among the law enforcement and criminology experts.

[66] There is no reliable evidence that the Act actually has, or will, increase the incidence of violence or death by firearms.

d. Fundamental justice

[67] Finally, and in addition to the fact that the Applicant has not established a deprivation of life, liberty, and security of the person as required by for in a section 7 claim, the Act does not represent a denial of fundamental justice.

[68] Applicant’s counsel submit that the registry for non-restricted firearms introduced in 1995 served a public safety purpose “by reducing the rates of domestic homicide of women”, and that “[t]he removal of these lifesaving public safety measures is absolutely unrelated to the general public safety objective of the Firearms Act.” Counsel go on to argue that “the impugned amendments to the 1995 Firearms Act are arbitrary because there is no public safety purpose for their introduction”, and that “[t]here is also no evidence of any studies reviewed or public consultations held by the government prior to the enactment of the Amendment Act.”

[69] I agree with the Applicant that a statute that is “arbitrary and grossly disproportionate in its effects…[is] not in accordance with the principles of fundamental justice”: PHS Community Service, at para 127. I also agree that a statute can be characterized as arbitrary if it lacks a connection between its purpose and effect. McLaughlin CJC stated in Bedford, at para 111, that “[a] law that imposes limits on these interests [to life, liberty, and security of the person] in a way that bears no connection to its objective arbitrarily impinges on those interests.”

[70] However, the evidence in the record before me does not establish this type of arbitrariness or disproportionality.

[71] In the first place, this branch of the Applicant’s argument suffers from the same paucity of evidence from which the “life, liberty and security of the person” portion of its argument suffers. In PHS, the effect of denying health services and the concomitant increase in death and disease of injection drug users was held to be grossly disproportionate to the public safety objectives of the drug possession laws; first and foremost, however, the evidentiary record substantiated the conclusion that denial of the health services in issue would actually increase the risk of death and disease.

[72] There is no equivalent evidentiary record in the case at bar. The objective of the Act is to keep in place the screening and licensing provisions which were an effective part of the overall goal of reducing injury and death by firearms, and to eliminate the portions of the Firearms Act which were determined by Parliament to be ineffective in achieving that goal.

[73] The most that can be said on the evidence in the present Application Record is that the effects of the Act are indeterminate; indeed, much of the statistical and expert evidence indicates that the effects are potentially minimal or non-existent. It is therefore not possible to say that they are “grossly disproportionate” to anything. As the Supreme Court stated in Malmo-Levine, at para 5, with respect to the debatable effect of legislative reform, “the outcome of that debate is not for the courts to determine.”

[74] Parliament is permitted to amend the criminal law by eliminating provisions perceived to be ineffective without having to prove that there will be no impact. It is for the Applicant to prove, on the evidence, that the terms of section 7 of the Charter have actually been breached. Otherwise, the Applicant’s argument runs up against the principle that “one Parliament cannot bind its successor”: Reference re Bowater’s Pulp & Paper Mills Ltd., 1950 CanLII 44 (SCC), [1950] SCR 608, at 657. The legislature must be permitted to revise its policies and amend its enactments in accordance with the fundamental principles of parliamentary democracy.

[75] The Applicant also suggests that there were insufficient studies conducted by Parliament to support the Act. That argument, however, challenges the wisdom of the legislation more than it challenges its process of enactment.

[76] In fact, a review of the relevant portions of the legislative record verifies that government and Parliament consulted widely before passing the Act. The introductory speech by one government representative specifically cites studies and evidence presented by Dr. Cailin Langmann (a psychologist who studies suicide rates), Helene Larent (of the Quebec women’s hunting program), Linda Thom (the Canadian Olympic gold medal shooter), Gary Mauser (a criminology professor at Simon Fraser University), various police officer surveys, aboriginal voices in Western Arctic, and more: Ryan Leaf, MP, House of Commons Debates (February 15, 2012), at p. 5323.

[77] The Privacy Commissioner also addressed Parliament about the collection of gun data. At the Standing Committee on Public Safety and National Security, Dr. Étienne Blais (a criminologist from University of Montreal) gave a presentation, as did numerous police officers, representatives from Canadian Labour Congress, a number of criminal lawyers, and the Applicant’s own leading expert, Professor Wendy Cukier.

[78] The Supreme Court of Canada pronounced in Haig v Canada, 1993 CanLII 58 (SCC), [1993] 2 SCR 995, and reiterated in Native Women’s Association of Canada v Canada, 1994 CanLII 27 (SCC), [1994] 3 SCR 627, at para 49, that in considering a new policy or legislative measure, “the government is under no obligation to fund or provide a specific platform of expression to an individual or group.” There is no requirement on Parliament to have considered any particular piece of evidence before acting: Authorson v Attorney General of Canada, 2003 SCC 39 (CanLII), [2003] 2 SCR 40. In the present case, however, Parliament through its committee system did hear much of the same expert opinions and statistical evidence that is before the court.

[79] Having considered the policy options at its disposal as well as a wide array of social science, statistical, and expert evidence, Parliament made a policy choice to eliminate the long-gun registry and certain related measures. While that may run counter to the choice preferred by the Applicant and its experts, it was not flawed in any way which would implicate the fundamental justice requirement of section 7. As L’Heureux-Dubé J. stated in Haig, it is “a matter of legislative policy and not of constitutional law.”

III. Equality rights

[80] The Applicant also submits that the Act unconstitutionally discriminates against women in Canada by putting them at greater risk of injury and death by firearms, especially in situations of domestic or intimate partner violence.

[81] Section 15(1) of the Charter provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[82] The purpose of section 15(1) is to ensure “equality in the formulation and application of the law”: Andrews v Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143, at 171. It has been characterized as “a compendious expression of a positive right to equality in both the substance and the administration of the law”: Andrews, at 171, quoting Reference re an Act to Amend the Education Act 1986 CanLII 2863 (ON CA), (1986), 53 O.R. (2d) 513, at 554 (Ont CA).

[83] As with all constitutional law, the equality provision places restrictions and obligations on government, not on society at large. “The focus is on preventing governments from making distinctions based on the enumerated or analogous grounds that have the effect of perpetuating group disadvantage and prejudice, or impose disadvantage on the basis of stereotyping”: R v Kapp, 2008 SCC 41 (CanLII), [2008] 2 SCR 483, at para 25.

[84] It is important to note that Parliament must take into account the potentially disparate impact on differently situated groups in society and ensure that legislative initiatives do not exacerbate any pre-existing disadvantage of the listed or analogous groups: Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624, at para 64. As Abella J. stated in Quebec (Attorney General) v A, 2013 SCC 5 (CanLII), [2013] 1 SCR 61, at para 323, “the claimant’s burden under the Andrews test is to show that the government has made a distinction based on an enumerated or analogous ground and that the distinction’s impact on the individual or group perpetuates disadvantage.”

[85] Thus, the primary test of constitutional equality asks: “Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter?” Withler v Canada (Attorney General), 2011 SCC 12 (CanLII), [2011] 1 SCR 396, at para 2; Quebec v A, at para 325.

[86] It is equally important to note that “[t]he Charter does not place a positive obligation on government to eliminate such inequity. Rather, the government must not create inequity”: Ferrel, supra, at para 63, quoting S.E.I.U., Local 204 v Ontario (Attorney General) 1997 CanLII 12286 (ON SC), (1997), 35 OR (3d) 508, at 526 (Gen Div). Simply put, “the Charter does not go further and require that governments enact laws to remedy societal problems, including problems of inequality and discrimination”: Ferrel, at para 64.

[87] The Supreme Court of Canada has instructed that a constitutional equality analysis should proceed in two stages: “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?” Quebec v A, at para 324, citing Kapp, at para 17 and Withler, at para 30.

[88] This two-part analysis must be pursued in a contextualized manner that “avoids the pitfalls of a formalistic or mechanical approach”: Lovelace v Ontario, 2000 SCC 37 (CanLII), [2000] 1 SCR 950, at para 54.

[89] Accordingly, one cannot examine the Act in isolation, but rather one must keep in mind the social circumstances in which it is enacted as well as the broader criminal justice and law enforcement policy environment. As the Supreme Court put it in Withler, at para 38, “the multiplicity of interests it [the impugned law] attempts to balance will also colour the discrimination analysis.”

[90] Further, just as the analysis must not be a formal one, it must also not be a theoretical one. One must conduct “a full contextual inquiry”, as the Court put it in Quebec v A, at para 154. “It insists on going behind the façade of similarities and differences…The focus of the inquiry is on the actual impact of the impugned law”: Withler, at para 39.

a. A section 15(1) distinction

[91] The Firearms Act certainly had as one of its goals the protection of women against domestic violence. The Minister of Justice, in introducing that legislation, made this goal explicit:

Registration will assist us to deal with the scourge of domestic violence. Statistics demonstrate that every six days a woman is shot to death in Canada, almost always in her home, almost always by someone she knows, almost always with a legally owned rifle or shotgun.

Hon. Allan Rock, House of Commons Debates (February 16, 1995), at p. 1225.

At the same time, the Minister indicated that the protection of women was just one of many policy goals that the Firearms Act was designed to address:

We do not want to feel we need firearms for protection; we must signal in every way that we will not tolerate firearms crime; [and] respect the pastime and economic endeavor of hunting…

Ibid., at p. 1210.

[92] The stated goals of the 1995 Firearms Act are, overall, remarkably similar to the stated goals of the 2012 Act. This was made clear by the Parliamentary Secretary to the Minister of Public Safety in her introduction of the legislation:

The long gun registry is not gun control. The long gun registry does nothing to stop people from getting guns who should not have guns; for example, men who are going to harm their spouse or harm their family. The registry does not stop them from getting a gun…

I do want to mention very briefly that there are things that we are doing to fight violent crime in Canada. We have introduced a number of pieces of legislation. Any individual who commits a crime with a gun should receive a mandatory minimum sentence, which is exactly what we put in our tackling violent crimes legislation. Some would say that it should even be longer. Our legislation has mandatory minimum sentences of four years. If it is a gang-related gun activity, it will be five years…

We have also brought in tougher bail provisions for those who use weapons in the commission of a crime… We have also delivered on our promise to provide more police officers across the country. Ending the long gun registry is part of keeping the focus on making our streets safer, not on policies and laws that do not actually prevent crime.

Candice Hoeppner, MP, House of Commons Debates (October 26, 2011), at p. 2576, paras 1329-36.

[93] Accordingly, a comparison of the publicly announced policy goals of the Act with those of its predecessor shows no discriminatory intent. The conscious intent of the Act is to advance the very same policy goals as the 1995 legislation, and to do so by making the firearms regulatory environment all the more effective.

[94] If the Applicant is to have an argument that establishes differential treatment, it will once again boil down to a statistics-based effects analysis.

[95] The Applicant’s section 15(1) case is premised on a presumption that a causal link will be established by demonstrating a decrease in domestic altercations leading to death by firearm during the period in which the registry was in force, compared to the previous or subsequent periods. However, as counsel for the Crown points out in their factum, “[g]iven the large number of factors which have contributed to the declining rates of both firearms violence and domestic violence, without a specific and rigorous study that sought to isolate the impact of the registry, there is no basis to infer a causal connection.”

[96] As if proving the Crown’s point, counsel for the Applicant emphasize in their factum the data demonstrating that, “[s]pecifically, the rates of homicides of women with non-restricted firearms have decreased more than the rates of homicides of men with firearms.” This use of statistical data is a paradigm case of confusing causation with correlation. The two studied phenomena – the decrease in homicides of women and the registration of non-restricted firearms – may correlate in time and in trend but, absent more, a causal link cannot be presumed from the correlation. The argument suffers from what statisticians have labelled a “third-variable problem”.

[97] The methodological point is illustrated effectively by a now renowned 1975 study by sociologists and physicians in Taiwan which tried to identify patterns of birth control use. As one scholar has described it:

They collected data on various behavioral and environmental variables and found that the variable most strongly correlated with contraceptive use was the number of electrical appliances (yes, electrical appliances – stereos, toasters, televisions, and so on) in the home. If we take this correlation at face value, it means that individuals with more electrical appliances tend to use contraceptives more, whereas those with fewer electrical appliances tend to use contraceptives less…

The problem here is a third variable… If you thought of education, you are beginning to understand what is meant by third variables.

Sherri L. Jackson, Research Methods and Statistics: A Critical Thinking Approach (4th edn., 2012), at p. 155.

[98] Just as education might be the missing causal link between the otherwise correlated incidents of contraceptive use and home appliance ownership, the economy, changing demographics, other law enforcement policies, or any number of sociological factors might be the missing causal link between domestic homicide rates and long-gun registration.

[99] This is just one more illustration of the reason that the legal system has long expressed skepticism over the use of statistical “proofs”. The California Supreme Court has observed that there is “no inherent incompatibility between the disciplines of law and mathematics” where statistical data is used as “an auxiliary in the fact-finding process”, People v Collins, 68 438 P.2d 33; at the same time, it has warned that “[m]athematics, a veritable sorcerer in our computerized society, while assisting the trier of fact in the search for truth, must not [be allowed to] cast a spell over him.” Ibid., at 33.

[100] Most famously, U.S. constitutional law scholar Laurence Tribe has inveighed against the tendency to rely on uncritical use of statistical “proofs”, contending that reliance on such data skews the value of proof inherent in the legal process. See L. Tribe, “Trial By Mathematics: Precision and Ritual in the Legal Process”, 84 Harv. L. Rev. 1329 (1971). The point made by Professor Tribe and others is well illustrated by the Applicant’s very argument – i.e. not that there is no place for statistical data, but rather that statistical data can rarely, if ever, do the work of proof on its own.

[101] In the present case, even Professor Cukier has testified that the number of male homicide victims involving non-restricted firearms has dwarfed the number of female victims, both before and during the registry period: 1115 male victims compared to 703 female victims. Other data in the record demonstrates that men are also statistically more likely to die from accidents or to commit suicide with firearms than are women. Overall, there has been a downward trend in female victims of firearm violence beginning a full ten years prior to the 1995 Firearms Act.

[102] Turning to the context of violence by intimate partners, the statistics likewise do not unequivocally support the claim that women especially benefitted from the long-gun registry. There is conjecture but no reliable evidence that women will be especially disadvantaged by the registry’s elimination. Although like all of the other statistical data it is not a conclusive point, one RCMP witness did note that in Toronto in 2013 – with no long-gun registry in operation – 100% of the firearms murder victims were male.

[103] Even the Applicant’s one first-hand witness – Jane Doe, who describes in an affidavit her personal experience with domestic firearms and violence – concedes that a registry for non-restricted firearms does not address the very real possibility that a registered weapons owner has unregistered weapons. The matter is a complex one from every angle that it is viewed. The Supreme Court of Canada has advised that while the police must take all due care in circumstances where there is a specific, known risk of violence or harm, public authorities cannot be held to a standard which measures all risk to the public or to all potential victims of crime: Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 SCR 129, at para 130.

[104] Professor Cukier also produced evidence that shows that firearms used to kill women are not necessarily legally owned, and therefore are not necessarily of the type covered by the cancelled registry. This fact is borne out by Statistic Canada’s study “Firearms and Violent Crime”, which reports that 7 out of 10 guns used in homicides are unregistered.

[105] Accordingly, the statistical, expert, and other evidence in the record is equivocal; it cannot be said to support the allegation of disadvantage for women advanced by the Applicant.

[106] Even if the statistics were fully supportive of the Applicant’s case, the data would always have to be viewed within the context of the Criminal Code and the government’s law enforcement policies as a whole. As counsel for the Crown put it, “[t]his is because it is only when one considers the effect of the impugned provisions in the broader social and legal context that the court is able to truly assess whether the negative impact alleged is tied to the persona characteristic of gender.”

[107] As already indicated, the government has in recent years enacted a cluster of changes to the Criminal Code, including the imposition of minimal sentences, the increased severity of punishments for young offenders, the more rigorous bail requirements, and, of course, the continuation of firearms licensing, background checks, spousal notifications, etc. There is nothing in the record that could help shed light on how these changes to and reinforcement of the criminal justice environment factor into the statistics presented by the Applicant.

[108] Without some explanation of causation, one cannot presume that positive trends are a result of the 1995 long-gun registry. Moreover, without a broader, contextualized view of contemporary criminal justice measures, one cannot determine whether the registry had any causal impact or was merely coincident with the advent of more effective policies.

[109] There is, accordingly, no reliable evidence that the Act has caused and/or perpetuated, or that it will cause and/or perpetuate, a distinction based on gender.

b. The lack of discrimination

[110] Even if the Act were found to create a distinction in its treatment of men and women, the Applicant would have to show it to be a discriminatory distinction in order to make out an equality rights case. This would entail an analysis of whether the Act perpetuates disadvantage or stereotyping of women: Withler, at paras 35-36.

[111] As indicated, this assessment of the legislation must be “not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation”: Ibid., at para 37. It must, in other words, pursue “a contextualized understanding of a claimant’s place within a legislative scheme…” Ibid., at para 65.

[112] In order to be contextualized, the impugned Act must not be disembodied from the larger legislative context of the Firearms Act of which it is part. Since the Act amends a pre-existing piece of legislation, the question of whether it is discriminatory must be answered by examining the remaining post-amendment legislative scheme.

[113] As already noted, the government has pursued a multi-faceted approach to the control of firearms and violence. Counsel for the Crown submits that the Minister of Public Safety and his Parliamentary Secretary have identified “(1) smart prevention; (2) effective policing; and (3) tough and effective laws, including sentencing laws that deter crime and tougher bail provisions for those who use weapons in the commission of a crime”. See Hon. Vic Toews, House of Commons Debates, No. 37 (October 26, 2011), at p. 2534; Candace Hoeppner, MP, House of Commons Debates, No. 146 (October 27, 2011), at p. 2576.

[114] The post-amendment Firearms Act has numerous provisions that remain intact that are designed to ameliorate the circumstances of women who may be subject to intimate partner violence. These include licensing requirements for all firearms owners, spousal consent to all firearms license applications or renewals, spousal notification during the application process, mandatory safety training for firearms licensees, and continuous eligibility screening for firearms licensees. As the Parliamentary Secretary for the Minister has stated, these measures reflect the government’s, and Parliament’s, carefully considered policy choices for addressing the problem of domestic violence: Candace Hoeppner, MP, House of Commons Debates, No. 146 (October 27, 2011), at p. 2576.

[115] Each of these parts of the overall legislative package is specifically designed with a view to the risk factors that have been identified by Parliament. In its totality, it is a scheme that the Crown describes as “address[ing] the circumstances of women, while at the same time seeking to reduce other types of harm from firearms that primarily affect other groups.” It neither stereotypes women nor increases any disadvantage or risks which they already suffer; rather, it seeks a balance between criminal law sanctions, regulatory restrictions, and facilitation of police work that is geared toward violence reduction.

[116] The context of crime and violence reduction is a complex one, involving intertwined considerations of resource allocation, economics, sociology, and criminology in order to be properly addressed. The Supreme Court of Canada observed in M v H, 1999 CanLII 686 (SCC), [1999] 2 SCR 3, at para 79, “[t]hese policy choices may be of the type that the legislature is in a better position than the court to make, as in the case of difficult policy judgments regarding the claims of competing groups or the evaluation of complex and conflicting social science research.”

[117] There are any number of ways to approach the problem of firearms violence, “and no certainty as to which will be the most effective”: Canada (Attorney General) v JTI-Macdonald Corp., 2007 SCC 30 (CanLII), [2007] 2 SCR 610, at para 43. For this reason, “[t]he primary responsibility for making the difficult choices involved in public governance falls to the elected legislature and those it appoints to carry out its policies”: Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), [2009] 2 SCR 567, at para 37.

[118] Given the nature of the subject matter and the indeterminacy of the evidence, the Act, taken in its full legislative context, does not create or perpetuate existing disadvantage or prejudice experienced by Canadian women. The Act is an amendment to an overall legislative scheme which has and is expected to continue to reduce firearms injury and death; as such it works to the advantage of women in all settings, including in situations of domestic violence.

[119] Accordingly, the section 15(1) standard for gender discrimination has not been met.
III. Reasonable limits

[120] Given my finding that the Act does not infringe either section 7 or section 15(1) of the Charter, there is no reason to ask whether any infringement can be saved under section 1. The Act does not represent a violation of constitutional rights, and so there is nothing which needs to be justified as a reasonable limit in a free and democratic society.

[121] That said, one can conclude relatively quickly that the Act would meet the ordinary test under section 1, as originally articulated in R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103. The test has recently been summarized by the Supreme Court in Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21 (CanLII), [2010] 1 SCR 721, at para 19: “the government must justify its action by identifying a pressing and substantial objective, by demonstrating that there is a rational connection between the objective and the infringement, and by showing that the means chosen interferes as little as possible with the right and that the benefits of the measure taken outweigh its deleterious effects.”

[122] The same posture of analyzing the impugned statute “flexibly, having regard to the factual and social context of each case”, RJR-Macdonald Inc. v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, at para 132, is to be applied to the section 1 analysis as is applied to its overall interpretation. With that in mind, the Act, which is part and parcel of the Firearms Act and which works in coordination with numerous sections of the Criminal Code, has an objective that would pass the first stage of the section 1 test.

[123] The firearms legislative scheme, of which the Act is one part, embodies “three fundamental policies: the deterrence of the misuse of firearms, general controls on persons given access to firearms, and controls placed on specific types of firearms”: Firearms Reference, at para 20. These are pressing and substantial objectives that any government would be justified in pursuing.

[124] The next stage of the section 1 analysis calls for an assessment of the rational connection between the Act and its objectives. As the Dickson CJC put it in R v Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 SCR 713, at para 127, “[t]he requirement of rational connection calls for an assessment of how well the legislative garment has been tailored to suit its purpose.”

[125] The expert evidence produced by the Crown has demonstrated that the licensing of firearms, and the background checks and spousal notifications that are part of the licensing process, are effective measures in reducing firearm violence, particularly in the intimate partner context. As discussed in Part I above, the evidence of Professors Kleck, Stenning, and other experts that support the Crown has also indicated that the registration of non-restricted firearms was ineffective in reducing such violence.

[126] In view of this evidentiary record, the Act’s repeal of the registration regime for non-restricted firearms, and its maintaining the effective parts of the Firearms Act and bolstering them through Criminal Code amendments, are not arbitrary or unfair measures. The repeal portion of the Act is a self-contained, surgical repeal of the long-gun registry which leaves the rest of the scheme intact and which is done in order to augment the effectiveness of the overall legislation. In this respect, it is “carefully designed to achieve the objective in question”, Oakes, at 139, and passes the second stage of the section 1 test.

[127] It is important under the Oakes test for government to establish not just that the Act’s means are rationally connected to its objective, but that the impairment of rights is a minimal one. In making this assessment, however, the courts have been admonished to grant Parliament a measure of deference, “particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives”: Hutterian Brethren, at para 53.

[128] It is obvious from the debate among the social science experts in the record that the sociological and criminological issues that underlie the design of firearms policy are complex. The very debate among the experts reveals that the ability of social science to distinguish with any precision the effective from the ineffective portions of government policy in this area is limited.

[129] Further, no credible measure has been proposed which would accomplish Parliament’s stated task of preserving the effective firearms control measures while eliminating the ineffective registry which burdens owners of non-restricted firearms with potential criminal penalties. The long-gun registry could not be preserved as a property registration scheme without the accompanying criminal sanctions; the Supreme Court held in the Firearms Reference, at paras 34, 39, that the overall scheme is only justifiable as federal legislation on the basis of the criminal law power in section 91(27) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (UK). The long-gun registry had to either remain part and parcel of the overall criminal law regime under the Firearms Act, or be eliminated altogether.

[130] Given the complex objective of augmenting effective firearms control and eliminating burdensome ineffective measures, the Act stands as a minimal amendment to the overall firearms control scheme.

[131] Finally, the Supreme Court recognized in Dagenais v Canadian Broadcasting Corporation, 1994 CanLII 39 (SCC), [1994] 3 SCR 835, at 839, that in “the third step of the proportionality branch that there must be a proportionality not only between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, but also between the deleterious and the salutary effects of the measures.” Under a full section 1 analysis it would be necessary “to assess the competing harms and determine whether the salutary effects of [the impugned firearms policies]…outweigh the deleterious effects [of the elimination of the non-restricted firearms registry]”: R v. NS, 2012 SCC 72 (CanLII), [2012] 3 SCR 726, at para 8.

[132] The Act has been characterized by the Crown as one that “strikes an appropriate balance between the rights of validly licensed non-restricted firearms owners and the interests of the public at large.” Criminal penalties continue to apply to the licensing and other portions of the Firearms Act that protect public safety, while the amendments embodied by the Act address the concern that the registration of non-restricted weapons did little more than “to burden law-abiding farmers and hunters with red tape” – a concern that the Supreme Court has characterized as “properly directed to and considered by Parliament”: Firearms Reference, at para 57.

[133] The record establishes that this point was made to the appropriate legislative committee, and that Parliament has now acted to relieve a burden from those who use non-restricted firearms for legal purposes. See Privacy Commissioner Jennnifer Stoddart, Standing Committee on Public Safety and National Security, No. 13 (November 22, 2011). As Gonthier and Binnie JJ. expressed it in Malmo-Levine, at para 133, the Applicant’s challenge to this legislative choice in effect invites the court to engage in the “micromanagement of Parliament’s agenda.”

[134] Iacobucci J. noted in R v Mentuck, 2001 SCC 76 (CanLII), [2001] 3 SCR 442, at para 37, that ” [i]t also bears repeating that the relevant rights and interests will be aligned differently in different cases, and the purposes and effects invoked by the parties must be taken into account in a case-specific manner.” Thus, one must keep in mind that “the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting”: Thomson Newspapers Co. v Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 SCR 877, at para. 87.

[135] I have already found that the evidentiary record presented by the Applicant falls short of establishing that the Act will produce harmful consequences, and at most makes a debatable case that it may increase certain risks. In that evidentiary context, the benefits of decriminalizing the non-restricted firearms registry and bolstering the balance of the firearms regime outweigh the any potential deleterious effects.

[136] The Act therefore satisfies the proportionality requirement of section 1. Even if it were to infringe rights under sections 7 and/or 15(1) of the Charter – which in my view it does not – it would be justified as a reasonable limit on those rights.

[137] In the result, there is nothing that takes the Act outside of “the broad latitude within which the Constitution permits legislative action.” Malmo‑Levine, at para 175.

IV. Disposition

[138] The Application is dismissed.

[139] Counsel may make brief written submissions as to costs.

[140] I would ask that counsel for the Crown provide me with their submissions within two weeks of the date that these reasons are released. If counsel for the Chief Firearms Officer wishes to make submissions, he should likewise provide those within two weeks. I would ask that counsel for the Applicant provide me with their submissions within three weeks of the date of these reasons.

Morgan J.
Released: September 8, 2014

CITATION: Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140
COURT FILE NO.: CV-12-453809
DATE: 20140908

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Barbra Schlifer Commemorative Clinic

Applicant

– and –

Her Majesty The Queen In Right of Canada as represented by The Attorney General of Canada, The Commissioner of Firearms, The Registrar of Firearms and The Chief Firearms Officer

Respondents

REASONS FOR JUDGMENT

E.M. Morgan J.

 

Released: September 8, 2014