Statement: Essential milestone reached in the Federal Court case T-785-15

Gatineau, Quebec, June 23, 2015 – In the case of The Information Commissioner of Canada v. The Minister of Public Safety and Emergency Preparedness, the Federal Court (T-785-15) made the following order:

1. The records at issue in this Application shall be preserved in their current form and shall not be destroyed by the Minister of Public Safety and Emergency Preparedness and the Commissioner of Firearms or any person acting on their behalf until the final disposition of this Application or the Court orders otherwise;
2. The Minister of Public Safety and Emergency Preparedness and the Commissioner of Firearms shall ensure that the external hard drive, as described in paragraph 13 of the affidavit of Jennifer Walsh affirmed on June 15, 2015, shall be delivered in person to the Registry of the Federal Court [Registry] no later than 10:00 a.m. on June 23, 2015;
3. The external hard drive shall be filed with the Registry under seal until the final disposition of this Application (and all other appeals have been exhausted) or the Court orders otherwise.

"This order is an essential milestone to protect the rights conferred by the Access to Information Act until the end of the proceedings," said Information Commissioner Suzanne Legault. "Without such an order, the information could have been destroyed following the coming into force of Division 18 of Bill C-59."

In a parallel proceeding, the Information Commissioner is challenging the constitutionality of sections 29 and 30 of the Ending the Long-gun Registry Act (as amended by Division 18 of Bill C-59). This application was filed in the Ontario Superior Court on June 22nd, 2015. On June 23, 2015, the matter was transferred to the Divisional Court for further determination.

"Changes in Bill C-59 set a perilous precedent," said Legault. "As Information Commissioner, it is my duty to protect Canadians’ quasi-constitutional right to know."

Division 18 of Bill C-59 states that, retroactive to October 25, 2011, the Access to Information Act (the Act) does not apply to any records and copies of the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms. Bill C-59 further specifies that any ongoing action (request, complaint, investigation, application, judicial review, appeal) or other proceeding under the Act since October 25, 2011 must be determined in accordance with the section of the Bill that provides that the Act does not apply.

The Bill also provides that the ELRA prevails over any other Act of Parliament in case of inconsistencies and that the destruction of the records shall take place despite any requirements to retain the records or copies. Finally, Bill C-59 absolves the Crown of any liability for the destruction or any act or omission done during this period in purported compliance with the Act.

The Information Commissioner tabled a Special Report to Parliament in May on an investigation into an access to information request for the Long-gun Registry. In the Report, the Commissioner stated that Division 18 of Bill C-59, the Economic Action Plan 2015 Act, No. 1 proposes to retroactively quash Canadians’ right of access and the government’s obligations under the Access to Information Act.