That was the verdict delivered last week by the Ontario Provincial Police (OPP). They were tasked with looking into four potential offences with respect to the destruction of long-gun registry data by the RCMP in 2012.
The office of the federal information commission issued a report to Parliament last spring highlighting that the RCMP destroyed long-gun registry files even though they knew the data was part of an active investigation under the Access to Information Act. The investigation has been dropped because the OPP found the alleged offences are no longer valid.
The inner workings of government
Who’s doing what to get federal policy made. In The Functionary.
The inner workings of government
Who’s doing what to get federal policy made. In The Functionary.
How so? It’s a complicated case that began with a simple access to information request and culminated in retroactive legislation. The federal government retroactively amended a bill in an apparent attempt to clear the RCMP of actions that would otherwise be deemed illegal. The problem is, there’s no precedent in Canadian parliamentary procedure for retroactively amending a bill. According to our Westminster-style parliamentary system, a legislature can only amend a law not a bill.
This is a clear violation of the rule of law and parliamentary practice so the government should be held to account.
We are not the only ones to think so. Last month, we, along with a group of 80 mainly law and political science colleagues, wrote an open letter to the Prime Minister, asking him to repeal the retroactive amendments made to the Ending the Long-gun Registry Act (ELRA). We drew attention to the serious breach of the rule of law that has resulted from the amendments which were folded into the Omnibus Budget Bill passed just before Parliament rose for the summer.
The letter points out that under the rule of law “a government should not decriminalize its own actions if they were illegal at the time they were committed.”
Here’s how it unfolded: The Ending the Long-gun Registry Act became law in April 2012, but it was introduced as Bill C-19 on October 25, 2011. The Act authorized destruction of records in the gun registry but due to the pending request under the Access to Information Act, the Information Commissioner, Suzanne Legault asked then Public Safety Minister Vic Toews, to preserve the record until the request was resolved.
The Minister assured Legault that he would comply with her request, but documents produced by Legault reveal that at the same time these assurances were given, the RCMP was asked to accelerate destruction of the records.
The inner workings of government
Who’s doing what to get federal policy made. In The Functionary.
The inner workings of government
Who’s doing what to get federal policy made. In The Functionary.
In June 2015 the government inserted amendments to the ELRA into the Omnibus Budget Bill. These retroactively exempt the ELRA from the Access to Information Act.
Retroactive legislation is rare, but not unprecedented. What is unprecedented is making retroactive amendments to a Bill rather than an Act. The government has argued that it is legitimate to back-date the amendments to Bill C-19, rather than the ELRA because “the will of Parliament” had been expressed in October 2011.
This is an interesting if somewhat misleading take on parliamentary procedure. As every MP knows, there are many stages in the passage of legislation: three readings in the House of Commons and three in the Senate before it receives Royal Assent and becomes law. The government is inferring that the will of Parliament is expressed from First Reading of a bill. In the case of Bill C-19, the will of Parliament was expressed only when the ELRA was enacted in April 2012.
What must be emphasized is that in our Westminster-style parliamentary system, it is not possible to pass retroactive amendments to a bill, in this case, Bill C19. A legislature can only amend a law.
The crux of the matter is that amendments made by the Harper government to the ELRA back-dated to October 2011, are procedurally invalid (a nullity) and most likely lack legal validity. Legault has launched a constitutional challenge of the government’s retroactive changes to the bill – a case that may take years to be resolved.
In the meantime, it is vital that the Conservative government’s disdain for parliamentary procedure and the rule of law should be a critical part of the federal election dialogue. To ignore it would do serious damage to Canadian democracy.
Photo: Paul McKinnon / Shutterstock.com
