Last week Information Commissioner Suzanne Legault put out a rather damning special report, and raised a very important warning not that the vast majority of MPs seem to have paid any attention. Legault found that the RCMP had illegally deleted records related to the long-gun registry that were related to an Access to Information request, and when she found wrongdoing, she recommended that the Attorney General lay charges. The government, however, has already gone ahead to put a little gem in their current omnibus legislation that would retroactively protect the RCMP from liability.
Let that sink in for a second. The RCMP broke the law, and the government of the day is going to change the law retroactively so that they didn't actually break it. The legislative metaphysics of it a bit staggering in and of itself, and the justification made by the government that they were just trying to "close a loophole" doesn't actually hold water because the RCMP broke the law. They impeded an Access to Information request before the destruction of the long-gun registry had passed into law, which is illegal. That it was about the long-gun registry should be incidental to the facts at hand, and the fact that they were following the orders of the government of the day does raise questions about their independence given that the law at the time stated that they should have complied with the request.
When justifying the move, Harper insisted that the RCMP was obeying the "will of Parliament," which is false. The destruction of the long-gun registry was still a bill, not law, and a bill, even if it has passed second reading (agreement in principle), is not the will of Parliament. When the requests were made, Legault got assurances from the minister at the time, Vic Toews, that they would not destroy the records being requested. They did, illegally, despite assurances. And the fact that the government has buried this attempt to make it retroactively legal in the omnibus budget implementation bill, where it won't get much scrutiny or debate, let alone a standalone vote, is also a problem.
None of this is to say that a government can't enact retroactive legislation, because they clearly do have that power with the exception of criminal law. In those cases, there are constitutional guarantees, particularly around sentencing, but otherwise, it's game on. In fact, the Supreme Court of Canada has confirmed that governments have this power, and they are unlikely to interfere if this becomes a court challenge because they would rightly see it as a political issue, for which people should be engaged about it at the ballot box. But that would mean that it would need to be raised as an issue.
To date, we have heard almost nothing in Parliament about this particular retroactive proposal. Since the alarm was raised, it has been the feature of a mere three questions in QP one on Thursday, two on Friday, both days near the end when most people have tuned out, and all three questions raised by Wayne Easter (who, for the record, is a former Solicitor General and was the minister responsible for the RCMP during his tenure). When Conservative backbenchers praised this "closing the loophole" in members' statements, Easter loudly heckled "The law is the law," because he's someone who gets it. Apparently the Official Opposition, who is supposed to be holding the government to account, couldn't be bothered to ask about it, which is both depressing and alarming.
Why is this alarming? Legault herself laid out why this sets a precedent for what future governments could do, particularly majority governments. Afraid the Auditor General has a damning report on an Adscam-like fiasco on the way? Retroactively change the enabling legislation so that the report is out of line. Was there an issue of electoral fraud in the previous election? Change the law retroactively so that what happened was legal. Both of these examples are not simply being alarmist they're cases where we have had issues in the past that this kind of move by the current government could have been employed to protect themselves, and now they are laying the groundwork to make it acceptable to do so in the future.
The right to Access to Information is quasi-constitutional, and while the government is trying to make this an issue about the long-gun registry a godsend for their fundraising efforts in advance of the election it has nothing to do with that in actual fact. While the RCMP claims that they complied with the law and cooperated with Legault, she insists they did not. By destroying the records in the manner that they did, they ensured that the requester of that information can't register a complaint about the information that was obtained, and it impedes their ability to apply for judicial review in Federal Court. In other words, due process is being denied because of the illegal destruction of that data, for which there is a quasi-constitutional right to have. It's a big deal.
While the government will try to excuse what happened with the argument that it's just a loophole, no big deal, Legault has pointed out that it is not a loophole. "This is an attempt to erase potential civil, criminal and administrative liability," she stated, and she's right. And this lays out the precedent for a future government to excuse themselves from liability based on this very same action.
But from here, this is going to move into the political arena, since it's not likely the courts will interfere. The fact that this was buried in the omnibus budget bill means that it will pass regardless, because even if there are Conservative MPs who disagree with it, the bill is a confidence matter, and they will be whipped. It would just be nice if someone on the opposition benches other than Wayne Easter could bother to sound the alarm on this.
