The Liberal government has taken steps to duck a court order seeking hundreds of documents that Prime Minister Justin Trudeau and his cabinet relied on to ban hundreds of thousands of semi-automatic rifles and other weapons last year.
In a surprise move 10 days away from a deadline to produce the material, the government served notice this week that it will not comply with a Federal Court order to provide cabinet documents and records behind the sudden imposition of the sweeping firearm ban.
Instead, the government has turned to a section of the Canada Evidence Act that can prevent access by courts to cabinet documents, memos and other material to keep information from cabinet deliberations confidential.
The move sparked a storm among firearm owners and groups who began filing court challenges soon after the Liberals enacted the ban without notice on May 1, 2020. The requests for government documents behind the ban were filed early in the case and the government denied the requests last September on cabinet confidence grounds.
Federal Court Associate Chief Justice Jocelyne Gagné issued the order for cabinet documents on condition that only she would review them to determine whether public interest in disclosure outweighs cabinet secrecy.
Gagné said in a ruling released last May 27 that the government had not produced a specific certificate under the same section of the Canada Evidence Act verifying the documents and records as cabinet confidences.
“In my view, as a result of the choice made by the Respondent (government) not to produce a Section 39 certificate, the common law now applies and this Court has to review the materials before the GIC (Governor in Council and cabinet) and balance the interests at stake,” Gagné said in her decision.
“If the clerk (of the Privy Council) chooses to certify a confidence, it gains the protection of Section 39,” her ruling said. “Once certified, information gains greater protection than at common law.”
In a letter sent to Gagné this week through the Federal Court Registrar, the senior Department of Justice lawyer in the Prairie Region, Bruce Hughson, informed Gagné that the clerk of the Privy Council, who is designated on the Privy Council website as an interim clerk and deputy minister to the prime minister, had invoked Section 39 of the Canada Evidence Act to certify that the cabinet documents constituted cabinet confidence.
“As a result of the certification by the clerk, pursuant to S. 39, disclosure of the information shall be refused without examination or hearing of the information by the court,” the letter said.
“Consequently, the attached S. 39 certificate is an absolute bar to filing with the Court under seal the information encompassed by the Order,” it said.
A statement on the development posted online by the Canadian Coalition for Firearm Rights (CCFR) suggested the government wants to keep the documents and records secret.
“This is an action that the clerk of the Privy Council can take to “make secret” any materials the government doesn’t want the public to see,” the statement said.
“This puts the materials, in this case the government’s evidence, beyond the reach of anyone, even the courts,” it said. “Supposedly, this sweeping power is exercised when the material is so sensitive, it is against the public interest to disclose it.
“What is in the government’s evidence that’s so secret or such a danger to national security that even the associate chief justice of the Federal Court of Canada can’t see it?” the statement said.
The CCFR post said the coalition’s legal team in the court challenge will contest the move.