OTTAWA - The Harper government moved to retroactively rewrite Canada's access to information law in order to prevent possible criminal charges against the RCMP, The Canadian Press has learned.
An unheralded change buried in last week's 167-page omnibus budget bill exempted all records from the defunct long-gun registry, and also any "request, complaint, investigation, application, judicial review, appeal or other proceeding under the Access to Information Act or the Privacy Act," related to those old records.
The unprecedented, retroactive changes — access to information experts liken them to erasing the national memory — are even more odd because they are backdated to the day the Conservatives introduced legislation to kill the gun registry, not to when the bill received royal assent.
The date effectively alters history to make an old government bill come into force months before it was actually passed by Parliament.
A source familiar with the complaint, speaking on condition of anonymity due to its sensitivity, said the government moved out of concern Information Commissioner Suzanne Legault is poised to recommend charges against the Mounties for withholding — and later destroying — gun registry documents while the legislation was still being debated.
Indeed, shortly after the story broke Wednesday, Legault's office announced it would be tabling a special report Thursday detailing an investigation into the long gun registry and an access to information request.
The government feels no one should face a penalty for being overly eager to enforce the will of Parliament before the legislation had been voted into law.
A spokesman for Public Safety Minister Steven Blaney would only say the retroactive law will fix a "bureaucratic loophole" that allowed citizens to request heavily redacted copies of the gun registry data while the legislation to destroy the data was before Parliament.
"This clearly goes against the will of Parliament that all copies of the registry should be destroyed," spokesman Jeremy Laurin said in an email response.
"This technical amendment re-enforces this point."
Legault's office refused to discuss any investigations, citing confidentiality provisions, or even to comment on the government's rewrite of the access-to-information law.
Spokeswoman Josee Villeneuve said in an email the mandate of the commissioner's office is to investigate compliance with the Access to Information Act by federal institutions and make findings of fact.
"The office is not a court or tribunal, and the commissioner has no authority to determine civil or criminal liability. She therefore cannot lay charges against individuals," Villeneuve wrote.
Justice Minister Peter MacKay offered a cryptic comment Wednesday, saying the reasons for the retroactive changes are "complicated," adding, "There are other areas that we're dealing with, quite frankly, partly at the Department of Justice."
The retroactive changes in the budget bill leave access-to-information experts aghast.
"I find this provision almost Orwellian," said Fred Vallance-Jones, an associate professor at the University of King's College in Halifax and an expert in access to information law.
"It seeks to rewrite history, to say that lawful access to records that existed before didn't actually exist after all, and that if you exercised your quasi-constitutional right of access to those records, well too bad, you're out of luck."
The government is setting a precedent to move retroactively on any record it doesn't want exposed, Vallance-Jones said.
Michel Drapeau, a lawyer, former military colonel and access-to-information author, noted there has never been a charge laid under the Access to Information Act, let alone a conviction.
He said the rationale of moving retroactively to prevent a possible prosecution is "a dangerous and unwelcome precedent" that should be as unwelcome to the RCMP and the administration of justice as to freedom-of-information wonks.
"The optics of it are not good: 'Oh, so that's the way it works now?' If you do something against the law in the RCMP, you've got your friends in high places, they change the law," said Drapeau.
"The correcting mechanism, if that's what they've done, is worse than the actual crime."
Some in the gun-owning community suspect the RCMP has actually preserved gun registry data for its own investigative purposes, and that the blanket, backdated exemption on record searches inserted into the omnibus budget bill is a means of keeping that revelation under wraps.
"The only thing I can figure out is they don't want to be confronted anywhere anymore," Dennis Young, a former Reform party staffer on Parliament Hill and an honorary life member of the country's two biggest firearms advocacy associations, said in an interview.
Young said he's raised his concerns directly with the public safety minister's office.
"As soon as I asked them about that, they shut right up. They don't want to talk about that at all."
In March, the information commissioner tabled a special report on problems with the 30-year-old Access to Information Act which documented years of deficiencies and the desperate need for reform.
Vincent Kazmierski, associate professor in the Department of Law and Legal Studies at Carleton University, said all the strikes against the existing legislation already make it a poor vehicle for public disclosure.
"To see that the same government is now using omnibus legislation to introduce retroactive limitations on our already limited access rights and potentially to eliminate ongoing ATI investigations should be alarming to anyone concerned with the effectiveness of our democratic process."
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