On March 27, 2015, the Supreme Court of Canada released its decision on the Québec long-gun registry. In Québec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, the question facing the Court was whether the Québec government had the right to use information collected in Québec as part of the federal government’s now-dismantled long-gun registry. In a 5-4 decision, the Court held that the Québec government has no right to access the long-gun registry information.

The decision centred around three issues:

  1. Is s 29 of An Act to amend the Criminal Code and the Firearms Act, SC 2012, c 6 (otherwise known as the Ending the Long-gun Registry Act (“ELRA”)) ultra vires Parliament’s criminal law power?
  2. Does the principle of cooperative federalism prevent Parliament from legislating to dispose of the data?
  3. Does Québec have the right to obtain the data?

Section 29 is within Parliament’s constitutional criminal law legislative power

The majority held that s 29 of the ELRA is a lawful exercise of Parliament’s criminal law legislative power under the Constitution.

Québec submitted that the pith and substance of s 29 is to prevent the long-gun registry from being continued through provincial legislation and that, because the destruction of the data would make it prohibitively expensive for the province to create its own long-gun registry, s 29 encroaches on the provincial legislature’s ability to exercise its powers relating to the administration of justice, public safety and the prevention of crime, and the social costs associated with crime. Further, Québec argued that s 29 cannot be a valid exercise of Parliament’s criminal law power because it is not aimed at preventing crime or at decriminalizing any conduct.

Canada simply asserted that s 29 was an exercise of Parliament’s criminal law jurisdiction and that the practical effects on the provinces of destroying this data does not alter the provision’s pith and substance.

The majority characterized s 29 by looking to the scheme in the Firearms Act which the provision was undoing. In Reference re Firearms Act (Can.), [2000] 1 SCR. 783, the Court determined that the pith and substance of the scheme enacted by the Firearms Act fell within Parliament’s jurisdiction under the criminal law head of power. The majority reasoned that the repeal of the same scheme must be characterized in the same way. 

Discussing the “colourability” doctrine, the majority opined that courts must be careful in applying this doctrine as it requires the characterization of a statute, which in form appears to relate to a head of power of the government that enacted it, while in substance addresses a matter falling outside its jurisdiction. The majority warned “there is a danger that any broader application of the colourability doctrine may lead the courts to exceed their role of determining the constitutionality of legislation and, instead, express disapproval of either the policy of the statute or the means by which the legislation seeks to carry it out” The majority observed that impact upon a constitutional interest outside Parliament’s jurisdiction, with nothing more, is clearly not enough to find that a statute encroaches upon the jurisdiction of the provincial government. Because s 29 of the ELRA did not in any way limit Quebec’s legislative authority to create a provincial long-gun registry, the majority concluded that s 29 was a valid exercise of Parliament’s criminal law power and was not a colourable attempt to interfere with provincial competence.

Finally, the majority noted that, since the provinces do not have the power to destroy records under the federal government’s control, if Parliament did not have the power to destroy records under its control and created under a validly enacted federal legislative scheme, this would run afoul of the principle that the Constitution Act, 1867 provides for a complete division of powers between both levels of government.

The dissenting judges recognized that the pith and substance and ancillary powers doctrines have been applied to allow a government to validly pass legislation affecting the other level’s jurisdiction. However, they insisted that these doctrines cannot be fully understood without reference to co-operative federalism. In the dissenting judges’ view, the pith and substance doctrine, and associated ancillary doctrine (one might add paramountcy and interjurisdictional immunity), recognize and favour a flexible application of the division of powers and recognize a significant overlap between the federal and provincial areas of jurisdiction.

The unwritten principles of federalism and, most important, co-operative federalism must “infuse the analysis and interpretation of the division of powers”, thereby allowing  both levels of government to legislate efficiently in areas of shared jurisdiction or where the matters overlap. Only by applying the pith and substance doctrine in a way that recognizes the increasingly complex nature of coordinated federal and provincial legislative schemes, can modern federalism meet the local needs of unity and diversity.

Acknowledging that Parliament can repeal legislation it has validly enacted, the dissenting judges observed the purpose and effect of a provision are relevant to its pith and substance. They found that s 29 had a substantial negative effect on the Québec legislature’s exercise of power. The dissenting judges found that the purpose of s 29 was distinct from the criminal law power because the destruction of the data could not be considered necessary to the abolition of the long- gun registry. Rather, the pith and substance of s. 29 was in relation to the provinces’ power over property and civil rights.

Co-operative federalism does not constrain federal legislative competence

This case is of great importance because of the Court’s consideration of co-operative federalism, a still evolving doctrine in constitutional law. Recently, in Reference re Securities Act, [2011] 3 SCR. 837, the Court held that the modern concept of federalism “rejected rigid formalism” and the Court hinted that it would favour any interpretation “accommodating cooperative intergovernmental efforts”.

In this case, the majority held that the principle of co-operative federalism does not constrain federal legislative competence.  The majority’s decision on co-operative federalism rested on three premises:

  1. Co-operative federalism is a legal principle invoked to provide flexibility in ‘separation of powers’ doctrines, such as federal paramountcy and interjurisdictional immunity.
  2. The written Constitution has primacy such that the principle of co-operative federalism cannot be seen as imposing limits on the otherwise valid exercise of legislative competence.
  3. Co-operative federalism cannot be used to limit the scope of legislative authority or to impose a positive obligation to facilitate cooperation where the constitutional division of powers authorizes unilateral action. Otherwise, co-operative federalism might discourage cooperation for fear that co-operative measures might diminish Parliament’s legislative authority to act alone.

The majority noted that their conclusion on this point rested partly on the fact that the registry flowed directly from federal legislation and was not dependent on any provincial statutes.

The dissenting judges characterized the issue as a matter of determining if s 29 is valid given that it dismantles a partnership created in the spirit of co-operative federalism. In concluding that co-operative federalism ought to be applied to render s 29 unconstitutional, the dissenting judges emphasized the fact that s 29 deliberately seeks to negatively impact the Québec legislature’s exercise of its powers. In a co-operative context, actions of one level of government can have serious consequences for the other level and, accordingly, co-operative federalism must be applied to protect the division of powers.

Québec has no legal right to the long-gun registry data

On this issue, the Court unanimously held that Québec has no legal right to the data. For the majority, the scheme was a valid enactment by Parliament under its criminal law power.  The majority held that the existence of a federal-provincial partnership is irrelevant. Even if such partnership existed, the Court has repeatedly held that a province’s legitimate expectation of federal government action, even relating to financial considerations, cannot bind Parliament’s legislative action.

The dissenting judges held that Québec had no legal right to the transfer of the data, and that recourse lay in the political process.

A Cap on Co-operative Federalism

With this decision, the Supreme Court of Canada has drawn a boundary line, limiting the current reach of co-operative federalism, a principle first conceived by the Court in its decision in Reference re Agricultural Products Marketing Act, [1978] 2 SCR 1198, drawing on remarks by Lord Atkin in Attorney General BC v Attorney General Canada et al, [1937] 1 DLR 691.

It is now clear that co-operative federalism does not reach into areas subject only to the legislation of a single level of government.

Nevertheless, the majority mused that in a case involving “a truly interlocking federal-provincial legislative framework,” different considerations might have arisen. In our view, this is welcome news. In the meantime, Canadians will have to wait for future decisions to see what role this unwritten principle will play in a case that involves overlapping federal and provincial legislation.