Cooperative Federalism Divides the Supreme Court of Canada: Quebec (Attorney General) v. Canada (Attorney General)

—Paul Daly, University of Montreal, Faculty of Law

On Friday, the Supreme Court of Canada brought to an end the lengthy saga of Canada’s long-gun registry. There was a sharp split on the Court, with a bare majority of five justices giving a narrow win to the federal government over the joint dissent of their three Quebec colleagues (with whom one other justice agreed). The split was legal, not political, with the Court divided on how to interpret Canada’s constitutional division of powers.

Controversial in its inception and costly in its execution, the registry had long divided Canadians. On one side were ranged advocates for gun control, who convinced the federal Parliament to pass the Firearms Act that established the registry in the 1990s. On the other were skeptics of various stripes, from those who believed the registry penalized law-abiding hunters and farmers, to those who were shocked by the registry’s mounting cost.

In 2011, Stephen Harper’s Conservative Party of Canada was elected with a majority of seats in the House of Commons, having promised in its election manifesto to do away with the registry for once and for all. Parliament duly enacted legislation: the Ending the Long-Gun Registry Act abolished the registry and ordered the destruction of the data it contained. The destruction, required by a stand-alone provision of the ELRA, was at the heart of Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, litigation in which the province of Quebec challenged the destruction of the data.

Notably, Quebec did not challenge Parliament’s authority to abolish the registry prospectively: a creative claim brought by a public interest team based on the Charter of Rights and Freedoms failed at first instance and went no further (Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140).

Gun control has strong political salience in Quebec. In particular, a massacre carried out at the École Polytechnique in 1989, in which a deranged man deliberately targeted female victims, has long been etched in the province’s collective conscience. So much so that on the 25^th anniversary of the massacre last December, the Quebec Premier felt constrained to promise that Quebec would create its own long-gun registry–whatever the outcome of the litigation–even in a period of budgetary rigour in which the provincial government is swinging an austerity axe at the health and education sectors.

Quebec’s legal challenge based on the principle of cooperative federalism was successful at first instance (2012 QCCS 4202)–a judgment unanimously vacated by the Quebec Court of Appeal (2013 QCCA 1138)–but not before the Court.

Cooperative federalism has won the approval of the Court in recent years. It has praised collaborative efforts between the federal government and provinces to tackle new social, economic and political challenges. And it has employed cooperative federalism as an interpretive principle to reshape constitutional law: most notably, the doctrine of interjurisdictional immunity–premised on the existence of exclusive zones of federal and provincial authority in the areas of competence set out in the Constitution Act, 1867–has been reduced to virtually nothing. In Reference re Firearms Act (Can.), [2000] 1 SCR 783, the Court held that the creation of the registry was a valid exercise of Parliament’s power in respect of criminal law, notwithstanding the vast provincial competence to regulate “property and civil rights”. Central to the Court’s conclusion was that both levels of government had the competence to establish a registry. Gun control is partly federal, partly provincial. In constitutional terms, it has a “double aspect”, a flexible doctrine that rejects the premise of watertight compartments of federal and provincial authority.

The dismantling of the registry presented the Court with an opportunity to develop the principle of cooperative federalism further. Section 29 of the ELRA was a stand-alone provision, introduced only after Quebec stated it would create its own registry, with the avowed intention of making it more difficult for Quebec to exercise its undoubted competence to regulate firearms. At first-instance, the judge found that the registry was a collaborative effort, the fruit of years of partnership between the federal government and the provinces.

But the majority of the Court baulked at Quebec’s suggestion that violating the principle of cooperative federalism would, per se, render legislation ultra vires. Here, Canada’s Diceyan heritage was on display. Although legislative authority is divided between the federal Parliament and the provinces, each is sovereign in its spheres of authority. There could be no suggestion, for the majority, that the principle of cooperative federalism could prevent a legislature “from exercising legislative authority that it otherwise possesses” (at para. 22).

Because Parliament could create the registry, it could also destroy the registry and its contents: “Given that the ‘matter’ of the registration scheme, including data collection, was found to be public safety in the Reference re Firearms Act, dealing with the collected data following the repeal of the scheme must share that same characterization” (at para. 37). The clanking of Dicey’s chains drowned out the Court’s recent insistence on flexibility and overlapping zones of competence.

There are, however, two very important qualifications to the majority’s reasons. First, not “every measure that is part of or consequent to the repeal of legislation invariably shares the pith and substance of the repealed scheme” (at para. 37). The majority’s view was that, on the special facts of this case, the destruction of the data was bound up with the abolition of the registry.

Second, and significantly, the majority held that there was no partnership between the provincial and federal governments (at para. 25). Even if the implementation of the registry involved efforts by federal and provincial actors, these indicia of cooperative were “unquestionably subordinate to parliamentary sovereignty” (at para. 26), which was first employed to create watertight federal and provincial compartments and then to destroy them. Accordingly, the majority was careful to observe: “Different considerations might arise in a case involving a truly interlocking federal-provincial legislative framework” (at para. 4).

It may thus be the case that the dissent, jointly written by LeBel, Wagner and Gascon JJ., will ring louder and longer than the majority reasons as a sounding board for “truly” cooperative regulatory schemes.

Interestingly, the dissent was not especially radical in its use of cooperative federalism. Although the dissenters were convinced that the registry was a cooperative effort (at paras. 115-135), they did not strike down s. 29 as violating the principle of cooperative federalism. Rather, with the principle of cooperative federalism in mind, they closely analyzed whether s. 29 was truly an exercise of the federal power in respect of criminal law. In a passage that is likely to be cited in decisions and debates to come, they stated:

[T]he dismantling of a partnership like the one established with respect to gun control must be carried out in a manner that is compatible with the principle of federalism that underlies our Constitution. Thus, Parliament or a provincial legislature cannot adopt legislation to terminate such a partnership without taking into account the reasonably foreseeable consequences of the decision to do so for the other partner. The courts must, in considering whether legislation or a statutory provision having as its purpose to dismantle the partnership is constitutional, be aware of the impact of that legislation or provision on the other partner’s exercise of its powers, especially when the partner that terminates the relationship is intentionally bringing about that impact (at para. 153).

This cooperative federalism gloss on the Diceyan preference for exclusive spheres of absolute authority pushed the dissenters to conclude that, in its purpose and effects, s. 29 related not to the criminal law, but to property and civil rights in the province (at para. 176).

Even though the dissenters knocked the constitutional legs from under s. 29, they remained modest in their use of the cooperative federalism principle. The appropriate remedy was not an order compelling the federal government to transfer the data. Quebec would have to make its claim through the political process. How the “collaborative relationship” would finally come to an end was to be “primarily dependent” on the “will” of the former partners (at para. 200).

For the three Quebec judges to sign a joint opinion is most unusual, evidence perhaps of the political salience of gun control in that province and of the dissenters’ sense that their role is to protect Quebec values, a role recognized in Reference re Supreme Court Act, ss. 5 and 6, [2014 ]1 SCR 433, at para. 59. But the split was ultimately legal, not political; the Court fractured on how to interpret the constitutional division of powers, not on how best to protect Quebec values.

The dissenting reasons also have a poignant symmetry, as they represent one of the retired LeBel J’s final distinguished contributions to Canadian constitutional law, and the very first formal set of reasons co-authored by Gascon J. It would perhaps be fitting for a set of reasons that represent the end of one era and the beginning of a new one to become the point of departure for Canadian courts and commentators interested in exploring “cooperative federalism”.

Suggested Citation: Paul Daly, Cooperative Federalism Divides the Supreme Court of Canada: Quebec (Attorney General) v. Canada (Attorney General), Int’l J. Const. L. Blog, Mar. 30, 2015, at: http://www.iconnectblog.com/2015/03/cooperative-federalism-divides-the-supreme-court-of-canada-quebec-attorney-general-v-canada-attorney-general