Advocates for the Rule of Law
The Supreme Court of Canada’s March 27, 2015 decision in Quebec (Attorney General) v. Canada (Attorney General) is an exemplary judgment in upholding the rule of law in the realm of federalism. The majority’s decision explicitly (and refreshingly) recognized that the constitution’s text is the primary source of its meaning, while also explicitly recognizing that courts are not to review the decisions of legislatures for their wisdom.
The case emerged from the federal government’s controversial enactment of the Ending the Long gun Registry Act (“ERLA”). The purpose of this legislation was to dismantle the long-gun registry established by the Firearms Act (“FA”), and destroy the data contained therein. Quebec, insisting that it had assisted in collecting the data, commenced an application alleging that federal legislation was unconstitutional insofar as it permitted the federal government to destroy the data contained in the registry without first transferring it to the provinces. This argument was successful before the Quebec Superior Court but unanimously overturned by a five judge panel of the Quebec Court of Appeal.
A majority of the Supreme Court of Canada (Justices Cromwell and Karakatsanis writing, with Chief Justice McLachlin and Justices Rothstein and Moldaver concurring) noted that just as enacting the FA was a valid exercise of the federal government’s criminal law power, the repealing of the legislation, and the destruction of information collected thereunder, was an equally valid exercise of the criminal law power. The law’s purpose was criminal law-related, regardless of the means chosen to achieve it.
Quebec, to its credit, conceded the Act as a whole was constitutional, instead concentrating its challenge on the destruction of the data (s. 29 of the ELRA). In Quebec’s view, s. 29 related to property and civil rights. The majority held that this was parsing legislation in an unprincipled manner. In a victory for common sense, the majority held:
The power to repeal a criminal law provision must logically be wide enough to give Parliament jurisdiction to destroy the data collected for the purpose of a criminal law provision. If a law establishing a scheme requiring collection of data is legislation “in relation to” criminal law, then legislation providing for the destruction of that data on the repeal of the scheme must also be legislation “in relation to” criminal law.
The majority noted that the unwritten constitutional principle of “cooperative federalism”, which was at the heart of Quebec’s argument, could not trump the clear division of powers in the constitution. Cooperative federalism may relax the rigidity of the division of powers when being excessively rigid would create impractical obligations or impose impractical restrictions on different levels of government. However, cooperative federalism cannot be an impediment to the federal government repealing a validly enacted criminal law.
The majority also noted a serious practical implication of Quebec’s position. Notably, Quebec’s proposed conception of cooperative federalism could discourage intergovernmental cooperation in the first place, as a government may be concerned that it would be prevented in the future from repealing legislation that would otherwise be within its prerogative.
In a dissenting opinion more than three times as long as the majority’s, the three Quebec judges (Justices LeBel, Wagner and Gascon wrote together, and Justice Abella concurred) came to the curious finding that s. 29’s purpose did not relate to the repeal of the FA. Rather, they held that the pith and substance of this provision (and only this provision) was property and civil rights, went beyond the criminal law purposes of the Act as a whole, and was therefore unconstitutional.
The dissent repeatedly emphasized “the exceptional circumstances in which long-gun regulation was implemented in Canada”, the “unique facts” related to the FA, and the “unique and novel” situation before the Court. This meant that their “analysis must be guided by the Constitution’s unwritten principles.” One such unwritten constitutional principle, in the view of the dissent, was cooperative federalism. In the dissent’s view, this principle prevented Canada from destroying the data without offering to transfer it to Quebec. (The dissent also emphasized Quebec was supported by its police forces and much of its population. The relevance of these facts to the legal issues is unclear.)
The dissent was also unusual in that it conceded that the Court could not force the federal government to transfer the data to Quebec. In the result, therefore, the dissent held that Parliament was not allowed to destroy the data, but it would be allowed to continue frustrating the establishment of a Quebec registry. Though being precluded from destroying the data before offering an opportunity to transfer would mean that a future government could revisit this situation, the dissenting reasons would have not assisted Quebec in the short term.
With respect, the dissent appeared to be attempting to find a basis to find s. 29 unconstitutional in a way that would not create a precedent that would lead to the undesirable outcomes foreseen by the majority. Had the dissent’s point of view carried the day, it is highly likely that future attempts to dismantle – or even amend – regimes and schema created by one level of government with the assistance, however small, of another, could find themselves subject to constitutional review. It is therefore fortunate that this was not a majority opinion.
In this respect, a passage of the Majority’s decision is particularly apt:
We recognize that the federal government’s ultimate goal may well have been to prevent Quebec from creating its own long-gun registry. We also accept that the destruction of the data is the means chosen by Canada because of its irremediable nature. That being said […] An intention on the part of one level of government to prevent another from realizing a policy objective it disagrees with does not, on its own, lead to the conclusion that there is an encroachment on the other level of government’s sphere of exclusive jurisdiction.
The Attorney General of Canada may have been wasteful and petty in refusing to transfer the data from the long-gun registry to the Attorney General of Quebec. But the courts cannot order political actors to be nice to one another. Rather, courts must respect the rights of governments to regulate in their spheres of competence. The written text of the constitution provides predictability and stability in this respect. Quebec v. Canada fortunately recognized this.
*Gerard Kennedy practices commercial and constitutional litigation at Osler, Hoskin & Harcourt LLP. He is also an adjunct professor at the University of Toronto, where he teaches international law
