Quebec (Attorney General) v. Canada (Attorney General)

Quebec (Attorney General) v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2015-03-27
Neutral citation
2015 SCC 14
Report
[2015] 1 SCR 693
Case number
35448
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 35448
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693
Date: 20150327
Docket: 35448
Between:
Attorney General of Quebec
Appellant
and
Attorney General of Canada,
Commissioner of Firearms and
Registrar of Firearms
Respondents
- and -
Chief Firearms Officer,
Coalition for Gun Control and
Canada’s National Firearms Association
Interveners
Official English Translation: Reasons of LeBel, Wagner and Gascon JJ.
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Joint Reasons for Judgment:
(paras. 1 to 46)
Joint Dissenting Reasons:
(paras. 47 to 203):
Cromwell and Karakatsanis JJ. (McLachlin C.J. and Rothstein and Moldaver JJ. concurring)
LeBel, Wagner and Gascon JJ. (Abella J. concurring)
Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693
Attorney General of Quebec Appellant
v.
Attorney General of Canada,
Commissioner of Firearms
and Registrar of Firearms Respondents
and
Chief Firearms Officer,
Coalition for Gun Control and
Canada’s National Firearms Association Interveners
Indexed as: Quebec (Attorney General) v. Canada (Attorney General)
2015 SCC 14
File No.: 35448.
2014: October 8; 2015: March 27.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for quebec
Constitutional law — Division of powers — Criminal law — Constitutional classification of repealing enactment — Firearms — Federal legislation abolishing long-gun registry also containing provision requiring destruction of long-gun registration data — Quebec challenging constitutionality of destruction provision and seeking transfer of data connected with province from federal government — Whether principle of cooperative federalism prevents Parliament from legislating to destroy data — Whether destruction provision ultra vires criminal law power of Parliament — Whether Quebec has right to receive long-gun registration data from federal government — Constitution Act, 1867, s. 91(27) — Ending the Long-gun Registry Act, S.C. 2012, c. 6, s. 29 .
Adopted in 1995, the Firearms Act created a comprehensive scheme requiring the holders of all firearms — including long guns — to obtain licences and register their guns. It also made it a criminal offence to possess an unregistered firearm. The Firearms Act provided for the creation of two types of registries: the Canadian Firearms Registry (“CFR”), maintained by the Registrar of Firearms and containing records of the registration certificates for all prohibited firearms, restricted firearms, and long guns acquired, transferred, or possessed in Canada, and a registry kept by the Chief Firearms Officer (“CFO”) designated for each province and territory, containing records of every firearm’s licence and authorization issued or revoked. The Registrar and the CFOs could access all records through a single electronic database but the statutory authority of CFOs only permitted them to contribute and modify data in their specific licensing registry.
In 2012, Parliament enacted the Ending the Long-gun Registry Act (“ELRA”), which repealed the registration requirement for long guns and decriminalized the possession of an unregistered long gun. Section 29 of the ELRA requires the destruction of all records contained in the registries related to the registration of long guns. In reaction, Quebec expressed its intention to create its own long-gun registry and asked the federal authorities for the data connected to Quebec contained in the CFR. Canada refused and made clear that it intended to permanently destroy all long-gun registration data. In light of this refusal, Quebec sought a declaration that s. 29 of the ELRA is ultra vires and that Quebec has a right to obtain the data.
The Superior Court of Quebec declared s. 29 of the ELRA unconstitutional as it applies to data connected with Quebec and ordered Canada to transfer that data to the province. The Quebec Court of Appeal reversed that decision.
Held (LeBel, Abella, Wagner and Gascon JJ. dissenting): The appeal should be dismissed. Section 29 of the ELRA is constitutional, and Quebec has no legal right to the data.
Per McLachlin C.J. and Rothstein, Cromwell, Moldaver and Karakatsanis JJ.: The decision to dismantle the long-gun registry and destroy the data that it contains is a policy choice that Parliament was constitutionally entitled to make. The principle of cooperative federalism does not constrain federal legislative competence in this case, Quebec has no legal right to the data, and s. 29 of the ELRA is a lawful exercise of Parliament’s criminal law legislative power under the Constitution.
Quebec’s position that cooperative federalism prevents Canada and the provinces from acting or legislating in a way that would hinder cooperation between both orders of government has no foundation in our constitutional law and is contrary to the governing authorities from this Court. The principle of cooperative federalism does not prevent Parliament from exercising legislative authority that it otherwise possesses. The primacy of our written Constitution remains one of the fundamental tenets of our constitutional framework, and this is especially the case with regard to the division of powers. Neither this Court’s jurisprudence nor the text of the Constitution Act, 1867 supports using the principle of cooperative federalism 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. To hold otherwise would undermine parliamentary sovereignty and create legal uncertainty whenever one order of government adopted legislation having some impact on the policy objectives of another.
Although Quebec submits that it has a right to receive the long-gun registration data whether or not Parliament is constitutionally entitled to legislate with respect to the fate of that data, it has not established a legal basis for that right. As mentioned, the principle of cooperative federalism does not limit the scope of the legislative powers assigned by the Constitution. Furthermore, accepting Quebec’s position, which arises from its expectation of having continuing access to the data, would circumvent or effectively overturn this Court’s rejection of the “legitimate expectation” doctrine. The provinces’ reliance on the existence of the data cannot limit Parliament’s capacity to destroy a registry, which flows exclusively from its criminal law head of power. Lastly, even if the data accessible through the CFR was the result of a cooperative effort, any effort on Quebec’s part was statutorily limited to the licensing data held in the CFO’s licensing registry.
This Court has already been called upon, in the Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, to determine the pith and substance of the scheme enacted by the Firearms Act . In that case, the Court concluded that the “matter” of the registration and data retention provisions was public safety and should be classified as being in relation to the subject of criminal law. Legislation repealing that scheme, including a provision addressing what will happen to the data collected under the now repealed scheme, must be characterized in the same way. Section 29 , in essence, relates to public safety — as did the long-gun registration scheme being repealed by the balance of the ELRA. That provision does not limit Quebec’s legislative authority to create a provincial long-gun registry, it merely prevents Quebec from using the data obtained through the federal long-gun registry in establishing a provincial registry. The fact that it has the practical effect of making it more difficult financially for Quebec to create its own gun control regime is not indicative of a “colourable” purpose from a division of powers’ perspective and does not affect the pith and substance of s. 29 .
There is no significant legal distinction between repealing a criminal provision and providing for what will happen to the data collected under that provision where the data was collected exclusively through the exercise of the criminal law power. 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 that provision. Accordingly, s. 29 of the ELRA should be characterized as being in relation to criminal law. It therefore falls within the legislative competence of Parliament.
Per LeBel, Abella, Wagner and Gascon JJ. (dissenting): Section 29 of the ELRA is unconstitutional and should be declared to be invalid. The ELRA is the legislative measure chosen by Parliament to end its participation in long-gun regulation, but s. 29 goes beyond the scope of that purpose, as it requires that the data in question be destroyed without providing for a possibility of their first being transferred to the provincial partners, which prevents the latter from using them in the exercise of their powers. However, there is no legal basis for Quebec’s request for a compulsory transfer of the data. The conditions applicable to such a transfer are a matter for the governments concerned, not the courts.
When the constitutionality of a statutory provision is challenged on the basis of the division of powers, courts turn to the pith and substance doctrine. To apply this doctrine, they must review the extent to which the impugned provision intrudes on the powers of the other level of government. Where, because of its pith and substance, a provision found in an otherwise valid statute encroaches on the jurisdiction of the other level of government, it must be determined whether the encroachment is ancillary. The degree of integration of a provision that is needed for an encroachment to be considered ancillary varies with the seriousness, or extent, of the encroachment. If the encroachment of the impugned provision on the jurisdiction of the other level of government is merely marginal or limited, a functional relationship between the provision and the statutory scheme may suffice. If, on the other hand, the provision is highly intrusive vis-à-vis the powers of the other level of government, a stricter test of necessity will apply.
The unwritten principles that underlie our written Constitution, such as federalism, infuse the analysis and interpretation of the division of powers. The modern view of federalism favours a flexible conception of the division of powers and recognizes a significant overlap between the federal and provincial areas of jurisdiction, allowing governments at both levels to legislate for valid purposes in the areas of overlap. Such a conception facilitates intergovernmental co-operation. Both in law and in the political arena, the concept of co-operative federalism has been developed to adapt the principle of federalism to this modern reality; it reflects the realities of an increasingly complex society that requires the enactment of co-ordinated federal and provincial legislative schemes. From a legal perspective, it is by allowing for overlapping powers through the application of the pith and substance and ancillary powers doctrines that co-operative federalism is able to meet those needs.
In this case, the trial judge was right to find that there was a federal-provincial partnership with respect to firearms control. This partnership is consistent with the spirit of co-operative federalism. It enabled the federal and provincial governments to work together, rather than in isolation, to achieve both federal (criminal law) and provincial (public safety and administration of justice) purposes. In the novel circumstances of the dismantling of this partnership, the analysis must be guided by the Constitution’s unwritten principles so as to ensure that the principle of federalism and its modern form — co-operative federalism — are not placed in jeopardy. Parliament or a provincial legislature cannot pass legislation to terminate such a partnership without taking into account the reasonably foreseeable consequences of the decision to do so on its partner’s heads of power. 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.
The Court of Appeal strayed from the analytical approach the courts must take. It is true that Parliament can repeal or amend legislation it has validly enacted under one of its heads of power. Nevertheless, the courts must consider the impugned provision or legislation to determine whether, in pith and substance, all that it does is in fact to repeal or amend legislation that was validly enacted. It is not enough to say that the legislative measure is merely repealing legislation.
The words of s. 29 of the ELRA pose no particular problems of interpretation. From a structural standpoint, s. 29 is distinct from other sections of the ELRA because it is a transitional provision. From a practical and legal standpoint, the principal effect of s. 29 is to delete the data in the CFR forever. The federal government’s decision to destroy the data without first transferring them to its partners, such as Quebec, has serious consequences that are relevant to the question whether s. 29 is constitutional. The extrinsic evidence shows that the purpose being pursued in enacting s. 29 was indeed to prevent the provinces from using the data. The trial judge was therefore right to find that Parliament’s intention in destroying the data was to hinder the provinces. In light of the purpose and the effect of s. 29 , therefore, the scope of the section is broader than the mere destruction of the data; it has harmful consequences for the federal government’s partners. The purpose of s. 29 does not relate to the repeal of part of the Firearms Act ; the abolition by the federal government of the requirement to register long guns and the destruction of the data are two distinct objectives.
Given that the data are to be destroyed with no possibility of their first being transferred to the partners, and therefore without the impact of this measure on the partners’ exercise of their powers being taken into account, the section’s true purpose is to ensure that the information on long guns can no longer be used for any provincial purposes. As a result, the pith and substance of s. 29 relates to the provinces’ power over property and civil rights.
To determine whether s. 29 of the ELRA is constitutional on the basis of the ancillary powers doctrine, the seriousness, or extent, of its encroachment on provincial powers must be considered, bearing in mind that the provincial power to make laws in relation to property and civil rights is a head that should not be intruded upon lightly. The seriousness of the encroachment of s. 29 must be analyzed on the basis of the specific factual and legal context of the case, which includes the existence of the partnership between the federal government and Quebec. In this case, in terms of both its nature and its effect, s. 29 causes a substantial encroachment on provincial jurisdiction. For its encroachment to be found to be ancillary to the ELRA, the degree to which s. 29 is integrated into the Act must therefore be high, that is, it must satisfy the necessity or “integral part” criterion. The destruction of the data in question in s. 29 cannot be considered necessary to the abolition of the requirement to register long guns, as these two purposes are distinct. Nor can s. 29 be linked to the ELRA on the basis of a test of rationality; it is hard to reconcile the manner in which the destruction of the data was provided for with the desire certain provinces might show to maintain a registry within the limits of their powers. Furthermore, Parliament declared that its intention was to cause harm to the other level of government.
Since, because of its pith and substance, s. 29 of the ELRA does not fall within the federal criminal law power and is not ancillary to the ELRA, it has not been shown to be constitutionally valid. A legislative measure cannot be found to be valid that (1) does not fall within the federal criminal law power and that (2) thwarts, by the substantial encroachment it causes, the corollary exercise of provincial powers that flowed from the partnership. To destroy the data without first offering to transfer them is unconstitutional. Section 29 of the ELRA must therefore be declared to be invalid under s. 52 of the Constitution Act, 1982 .
Nevertheless, Quebec has not established a legal basis for its claim to the data. The absence of a legal barrier to the transfer of the data does not necessarily mean that Quebec has proven that it is entitled to obtain them through the courts. It is up to the legislatures to fill legislative gaps that are incompatible with the Constitution, and not up to the courts to supply an exact description of the laws the legislatures must adopt to fulfill their constitutional obligations. In some cases, the source of the appropriate remedy must lie in the political process rather than in the courts. In this case, it was up to the members of the partnership to set out the conditions that were to apply upon termination of their joint venture in their agreements.
Cases Cited
By Cromwell and Karakatsanis JJ.
Considered: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; referred to: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Wells v. Newfoundland, [1999] 3 S.C.R. 199; Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Attorney-General for Ontario v. Attorney-General for Canada, [1912] A.C. 571; Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Hunt v. T&N plc, [1993] 4 S.C.R. 289.
By LeBel, Wagner and Gascon JJ. (dissenting)
Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680; R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Prosper, [1994] 3 S.C.R. 236; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839.
Statutes and Regulations Cited
Act respecting safety in sports, CQLR, c. S-3.1, s. 46.31.
Act to protect persons with regard to activities involving firearms, CQLR, c. P-38.0001, s. 11.
Code of Civil Procedure, CQLR, c. C-25, art. 778.
Constitution Act, 1867, ss. 91(27) , 92(13) .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1985, c. C-46, ss. 90 , 91 .
Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 6.
Ending the Long-gun Registry Act, S.C. 2012, c. 6, ss. 2 to 28 , 27 , 29 .
Firearms Act, S.C. 1995, c. 39, ss. 2 “chief firearms officer”, 4 to 14, 13, 56, 57, 60, 70, 83, 84, 87, 90, 95, 112 [rep. 2012, c. 6, s. 27].
Firearms Records Regulations, SOR/98-213, ss. 4(1), 7(1), (2).
Interpretation Act, R.S.C. 1985, c. I-21, s. 42 .
Library and Archives of Canada Act, S.C. 2004, c. 11 .
Order Declaring an Amnesty Period (2006), SOR/2006-95 [am. 2007-101, 2008-147, 2009-139, 2010-104, 2011-102, 2013-96, 2014-123].
Privacy Act, R.S.C. 1985, c. P-21 .
Regulation respecting the exclusion of certain premises and certain means of transportation and respecting the exemption of certain persons, CQLR, c. P-38.0001, r. 1.
Authors Cited
Abel, Albert S. “The Neglected Logic of 91 and 92” (1969), 19 U.T.L.J. 487.
Brown, R. Blake. Arming and Disarming: A History of Gun Control in Canada. Toronto: University of Toronto Press, 2012.
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 6e éd. Cowansville, Qué.: Yvon Blais, 2014.
Canada. House of Commons. Evidence of the Standing Committee on Public Safety and National Security, No. 012, 1st Sess., 41st Parl., November 17, 2011, pp. 1-2.
Canada. House of Commons. House of Commons Debates, vol. 133, No. 134, 1st Sess., 35th Parl., November 30, 1994, p. 8476.
Canada. House of Commons. House of Commons Debates, vol. 133, No. 154, 1st Sess., 35th Parl., February 16, 1995, p. 9709.
Canada. House of Commons. House of Commons Debates, vol. 133, No. 216, 1st Sess., 35th Parl., June 12, 1995, p. 13631.
Canada. House of Commons. House of Commons Debates, vol. 146, No. 036, 1st Sess., 41st Parl., October 25, 2011, p. 2437.
Canada. House of Commons. House of Commons Debates, vol. 146, No. 041, 1st Sess., 41st Parl., November 1, 2011, pp. 2779, 2780, 2799.
Canada. Library of Parliament. Parliamentary Information and Research Service. “Bill C-19: An Act to amend the Criminal Code and the Firearms Act”, Legislative Summary No. 41-1-C19-E, by Tanya Dupuis, Cynthia Kirkby and Robin MacKay, Legal and Legislative Affairs Division, November 1, 2011.
Canada. Office of the Privacy Commissioner. Review of the Personal Information Handling Practices of the Canadian Firearms Program, Final Report, August 29, 2001 (online: http://publications.gc.ca/collections/Collection/IP34-8-2001E.pdf).
Canada/Québec. Accord financier Canada-Québec relatif à l’administration de la Loi sur les armes à feu, 1er avril 2006 au 31 mars 2010, entente no 2012-004.
Daly, Paul. “Dismantling Regulatory Structures: Canada’s Long-Gun Registry as Case Study” (2014), 33 N.J.C.L. 169.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2014, release 1).
Lederman, W. R. “Some Forms and Limitations of Co-Operative Federalism”, in Continuing Canadian Constitutional Dilemmas. Toronto: Butterworths, 1981, 314.
Québec. Assemblée nationale. Journal des débats, vol. 34, no 49, 1re sess., 35e lég., 23 mai 1995 (en ligne), à 14:40.
Quebec. National Assembly. Votes and Proceedings, No. 57, 2nd Sess., 39th Leg., November 2, 2011, pp. 693-94.
Quebec. National Assembly. Votes and Proceedings, No. 72, 2nd Sess., 39th Leg., December 6, 2011, p. 848.
Royal Canadian Mounted Police. National Program Evaluation Services. RCMP Canadian Firearms Program: Program Evaluation, Final Approved Report, February 2010 (online: http://www.rcmp-grc.gc.ca/pubs/fire-feu-eval/index-eng.htm).
Royal Canadian Mounted Police. Report on the Administration of the Firearms Act to the Solicitor General by the Registrar: Canadian Firearms Registry. Ottawa: RCMP, 1999.
APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Chamberland, Kasirer, St-Pierre and Lévesque JJ.A.), 2013 QCCA 1138, [2013] R.J.Q. 1023, [2013] AZ-50965380, [2013] Q.J. No. 6676 (QL), 2013 CarswellQue 7597 (WL Can.), setting aside a decision of Blanchard J., 2012 QCCS 4202, [2012] R.J.Q. 1895, [2012] AZ-50892414, [2012] Q.J. No. 8319 (QL), 2012 CarswellQue 10074 (WL Can.). Appeal dismissed, LeBel, Abella, Wagner and Gascon JJ. dissenting.
Éric Dufour, Hugo Jean and Suzanne-L. Gauthier, for the appellant.
Claude Joyal, Q.C., and Ian Demers, for the respondents.
No one appeared for the intervener the Chief Firearms Officer.
Frédérick Langlois and Alain M. Gaulin, for the intervener the Coalition for Gun Control.
Guy Lavergne, for the intervener Canada’s National Firearms Association.
The judgment of McLachlin C.J. and Rothstein, Cromwell, Moldaver and Karakatsanis JJ. was delivered by
Cromwell and Karakatsanis JJ. —
I. Introduction
[1] Fifteen years ago, this Court determined that Parliament, acting under its power to legislate in relation to criminal law, had the constitutional authority to establish a nationwide gun control scheme. Parliament’s decision to do so was a contentious policy choice that was contested on constitutional grounds. Three years ago, Parliament reversed in part that earlier policy choice: it repealed the legislation that had established the long-gun registry within the gun control scheme, and provided for the destruction of the data it contained. This too was a contentious policy choice which is now contested on constitutional grounds.
[2] When the government tabled the bill abolishing the long-gun registry and providing for the destruction of the data it contained, Quebec expressed its intention to create its own provincial gun control scheme and asked Canada to give it the data on long guns connected with the province. The federal government refused. As a result, Quebec challenged the constitutionality of the federal law providing for destruction of the data and sought an order requiring the federal government to turn it over. The Superior Court of Quebec declared that Parliament’s legislative jurisdiction with respect to criminal law does not allow it to legislate for the destruction of the long-gun registration records without first making this data available to provinces seeking to establish their own registries, and ordered the federal government to transfer the relevant data to Quebec. A five-member panel of the Quebec Court of Appeal disagreed. Finding the law a valid exercise of the federal criminal law power, it set aside those declarations and orders. Quebec now appeals to this Court, raising three issues:
1. Does the principle of cooperative federalism prevent Parliament from legislating to dispose of the data?
2. Does Quebec have the right to obtain the data?
3. Is s. 29 of An Act to amend the Criminal Code and the Firearms Act, S.C. 2012, c. 6, ultra vires Parliament’s criminal law power?
[3] We agree with the conclusions of the Quebec Court of Appeal and would dismiss the appeal. The principle of cooperative federalism does not constrain federal legislative competence in this case, Quebec has no legal right to the data, and s. 29 of the Act to amend the Criminal Code and the Firearms Act (short title Ending the Long-gun Registry Act (“ELRA”)) is a lawful exercise of Parliament’s criminal law legislative power under the Constitution. We add this; to some, Parliament’s choice to destroy this data will undermine public safety and waste enormous amounts of public money. To others, it will seem to be the dismantling of an ill-advised regime and the overdue restoration of the privacy rights of law-abiding gun owners. But these competing views about the merits of Parliament’s policy choice are not at issue here. As has been said many times, the courts are not to question the wisdom of legislation but only to rule on its legality. In our view, the decision to dismantle the long-gun registry and destroy the data that it contains is a policy choice that Parliament was constitutionally entitled to make.
[4] We note that our conclusion in this case partly rests on the fact that the Canadian Firearms Registry (“CFR”) flows directly from federal legislation and is not dependent on any provincial statutes. Different considerations might arise in a case involving a truly interlocking federal-provincial legislative framework. However, the CFR is not, in our respectful view, such a scheme. Therefore we need not consider what might follow if it were.
II. Facts and Judicial History
A. Overview of the Facts
[5] In 1995, Parliament enacted the Firearms Act, S.C. 1995, c. 39 , which created a comprehensive scheme requiring the holders of all firearms — including long guns — to obtain licences and register their guns. It also made it a criminal offence to possess an unregistered firearm. The initial creation of the registry was challenged by several provinces, including Alberta who proceeded with a reference in the Alberta Court of Appeal which led ultimately to an appeal to this Court. In the Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, this Court concluded that the Firearms Act came within the criminal law authority of the federal Parliament, and that “the provinces ha[d] not established that the effects of the law on provincial matters [were] more than incidental”: para. 50.
[6] The Firearms Act provided for the creation of two types of registries. The Registrar of Firearms (“Registrar”) was to maintain a single registry, the CFR, containing records of the registration certificates for all prohibited firearms, restricted firearms, and unrestricted firearms (long guns) acquired, transferred, or possessed in Canada: s. 83 . In addition, the Firearms Act requires that a Chief Firearms Officer (“CFO”) be appointed in each province and territory — either by a provincial minister or by a federal minister: s. 2 . This officer must license individuals to possess firearms and must keep a registry containing records of every licence and authorization that she issues or revokes: s. 87 . By law, the Registrar and the CFOs can access both types of registries: s. 90 . In practice, that access was ensured by the Canadian Firearms Information System (“CFIS”), an electronic database managed by the Royal Canadian Mounted Police (“RCMP”). Although the provincial government could access all registration and licensing information in all of the registries through the CFIS database, the statutory authority of CFOs only permitted them to contribute and modify data in their specific licensing registry: ss. 87 and 90 .
[7] In April 2012, Parliament enacted the ELRA, which repeals the registration requirement for long guns and decriminalizes the possession of an unregistered long gun. The registration requirements for prohibited and restricted firearms remain in force, and the registries continue to collect and maintain that data.[1] Section 29 of the ELRA requires the destruction of all records contained in the registries related to the registration of firearms that are neither prohibited firearms nor restricted firearms:
29. (1) The Commissioner of Firearms shall ensure the destruction as soon as feasible of all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under the Commissioner’s control.
(2) Each chief firearms officer shall ensure the destruction as soon as feasible of all records under their control related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under their control.
(3) Sections 12 and 13 of the Library and Archives of Canada Act and subsections 6(1) and (3) of the Privacy Act do not apply with respect to the destruction of the records and copies referred to in subsections (1) and (2).
[8] When it became clear that Canada was going forward with the repeal of the registration requirement for long guns, Quebec expressed its intention to create its own long-gun registry and asked the federal authorities for the data connected to Quebec contained in the CFR. Canada refused and made clear that it intended to permanently destroy all data related to the registration of long guns. In light of this refusal, Quebec sought a declaration that s. 29 of the ELRA is ultra vires (that is, beyond the powers of Parliament), and that Quebec has a right to obtain the data. To date, the Quebec National Assembly has not enacted legislation creating a provincial long-gun registry.
B. Superior Court of Quebec, 2012 QCCS 4202
[9] In the Superior Court, Blanchard J. held that the CFR is the result of concerted efforts between the different levels of government (federal, provincial and municipal) and is therefore a result of cooperative federalism. Finding that the pith and substance of s. 29 is to prevent provincial governments from exercising their legislative competence by precluding them from using the product of this partnership, he held that s. 29 amounts to a violation of the principle of cooperative federalism and is ultra vires the powers of Parliament to legislate in relation to criminal law.
[10] In addition to declaring s. 29 of the ELRA unconstitutional as it applies to data connected to Quebec, Blanchard J. ordered Canada to transfer that data to the province.
C. Quebec Court of Appeal, 2013 QCCA 1138
[11] A five-judge panel of the Court of Appeal unanimously reversed the decision of Blanchard J.
[12] Writing for the Court of Appeal, Duval Hesler C.J.Q. held that Blanchard J. confounded some aspects of the Canadian Firearms Registration System. This confusion resulted in an erroneous finding of fact that the CFR is the result of a partnership between both orders of government. That being said, Duval Hesler C.J.Q. concluded that this error was of little significance since, in her view, Parliament clearly has the power to destroy the data independent of the existence of any federal-provincial partnership.
[13] The Court of Appeal reasoned that, since this Court held in the Reference re Firearms Act that the creation of the CFR was intra vires (that is, within the authority of) the federal Parliament, Parliament can also legislate to destroy it. It also held that the principle of cooperative federalism cannot be used to supersede the formal division of powers provided in the Constitution Act, 1867 .
[14] Finally, the Court of Appeal determined that Quebec has no right to obtain the data. The facts that Quebec had chosen to appoint a CFO and that both governments had entered into a financial agreement did not have the effect of granting Quebec any property right in the data.
III. Analysis
A. Does the Principle of Cooperative Federalism Prevent Parliament From Legislating to Dispose of the Data?
[15] Quebec invokes the principle of cooperative federalism in support of both its argument that s. 29 of the ELRA is ultra vires and its claim that Quebec has the right to receive the data contained in the CFR related to long guns connected to Quebec. In essence, Quebec is asking us to recognize that the principle of cooperative federalism prevents Canada and the provinces from acting or legislating in a way that would hinder cooperation between both orders of government, especially in spheres of concurrent jurisdiction.
[16] In our respectful view, Quebec’s position has no foundation in our constitutional law and is contrary to the governing authorities from this Court.
[17] Cooperative federalism is a concept used to describe the “network of relationships between the executives of the central and regional governments [through which] mechanisms are developed, especially fiscal mechanisms, which allow a continuous redistribution of powers and resources without recourse to the courts or the amending process”: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 5-46; see also W. R. Lederman, “Some Forms and Limitations of Co-Operative Federalism”, in Continuing Canadian Constitutional Dilemmas (1981), 314. From this descriptive concept of cooperative federalism, courts have developed a legal principle that has been invoked to provide flexibility in separation of powers doctrines, such as federal paramountcy and interjurisdictional immunity. It is used to facilitate interlocking federal and provincial legislative schemes and to avoid unnecessary constraints on provincial legislative action: see, e.g., Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 24 and 43; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292, at para. 15; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at paras. 44-45; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 63. With respect to interjurisdictional immunity, for example, the principle of cooperative federalism has been relied on to explain and justify relaxing a rigid, watertight compartments approach to the division of legislative power that unnecessarily constrains legislative action by the other order of government: “In the absence of conflicting enactments of the other level of government, the Court should avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest” (Canadian Western Bank, at para. 37).
[18] However, we must also recognize the limits of the principle of cooperative federalism. The primacy of our written Constitution remains one of the fundamental tenets of our constitutional framework: Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 53. This is especially the case with regard to the division of powers:
. . . the text of the federal constitution as authoritatively interpreted in the courts remains very important. It tells us who can act in any event. In other words, constitutionally it must always be possible in a federal country to ask and answer the question — What happens if the federal and provincial governments do not agree about a particular measure of co-operative action? Then whic