Quebec (Attorney General) v. Canada (Attorney General)  (Constitutional law — Division of powers — Criminal law — Long-gun registry)

On appeal from the judgment of the Court of Appeal for Quebec, 2013 QCCA 1138, setting aside a decision of Blanchard J., 2012 QCCS 4202.  

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In 2012, Parliament enacted the Ending the Long-gun Registry Act (“ELRA”), which repealed the registration requirement for long guns and decriminalized the possession of an unregistered long gun.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 ELRAunconstitutional 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 (5-4) (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, support 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 theConstitution. 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. 

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. 

In this case, 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, have 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 FA; 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 ELRAdoes 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 ELRAmust therefore be declared to be invalid under s. 52 of theConstitution 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.

Joint reasons for judgment by Cromwell and Karakatsanis JJ., joint dissenting reasons by LeBel, Wagner and Gascon JJ.  Neutral citation:  2015 SCC 14.  No. 35448.