In a Battle of the Doctrines, Division of Powers Trumps Cooperative Federalism: Quebec (AG) v Canada
The federal government has the right to destroy data collected for the highly contentious long-form gun registry, the Supreme Court of Canada (“SCC”) ruled late March. In a 5-4 decision, the majority in Quebec (AG) v Canada (AG), 2015 SCC 14, found that the federal government’s right to destroy data it collected is based on authority granted in the Constitution Act, 1867 to legislate on criminal law matters. The three Quebec judges, joined by Justice Abella, formed the dissent. The minority held that the destruction of the data was unconstitutional, citing the doctrine of cooperative federalism.
Gun Registry Has Been a Loaded Issue for Decades
The strong views on both sides of the gun registry issue date back to before the Firearms Act, SC 1995, c 39, was adopted in 1995 by Jean Chretien’s Liberal government. That act required the registration of three types of guns: prohibited, restricted and non-restricted. Gun licensing data were collected by an officer in each province. After winning his first majority, Stephen Harper’s Conservative government introduced the Ending the Long-gun Registry Act, SC 2012, c 6 [ELRA]. This act repeals the requirement for the registration of non-restricted weapons, known as long guns.
The issue at the heart of this case is the constitutionality of the section of the ELRA that allows the destruction of already collected data. The majority recognized the contentious nature of the gun registry in its ruling, stating “[C]ompeting 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” (para 3).
This appeal comes 15 years after the Supreme Court decided in Reference re Firearms Act (Can),  1 SCR 783 [Firearms Reference], that the federal government had the constitutional authority to create a national gun control scheme in the first place. The reasoning of that 9-0 ruling was also grounded in the federal government’s section 91(27) power to legislate on criminal matters.
Trial Judge Orders the Transfer of Data to Quebec
In response to the ELRA, Quebec brought a motion in Quebec’s Superior Court in an attempt to stop the federal government destroying the long-gun data for Quebec. The trial judge found that because the Canadian Firearms Registry (“CFR”) was created through joint efforts at the federal and provincial levels, it was created through cooperative federalism. He found that section in the ELRA, s. 29, which allowed for the destruction of data, amounted to a violation of cooperative federalism and is ultra vires the federal government’s criminal law powers. He ordered a transfer of the Quebec data to the province.
Court of Appeal Unanimously Reverses the Order
The Quebec Court of Appeal (“QCCA”) did not agree. The five-judge panel unanimously reversed the trial decision. The reasons included finding that the trial judge was in error in his finding the CFR was a partnership. Further, even if it had been a partnership, the federal government still would have had the power to destroy the data. The panel also found that because, in the Firearms Reference, the creation of the data was found to be within the federal powers, the federal government also had the right to destroy it. It added that “the principle of cooperative federalism cannot be used to supersede the formal division of powers provided in the Constitution Act, 1867” (para 13). The QCCA also held that Quebec had no property right to the data.
Supreme Court Holds That Heads of Power Are Supreme
At the SCC, the majority held that there is no case law that supports the use of cooperative federalism to impose a positive duty of cooperation in a matter where the Constitution grants one level of government the authority to act unilaterally. In the reasons, co-authors Justices Cromwell and Karakatsanis quote the Reference re Securities Act,  3 SCR 837, “While flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers” (para 61). The ruling also quotes, from the same case, “notwithstanding the Court’s promotion of cooperative and flexible federalism, the constitutional boundaries that underlie the division of powers must be respected” (para 62).
The majority held, in agreement with the minority, that there is no legal basis for Quebec’s claim to the data. The majority cited the fact the Supreme Court has made it clear that “a province’s legitimate expectation of action that the federal government would or would not undertake…cannot bind Parliament’s legislative action” (para 25). As well, it noted that all of the evidence Quebec relied on to establish a partnership are “unquestionably subordinate to parliamentary sovereignty” (para 26).
The majority then turned to the issue of the constitutionality of the provision under scrutiny, section 29 of the ELRA, and looked at the pith and substance of the law to determine the law’s dominant purpose. It noted:
If the “matter” of the legislation comes within the “subject” of the head of power of the enacting order of government, the legislation is intra vires even if it has incidental effects on the other jurisdiction’s legislative competence (para 32).
It also stressed that, while the pith and substance of the impugned provision is the starting point of a constitutional query, the matter of the provision must be considered in the context of the entire scheme. The Court recalled that the matter of the provisions at issue in RrFA were found to be the same as the rest of the scheme, public safety, which related to criminal law. It followed, then, that the act created to repeal parts of that scheme should be classified the same way:
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 (para 43).
The majority dismissed the appeal.
Minority Offers a Partial Dissent
The minority, written jointly by Justices LeBel, Wagner and Gascon, would have allowed the appeal in part. The minority supported what it called “a modern view of federalism” (para 147) that discarded the notion of heads of power as watertight compartments and favoured a more flexible approach. Because the gun registry required the use of both federal and provincial legislative powers, any analytical framework needs to take that into account.
The impugned section of the ELRA does not allow for data transfer to the provinces. Because of this, “This section has significant effects on Quebec’s legislative powers and is not necessary to the achievement of the ELRA’s purpose. Section 29 is therefore unconstitutional and should be declared to be invalid” (para 51).
However, even though minority found the impugned section invalid, it found that Quebec had failed to establish a legal basis to require the transfer of data to the province. It concluded, therefore, any transfer was a matter for the governments involved, not the courts.
Flexible Does Not Mean Weaker
Cooperation between the provinces and the federal government is necessary to maintaining a strong nation. However, any cooperative effort should not hamper either level of government from exercising its constitutional legislative authority. The modern vision of federalism does embrace flexibility, but that does not mean weakening long-standing powers granted in the Constitution.