Guns and Butter: The Policy Consequences of Quebec v Canada
In the fall session, the Supreme Court of Canada (“SCC”) is set to hear an appeal of Quebec (Attorney General) v Canada (Attorney General), 2013 QCCA 1138 [Long-Gun Registry case]. In the case, Quebec seeks a declaration of constitutional invalidity of section 29 of the Ending the Long-Gun Registry Act (“Bill C-19”). Bill C-19 permits the destruction of all records in the Canadian Firearms Registry related to the registration of long-guns.
The case has the potential of becoming the SCC’s most significant decision on cooperative federalism since Reference Re Securities Act,  3 SCR 837. A victory for Quebec would significantly change Ottawa’s power to repeal seemingly valid federal legislation. Alternatively, a victory for Ottawa may cause provincial governments to reconsider embarking on expensive and administratively complex intergovernmental arrangements. Since the latter is far more likely, the post will focus on these policy consequences.
In 1995, the federal Firearms Act was introduced in Parliament. The Act required licences and registration certificates for all firearms. In order to comply with division of powers requirements in the Constitution Act, 1867, licenses were to be issued by provincial officials and registration certificates by federal officials. Subsection 83(1) established the Canadian Firearms Registry for registration certifications, and subsection 87(1) established separate registries for provincial licenses. Despite this formal separation, section 90 provided that information gathered by provincial and federal officials would be accessible to all governments through a single database.
In its 2011 election platform, the Conservative Party vowed to dismantle Canada’s long-gun registry. Shortly after forming a majority government, the Bill C-19 was introduced. The Bill amended the Criminal Code by decriminalizing the possession of unregistered long guns and amended the Firearms Act by repealing the obligation for long-gun owners to register them. As discussed above, section 29 provided for the immediate destruction of all data related to long guns obtained under the Firearms Act registration scheme. Quebec commenced litigation shortly after the Bill became law.
The trial judgment (2012 QCCS 4202) articulated the positions of Quebec and Ottawa. Quebec argued that the pith and substance of section 29 denied the province the right to maintain an equivalent long-gun registry with pre-existing data. In doing, so, Ottawa prevented Quebec from exercising its jurisdiction over public security in its territory and the administration of justice. It went on to argue that the federal and provincial governments entered into a partnership to share the management and administration of a common firearms registry with the knowledge that the data would be used to apply both federal and provincial legislation (through section 90).
Ottawa argued that there was no “common” registry under the scheme as provincial officials and federal officials had control over their own registries (through subsections 83(1) and 87(1)). Further, the fact that provincial governments had access to registry information controlled by federal officials conferred no right to control the information or transform the separate registries into a shared system.
The trial judge accepted Quebec’s submissions and held that Ottawa’s wish to prevent the provinces from using the data from the Canada Firearms Registry was contrary to the principles of cooperative federalism. In doing so, he declared section 29 of no force and effect in Quebec and upheld the right of the province to receive relevant data from the registry. Concerning the principle of cooperative federalism he stated:
Since the Supreme Court of Canada has urged Canadian legislators to adopt a flexible and cooperative approach to federalism based on pragmatic lawmaking, in which the balance of power must facilitate, not undermine this approach, it is clear that the factual context in this case justifies the conclusion that Parliament acted in direct opposition to this teaching.
The QCCA overturned the trial judge’s decision. In a strongly worded judgment, the court found it “difficult to imagine” why the federal Parliament would not have jurisdiction to enact a statute that abolishes the registry scheme that it itself established through prior legislation. It went on to say that the amendment did nothing more than abolish a scheme that was constitutionally valid (based on the previous finding in Reference Re Firearms Act,  1 SCR 783). Therefore, it cannot encroach any further on provincial jurisdiction than did the statute that created and implemented the scheme in the first place. On the subject of cooperative federalism, the QCCA stated:
Cooperative federalism cannot be used as a basis for finding that section 29 of the Act is constitutionally invalid. As a principle of interpretation, it cannot, in itself, modify the division of powers. It encourages a more flexible application of the division of powers, but an application nonetheless. Only provisions of the Constitution Act, 1867 dividing the areas of jurisdiction between Parliament and the provincial legislatures can ground a judgment of constitutional invalidity based on the division of powers.
The QCCA’s conception of cooperative federalism appears to better align with the existing SCC jurisprudence on the subject. In Reference Re Canada Assistance Plan,  2 SCR 525, the Court upheld the right of Parliament to change laws relating to cost sharing with the provinces, despite explicit agreements requiring intergovernmental negotiations. In Reference Re Securities Act, the Court noted “the constitutional boundaries that underlie the division of powers must be respected” and arrangements made between levels of government cannot erode “the constitutional balance inherent in the Canadian federal state.”
Despite these precedents, the QCCA decision provides an uncomfortable conclusion for those in favour of intergovernmental collaboration on mutually beneficial policy objectives. Destroying the records in the Canadian Firearms Registry does more than make it difficult for provincial governments to establish their own long-run registries, it adds a degree of uncertainty to all existing intergovernmental programs for example; Ontario’s Aboriginal education programs, agricultural supply management, or Ottawa’s attempts to create a national securities regulator. This is problematic as it allows one level of government to unilaterally end the arrangement.
Consider the example of supply management for diary products, an intergovernmental arrangement which has existed for decades. In Canada, the national diary supply management system controls the production and marketing of dairy by assigning individual production quotas to dairy farmers. Provincial governments regulate the intra-provincial production and sale of dairy, while Ottawa regulates inter-provincial and international trade and sales. An affirmation of the QCCA decision in the Long-Gun Registry case would mean that the program and all the institutions that have built up around it could be dismantled with no need for negotiation of compensation for provinces like Ontario and Quebec which are significantly invested in the program.
My hope is that the SCC will consider these deliterious policy consequences when it makes its decision on the gun registry case later this year.