SUPREME
COURT OF CANADA
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.
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 which government and
legislative body has power to do what? [Emphasis added; footnote omitted.]
(Lederman,
at p. 315)
[19]
The principle of cooperative federalism,
therefore, cannot be seen as imposing limits on the otherwise valid exercise of
legislative competence: Reference re Anti-Inflation Act, [1976] 2 S.C.R.
373, at p. 421. This was recently reiterated by this Court in its unanimous
opinion in Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R.
837, at paras. 61-62:
While
flexibility and cooperation are important to federalism, they cannot override
or modify the separation of powers. The Secession
Reference affirmed federalism as an underlying constitutional principle
that demands respect for the constitutional division of powers and the
maintenance of a constitutional balance between federal and provincial powers.
In summary, notwithstanding the Court’s promotion of cooperative and
flexible federalism, the constitutional boundaries that underlie the division
of powers must be respected. The “dominant tide”
of flexible federalism, however strong its pull may be, cannot sweep designated
powers out to sea, nor erode the constitutional balance inherent in the
Canadian federal state. [Emphasis added.]
[20]
In our respectful view, the principle of
cooperative federalism does not assist Quebec in this case. Neither this Court’s
jurisprudence nor the text of the Constitution Act, 1867 supports using
that principle 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. Paradoxically, such an approach could discourage the practice of
cooperative federalism for fear that cooperative measures could risk
diminishing a government’s legislative authority to act alone.
[21]
We conclude that the principle of cooperative
federalism does not prevent Parliament from exercising legislative authority
that it otherwise possesses to dispose of the data.
B.
Does Quebec Have the Right to Obtain the Data?
[22]
Quebec submits that it has a right to receive
the long-gun registration data from the federal government whether or not
Parliament is constitutionally entitled to legislate with respect to the fate
of the data. In addition to the principle of cooperative federalism considered
above, Quebec relies on the findings of the trial judge that Quebec’s
contributions to the data contained in the CFR render the data the result of a
federal-provincial partnership. We note here that there is a factual
disagreement with regard to whether or not the data contained in the CFR is in
fact the result of a cooperative effort. The Court of Appeal was of the
opinion that the conclusions of Blanchard J. on this matter were based on a palpable
error of fact. In our view, this disagreement has no impact on the outcome of
this case.
[23]
We agree with the conclusion of our colleagues
LeBel, Wagner and Gascon JJ. that Quebec “has not established a legal basis for
its claim to the data”: para. 198. We do so for three reasons.
[24]
First, as mentioned above, the principle of
cooperative federalism does not limit the scope of the legislative powers
assigned by the Constitution.
[25]
Second, Quebec’s alleged right to obtain the data
arises from its expectation of having continuing access to that data regardless
of changes to federal legislation. We cannot agree that the provinces’
reliance on the existence of the data can limit Parliament’s capacity to
destroy a registry, which — as explained below — flows exclusively from its
criminal law head of power. Accepting this position would circumvent or
effectively overturn this Court’s rejection of the “legitimate expectation” doctrine.
This Court has made it clear that a province’s legitimate expectation of action that the federal government
would or would not undertake, even an expectation relating to financial
considerations, cannot bind Parliament’s legislative action: Reference re
Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at pp. 557-59; see also Wells v. Newfoundland,
[1999] 3 S.C.R. 199, at para. 59, and Authorson v. Canada (Attorney General),
2003 SCC 39, [2003] 2 S.C.R. 40, at para. 39. Quebec’s
position would also mean by extrapolation that the adoption of the Firearms
Act had a binding effect — the continued existence of the CFR data — which
Parliament cannot undo alone. That conclusion must also be rejected; it is
contrary to the established constitutional principle that Parliament cannot,
through ordinary legislation, fetter itself by inhibiting future legislative
action: Reference re Securities Act, at para. 119; Hogg, at pp. 12-8 and
12-9.
[26]
Third, even if the data accessible through the
CFR was the result of a cooperative effort, as asserted by Quebec, any effort
on Quebec’s part was statutorily limited to the licensing data held in the CFO’s
licensing registry. The Firearms Act did not empower this officer to
modify or contribute to the registration certificate data compiled and
maintained by the Registrar, nor did the CFO act in her capacity as a
provincial official in maintaining the licensing registry. As s. 29 of the ELRA
contemplates the registration data, not the licensing data, we agree with the
Quebec Court of Appeal that [translation]
“this claim fails to demonstrate that there is a right to the data in the CFR
or that Quebec participated in the creation of the CFR”: para. 57
(CanLII). In addition, we note that Quebec’s argument relies
on agreements between the federal and provincial governments, and on other
pieces of evidence which include RCMP documents, federal-provincial funding
agreements, and statements from politicians and other officials involved.
These legal instruments and pieces of evidence are unquestionably subordinate
to parliamentary sovereignty and can therefore be displaced by valid federal
legislation. Moreover, even if, as Quebec submits, there is no legal obstacle
to the federal government transferring the data to Quebec, the absence of a
legal obstacle to undertaking a given action does not, alone, create a legal
obligation to do so.
C.
Is Section 29 Ultra Vires Parliament’s Criminal
Law Power?
(1)
Applicable Legal Principles
[27]
The Constitution confers on Parliament the
exclusive authority to legislate with respect to, among others, “all [m]atters”
coming within “[t]he Criminal Law, except the Constitution of Courts of
Criminal Jurisdiction, but including the Procedure in Criminal Matters”: Constitution
Act, 1867, s. 91(27) . In that regard, the Chief Justice stated the
following constitutional question in this case:
Is s. 29 of the Ending the Long-gun
Registry Act, S.C. 2012, c. 6 , ultra vires Parliament having regard
to its criminal law power under s. 91(27) of the Constitution Act, 1867 ?
[28]
To answer this question, we first characterize
the law — that is, determine its subject matter or “pith and substance” — and
then classify it as to whether it is in relation to the subject of criminal law
and procedure.
[29]
The “pith and substance” analysis involves
determining the law’s “dominant purpose or true character”: RJR-MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 29. As
Binnie and LeBel JJ. put it in Canadian Western Bank, at para.
26: “This initial analysis consists of an inquiry into the true nature of the
law in question for the purpose of identifying the ‘matter’ to which it
essentially relates” (emphasis added). The object of the exercise is to
determine whether that “matter” comes within a particular class of subjects for
the purpose of determining which order of government can legislate. Both the
law’s purpose and its legal and practical effects are considered as part of
this analysis: Reference re Securities Act, at paras. 63-64; Quebec
(Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at para. 20;
Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and
Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at paras. 53-54. Care must be
taken, however, not to confuse the law’s purpose with “the means chosen to
achieve it”: Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1
S.C.R. 569, at para. 25.
[30]
Where the challenge concerns a particular
provision which forms part of a larger scheme, the pith and substance analysis
begins with the challenged provision: Kitkatla Band, at para. 56.
However, the “matter” of the provision must be considered in the context of the
larger scheme, as its relationship to that scheme may be an important
consideration in determining its pith and substance: Kirkbi AG v. Ritvik
Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302, at paras. 20-21.
[31]
Courts must be careful not to endorse a
“colourable” statute, that is, one
that in form appears to relate to a matter within the legislative competence of
the enacting order of government, but in substance addresses a matter falling
outside its competence: see Hogg, at p. 15-19; Reference
re Upper Churchill Water Rights Reversion Act,
[1984] 1 S.C.R. 297. The
colourability doctrine simply means that “form is not controlling in the
determination of essential character”: A. S. Abel, “The Neglected Logic of 91
and 92” (1969), 19 U.T.L.J. 487, at p. 494; Hogg, at p. 15-20. Courts are, for good reasons, reluctant to find
legislation to be colourable: H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel
(6th ed. 2014), at p. 464. There is a danger that any broader application
of the colourability doctrine may lead the courts to exceed their role of
determining the constitutionality of legislation and, instead, express
disapproval of either the policy of the statute or the means by which the
legislation seeks to carry it out: Hogg, at p. 15-20;
see also Ward, at para. 26.
[32]
Once the subject matter has been identified, the
next step of the pith and substance analysis consists of classifying the
legislation or provision in relation to the division of legislative power in
the Constitution. Here, we must determine whether the “matter” of s. 29 of the
ELRA comes within the “subject” of criminal law, a head of power
attributed to Parliament at s. 91(27) of the Constitution Act, 1867 .
This classification exercise may — and often does — involve defining the scope
of the relevant head or heads of power: Reference re Securities Act, at
para. 65. 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 (subject to federal paramountcy in the case of
provincial legislation): Reference re Firearms Act, at para. 49.
[33]
This point takes on special importance when
considering the classification of a law, like this one, that undoes a
previously enacted scheme. In classifying legislation that undoes an existing
legislative scheme, due regard must be paid to the proper classification of
that scheme. Consider the example of the repeal of a criminal offence.
The scope of the criminal law power extends to laws that create a prohibition
backed by a penalty for a criminal law purpose: Reference re Firearms Act,
at para. 27. A law creating a true criminal offence clearly has these
features, but a law repealing that same offence does not; the latter does not
create a prohibition backed by a penalty for a criminal law purpose. The
repealing enactment, however, is clearly criminal law because the “matter” of
that law comes within the same criminal law subject as did the provision it
seeks to repeal. This is why Quebec is clearly right in this case not to
question Parliament’s authority to repeal the long-gun registry scheme, and to
restrict its challenge to s. 29 of the ELRA, which provides for the
destruction of the data. The fatal flaw in Quebec’s analysis, however, is that
in characterizing the pith and substance of s. 29, it ignores the place of the
data gathering and retention provisions in the overall scheme.
(2)
Application
(a)
The “Matter” of Section 29
[34]
In essence, Quebec submits that the pith and
substance of s. 29 of the ELRA is to prevent the long-gun registry from
being continued through provincial legislation. Although
Quebec does not suggest that this “matter” comes within any of the enumerated
heads of provincial legislative power, it submits nonetheless that the federal
legislation is not a valid exercise of the criminal law power because it [translation] “encroaches massively on
the ability of a provincial legislature to exercise as it sees fit its powers
with respect to the administration of justice, public safety, the prevention of
crime and the social costs associated with crime”: A.F.,
at para. 122; see also para. 115. Quebec relies on several statements made by
the Prime Minister and other federal cabinet ministers to the effect that
Canada’s objective is to put a definite end to the long-gun registry by
destroying the data contained in the CFR connected to long guns, and that they
will do nothing to support any province or territory who would like to create a
local long-gun registry. Quebec also submits that the effect of the
destruction of the data will be to make it prohibitively expensive and
complicated for the province to create its own long-gun registry. Section 29
of the ELRA therefore constitutes an encroachment on the province’s
powers.
[35]
Canada submits that the subject matter of s. 29
is the same as the rest of the ELRA: to abolish the long-gun registry and
put an end to what it considers an unwarranted intrusion into the private lives
of Canadian gun owners. Canada also asserts that the practical effects of the
destruction of the data on provinces who want to create their own gun control
scheme do not change the pith and substance of the impugned provision.
[36]
In our respectful view, the proper
characterization of the “matter” of s. 29 of the ELRA derives from that
of the scheme that it is undoing. In the Reference re Firearms Act,
this Court held that both the criminal prohibition on possessing an
unregistered firearm and the registration scheme provided for in the Firearms
Act were valid public safety measures. It determined that the purpose of
the scheme was to address “the problem of the misuse of firearms and the threat
it poses to public safety”: para. 21. It also held that the effects of the
scheme supported the conclusion that the Firearms Act is a public safety
measure: para. 24. The Court rejected arguments from Ontario and Saskatchewan
to the effect that the “matter” of the registration and data retention
provisions, which s. 29 seeks to dismantle, was the regulation of property
within the province. The Court concluded that the “matter” of these provisions
was the same as the rest of the scheme — public safety — and that they should
accordingly be classified as being in relation to the subject of criminal law:
We are not persuaded that the registration provisions can be severed
from the rest of the Act, nor that they fail to serve Parliament’s purpose in
promoting public safety. The licensing provisions
require everyone who possesses a gun to be licensed. The registration
provisions require all guns to be registered. The combination of the two parts
of the scheme is intended to ensure that when a firearm is transferred from one
person to another, the recipient is licensed. Absent a registration system,
this would be impossible to ascertain. If a gun is found in the possession of
an unlicensed person, the registration system permits the government to
determine where the gun originated. With a registration scheme in place,
licensed owners can be held responsible for the transfer of their weapons. . . .
These interconnections demonstrate that the registration and licensing
portions of the Firearms Act are both tightly linked to Parliament’s
goal in promoting safety by reducing the misuse of any and all firearms. Both
portions are integral and necessary to the operation of the scheme. [Emphasis
added.]
(Reference
re Firearms Act, at para. 47)
[37]
Viewed in this light, the “matter” of s. 29 is
simply to determine what will happen with the data collected under a now
repealed legislative scheme. Given that the “matter” of the registration
scheme, including data collection, was found to be public safety in the Reference
re Firearms Act, dealing with the collected data following the repeal of
the scheme must share that same characterization. It is logical that the ELRA
provides for what is to happen with the remains of the scheme that it
repeals, and destroying the data is the means Parliament adopted to accomplish
that purpose. This is not to say that every measure that is part of or
consequent to the repeal of legislation invariably shares the pith and
substance of the repealed scheme. However, in this case, the repealing
enactment’s purpose and effects are to determine what will happen to the data
collected under the now repealed scheme, a scheme that the Court previously
characterized as being in relation to public safety.
[38]
Quebec’s submissions, in our respectful view,
confuse the subject matter of s. 29 of the ELRA with Canada’s motives
and the means employed by Parliament. In determining the true character of s.
29, we are not concerned with whether destroying the data is good policy,
whether Canada’s motives were sound, or whether the destruction of that data
conflicts with the policy objectives of Quebec. 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, these considerations are not indicative of a “colourable” purpose from a
division of powers’ perspective. 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 fact
that s. 29 of the ELRA has the practical effect of making it more
difficult financially for Quebec to create its own gun control regime does not,
in light of the rejection of the legitimate expectations doctrine, affect the
pith and substance of the provision. As Sopinka J. said in Reference re Canada Assistance Plan,
“‘[i]mpact’ [upon a constitutional interest outside Parliament’s jurisdiction]
with nothing more is clearly not enough to find that a statute encroaches upon
the jurisdiction of the other level of government”: p. 567. In our view, the
practical effects of s. 29 do not exceed that threshold.
[39]
Quebec also submits that an analogy can be drawn
between the facts of this case and those in Upper Churchill, in which
this Court held that Newfoundland legislation repealing a statutory lease
granted to Hydro-Quebec was colourable because it was in fact
expropriating rights situated outside the province: p. 335. This argument
implies that s. 29 exceeds Parliament’s criminal law jurisdiction and is a
colourable attempt to legislate in relation to property and civil rights in the
province: see P. Daly, “Dismantling Regulatory Structures: Canada’s Long-Gun
Registry as Case Study” (2014), 33 N.J.C.L. 169, at pp. 178-80.
[40]
We reject this argument. Like the Quebec Court
of Appeal, we do not think that the principles in Upper Churchill are
applicable to this case. As we have discussed earlier, s. 29 of the ELRA does
not seek either in substance or in form to limit Quebec’s legislative authority
to create a provincial long-gun registry, whereas the impugned legislation in Upper
Churchill did seek to interfere with Quebec’s legislative authority.
Rather, s. 29 simply prevents Quebec from using the data obtained through the
federal long-gun registry in establishing a provincial registry. Quebec does
not (and in our view could not) take the position that it could validly enact
legislation that deals with what will happen with the data of the repealed
scheme. That being the case, Parliament’s enactment of s. 29 cannot be a
colourable attempt to legislate in relation to a provincial head of power. In
any event, there is no difference between the form and substance of the
provisions at issue; both deal
with what will happen to the data collected under the
now repealed scheme. In our
view, the doctrine of colourability is not engaged here.
[41]
In summary, this Court
has already been called upon in the Reference re Firearms Act to
determine the pith and substance of the scheme enacted by the Firearms Act .
In our view, legislation repealing the part of that scheme relating to long
guns, including a provision addressing what will happen
to the data collected thereunder, must be characterized in the same way. We conclude that s. 29 , in essence,
relates to public safety — as did the long-gun registration scheme being
repealed by the balance of the ELRA.
(b)
Classification: Does Section 29 Come Within the
Criminal Law Power?
[42]
Quebec submits that s. 29 cannot be a valid
exercise of Parliament’s criminal law power because it is not aimed at
preventing crime or at decriminalizing any conduct. We disagree and would hold
that s. 29 of the ELRA falls under the criminal law head of power.
[43]
It is not contested that the repeal of criminal
provisions constitutes a valid exercise of the criminal law power: Hogg, at p. 18-21.
We accept that there is a factual difference between repealing a criminal
provision and providing for what will happen to the data collected under that
provision. That being said, we are of the view that there is no significant
legal distinction between these two actions in the current case because the
data at issue here 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 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. This is the case here.
[44]
In addition, the prospect that Parliament would
not have the power to destroy records under its control and created under a
scheme validly enacted by it is concerning. Since we do not see how provinces could have the power
to destroy the data contained in the federally enacted long-gun registry,
Quebec’s position — if it were accepted — would suggest that neither Parliament
nor provincial legislatures could legislate to destroy the data of the repealed
scheme. We reject this proposition as it would run afoul of the principle that
the Constitution Act, 1867 provides for a complete division of powers
between both orders of governments: Attorney-General for Ontario v.
Attorney-General for Canada, [1912] A.C. 571 (P.C.), at p. 581; Attorney-General
for Canada v. Attorney-General for Ontario, [1937] A.C. 326 (P.C.). There
is no topic that cannot be legislated upon: Reference re Same-Sex Marriage,
2004 SCC 79, [2004] 3 S.C.R. 698, at para. 34. Quebec’s proposition would also
be inconsistent with the notion that Parliament possesses the residual power to
legislate on subject matters that do not come within a provincial head of
power: see, e.g., Hunt v. T&N plc, [1993] 4 S.C.R. 289, at p. 326,
and Hogg, at pp. 17-1 and 17-2.
[45]
Therefore, we agree with the Quebec Court of
Appeal that s. 29 of the ELRA should be characterized as being in
relation to criminal law. It therefore falls within the legislative competence
of Parliament.
IV.
Disposition of the Appeal
[46]
We would dismiss the appeal with costs throughout
and answer the constitutional question as follows:
Is s. 29 of the Ending the Long-gun Registry Act, S.C. 2012,
c. 6 , ultra vires Parliament having regard to its criminal law power
under s. 91(27) of the Constitution Act, 1867 ?
Answer: No.
English version of
the reasons of LeBel, Abella, Wagner and Gascon JJ. delivered by
LeBel, Wagner and Gascon JJ. (dissenting) —
I.
Introduction
[47]
In 2012, Parliament enacted the Act to amend
the Criminal Code and the Firearms Act, S.C. 2012, c. 6 (short title
Ending the Long-gun Registry Act (“ELRA”)). This Act repeals the
provisions of the Firearms Act, S.C. 1995, c. 39 (“FA ”),
relating to the mandatory registration of long guns. Section 29 of the ELRA
provides for the destruction, as soon as feasible, of all data compiled since
1998 with respect to the registration of such guns in Canada.
[48]
The Quebec government, which considered the data
to be the product of a federal-provincial partnership and wanted to continue
registering long guns within its territory, then asked the federal government
to transfer to it all data from Quebec concerning registration certificates for
long guns. The federal government refused to do so, and the Attorney General of
Quebec (“AGQ”) then instituted legal proceedings. According to the AGQ, the
unilateral destruction of these data under s. 29 of the ELRA would be
unconstitutional unless they were first transferred to Quebec.
[49]
The Quebec Superior Court declared that s. 29 of
the ELRA is unconstitutional and that Quebec is entitled to a transfer
of these data. The Quebec Court of Appeal unanimously reversed that judgment.
The AGQ now appeals to this Court. Our colleagues would dismiss the appeal.
[50]
We are of the opinion that the appeal should be
allowed, but only in part. This conclusion is dictated by the exceptional
circumstances in which long-gun regulation was implemented in Canada. In our
opinion, and this is where we diverge from our colleagues’ view, both the
collection of the data with respect to long guns and the broader initiatives
aimed at regulating the use of such guns were the result of a partnership with
the provinces, including Quebec. Where an integrated scheme such as this
requires the exercise of both federal and provincial legislative powers, the
analytical framework for questions related to the division of powers must be
adapted and applied accordingly. Whether the means the federal government
adopted to terminate this partnership were constitutional can be measured, in
particular, in terms of the effect they will have on its partners’ powers.
[51]
The ELRA is the 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. 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.
[52]
Although we find that s. 29 is unconstitutional,
the AGQ has nonetheless failed to establish a legal basis for his 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.
II.
Background
[53]
Firearms have been subject to regulation in
Canada since early in the country’s history: “Canada has had laws restricting
the possession and use of firearms since 1877, and a nationwide permit system
for the carrying of small arms has been in effect since 1892” (Library of
Parliament, “Bill C-19: An Act to amend the Criminal Code and the Firearms
Act”, Legislative Summary No. 41-1-C19-E, November 1, 2011 (“Legislative
Summary”), at p. 1). Since 1969, firearms have been divided into three
classes for purposes of regulation: prohibited firearms, restricted firearms
and non-restricted firearms (also called “long guns”) (Criminal Law
Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 6). The regulation of
firearms was originally focused on prohibited and restricted firearms. During
the 1970s and 1980s, there was growing discontent over the disparity in
treatment between long guns and the other two classes of firearms. Various
groups promoting stricter regulation of long guns started a serious debate
about public safety: see R. B. Brown, Arming and Disarming: A History of Gun
Control in Canada (2012), at pp. 167-203. Nothing came of their efforts.
[54]
The tragedy at the École Polytechnique in
Montréal on December 6, 1989 shook the Canadian public. In its wake, was formed
in the early 1990s and the intervener Coalition for Gun Control began lobbying
the Canadian government and other organizations for stricter gun control:
Brown, at pp. 204-7. After a long debate and despite several failures, the
Coalition’s efforts finally came to fruition a few years later.
[55]
In 1994, the federal Minister of Justice
announced his intention to introduce stronger firearms control measures. In
tabling Bill C-68 (which would become the FA ) in the House of Commons,
the Minister focused on one key element: the need for and usefulness of a long-gun
registration system. He stressed the important role that the provinces would
have in designing this system, making the following comments, among others:
During
the course of the last several months, I have been in continuous touch with
senior officials and indeed with provincial counterparts, attorneys general and
ministers of justice, exchanging views about the proposals that will be decided
upon and announced this afternoon.
(House of Commons
Debates, vol. 133, No. 134, 1st Sess., 35th Parl., November 30, 1994, at p.
8476)
We
can take the opportunity of designing and implementing such a system in
collaboration with provincial authorities, with the input of the firearms’
groups to eliminate irritants, to overcome paperwork burden, to simplify and
streamline the system so that all of our objectives can be achieved at the same
time.
(House of Commons
Debates, vol. 133, No. 154, 1st Sess., 35th Parl., February 16, 1995, at p.
9709)
[56]
At the time of the enactment of the FA , there
was no dispute that it would be impossible to set up a registration system
without provincial collaboration. Member of Parliament Stephen Harper (who
would subsequently become Prime Minister) said the following in the House:
We know that the Department of Justice retains
overall responsibility for gun control but the program is predominantly
administered by provincial and territorial governments, through chief firearms
officers and local police agencies.
(House of Commons
Debates, vol. 133, No. 216, 1st Sess., 35th Parl., June 12, 1995, at p. 13631)
[57]
In Quebec, there was a consensus that the
program would be useful, although some questioned whether the compensation for
the costs of implementing and administering the program that the federal
government proposed to pay the provinces that chose to take part would be
sufficient: see, e.g., Quebec, National Assembly, Journal des débats,
vol. 34, No. 49, 1st Sess.,
35th Leg., May 23, 1995 (online), at 14:40, Mr. Brassard (Minister of the Environment and Wildlife). Other provinces shared this concern:
I have been told the funds that the
provinces received are not adequate to cover their costs. . . .
The federal government’s latest offer
amounts to only about two-thirds of the actual cost incurred for these
programs.
(House
of Commons Debates, June 12, 1995, at p. 13631)
[58]
Upon receiving Royal Assent the day before the
sixth anniversary of the École Polytechnique tragedy, the FA created
controversy. Alberta challenged its constitutionality in 1996, arguing that it
was ultra vires Parliament. In a unanimous opinion, the Court rejected
this argument and held that the FA falls within the federal criminal law
power: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1
S.C.R. 783 (“FA Reference”). We will return to this question below.
[59]
The coming into force of the FA on
December 1, 1998, marked the beginning of the registration of all firearms —
including long guns — in Canada. After that date, any individual, unless
exception applied, who acquired or possessed a firearm of any type in Canada was
required to hold a licence to possess firearms as well as a specific
registration certificate for the firearm in question: ss. 4 to 14 and 112 (rep.
s. 27 ELRA) FA ; ss. 90 and 91 of the Criminal Code, R.S.C.
1985, c. C-46 . Moreover, it should be specified that holding a licence was a
precondition for obtaining a registration certificate: s. 13 FA .
[60]
In this regard, the FA provides for the
establishment of two types of registries: the Canadian Firearms Registry (“CFR”),
which is to be maintained by the Registrar of Firearms (“Registrar”), and
records of chief firearms officers (“CFOs”) (ss. 83 and 87 FA ). Whereas
there is only one Registrar for all of Canada, each province or territory has
its own CFO. The CFOs for the territories are appointed by the federal Minister
of Public Safety and Emergency Preparedness: s. 2(1) “chief firearms officer” FA .
With respect to the provinces, on the other hand, it is only if a province has
not designated a CFO that the federal minister will do so: ibid. At the
time the FA was passed, CFOs were designated by five provinces, namely
Ontario, Quebec, New Brunswick, Prince Edward Island and Nova Scotia (Royal
Canadian Mounted Police (“RCMP”), National Program Evaluation Services, RCMP
Canadian Firearms Program: Program Evaluation, Final Approved
Report, February 2010 (online) (“CFP Evaluation”), at p. 9; affidavit
of Pierre Perron (Assistant Commissioner of the RCMP and Director General of
the CFP), April 5, 2012, joint record (“J.R.”), vol. 3, at para. 10).
[61]
Under the FA , the Registrar is
responsible for issuing a registration certificate for each firearm: s. 60 . The
CFOs, for their part, are responsible for issuing possession licences as well
as authorizations to carry and authorizations to transport for firearms
belonging to individuals or businesses in their respective provinces: ss. 56
and 57 FA . The CFR contains, inter alia, information on
registration certificates, and the records of the CFOs contain information on
licences and authorizations to carry. Section 90 of the FA requires that
the Registrar and the CFOs have access to one another’s registries.
[62]
The Canadian Firearms Information System
(“CFIS”) (formerly known as the Canadian Firearms Registration System (“CFRS”))
allows for the pooling of information in the CFR maintained by the Registrar
and the registries kept by the CFOs. The CFIS is now administered by the RCMP,
and it provides access to all information that must be kept pursuant to the FA .
However, only the Registrar can modify information recorded in the CFR, and
only the CFO can modify records he or she maintains: Firearms Records
Regulations, SOR/98-213, s. 7(1) and (2).
[63]
The keeping of the CFR and of the CFOs’ records
is one aspect of the broader framework of the Canadian Firearms Program
(“CFP”). The CFP has multiple components, including firearms regulation,
training and support for police forces and those who work in the criminal
justice system, education for firearms owners, and public awareness: CFP
Evaluation, at pp. 7-8. Several aspects of the CFP, such as the
mandatory firearms safety course for owners, were developed with provincial co-operation
and support: affidavit of Pierre Perron, at para. 7 and Exhibit A.
[64]
In 2006, a new federal government came to power.
At the outset of its mandate, it announced an amnesty under which owners of
long guns would not be liable to sanctions for having failed to register their
weapons or to renew their licences to possess firearms: Order Declaring an Amnesty Period (2006), SOR/2006-95. The
amnesty period was extended year after year, effectively decriminalizing the
failure to obtain a licence and to register long guns: SOR/2007-101, SOR/2008-147, SOR/2009-139, SOR/2010-104,
SOR/2011-102, SOR/2013-96 and SOR/2014-123.
Nonetheless, the RCMP and its partners continued to administer the CFP,
including its long-gun component.
[65]
On October 25, 2011, after several bills had
died on the Order Paper and following a spirited public debate, Bill C-19 was
tabled in the House of Commons: House of Commons Debates, vol. 146, No. 036,
1st Sess., 41st Parl., at p. 2437. Its purpose was to abolish the requirement
to register long guns and to ensure the destruction of all data related to the
registration of such guns. It was only the portion of the CFR concerning long
guns that was affected by this bill and is at issue in this appeal. Clause 29
of Bill C-19, which would become s. 29 of the ELRA, read as follows:
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).
[66]
The Quebec government, with the support of its
police officers and much of its population, had made its opposition to the
federal government’s attempts to abolish the registration of long guns known.
Between 2006 and 2011, the National Assembly had adopted at least six motions
denouncing the various federal government bills, calling on members of
Parliament to vote against these measures and demanding that the CFR be
maintained. On November 2, 2011, it unanimously adopted a new motion, this time
demanding that Quebec’s CFO “take
all of the necessary measures to preserve the completeness of data from Québec
entered in the Firearms Registry”: Votes and Proceedings, No. 57, 2nd Sess.,
39th Leg., November 2, 2011, at pp. 693-94.
[67]
Two weeks later, Quebec’s Minister of Public
Security appeared before the House of Commons Standing Committee on Public
Safety and National Security to ask that the CFR be maintained or, failing
that, that Bill C-19 be amended by removing the provision on the destruction of
the data, namely clause 29: House of Commons, Evidence of the
Standing Committee on Public Safety and National Security, No. 012, 1st Sess.,
41st Parl., November 17, 2011, at pp. 1-2. Quebec’s minister also wrote to his
federal counterpart to ask him to agree on terms for transferring CFIS data
concerning Quebec citizens. He noted that this would be [translation] “an excellent opportunity
for the federal government to deal with this matter in a spirit of co-operative
federalism that would be respectful of, rather than frustrate, Quebec’s
collective goals”: letter dated December 2, 2011, J.R., vol. 10, at p. 161.
[68]
Finally, on December 6, 2011, the National
Assembly voted to adopt another motion in which it asked the Quebec government
“to seek legal recourse aiming to maintain the federal long gun registry and to
ensure that its data is preserved, before the abolition of this registry causes
the destruction of data when Bill C-19 shall have been passed”: Votes and Proceedings, No. 72, 2nd Sess., 39th Leg., December 6,
2011, at p. 848. On December 13, having received no
response from the federal government, Quebec’s Minister of Public Security
announced that his government would commence legal proceedings to recover the
data concerning registration certificates for long guns held by Quebec
citizens. He stated that should the courts rule in Quebec’s favour, a bill
would be tabled in the National Assembly to create a Quebec long-gun registry using
the data obtained from the federal government: Press release from the Minister of Public Security,
December 13, 2011, J.R., vol. 10, at pp. 48-49.
III.
Judicial History
[69]
On April 2, 2012, three days
before the ELRA came into force, the AGQ filed a motion in the Quebec
Superior Court for a declaratory judgment, an interim interlocutory injunction,
a permanent injunction and safeguard orders. The AGQ asked that s. 29 of the ELRA be declared unconstitutional. He also sought an order
enjoining the federal government to transfer to him all Quebec data with
respect to long guns.
A.
Quebec Superior Court, 2012 QCCS 4202
[70]
Blanchard J. of the Superior Court granted the
AGQ’s motion. His judgment can be broken down into three elements: (1) the
facts; (2) the constitutionality of s. 29 of the ELRA; and (3) Quebec’s
right to obtain the data.
(1)
Facts
[71]
Blanchard J. first pointed out that the FA
created a distinction between the registries kept by the Registrar (concerning
the registration of firearms) and those kept by the CFOs (concerning the
issuance of licences) (para. 27).
[72]
Blanchard J. next noted that the [translation] “collected information
[from the two types of records] is stored in the CFIS, [a] complex central
computer registry” (para. 28 (CanLII)). He also stressed that, “[a]ccording to
the structure of the FA , the Registrar and the Chief Firearms Officers
have the same level of access to the data” (para. 72).
[73]
Blanchard J. mentioned that Quebec had
contributed to [translation] “gathering,
analyzing, organizing, and modifying” the data in the registry (para. 151),
which derived from the combined efforts of governments at the municipal, provincial
and federal levels (para. 102). The establishment of the registry had therefore
created a partnership, particularly as regards the data it contained (para. 192).
[74]
Blanchard J. found that the data in question
could not be characterized as being solely [translation]
“federal data”, given that they were subject to the applicable access to
information and privacy legislation of both the federal government and Quebec
(para. 82). He wrote the following:
[translation] The Court must recognize
an actual, concrete effect to this intent, clearly expressed by Canada and
Quebec, to submit all of the information gathered to two jurisdictions
concurrently, which must, in practice, have some meaning. [para. 83]
[75]
According to Blanchard J., the partnership
extended beyond the data; it also involved the implementation of the CFP (para.
73), the effective administration of the FA (para. 83) and the joint and
complementary exercise of relevant federal and provincial powers (para. 104).
[76]
He concluded that [translation] “[t]he firearms registry is a complex
interweaving of federal, provincial and municipal powers, such that it could
not exist without the close and constant collaboration of each level of
government” (para. 192).
(2)
Constitutionality of Section 29 of the ELRA
[77]
Blanchard J. observed that a more flexible view
of federalism than the one formerly adopted by the Judicial Committee of the
Privy Council, a view based on co-operation rather than on exclusive powers,
has underlain this Court’s decisions since 1949 (paras. 52-53). He added that
since 1998, the Court had [translation] “set
out an approach to the interpretation of constitutional powers based on
cooperation rather than the strict enforcement of jurisdictions” (para. 71).
[78]
Blanchard J. noted the importance of the FA
Reference to the case at bar (paras. 63-66). In that case, this Court had
found no indication of a colourable intrusion into provincial jurisdiction at
the time of the enactment of the FA . The Court also specified that an
analysis of the FA ’s provisions showed that Parliament had not had an
improper motive, nor was it taking over provincial powers under the guise of
the criminal law.
[79]
Blanchard J. explained that the AGQ did not
dispute that Canada was acting within its sphere of jurisdiction in abolishing
the long-gun registration system. Rather, he was asking the court to decide
whether the destruction of the data, provided for in s. 29, could be linked to
the federal criminal law power (para. 87). Blanchard J. found that s. 29, in
its pith and substance, was not linked to that power. The provision did not
suppress an evil, nor did it establish a prohibition or a penalty (para. 125).
He concluded, on the basis of declarations of the Prime Minister of Canada, the
Minister of Intergovernmental Affairs and the Parliamentary Secretary to the
Minister of Justice, that Parliament instead had an intention to hinder the
exercise of the powers of all the provincial legislatures (paras. 136-39).
[80]
In light of his conclusion regarding the pith
and substance of s. 29, Blanchard J. then considered the ancillary powers
doctrine. He noted that an assessment of the seriousness of the encroachment
must be grounded in the facts of each case, and that the factors discussed in General
Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, can
be used to guide the assessment (para. 129). These factors include the scope of
the heads of power in play, the nature of the impugned provision, and the
existence of prior legislation on the matter in question. Nonetheless,
Blanchard J. found that [translation] “this
analytical framework [seems] incongruous [in this case]. In reality, section 29
of C-19 is a legislative
provision that does not establish jurisdiction in any
strict sense; rather, in both
intention and scope, it aims to prevent any other level of government from
legitimately using the data recorded in the Registry” (para. 130). In his view,
“[t]his situation, which is without precedent in Canadian constitutional
history, justifies an analytical approach that takes this context into account”
(para. 131).
[81]
Blanchard J. found that s. 29 was intended to
prevent the provinces from exercising their powers in their own spheres of
jurisdiction. This meant that it encroached substantially, even [translation] “to excess”, on provincial
powers and that it was neither necessary nor rationally connected to the
purpose of the ELRA (para.
135). On this point, he noted that this Court had determined in the FA
Reference that the firearms registration system was tightly linked to the
administration of the records of licences — which remain in the system — and to
the purpose of promoting safety by reducing the misuse of firearms (ibid.).
He added that it would be possible to decriminalize the failure to register
long guns without destroying the data (para. 140). Moreover, none of the
earlier bills had provided for their destruction (para.
141).
(3)
Quebec’s Right to Obtain the Data
[82]
Having found s. 29 to be unconstitutional,
Blanchard J. then considered the transfer of the data requested by the AGQ. He
found that, because the data to which s. 29 applied were the product of a
partnership between Canada and the provinces, they had no [translation] “owner” and did not fall
within the jurisdiction of a single level of government. As a result, Quebec
was entitled to obtain them (paras. 148-49). He said the following in this
regard: “It goes against common
sense — not to say the common good — to prevent Quebec from using data that it
took part in gathering, analyzing, organizing, and modifying” (para. 151).
[83]
Blanchard J. pointed out that the data had been
collected using forms that clearly disclosed both the interaction between
federal and provincial governments and the intended use of the data, namely the
enforcement of firearms legislation (para. 154). The fact that it is Quebec,
rather than Canada, that would from now on be gathering these data for an
identical purpose [translation] “[cannot]
give rise to a legitimate objection” (para. 155).
B.
Quebec Court of Appeal, 2013 QCCA 1138
[84]
On June 27, 2013, the Quebec Court of Appeal
unanimously allowed the appeal of the Attorney General of Canada (“AGC”). It
reversed the trial judge’s decision and dismissed the AGQ’s motion for a
declaration of constitutional invalidity.
(1)
Facts
[85]
The Court of Appeal first found that the
Superior Court’s judgment was confused and erroneous as regards the nature of
the registry. It stated that Blanchard J. had confused the CFIS with the CFR
(para. 28): it was of the opinion that [translation]
“the CFIS is nothing more than a system providing electronic access to
the registries kept by the Registrar and the Chief Firearms Officers” (para. 31
(CanLII)). The Court of Appeal also rejected certain other findings of fact
made by the trial judge, particularly those to the effect that the CFR resulted
from a partnership between the provinces and the federal government, and that
Quebec’s CFO had a certain control over the CFR and had contributed to it
(paras. 29 and 56). The Court of Appeal found that the CFR was a registry that
was maintained by the Registrar and remained independent of and distinct from
the registries maintained by the CFOs. The CFIS merely enabled CFOs, like
various federal, provincial and municipal public safety organizations, to
access data in the CFR (para. 28).
(2)
Constitutionality of Section 29 of the ELRA
[86]
Next, the Court of Appeal found that s. 29 falls
within Parliament’s jurisdiction. In its view, it makes little sense that
Parliament would not have the power to amend a statute it had enacted or to
destroy data in a registry it had created (paras. 37 and 45).
[87]
The Court of Appeal reversed the trial judge’s
conclusion that s. 29 had been enacted to prevent Quebec from using the data in
the registry. Moreover, it rejected an argument by the AGQ based on the Reference
re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297 (“Upper
Churchill”). In that case, the province of Newfoundland had enacted a
statute under which the right to use water from and rights related to power
generated at Churchill Falls were to revest in the Crown (Court of Appeal’s
reasons, at para. 41). A previous provincial statute had assigned those rights
to the Churchill Falls (Labrador) Corp., which had then signed a contract for
the sale of power with Hydro-Québec. The province argued, among other things,
that the assignment was inoperative on the basis of its power to repeal an
existing statute. This Court concluded that the new statute was colourable
legislation whose sole purpose was to amend the power contract, thereby
depriving Hydro-Québec of its rights, and that that purpose was ultra vires
the province. In the Court of Appeal’s view, Upper Churchill can be
distinguished from the instant case, in which the federal government’s
intention is to abolish a registry it itself created. Parliament is not
preventing the provinces from creating their own registries, but is simply
refusing to collaborate in such an initiative (ibid., at para. 42).
[88]
Turning to the ancillary powers doctrine, the
Court of Appeal found that, since the ELRA abolished a scheme the
creation of which had been held to be valid, it could not encroach on
provincial jurisdiction any more than did the Act that had created the scheme
(para. 49). The court stated that the trial judge had erred in using the
principle of co-operative federalism [translation]
“not as a mere interpretive tool but as the legal basis for a
declaration that section 29 of the Act was ‘of no force or effect’” (para. 54).
(3)
Quebec’s Right to Obtain the Data
[89]
Finally, the Court of Appeal declined to find
that Quebec was entitled to receive the data. Its decision was based upon three
grounds.
[90]
First, the Court of Appeal found that Quebec did
not have any property rights in the CFR’s data, because it had no control over
them (para. 55). According to the court, the evidence revealed that Quebec’s
CFO had never contributed data to the CFR, and that the CFIS merely made it
possible for users to access data gathered independently by the Registrar and
the CFOs (para. 56).
[91]
Second, the Court of Appeal expressed the
opinion that the CFO does not represent Quebec in exercising his or her duties.
Rather, the CFO’s powers flow from the federal statute — the FA — that
created the position (paras. 58-59).
[92]
Third, the Court of Appeal held that there was
no partnership between Quebec and Canada with regard to the collection and
preservation of the data targeted by s. 29. The financial agreements between
Quebec and Canada did not create a partnership; they simply provided that Quebec
was to be compensated for certain costs it incurred in administering the FA
within its territory (paras. 61-63). Consequently, there was nothing to justify
ordering a transfer.
[93]
According to the Court of Appeal, [translation] “[t]he remedy determined by
the judge — that is, to compel the federal government to continue to compile
the data — was clearly inappropriate here. So was the obligation to transfer this
data to a future provincial registry” (para. 64).
IV.
Issues
[94]
In this Court, the AGQ does not dispute the
federal government’s power to repeal the FA ’s provisions on the
registration of long guns. As the Court of Appeal correctly stated, it would
make little sense, and would be contrary to the principle of parliamentary
sovereignty, if Parliament could not repeal a statute it itself had enacted.
Nor is the provinces’ power to have a long-gun registry at issue here. Instead,
the AGQ argues that s. 29 , which provides for the unilateral destruction of the
data with respect to long guns, is unconstitutional. The AGQ also submits that
the federal government cannot refuse to transfer these data to Quebec before
destroying them.
[95]
In light of the issues raised by this appeal,
the Chief Justice of Canada stated the following constitutional question:
Is s. 29 of the Ending the Long-gun Registry
Act, S.C. 2012, c. 6 , ultra vires Parliament having regard to its
criminal law power under s. 91(27) of the Constitution Act, 1867 ?
[96]
To answer this question, we must consider four
issues:
(1) What are the
constitutional basis and the nature of the registry at issue, particularly in
light of the FA Reference?
(2) Is there a federal-provincial
partnership with respect to the organization and management of the CFP and, if
so, what are the consequences of that partnership from the standpoint of
federalism?
(3) In light of the applicable
constitutional analytical framework, is s. 29 of the ELRA invalid?
(4) If so, what is the
appropriate remedy in the case at bar?
V.
Analysis
A.
The Registry
(1)
Constitutional Basis of the Registry
[97]
The analysis of the constitutional basis of the
CFR must begin with this Court’s opinion in the FA Reference. In that
case, Alberta challenged the validity of the FA and, more specifically,
of the provisions on licences and on the registration of long guns. It asked
the Court to rule on the constitutional basis for the creation of a firearms
registry by the federal government, and for the requirement that long guns be
registered. Note that at the time of the FA Reference, the CFR had not
yet been set up and the practical effects of the FA therefore had yet to
materialize.
[98]
In a unanimous opinion, this Court held that the
FA , as a whole, fell within Parliament’s jurisdiction over criminal law:
The [FA ] in “pith and substance” is
directed to enhancing public safety by controlling access to firearms through
prohibitions and penalties. This brings it under the federal criminal law
power. While the law has regulatory aspects, they are secondary to its
primary criminal law purpose. The intrusion of the law into the
provincial jurisdiction over property and civil rights is not so excessive
as to upset the balance of federalism. [Emphasis added.]
(FA
Reference, at para. 4)
[99]
The regulatory aspects mentioned by the Court in
this passage include the FA ’s provisions on licensing, on the
registration of long guns and on maintaining a registry. The maintaining of a
long-gun registry is, at first blush, a matter within provincial jurisdiction.
In principle, the regulation of property within a province stems from that
province’s jurisdiction over property and civil rights, except insofar as the
property also falls within a listed federal head of power: Constitution Act,
1867, ss. 91 and 92(13) . Thus, the constitutionality of these provisions is
based upon the fact that they are ancillary to the FA ’s primary purpose,
which relates to criminal law.
[100]
Moreover, although the Court did not accept the
existence of a parallel between the regulation of firearms in the FA and
the regulation by the provinces of property such as land titles and automobiles
(FA Reference, at paras. 41-43), that parallel is nonetheless relevant
as regards the provisions — considered individually — that provide for the collection
of information on long guns. On the ancillary nature of those provisions, three
findings of this Court are of particular importance here.
[101]
First, the Court found that the FA “[did]
not significantly hinder the ability of the provinces to regulate the property
and civil rights aspects of guns”: FA Reference, at para. 51. Thus, the
provisions on the registration of firearms did not encroach unduly on
provincial powers: see also para. 58.
[102]
Second, there was no indication that Parliament
had an improper motive or that it was taking over a provincial power under the
guise of the criminal law: FA Reference, at para. 53.
[103]
Third, in the Court’s opinion, the system for
monitoring the transfer of firearms, as well as the misuse of such weapons,
included two categories of provisions (registration and licensing) that were
“integral and necessary to the operation of the scheme”: FA Reference,
at para. 47.
[104]
In short, this Court found that the FA ,
including the long-gun registration provisions, was valid because it did not
upset the balance of federalism: see FA Reference, at paras. 4, 53 and
58. The conclusion that the CFR is constitutionally valid flows directly from
that finding. The CFR can be understood in this light, but it is just as
important to define its exact nature, that is, to properly define the limits of
what is to be destroyed under s. 29 .
(2)
Nature of the Registry
[105]
The trial judge and the Court of Appeal reached
opposite conclusions regarding the nature of the registry at issue. Blanchard
J. focused on the CFIS and found that the data it contained, including those to
which s. 29 applied, came from both the Registrar and the CFOs. As for the
Court of Appeal, it found that Blanchard J. had erred as regards the nature of
the different types of registries provided for in the FA . In its view,
the CFIS is merely a system for accessing data and is not a registry in
itself. Moreover, the CFOs did not contribute data to the CFR.
[106]
It is true that the trial judge was at times
unclear in his reasons in referring to the various types of registries
established under the FA . However, this confusion did not affect his
conclusion regarding the nature of the registry that is actually at issue here
or the data it contains. By contrast, the Court of Appeal limited its analysis
to the registries mentioned in the FA but did not consider how they were
set up and kept. Certain facts must be reviewed in order to correctly grasp the
nature of the registry that is at the heart of this case.
[107]
The FA and the regulations made under it
certainly provide — and the AGC emphasizes this point — that the Registrar and
the CFOs are to maintain distinct “records”: ss. 83(1) and 87(1). In practice,
however, the government chose for the implementation of this legislation to
create one central registry — the CFIS — containing information entered by both
the Registrar and the CFOs. To suggest that the information contributed by the
Registrar is independent of the information contributed by the CFOs is to
disregard this reality, which is supported by the evidence Blanchard J.
accepted. In our opinion, Blanchard J. was right to find that the CFIS is
primarily a data bank, and not a mere system for accessing information.
[108]
Extensive evidence was presented at trial
demonstrating that — to borrow the words of the Privacy Commissioner of Canada
— the CFIS is “a fully integrated, automated information system that is used to
enter, analyze, maintain and store” all firearms-related information required
under the FA : Review of the Personal Information Handling Practices
of the Canadian Firearms Program, Final Report, August 29, 2001 (online),
at p. 14 (referring to the CFRS, the predecessor of the CFIS). Thus, insofar as
the CFIS contains data, it is reasonable to refer to it, too, as a “registry”.
[109]
Furthermore, the Assistant Commissioner of the
RCMP and Director General of the CFP described the CFIS as a [translation] “complex computerized
central registry”: affidavit of Pierre Perron, at para. 5. The AGC himself
acknowledged that the CFIS [translation] “contains
all the information required by the FA to be entered in one of the two
distinct ‘records’ that must be kept”, and that this information comes from both the Registrar and the CFOs: Written contestation and arguments of the defendant Attorney General
of Canada and the mis en cause Commissioner of Firearms and Registrar of
Firearms, June 4, 2012, J.R., vol. 1, at para. 160
(emphasis in original). The information entered by the Registrar or by the CFOs
can be analyzed by the latter through an interface integrated into the CFIS.
Thus, the data in the CFIS are interrelated: affidavit of Pierre Perron, at paras.
27(b) and (d); cross-examination of Isabelle Boudreault (Quebec’s Chief
Firearms Officer), May 8, 2012, J.R., vol. 4, at pp. 63-64.
[110]
In our view, this finding is reinforced by two
additional factors. First, the evidence shows that the RCMP expected it to take
several months to delete the data contemplated in s. 29 of the ELRA from
the CFIS without affecting the other data in that registry: affidavit of Pierre
Perron, at pp. 70 et seq. (“Bill C-19 — Implementation Plan Summary”). This is
indicative of the extent to which the data accumulated in the CFIS are
interrelated and integrated, regardless of where they come from. Second, s. 29(2)
of the ELRA requires that each CFO ensure “the destruction . . .
of all records under their control related to the registration of [long guns]”.
This statutory requirement presupposes that like the Registrar, the CFOs
possess certain information with respect to the registration of firearms that
they must destroy. The need to have the CFOs intervene in this way in the
destruction process is still further evidence of the extent to which all the data
relating to long guns are integrated.
[111]
Furthermore, as Quebec’s CFO explained, the CFR
and the CFOs’ records do not exist independently of the CFIS: [translation] “. . . it’s a
shared registry, since my records, I keep them in the CFIS. I don’t have a registry
at my level. It’s really a registry I keep in the CFIS” (cross-examination of
Isabelle Boudreault, at p. 53). In fact, even though the FA provides
that the Registrar and the CFOs can modify only their own records, this
restriction does not preclude them from co-operating to ensure that the data
for which they are responsible are accurate. For example, Quebec’s CFO stated
that when inspecting businesses, she sometimes finds errors in the entry of
firearm registration numbers. Although she cannot herself correct the data
relating to registration certificates in the CFIS, she notifies the Registrar,
who then makes the necessary changes: ibid., at p. 66. The
Registrar, the CFOs and their employees can also add comments in the CFIS
regarding their own work: ibid., at pp. 82 et seq.; affidavit of Pierre
Perron, at para. 27 (c).
[112]
We should add that the information with respect
to the registration of long guns becomes fully relevant and useful only once it
is integrated with and linked to the data on individuals and their licences.
Section 13 of the FA provides that the Registrar cannot register a gun
unless a CFO has already issued a licence. The issuance of registration
certificates therefore depends directly on the work done by Quebec’s CFO and
firearms officers in the issuance of licences.
[113]
This leads us to conclude that Blanchard J. was
right to state that the information entered into the CFR by the Registrar was [translation] “compiled” in the CFIS with
the information entered by the CFOs in their records. He did not make a
palpable and overriding error in his factual characterization of the CFIS. To
this extent, the Court of Appeal was wrong to find that he had failed to
distinguish the CFR from the CFIS. In fact, Blanchard J. had based his decision
first and foremost on the existence of the CFIS, which he saw as a centralized
registry that contains all the information collected by both the Registrar and
the CFOs (paras. 28 and 82). As the evidence shows, even though the FA
provides for distinct registries, their implementation depends upon the
existence of one common registry, the CFIS. Although s. 29 provides for the
destruction of data in the CFR, in light of how the FA was implemented,
the data in question are in fact the data in the CFIS related to the registration
of long guns. The data that the province of Quebec wishes to obtain and
preserve are therefore the data on long guns in the CFIS that have a connection
with Quebec.
[114]
In the end, Blanchard J.’s analysis of the
factual background to this appeal is valid on the essential points. The Court
of Appeal’s approach, on the other hand, is based upon a compartmentalized view
of the FA . The different aspects of the scheme established by the FA
do not operate in isolation. There is an undeniable interaction between the
Registrar and the CFOs, which is reflected in particular in the fact that their
respective records are interrelated. This interaction is one aspect of the
federal-provincial partnership upon which Blanchard J. focused, and which we
will now discuss.
B.
Federal-Provincial
Partnership
[115]
The AGQ relies, as did Blanchard J., on the
existence of a partnership in the broad sense in relation to the application of
the FA , one that goes beyond the simple collection of the data in the
CFR. He refers to numerous documents from federal government bodies that
include expressions of this view of relations between the two levels of
government in respect of the implementation of the FA . The AGC agrees
instead with the Court of Appeal, arguing that Quebec did not participate in
gathering the data in the CFR. He adds that the agreements entered into between
Quebec and Canada in relation to the administration of the FA were
strictly financial in nature. Thus, the partnership upon which the appellant
relies never existed.
[116]
In our opinion, Blanchard J. was right to find
that there was a partnership between Canada and Quebec in the case at bar.
Although it is true that Quebec did not enter the information related to the
registration of long guns in the CFIS database, this fact is not incompatible
with the existence of a partnership between Quebec and Canada, given that the
partnership was not based solely on the entry of the information. We must
consider the nature and consequences of the partnership, and the importance to it
of the data to which s. 29 applies. This partnership has been at the heart of
the evolving implementation of the FA since the very beginning.
[117]
First of all, even before the FA came
into force, federal government ministers had observed that it would be necessary
to work together with the provinces to administer the legislation. Then, in the
first year after it was implemented, the Registrar stated that he was “working
closely with [his] provincial . . . partners”: RCMP, Report on the
Administration of the Firearms Act to the Solicitor General by the Registrar:
Canadian Firearms Registry (1999), at p. iv.
[118]
This co-operative view continued to ground
relations between the various interested parties in subsequent years. For
example, the RCMP commented as follows in 2010, when the provisions of the FA
concerning the registration of long guns were still in force: “Effective
delivery of the CFP depends upon partnerships involving the federal and
provincial governments and law enforcement agencies” (CFP Evaluation, at
p. 8).
[119]
The same view continued to be expressed even
after the tabling of Bill C-19, which would become the ELRA:
Delivery of the CFP depends on the existing
partnership between the federal government, the provincial governments and law
enforcement agencies. The federal government contributes funds to the provinces
that are responsible for the administrative work relating to various aspects of
the Act, such as processing licences and registration certificates.
(Legislative
Summary, at p. 4)
[120]
As can be seen from these passages as well as
from the declarations to the House of Commons quoted above, the implementation
of the FA and the CFP required provincial collaboration. In this regard,
the evidence in the case at bar concerned primarily the specific relationship
that developed between the federal government and Quebec. Accordingly, we will
concentrate our analysis on the partnership at issue here.
[121]
This partnership is reflected first in the
construction of the CFIS database. As we mentioned above, Quebec, through its
CFO, collaborated in the CFIS by gathering, analyzing, organizing and modifying
certain data that it contained. The validity of this finding is not weakened by
the fact that Quebec did not “enter” certain information in the CFIS, since it
was a system that contained interrelated data: affidavit of Pierre Perron, at
paras. 27(b) to (e); cross-examination of Isabelle Boudreault, at pp. 63-64.
[122]
Moreover, Quebec’s CFO supported the Registrar’s
efforts to create a reliable and comprehensive database that would be updated
daily. He or she participated in each stage of firearms registration and worked
to ensure that when the Registrar issued a registration certificate, it was
done in conformity with the FA . Furthermore, one CFO explained that when
she revoked a licence to possess firearms (under s. 70 FA ), she alerted
the Registrar, who then had to revoke the registration certificate: cross-examination
of Isabelle Boudreault, at pp. 83-84; re-examination of Isabelle Boudreault,
May 8, 2012, J.R., vol. 4, at p. 153. We should also point out that s. 29(2) of
the ELRA provides that each CFO must ensure “the destruction . . .
of all records under their control related to the registration of [long guns]”.
Thus, according to the ELRA, the collaboration of the CFOs is needed up
to the time of the abolition of the requirement to destroy the data related to
the registration of long guns.
[123]
The AGC argues that the CFOs are federal agents who exercise powers conferred on
them by federal legislation, even where the provinces choose to designate their
own CFOs. He also points out that this position is financed by the federal
government. In the AGC’s view, this leads to the conclusion that the provincial
component of the partnership to which the AGQ refers is in reality federal.
[124]
This argument must
fail. The AGC is distorting the CFOs’ role. Although it is true that, strictly
speaking, the CFOs exercise powers conferred on them by federal legislation, the fact remains that several of them were designated by the
provinces. In Quebec’s case, the province set up, managed and supervised the
office, and also added to its incumbent’s responsibilities.
[125]
For example, Quebec’s CFO performs functions
delegated to him or her by Quebec legislation: An Act to protect persons
with regard to activities involving firearms, CQLR, c. P-38.0001 (“Anastasia’s
Law”); An Act respecting safety in sports, CQLR, c. S-3.1, s. 46.31;
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; Delegation of powers of the provincial minister to the Chief Firearms
Officer, J.R., vol. 11, at p. 160. Thus, Anastasia’s Law provides that
Quebec’s CFO must be informed of any application to a court to obtain that a
person refusing to undergo a psychiatric assessment whose mental state is
considered to present a danger to that person or to other persons be submitted
to such assessment, or that the person be confined against his or her will in a
health institution: s. 11; see also art. 778 of the Code of Civil Procedure,
CQLR, c. C-25. The CFO must then verify “whether the person is in
possession of a firearm, has access to a firearm or holds a licence to acquire
a firearm”: s. 11 of Anastasia’s Law. This verification with respect to
possession is carried out on the basis of the data on registration certificates:
affidavit of Isabelle Boudreault, March 8, 2012, J.R., vol. 3, at paras. 59-64.
The federal government has never disputed Quebec’s use of CFIS data for
purposes of the administration of its provincial legislation.
[126]
Moreover, Quebec police officers, particularly
officers of the Sûreté du Québec, also play an important role in the CFP. In
fact, Quebec’s CFO is a Sûreté du Québec officer. One example of this role is
that they use a computer system to identify individuals involved in certain
incidents to which they have responded. In such a case, they register the
incident in their system, and an alert is forwarded electronically via the CFIS
to the CFO, who decides whether the incident will have an impact on the
individual’s eligibility to hold a licence and, consequently, a registration
certificate: affidavit of Isabelle Boudreault, at paras. 13-15; cross-examination
of Pierre Perron, May 1, 2012, J.R., vol. 3, at pp. 102 et seq.; re-examination
of Pierre Perron, ibid., at pp. 126-27. The effectiveness of the entire
registration system thus depends on the work of the CFO and, more generally, of
the police.
[127]
In addition, the Quebec police, like all police
forces in Canada, have access to a component of the CFIS that assists their
officers in responding to calls and conducting investigations: CFP
Evaluation, at p. 11. It enables officers, before answering a call in a
residence, to confirm the possible presence of firearms and determine whether
they are possessed legally: ibid., at p. 17. In 2011, Quebec police
officers consulted this component of the CFIS more than 700 times a day on
average: affidavit of Isabelle Boudreault, at para. 65. Thus, the application
of certain Quebec legislation and the implementation of Quebec police
procedures depend to a large extent upon access to CFIS data.
[128]
It is thus clear that Quebec uses data from the
CFIS for the purposes of its provincial legislation. This goes without saying,
given that, as Blanchard J. mentioned several times, those data are the product
of collaboration. They are also at the heart of a partnership that is grounded
in the exercise of both federal and provincial powers. It is in this sense that
Blanchard J.’s conclusion that the data are not purely “federal” must be
understood. We should mention that Blanchard J. concluded that Quebec most
likely participated in this partnership on the assumption that the federal
government would not be able to unilaterally destroy its fruits (para. 35).
[129]
In short, the CFO’s powers under the FA overlap with his or her powers under provincial
legislation. To argue that the position of CFO is of purely federal origin is
to disregard this reality.
[130]
Moreover, s. 95 of the FA provides that
the federal government may enter into agreements with provincial governments to
compensate them for administrative costs they have incurred in relation, inter
alia, to processing licences and registration certificates. The federal
government did in fact enter into such agreements with Quebec. It can be seen
from the Canada-Quebec financial agreement with respect to the administration
of the FA (“Accord financier Canada-Québec relatif à l’administration
de la Loi sur les armes à feu”) for the period from April 1, 2006 to March 31,
2010, agreement No. 2012-004 between the two governments, that although the
agreement’s primary purpose was to set out financial terms, it also contained
clauses with a broader scope. For example, art. 5 provided that Quebec agreed
to deliver all necessary services, described in the agreement, relating to the
application of the FA within its jurisdiction. Under art. 7, Canada was
required to provide Quebec with a functioning and operational CFIS together
with its related components. Finally, art. 23 provided that [translation] “[a]ny information
collected by Canada or by Quebec under this Agreement is subject to the rights
and protections set out in federal and Quebec legislation concerning access to
information and the protection of personal information.”
[131]
It should also be noted that notwithstanding the
possibility of compensation from the federal government, the provinces that
participated in the CFP, including Quebec, had to invest considerable amounts
in relation to the implementation of the FA , as can be seen from an RCMP
report:
It appears as if the opt-out
provinces/territories, where the RCMP is the provincial/territorial police service,
benefit substantially from the current cost arrangement, in terms of dollar
value. The other opt-in provinces, where there are other provincial police
services, have made substantial investments to benefit from the weight and
services of the program . . . .
(CFP
Evaluation, at p. 68)
It would therefore seem
incorrect to say that the province of Quebec made no financial contribution
whatsoever to firearms control and to the administration of the FA . By
focusing on the financing of the CFOs, the AGC disregards the broader
implications and consequences of the CFP. We cannot accept this approach.
[132]
Indeed, it is our
opinion that the AGC is mistaken as regards the nature
of the partnership relied on by the AGQ. This partnership involves more than
just the entry of data in the CFIS and the functions performed by Quebec’s CFO
under the FA . It relates to the whole of the CFP and also includes the
role played by Quebec and its police officers in regulating firearms in
collaboration with Canada.
[133]
Through the role played by the CFO and by
Quebec’s police forces, and aided by the CFIS (whose construction it
contributed toward), the province of Quebec has for years implemented its own
view of firearms control from the perspective of the administration of justice
and health. Moreover, the RCMP recognized the possibility of the provinces
adapting the program to their needs, as can be seen from the following passage
from a report we cited above:
The main benefit cited for creating the opt-in
program was the promotion of a program delivery model that met an identified
need for the provinces to be able to adapt the delivery of the program to local
circumstances. In this area, it was believed that the opt-in program has been
successful; service delivery has been aligned to meet the service delivery
priorities of the provincial governments, and be supported to work with other
areas of provincial jurisdiction, such as justice and policing, and health. In
Québec, this culminates in an integrated service delivery model, and a profound
interest to improve the program to meet heightened provincial public safety and
health expectations. [Emphasis added.]
(CFP
Evaluation, at p. 67)
[134]
We find from the foregoing that a partnership
has developed between the federal government and Quebec that is structured
around the following main elements:
- the
design, implementation and administration of the CFP;
- the
compiling and pooling of data by the Registrar and the CFO together with a
mutually guaranteed right of access to the data in question;
- the
use of CFIS data for federal and provincial purposes; and
-
the joint and complementary exercise of provincial and federal powers in
the context of firearms control.
[135]
In our opinion, this factual reality unique to
the CFIS and the partnership of which it forms a part is essential to the
determination of whether s. 29 of the ELRA is constitutional. Before
turning to the analysis on that subject, we will briefly discuss the framework
applicable to it.
C.
Analytical Framework Applicable to the Division
of Powers
(1) Pith and Substance
[136]
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: Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65,
[2005] 3 S.C.R. 302, at paras. 20-21. According to the principles developed by
this Court, it is necessary first to identify the impugned provision’s “pith
and substance”, and then to determine whether the provision falls within a head
of power of the level of government at which it was enacted: see Reference
re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 63; Quebec
(Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at para. 20;
FA Reference, at para. 16; Kitkatla Band v. British Columbia
(Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2
S.C.R. 146, at paras. 52-58; see also H. Brun, G. Tremblay and E. Brouillet, Droit
constitutionnel (6th ed. 2014), at p. 463; P. W. Hogg, Constitutional
Law of Canada (5th ed. Supp.), at pp. 15-5 to 15-7.
[137]
A provision’s pith and substance is its
“dominant characteristic”: see Reference re Same-Sex Marriage, 2004 SCC
79, [2004] 3 S.C.R. 698, at para. 13. In this Court’s words, “[a] pith and
substance analysis looks at both (1) the purpose of the legislation as well as
(2) its effect”: Kitkatla Band, at para. 53; see also Reference re
Securities Act, at paras. 63-64;
Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3
S.C.R. 457, at para. 199.
[138]
To establish the purpose of legislation or of a
statutory provision, “the Court may look at both intrinsic evidence, such as
purpose clauses, or extrinsic evidence, such as Hansard or the minutes of
parliamentary committees”: Kitkatla Band, at para. 53. In this regard,
the Court has held that it is necessary to “seek to ascertain the true
purpose of the legislation, as opposed to its mere stated or apparent purpose”:
Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at
para. 27 (emphasis in original), citing Attorney-General for Ontario v.
Reciprocal Insurers, [1924] A.C. 328 (P.C.), at p. 337. Thus, in any
division of powers case, the intention behind a statute, that is, the purpose
actually being pursued by the legislature, can cause the entire statute to be
invalid: see, e.g., 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.
[139]
As for the review of the provision’s effects, it
concerns both those legal and practical, which include direct effects of the
provision and the “side” effects flowing from its application: Kitkatla Band,
at para. 54; Reference re Securities Act, at para. 64; Lacombe, at para. 20. The foregoing analysis as a
whole makes it possible to determine the constitutional nature of the
provision, and to assess whether it encroaches on the powers of the other level
of government.
(2) Ancillary Powers
[140]
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, the Court must determine whether the
encroachment is ancillary: see Reference re Assisted Human Reproduction Act,
at paras. 187-89. If the encroachment is in fact ancillary, the provision will
be considered valid provided that it is sufficiently integrated into the scheme
of the statute: Lacombe, at paras. 34-36.
[141]
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 federal
provision is “highly” intrusive vis-à-vis provincial powers, a stricter test of
necessity will apply: General Motors, at pp. 668-70.
[142]
More generally, we wish to repeat the following
comment about the ancillary powers doctrine made by the
Court in Lacombe:
. . .
the availability of ancillary powers is limited to situations in which the
intrusion on the powers of the other level of government is justified by the
important role that the extrajurisdictional provision plays in a valid
legislative scheme. The relation cannot be insubstantial . . . .
[Emphasis added; para. 35.]
[143]
Thus, the Court recognized that a government at
one level can validly pass legislation on a matter within its jurisdiction even
though the legislation intrudes upon the other level’s jurisdiction. Yet the
constitutional doctrines that make such an intrusion permissible — namely the
pith and substance and ancillary powers doctrines — cannot be fully understood
without considering the constitutional principles upon which they are based: Reference re Assisted Human Reproduction Act, at para. 196. We will now turn to these principles, in particular
that of federalism.
(3)
Unwritten Principles: Federalism
[144]
The Court has, while stressing that our written
Constitution is paramount, recognized the importance of
the unwritten principles that underlie it. These principles infuse the analysis and interpretation of the
division of powers. They “assist in the interpretation of the text and the
delineation of spheres of jurisdiction, the scope of rights and obligations,
and the role of our political institutions”: Reference
re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 52. They also reflect our Constitution’s historical
context and have
facilitated its application throughout its history; thus, they are to the
Constitution what sap is to a tree. In this sense, they
are “a necessary part of our Constitution because problems or situations may
arise which are not expressly dealt with by the text of the Constitution”: ibid., at para. 32.
[145]
As this Court explained in Reference re
Secession of Quebec,
federalism “was a legal response to the underlying political and cultural
realities that existed at Confederation and continue to exist today”, and
“political leaders [had] told their respective communities that the Canadian
union would be able to reconcile diversity with unity”: para. 43. The principle of federalism
requires that the constitutional division of powers be respected and that a
balance be maintained between federal and provincial powers. One “power may not
be used in a manner that effectively eviscerates another”: Reference re
Securities Act, at para. 7; Reference re Secession of Quebec, at paras. 57-58.
[146]
According to the “classical” approach favoured
by the Judicial Committee of the Privy Council until 1949, the heads of power
constituted “watertight compartments”, and overlaps between them were to be
avoided to the extent possible: Reference re Securities Act, at para. 56.
[147]
The modern view of federalism rejects this
approach and replaces it with a more flexible conception of the division of
powers that is dominant in this Court’s recent jurisprudence. This conception
“recognizes that in practice there is significant overlap between the federal
and provincial areas of jurisdiction, and provides that both governments should
be permitted to legislate for their own valid purposes in these areas of
overlap”: Canada (Attorney General) v. PHS
Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 62; Canadian
Western Bank, at paras. 36-37; Reference re Securities Act, at para. 57. Such a conception thus facilitates intergovernmental co-operation: see OPSEU
v. Ontario (Attorney General), [1987]
2 S.C.R. 2, at pp. 19-20, per Dickson C.J.; Reference re Securities
Act, at paras. 57-58. 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.
(4)
Recognition of Co-operative Federalism
[148]
Co-operative federalism reflects the realities
of an increasingly complex society that requires the enactment of co-ordinated
federal and provincial legislative schemes to better deal with the local needs
of unity and diversity: PHS, at para. 63; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at paras. 148-49. 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 and, in this sense, to enable the goals of
federalism to be realized.
[149]
In our opinion, the federal-provincial
partnership with respect to firearms control is consistent with the spirit of
co-operative federalism. This partnership has 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.
[150]
In the case at bar, this Court is not being
asked to hold that a co-operative scheme based on the powers of both levels of
government is valid. Rather, the AGQ is challenging the validity of a provision
that contributes to the dismantling of a partnership that was created in the
spirit of co-operative federalism. This situation is unique and novel.
(5)
The End of a Partnership Based on “Co-operative
Federalism”
[151]
In the novel circumstances of this case, our
analysis must be guided by the Constitution’s unwritten principles. In
particular, we must be careful not to place the principle of federalism and its
modern form — co-operative federalism — in jeopardy. As the Court has noted,
“the very functioning of Canada’s federal system must continually be reassessed
in light of the fundamental values it was designed to serve”: Canadian
Western Bank, at para. 23.
[152]
The dominant tide with respect to the division
of powers admits of overlapping powers and favours co-operation between the
different levels of governments. It also supports the validity of schemes
established jointly through partnerships developed between members of our
federation. In our opinion, our courts must protect such schemes both when they
are implemented and when they are dismantled. It would hardly make sense to
encourage co-operation and find that schemes established in the context of a
partnership are valid while at the same time refusing to take this particular
context into account when those schemes are terminated.
[153]
In our opinion, the dismantling of a partnership
like the one established with respect to gun control must be carried out in a
manner that is compatible with the principle of federalism that underlies our
Constitution. Thus, Parliament or a provincial legislature cannot adopt
legislation to terminate such a partnership without taking into account the
reasonably foreseeable consequences of the decision to do so for the other
partner. 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.
[154]
In other words, a co-operative scheme from which
both the federal and provincial governments benefit cannot be dismantled
unilaterally by one of the parties without taking the impact of such a decision
on its partner’s heads of power into account. To conclude otherwise would be to
accept a one-way form of co-operative federalism. That would upset the balance
between, on the one hand, the principle of co-operative federalism — which
permits a government at one level to pass laws that have an impact on the
powers of the other level — and, on the other hand, the doctrine of
interjurisdictional immunity — which is inherent in the principle of
federalism. The requirement that a government respect the other level’s powers
is all the more important when the parties have chosen to form a partnership.
In a co-operative context, actions of a government at one level can have
serious consequences for the other level. It is therefore necessary to show
vigilance for the increased risk of disrupting the constitutional balance that is
protected by the principle of federalism. The concern here is not to alter the
separation of powers in our Constitution through the application of co-operative
federalism, but to ensure that it is respected. The Court explained this as
follows in Reference re Securities Act:
Yet we may appropriately note the growing
practice of resolving the complex governance problems that arise in
federations, not by the bare logic of either/or, but by seeking cooperative
solutions that meet the needs of the country as a whole as well as its
constituent parts.
Such
an approach is supported by the Canadian constitutional principles and by the
practice adopted by the federal and provincial governments in other fields of
activities. The backbone of these schemes is the respect that each level of
government has for each other’s own sphere of jurisdiction. Cooperation is the
animating force. The federalism principle upon which Canada’s constitutional
framework rests demands nothing less. [Emphasis added; paras. 132-33.]
[155]
We could not state these principles more clearly
than the Court has already done in Reference re Assisted Human Reproduction
Act:
In
short, care must be taken to maintain the constitutional balance of powers at
all stages of the constitutional analysis. Be it in identifying the pith and
substance of a statute or a provision or in reviewing the limits of an assigned
power or of the exercise of an ancillary power, the courts must bear the
importance of the unwritten constitutional principles in mind and must adhere
to them. [para. 196]
[156]
Thus, subject to adherence to the above-mentioned
principles, the courts nonetheless must not stray from the analytical framework
applicable to the division of powers. To determine whether s. 29 of the ELRA
is valid, it is therefore necessary to consider that framework and these
principles.
D.
Constitutionality of Section 29 of the ELRA
[157]
In the instant 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: Reference re Canada Assistance Plan
(B.C.), [1991] 2
S.C.R. 525, at pp. 548-49. Nevertheless,
the courts must consider the impugned provision or legislation to determine
whether, in pith and substance, all that it does in fact is repeal or amend
legislation that was validly enacted.
[158]
On the one hand, it is not enough in this regard
to say, as the Court of Appeal did, that the legislative measure is merely
repealing legislation. That does not resolve the issue of whether it is
constitutional. In Upper Churchill, this Court held that repealing
legislation can, as a result of its purpose and its effect, be ultra vires
the government that enacted it: see also, on this subject, P. Daly, “Dismantling
Regulatory Structures: Canada’s Long-Gun Registry as Case Study” (2014),
33 N.J.C.L. 169.
[159]
On the other hand, a statutory provision might
be enacted to abolish a scheme that was incidental to the jurisdiction of the
legislature that initially created it. In such a case, the legislature in
question might in theory wish to eliminate an encroachment on a head of power
that does not belong to it. But it is quite possible that what the legislature
intends to do to eliminate that initial encroachment in fact encroaches to an
even greater extent on that head of power. This is all the more likely to occur
in the context of a partnership.
[160]
As a result, whether s. 29 of the ELRA is
constitutional must be determined in the same way as for any legislation
enacted by Parliament. To do this, we must identify the pith and substance of
that section and link it to a head of legislative power.
(1)
Analysis Regarding the Pith and Substance of
Section 29
[161]
At first glance, the words of s. 29 of the ELRA
pose no particular problems of interpretation. The provision orders the
Registrar and the CFOs to destroy, as soon as feasible, all records in the CFR
that relate to the registration of long guns or are under their control.
[162]
From a structural standpoint, s. 29 of the ELRA
is distinct from ss. 2 to 28 . The latter sections amend the Criminal Code
and the FA to abolish the requirement to register long guns and
decriminalize the failure to comply with that requirement. Section 29 , on the
other hand, is a transitional provision. It is also relevant that the
destruction of the data under s. 29 is exempted from the application of certain
provisions of the Library and Archives of Canada Act, S.C. 2004, c. 11 ,
and the Privacy Act, R.S.C. 1985, c. P-21 : s. 29(3) ELRA.
[163]
From a practical and legal standpoint, the
principal effect of s. 29 of the ELRA is to delete the data in the CFR,
and therefore in the CFIS, forever. Although it is true that s. 84 of the FA
provides that “[t]he Registrar may destroy records kept in the [CFR] at such
times and in such circumstances as may be prescribed”, s. 29 cannot, as the AGC
argues, be compared to s. 84 . First, the applicable regulations provide that a
record of a registration certificate that is issued or revoked may not be
destroyed: s. 4(1) of the Firearms Records Regulations. Second, the
destruction of data on a massive scale would be contrary to the very purpose of
the FA .
[164]
Moreover, the analysis cannot be limited to a
finding that s. 29 provides for the destruction of data. The federal
government’s decision to destroy the data without first transferring them to
its partners, such as Quebec, will have serious consequences that are relevant
to the question whether s. 29 is constitutional.
[165]
Considered prospectively, the destruction of the
data without first transferring them will ensure that the information contained
in the records cannot be used by any subsequent federal government, or by the
provinces or the police organizations that have, until now, used it for various
purposes. In particular, the evidence in the record shows that the destruction
of data required by s. 29 will prevent the provinces from using the data to
create their own registries.
[166]
Moreover, this destruction will retrospectively
obliterate Quebec’s collaboration in the construction of the long-gun database.
It will also interfere with the current use of the data by Quebec that we
discussed above.
[167]
The extrinsic evidence shows that the purpose
being pursued in enacting s. 29 of the ELRA was indeed to prevent the
provinces from using the data. This intention is confirmed by some passages
from the parliamentary debate that were quoted by Blanchard J.:
Mr. Speaker, this government committed to
eliminating the ineffective long gun registry and we do not intend to help other
levels of government create registries.
(House of Commons
Debates, vol. 146, No. 041, 1st Sess., 41st Parl., November 1,
2011, at p. 2799, The Rt. Hon. Stephen Harper, Prime Minister of Canada)
Our government has no intention of transferring
the information that it has in its offices to the provinces, nor will it make
available that same information to be used by future governments to be re-enacted
or brought back in the future.
(Ibid., at p. 2779,
The Hon. Peter Penashue, Minister of Intergovernmental Affairs)
We will fulfill the promise that we made and
that includes doing the right thing and ensuring that no other government could
use the information to resurrect the failed long gun registry.
(Ibid., at p. 2780,
Kerry-Lynne D. Findlay, Parliamentary Secretary to the Minister of Justice)
[168]
These declarations by
the Prime Minister and by federal ministers show that the purpose of s. 29 was
in fact to impose these prospective and retrospective effects of the
destruction of the data on the provinces. Blanchard J. was therefore right to
find that Parliament’s intention in destroying the data was to hinder the
provinces. This intention can be seen in how, and how quickly, Parliament
wished to act. Allow us to specify that it is not so much the destruction of
the data itself that is problematic, but the fact that the data are to be
destroyed unilaterally combined with the effect of doing so, that is, inter
alia, to prevent the provinces from using them.
[169]
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. Section 29 has harmful consequences for the
federal government’s partners. It is these consequences that require, having
regard for the principle of federalism, a close consideration of the
provision’s pith and substance and the powers upon which the AGC relies in
support of its being valid.
[170]
The AGC submits that s.
29 falls within the federal criminal law power because its purpose relates to
the repeal of part of the FA , that is, to the abolition of the long-gun
registry. A legislative measure must meet three criteria to fall within that
head of power. First, it must have a valid public
purpose. Second, it must pursue that purpose by means of prohibitions. Third,
the prohibitions must be supported by criminal sanctions: see Reference re
Assisted Human Reproduction Act, at para. 233. It is impossible to conclude
that these three criteria are met in the case of s. 29, however, since what is
at issue in the case at bar is the power to repeal a statute that was enacted under that head of
power.
[171]
Yet we cannot find that the purpose of s. 29
relates to the repeal of the FA . First, as can be seen from the
structure of the ELRA, the abolition by the federal government of the
requirement to register long guns and the destruction of the data are two
distinct objectives. Second, the purpose of s. 29 is not simply to destroy the
data. Rather, it seeks to abolish a scheme in which those data are used and to
terminate the partnership with Quebec.
[172]
Nor, in this regard, can we conclude, as the
Court of Appeal did and as our colleagues do, that s. 29 merely abolishes a
“federal” scheme. We believe that this conclusion is based on the mistaken
premise that the scheme abolished by s. 29 was created solely by the FA .
Although it is true that the FA constitutes the statutory framework for
the CFR, it must not be forgotten that that framework encroached on provincial
jurisdiction at the time of its creation. Even more importantly, the CFR is
only one component of the federal-provincial partnership for the control of
long guns. As we showed above, this partnership, considered in its broad sense,
required Quebec’s administrative, financial and legislative participation.
[173]
We should also mention that unlike the situation
in Reference re Canada Assistance Plan, which concerned the federal spending power,
both the setting up and the maintenance of the CFR at issue in the case at bar
gave it a provincial aspect. As the trial judge found, the data to which s. 29
applies are not only “federal”. The creation of the database, the CFIS, was
dependent on co-operation between the provinces and the federal government. The
interrelated information it contains was accumulated in the context of the
close federal-provincial partnership described above. In this context, s. 29 of
the ELRA was, in requiring that the data be destroyed without first
being transferred to Quebec, also intended to abolish the “provincial”
component of the scheme, both in the broad sense and in respect of the data.
[174]
Finally, the AGC asserts that the purpose of s. 29
is to eliminate an invasion by the state of the privacy of Canadians. If that
were really the case, it is hard to understand why that section was inserted only in the final version of the bill, and only after
Quebec had announced that it wanted to create its own registry. Quite
obviously, in light of the extrinsic evidence, we do not believe the
elimination of an invasion of privacy to have been the federal government’s
purpose.
[175]
What, then, is the pith and substance of s. 29
of the ELRA?
[176]
In our opinion, in light of its purpose and its
effect, s. 29 goes much farther than simply requiring that the data be
destroyed. Given that they 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 we mentioned above,
however, the regulation of long guns and the use of information about them fall
primarily within the provinces’ power to make laws in relation to property and
civil rights. This is all the more true now that the failure to comply with the
requirement to register has been decriminalized, because the use of the
information has lost its federal aspect. As a result, the pith and substance of
s. 29 relates to the provinces’ power over property and civil rights.
[177]
To be valid, therefore, s. 29 must be integrated
into the ELRA as a whole. This conclusion makes sense to us, given that
whether the CFR is constitutional in fact depends on its being ancillary to a
criminal law purpose, as the Court found in the FA Reference.
(2)
Ancillary Powers
Analysis
[178]
To determine whether s. 29 of the ELRA is
constitutional on the basis of the ancillary powers doctrine, we must consider
the seriousness, or extent, of its encroachment on provincial powers, 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: General
Motors, at pp. 672-73. We should mention that s. 29 may also encroach on
the provinces’ powers in relation to the administration of justice, as can be
seen from our analysis below.
[179]
The seriousness of the encroachment of s. 29
must be analyzed on the basis of the specific factual and legal context of the
instant case, which includes the existence of the partnership between the
federal government and Quebec.
[180]
By enacting the FA , the federal
government effectively took over the field of firearms regulation. The decision
to do so had two major consequences. On the one hand, the provinces had to deal
with a national registry. As a result, the creation of a provincial long-gun
registry became unnecessary, especially given that the existence of the federal
legislation made it possible for the provinces to play a major role in the CFP
and in the creation of registries and of databases such as the CFIS through the
joint and complementary exercise of their powers in relation to property and
civil rights and the administration of justice. As well, Quebec passed
legislation based upon this partnership with the federal government. The
creation and management of a federal firearms registry thus led to the
development of a provincial aspect. To destroy the registry unilaterally
without taking this reality into account is to negate Quebec’s financial,
administrative and legislative participation.
[181]
On the other hand, although the FA did
not have a significant effect on the provinces’ powers with respect to firearms
at the time of its enactment, that is no longer true today in a context in
which the data are to be destroyed without first being transferred to Quebec.
The consequences of the loss of the information collected since 1998 will not
be only financial in nature. The quality and usefulness of a restored registry
created by Quebec would be diminished, since, to give one example, the chain of
ownership of each weapon will have been lost. We note that in 2011, long guns
represented more than 90 percent
of registered firearms in Quebec: affidavit of Isabelle
Boudreault, at paras. 18 and 31. Quebec maintains that,
if it does not obtain and cannot retain the data concerning the registrations
of interest to it, it will lose track of more than one and one half million
long guns: Evidence of the Standing Committee on Public Safety and National
Security, at p. 2. Thus, the destruction of the data would compromise the
creation and the usefulness of a future Quebec firearms registry.
[182]
Furthermore, the CFO’s role under the FA
and the partnership discussed above led to the enactment by Quebec of
legislation that falls within its powers in relation to the administration of
justice. Destruction of the data would therefore interfere with the use Quebec
makes of them in the administration of certain provincial legislative schemes,
such as that of Anastasia’s Law, and with their use by the police in
investigations in particular.
[183]
Finally, the federal government could have
implemented its vision of firearms control without involving the provinces in
any significant way, but it did not choose to take that approach. Doubtless for
the sake of efficiency, it instead developed a legislative scheme that required
active provincial participation and took the form of a partnership. This cannot
be disregarded in analyzing the seriousness of the encroachment on the powers
of the other level of government and, consequently, in determining the scope
and validity of s. 29.
[184]
This leads us to conclude that in terms of both its nature and its effects, s. 29 causes a
substantial encroachment on provincial jurisdiction. In such a case, the
Court’s past decisions tell us that for the encroachment of s. 29 to be found
to be ancillary to the ELRA, the degree to which the section is
integrated into the Act must be high, that is, it must satisfy the necessity or
“integral part” criterion: General Motors, at p. 671; see also 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.
[185]
The purpose of the
ELRA as a whole, with the exception of s. 29, is to abolish the
requirement to register long guns. The fact that the “summary” of the ELRA
refers to two purposes cannot serve on its own as proof of the true purpose of
the ELRA. It goes without saying that the courts, in determining whether
legislation is constitutionally valid, must look beyond the legislation’s
declared or apparent purpose. Were they not to do so, it would be possible for
a legislature to shield statutory provisions from constitutional challenge
simply by drafting a preamble. Furthermore, it is only s. 29 of the ELRA
that is related to the supposed second purpose of the Act.
[186]
In our opinion,
the destruction of the data in question in s. 29 cannot be considered necessary
to the abolition of the requirement to register long
guns. These two purposes are distinct. Moreover, as we mentioned above, the
earlier bills did not provide for the destruction of these data.
[187]
We also doubt that s. 29 can be linked to the ELRA
on the basis of a test of rationality. Although the destruction of data
in which the federal government is no longer interested might seem rational at
first glance, we find it hard to reconcile the manner in which their
destruction was provided for with the desire certain provinces might show to
maintain a registry within the limits of their powers. The AGC in fact
acknowledged at the hearing that what was problematic was not really the fact
of transferring the data to the government of Quebec, but that of transmitting
personal information about long-gun owners: transcript, at p. 55. We have
already rejected this argument as an explanation of the refusal to transfer the
data.
[188]
Finally, we agree with Blanchard J. that
Parliament’s declared intention to cause harm to the other level of government
cannot be disregarded. This Court had written the following in the FA
Reference:
This
law does not allow the federal government to significantly expand its
jurisdictional powers to the detriment of the provinces. There is no colourable
intrusion into provincial jurisdiction, either in the sense that Parliament has
an improper motive or that it is taking over provincial powers under the guise
of the criminal law. [para. 53]
In this appeal, we cannot
say the same thing about the ELRA, as the exact
opposite is true.
[189]
Although it is not necessary to take this into
account for the purposes of our analysis, the intention to cause harm is all
the more relevant in that it arises in a context in which Quebec and the
federal government had agreed to act jointly, in the spirit of co-operative
federalism, a principle whose source lies in the growing need for
intergovernmental co-operation in order to enable the Canadian federation to
act to address questions of a polycentric nature. In this context, it is hard
to imagine how a provision whose purpose is to put an end to this co-operation
and that is enacted with an intention to cause harm to a partner can be
rational.
[190]
The foregoing analysis leads to an inescapable
conclusion: 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,
which is otherwise valid. The section has not therefore been shown to be
constitutionally valid. In our opinion, 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 conclude
otherwise would be inconsistent with the principles of federalism.
[191]
Our conclusion does not necessarily mean that
Parliament cannot enact legislation to destroy the data. What we are saying is
merely that to destroy the data, as provided for in s. 29, without first
offering to transfer them is unconstitutional. This conclusion is therefore not
incompatible with the principle of parliamentary sovereignty as set out in s. 42
of the Interpretation Act, R.S.C. 1985, c. I-21 , as parliamentary
sovereignty is applicable only where Parliament has exercised one of its
legislative powers validly, that is, in a manner consistent with the
Constitution. That is not the case here.
E.
Appropriate Remedy
(1)
Declaration of Invalidity
[192]
In light of this conclusion, s. 29 of the ELRA
must be declared to be invalid under s. 52 of the Constitution
Act, 1982: Canadian Western Bank, at para. 26.
[193]
The Superior Court judge tailored the
declaration of invalidity of s. 29 to limit it to data from Quebec with respect
to long guns (that is, to data originating in Quebec or concerning citizens of
Quebec, persons living there or persons who have committed acts involving
firearms) (para. 194). Moreover, data from the other provinces relating to the
registration of long guns have been destroyed since Blanchard J.’s judgment, on
October 31, 2012: Court of Appeal’s reasons, at para. 9; transcript, at p. 87.
Like Blanchard J., therefore, we would limit the declaration of invalidity to
data with respect to long guns that have a connection with Quebec.
(2) Order to Transfer the Data
[194]
The trial judge also declared that Quebec was entitled
to receive the data referred to in the declaration of invalidity within 30 days
(para. 195). In support of this declaration, he cited Doucet-Boudreau v.
Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3,
and found that, although that case concerned possible remedies under the Canadian
Charter of Rights and Freedoms , the principles developed in it could serve
as a guide in the case at bar (para. 163). Blanchard J. thus stated that [translation] “the remedy must be adapted
to the circumstances of the case and the nature of the right infringed” (para. 164).
He also noted “that an appropriate and just remedy should have the capacity to
evolve to meet new challenges, [as a] traditional and historical practice must
not create barriers to the requirements of a reasoned and compelling notion of
the appropriate remedy” (para. 165). However, he expressed the following
reservation:
[translation] With respect to
constitutional remedies, the Court must show deference. It must correct the
wrong by prescribing the appropriate solution, without going beyond what is
required to remedy the violation of the constitutional right. [para. 167]
[195]
Because of the [translation]
“remarkable history of compliance with court decisions by . . .
governmental institutions”, Blanchard J. found that it would be inappropriate
to issue an injunction against the AGC (para. 190). He stated that a
declaratory judgment “will certainly suffice as an efficient and effective
determination of the rights and obligations of the parties” (ibid.).
[196]
The Court of Appeal, after having found that s. 29
was constitutional, dealt briefly with the remedy granted at trial, simply
stating that the declaration that the data had to be transferred to Quebec was
[translation] “clearly
inappropriate” and pointing out that “[t]he courts must not substitute their
assessment of the appropriateness of a legislative measure for the intent of
the legislature” (para. 64).
[197]
In this Court, the AGQ argued that the federal
government cannot refuse to transfer data that Quebec participated in compiling
and enriching for provincial and federal purposes in the context of the
partnership that existed between them. Such a refusal would be inconsistent
with co-operative federalism. At the hearing, the AGQ instead stressed the
principle of federalism. The AGQ added that a transfer of data would not be in
breach of existing privacy legislation. The AGC responds that, regardless of
“[t]he designation of a Chief Firearms Officer, the right to access the registration
records, the financial Agreements as well as the notices concerning the
protection of personal information”, Quebec has no right to the data, given
that they are under the Registrar’s control: R.F., at para. 104.
[198]
In our opinion, the AGQ 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.
[199]
Blanchard J.’s declaration that Quebec is
entitled to receive the data essentially amounted to an injunction. Even though
this Court has the power to make orders that are incidental to declarations of
invalidity, it must refrain from intervening actively in legislative and
governmental functions: see R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 298-99.
The Court has stated on several occasions that it is generally 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:
see Reference re Securities Act, at para. 132; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 169; Edwards Books, at p. 783; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at pp. 860-61. In
some cases, the source of the appropriate remedy must lie in the political
process rather than in the courts: Reference re Secession of Quebec, at
para. 102.
[200]
In the case at bar, if the Court were to make an
order in the nature of an injunction or to declare that Quebec is entitled to
receive the data, it would be overstepping the limits of its role in the
Canadian constitutional order. Although it is true that the federal government
cannot decide unilaterally to destroy the data accumulated within the framework
of the partnership without considering the impact of such a measure on
provincial heads of power, the other side of the coin is that Quebec cannot
dictate to the federal government what it is “entitled” to receive when their
relationship comes to an end. 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 or, if they did not do so, it is up to them to
agree now on the applicable terms in this regard, including the destruction of
the data by the federal government. Thus, how their collaborative relationship
is to be terminated is primarily dependent upon their will.
[201]
However, these observations change nothing.
Since s. 29 does not, in pith and substance, fall within a federal head of
power and since it is not sufficiently integrated into the ELRA, it is
invalid.
VI.
Conclusion
[202]
We would allow
this appeal in part and answer the constitutional question as follows:
Is s. 29 of the Ending the Long-gun Registry
Act, S.C. 2012, c. 6 , ultra vires Parliament having regard to its
criminal law power under s. 91(27) of the Constitution Act, 1867 ?
Yes.
[203]
The other orders being sought — an injunction or
a safeguard order — are not justified, however, and should be rejected. In view
of the qualified success on both sides, costs should be awarded to no one.
Appeal
dismissed with costs throughout, LeBel, Abella, Wagner
and Gascon JJ. dissenting.
Solicitors for the
appellant: Bernard, Roy & Associés, Montréal.
Solicitor
for the respondents: Attorney General of Canada, Montréal.
Solicitors for the intervener the
Coalition for Gun Control: Juripop, Saint-Constant, Quebec; Deveau, Bourgeois,
Gagné, Hébert & associés, Gatineau.
Solicitor for the intervener Canada’s
National Firearms Association: Guy Lavergne, Saint-Lazare, Quebec.