Commercial Litigation and Dispute Resolution Blog

Today, the Supreme Court of Canada, in a judgment that revealed a deep divide between Justices from Quebec and those from the rest of Canada, wrote the final chapter in the long-gun registry saga. In a 5 to 4 decision, with all 3 Quebec Justices in the minority, the Court dismissed Quebec’s constitutional challenge to federal legislation that mandated the destruction of long-gun registry data, including data that originated from Quebec. Quebec intends to establish its own long-gun registry and sought an order compelling the federal government to transfer data from the now abolished federal long-gun registry.

Approximately 15 years ago, a former federal government established the Canadian long-gun registry. It was a contentious policy decision and, ultimately, when a new party was elected, it passed legislation to abolish the registry. In doing so, it also passed a provision calling for the destruction of all of the data from the registry. Quebec applied for an order that this provision was unconstitutional as it offended “cooperative federalism” and for an order that the data originating from Quebec be transferred to it. It was successful at the trial level but that decision was overturned by the Quebec Court of Appeal. The Supreme Court of Canada has now dismissed the appeal.

The majority decision was written jointly by Justices Cromwell and Karakatsanis. Quebec argued that there was a partnership between the federal and the provincial governments to work together to achieve both a federal purpose, the criminal law, and a provincial purpose, public safety. It was argued that in ending this partnership, each party’s constitutional authority must be guided by the unwritten constitutional principle – cooperative federalism – such that neither Parliament nor the provinces can pass legislation to terminate such a partnership without considering the foreseeable consequences to do so on the other partner’s constitutional powers.

The minority judgement agreed with this analytical framework and went on to find that the specific purpose of the federal enactment was not just to destroy the data but to do so for the specific purpose of ensuring that the provinces did not set up their own long-gun registries under a valid head of provincial constitutional power.

The majority decision bluntly rejected this framework. They wrote that “Quebec’s position has no foundation in our constitutional law…”.  The majority went on to write that cooperative federalism is a concept used to provide flexibility in separation of powers doctrines such as federal paramountcy, to facilitate interlocking legislative schemes and to avoid unnecessary constraints on provincial powers  It does not, however, impose limits on an otherwise valid exercise of legislative power. The court wrote:

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.

The majority did, however, open the door to this argument being reconsidered in different circumstances. The majority decision relied on the fact that the impugned legislation was not dependent on any provincial legislation. If it had, “different consideration might arise” where there is a “truly interlocking legislative framework.”

And so the saga of the long-gun registry in Canada ends with a discussion of the limits of cooperative federalism. Quebec, however, will not be deterred and shortly after the release of the Supreme Court of Canada decision reaffirmed its intention to go it alone and create its own separate long-gun registry from scratch – without this data.