Cooperative Federalism Divides the Supreme Court of Canada: Quebec (Attorney General) v. Canada (Attorney General)

Regular readers will know that I had quite a bit to say about the gun registry case decided by the Supreme Court of Canada on Friday: Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. I have written a brief summary and commentary on the case at the I-CONnect blog. Here is a snippet:

The dismantling of the registry presented the Court with an opportunity to develop the principle of cooperative federalism further. Section 29 of the ELRA was a stand-alone provision, introduced only after Quebec stated it would create its own registry, with the avowed intention of making it more difficult for Quebec to exercise its undoubted competence to regulate firearms. At first-instance, the judge found that the registry was a collaborative effort, the fruit of years of partnership between the federal government and the provinces.

But the majority of the Court baulked at Quebec’s suggestion that violating the principle of cooperative federalism would, per se, render legislation ultra vires. Here, Canada’s Diceyan heritage was on display. Although legislative authority is divided between the federal Parliament and the provinces, each is sovereign in its spheres of authority. There could be no suggestion, for the majority, that the principle of cooperative federalism could prevent a legislature “from exercising legislative authority that it otherwise possesses” (at para. 22).

Because Parliament could create the registry, it could also destroy the registry and its contents: “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” (at para. 37). The clanking of Dicey’s chains drowned out the Court’s recent insistence on flexibility and overlapping zones of competence.

The whole post can be found here: Thanks to Richard Albert for the invitation.

My NJCL article cited in the decision can be downloaded here.

This content has been updated on March 30, 2015 at 08:47.