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David Schneiderman
Polytechnique at the Université de Montréal by a gunman who professed to
hate women. Destruction of the registry, like Senate reform, was an election
promise of the federal Conservative Party intended to appease a gun toting
rural, mostly western, electorate. Having secured a parliamentary majority in
2011, Prime Minister Harper’s government proceeded to roll back the scheme.
In 2012, Parliament enacted the Ending the Long Gun Registry Act, which
terminated the registry and mandated the destruction of all records associated
with the 1995 initiative. The Quebec government sought to block destruction
of the data so that it could maintain its own long gun registry in the province.
The Harper government, committed to destroying all registry data, was not
willing to cooperate.
The political context of the dispute could not be more different than that
in the Secession Reference. The Parti Québécois (the political party having
the independence of Quebec as its principal goal) was the party in power in
the period leading up, and subsequent, to the Secession Reference. Political
debates and media reports were centered on the Court and the question of UDI.
The future of the federation, in the event of another referendum on inde-
pendence, was weighing on the justices’ minds. The stakes were nowhere
near as high in Quebec v. Canada. The Quebec Liberal Party, an avowedly
federalist one, had been in power for nine consecutive years (2003–12) and
had returned to power in April 2014, six months before the oral hearing. Any
threat that unsatisfied autonomy claims would fuel claims for independence,
and another sovereignty referendum, simply was not credible.
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While there
certainly was attention being paid in Quebec to the destruction of firearms
registry data – it was sufficiently concerning to warrant launching a constitu-
tional challenge – it did not attract the kind of heated debate between Quebec
and the rest of Canada as occurred in 1998. The Court could be expected to
go about doing its business in the usual way.
There was some foundation, however, for Quebec to proceed with the ref-
erence, and some expectation that they could succeed. In addition to the prin-
ciple of federalism articulated in the Secession Reference, the Supreme Court
had envisaged itself as playing the role of facilitator of cooperative federalism
or, as Wright labels it, “intergovernmental dialogue.” The Court’s record in
76
See Valérie-Anne Mahéo and Éric Bélanger, “Is the Parti Québécois Bound to Disappear?
A Study of the Generational Dynamics of Electoral Behaviour in Contemporary Quebec”
(September 2016)
http://csdc-cecd.ca/wp-content/uploads/2016/09/MaheoBelanger_PQ_Gen-
erations_2016__September21-2.pdf
accessed September 23, 2016, who predict that, as a con-
sequence of generational change and disinterest, sovereignty will cease to be on Quebec’s
agenda by 2034.
Unwritten Constitutional Principles in Canada
533
this regard has been confined to rewarding parties who have cooperated by
deferring to their “mutually acceptable allocations of jurisdiction.”
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In the Quebec Superior Court, the trial judge held that the federal law
violated the principle of cooperative federalism and was beyond the capacity
of the federal government to enact (and so ultra vires).
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The Quebec Court of
Appeal unanimously reversed, holding that the principle of cooperative feder-
alism could not be used to abrogate the federal division of powers.
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The lower
court judge erred, the appeal court declared, by applying the principle of
cooperative federalism “not as a mere interpretive tool but as the legal basis”
for a declaration of constitutional invalidity. The Supreme Court of Canada
agreed: “Quebec’s position has no foundation in our constitutional law and is
contrary to the governing authorities from this Court.”
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Cooperative federal-
ism is a label that can be used to describe a number of doctrinal rules. It also
has its limits, namely, when it runs up against the written constitution.
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“The
principle of cooperative federalism . . . cannot be seen as imposing limits on
the otherwise valid exercise of legislative competence,” five justices declared.
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The majority stomped all over Quebec’s argument when it wrote that
neither the:
Court’s jurisprudence nor the text of the Constitution Act, 1867 supports using
that principle to limit the scope of legislative authority in order 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 objec-
tives of another.
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77
Wade K. Wright, “Courts as Facilitators of Intergovernmental Dialogue: Cooperative Federal-
ism and Judicial Review” (2016) 72(2d) Supreme Court L Rev 365, 430. But see the Securities
Act Reference, discussed below.
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