536
David Schneiderman
adopts methods (e.g., proportionality) applied elsewhere, and as the Canadian
justices exert influence on foreign court deliberations.
93
18.4. Regrets?
One gets the sense that there was real disappointment with the opinion in
Quebec v.
Canada, particularly among constitutional scholars from within
Quebec. Drawing upon the idea of federalism, key to generating autonomy,
security and continuity for the largest French-speaking community in North
America, the Supreme Court was urged to generate new rules that would gov-
ern the federation. The hope was that the Court would embrace something
akin to the German principle of federal loyalty as an element of unwritten
principles rather than having rapport de forces determine outcomes. In addi-
tion to unwritten principles, these scholars could rely on a judicial record in
which unilateralism, at both federal and provincial levels, was discouraged.
94
The federal government’s insistence on destroying data was an instance of
unilateralism worthy of judicial condemnation.
Quebec-based scholars were particularly insistent upon moving the law of
federalism in a direction that would constrain unilateral exercises of power
that would hinder freely made policy choices issuing out of the other juris-
diction. The idea of federal solidarity, Hugo Cyr maintained, is internal to
the logic of cooperative federalism. It flows “from the commitment of federal
partners to belong to a common body politic.”
95
Drawing on the continental
idea, Cyr argued that partners to the federation should forgo self-interest in
favor of a disposition that respects the jurisdictional space of each other. It
“entails a certain benevolence towards the others that is clearly not limited
to one’s formal obligations.”
96
In the context of the destruction of gun registry
data, courts were entitled to step in to ensure that Parliamentary authority was
not abused. Cyr concluded that the federal law, though formally valid, should
be inapplicable to those provinces seeking data collected on the basis of the
principle of cooperation.
97
93
Adam Liptak, “U.S. Court, a Longtime Beacon, Is Now Guiding Fewer Nations”
The
New York Times (17 September 2008) A1 and MacCharles, Supra note 87 (note 86).
94
David Schneiderman, “Making Waves: The Supreme Court of Canada Confronts Stephen
Harper’s Brand of Federalism” in Anita Anand (ed.), What’s Next for Canada? Securities Reg-
ulation after the Reference (Toronto: Irwin Law Inc, 2012) 85–6.
95
Hugo Cyr, “Autonomy, Subsidiarity, Solidarity: Foundations of Cooperative Federalism”
(2014) 23(4) Constitutional Forum 20, 30.
96
Ibid.
(italics in original).
97
Ibid.
, 34.
Unwritten Constitutional Principles in Canada
537
Drawing upon the comparative federal experience, Jean-Francois
Gaudreault-Desbiens argued that the principle of federal loyalty gener-
ates a political morality that can guide federal–provincial relations.
98
In the
case of the dispute over firearms registry data, “loyalty should be explicitly
acknowledged as consubstantial to the constitutional principle of federal-
ism.”
99
Though the Supreme Court has not endorsed such a duty in federal–
provincial relations, there are intimations of it in some of the Court’s opin-
ions. Gaudreault-Desbiens, for instance, points to the constitutional duty to
negotiate in the Secession Reference as an example in addition to the “duty
to consult” in circumstances where government acts in ways that undermine
pending Aboriginal rights claims as performing similar functions. In the con-
text of the firearms registry dispute, writing before the Supreme Court issued
its reasons, Gaudreault-Desbiens called upon the Court to adopt the “bold”
attitude that “the federal government has a duty to help the province exercise
its jurisdiction over property and civil rights by not destroying and transferring
data already collected.”
100
Among the handful of cases that Gaudreault-Desbiens associates with the
principle of federal loyalty is
Reference re Securities Act.
101
There, the Court
struck down yet another Harper government initiative, on this occasion the
establishment of a federal securities regulator, proposed over the objections
of several provinces. Courts of Appeal in both Alberta and Quebec had con-
cluded that there was no federal authority under “general trade and com-
merce” to establish a national regulatory body. The scholarly consensus, in
both official languages, suggested otherwise. The Supreme Court of Canada,
to the surprise of many including the Harper government, concluded that the
scheme was beyond federal authority.
102
A national securities regulator could
be established, but only with the cooperation of the provinces and without
trespassing on traditional provincial jurisdiction. Though the Supreme Court
appeared merely to be enforcing the division of powers as laid down in the
Constitution and subsequently interpreted by the Court, the principle of fed-
eralism played a modest role in the ruling. It seems to have been deployed
principally as a means of moving out of the ensuing impasse.
103
The Court
98
Gaudreault-Desbiens describes the method as trans-systemic in his “Underlying Principles
and the Migration of Reasoning Templates”, Supra note 91, 203.
99
Jean-François Gaudreault-Desbiens, “Cooperative Federalism in Search of Normative Justifi-
cation: Considering the Principle of Federal Loyalty” (2014) 23(4)
Constitutional Forum 1, 9.
100
Ibid.
, 15.
101
[2011] 3 SCR 837.
102
See discussion in Schneiderman, Supra note 92.
103
This is a strategy the Judicial Committee of the Privy Council had recourse to in some its
controversial Canadian rulings.
