The Invisible Constitution in Comparative Perspective

Quebec (Attorney General) v. Canada (Attorney General) [2012] QCCS 4202; [2012] R.J.Q. 

1895.

79 

Quebec (Attorney General) v. Canada (Attorney General) [2013] QCCA 1138; [2013] R.J.Q. 

1023, para. 52.

80 

Quebec (Attorney General) v. Canada (Attorney General) (note 16) para. 16.

81 

Ibid.

, para. 18.

82 

Ibid.

, para. 19. The majority echoes objections to relying upon unwritten principles voiced 

by Justice Rothstein in his dissent in Trial Lawyers Association of British Columbia (note 72) 

para. 98. Yet, as mentioned, the majority in the Trial Lawyers Association case appears to have 

resolved the constitutional question, principally, with reference to Constitution Act, 1867,  

s. 96.

83 

Ibid.

, para. 20. To similar effect, see Rogers Communications Inc. v. Châteauguay (City) [2016] 

1 S.C.R. 467 at para. 39 (per JJ. Wagner and Côté).

---

534 

David Schneiderman

In a jointly written opinion, the three Quebec-based judges, together  

with Justice Abella, strongly disagreed. Describing the circumstances as 

“novel,” the dissenting justices characterized cooperative federalism as the 

“dominant tide,” in which case, “our courts must protect such schemes both 

when they are implemented and when they are dismantled.”

84

 In order to 

dismantle the federal registry, which had been erected with the cooperation 

and partnership of the provinces, it “must be carried out in a manner that is 

compatible with the principle of federalism that underlies our Constitution.”

85

 

The scheme “cannot be dismantled unilaterally by one of the parties with-

out taking the impact of such a decision on its partner’s heads of power into 

account.”

86

 Though unacknowledged, this looks precisely like the German 

idea of federal loyalty. The justices’ silence about this fact is consistent with 

the Court’s general unwillingness to refer to constitutional developments 

abroad.

87

The dissenting justices also turned to more traditional constitutional meth-

ods. They distinguished between the provisions of the law that terminated the 

collection and those that mandated the destruction of data.

88

 The former was 

entirely within federal authority; the latter had as its principal object the ter-

mination of a partnership that had required the “administrative, financial, and 

legislative participation of Quebec.”

89

 Not only was this ultra vires the federal 

government, it was not sufficiently integrated into an intra vires scheme to 

survive constitutional scrutiny (applying the “ancillary” doctrine).

In contrast to the ruling in the Secession Reference, the majority of the 

Supreme Court in Quebec v. Canada reverted to more orthodox legal meth-

ods, associated with a traditional “dualist” (or “watertight compartments”) 

style of federalism, with a reliance on text above all else.

90

 Unlike the former 

case, where the Court constructed a novel constitutional apparatus of unwrit-

ten constitutional principles upon which could be derived an unwritten  

84 

Ibid.

, para. 152.

85 

Ibid.

, para. 153.

86 

Ibid.

, para. 154.

87 

Though they do mingle and exchange ideas with other apex court justices. See Tonda Mac-

Charles, “Canada’s Supreme Court Justices Travel to Exchange Ideas, Discuss Legal Issues 

With International Judges” The Toronto Star (February 18, 2017).

88 

Paul Daly, “Dismantling Regulatory Structures: Canada’s Long-Gun Registry as Case Study” 

(2015) 33 National J of Constitutional L 169, 189. Daly’s argument relies less on unwritten 

constitutional principles than on constitutional doctrine informed by those principles (181).

89