The Long-Gun Registry And Co-Operative Federalism

On March 27, 2015, the Supreme Court of Canada released its decision on the Québec long-gun registry. In Québec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, the question facing the Court was whether the Québec government had the right to use information collected in Québec as part of the federal government's now-dismantled long-gun registry. In a 5-4 decision, the Court held that the Québec government has no right to access the long-gun registry information.

The decision centred around three issues:

Is s 29 of An Act to amend the Criminal Code and the Firearms Act, SC 2012, c 6 (otherwise known as the Ending the Long-gun Registry Act (“ELRA”)) ultra vires Parliament's criminal law power? Does the principle of cooperative federalism prevent Parliament from legislating to dispose of the data? Does Québec have the right to obtain the data? Section 29 is within Parliament's constitutional criminal law legislative power

The majority held that s 29 of the ELRA is a lawful exercise of Parliament's criminal law legislative power under the Constitution.

Québec submitted that the pith and substance of s 29 is to prevent the long-gun registry from being continued through provincial legislation and that, because the destruction of the data would make it prohibitively expensive for the province to create its own long-gun registry, s 29 encroaches on the provincial legislature's ability to exercise its powers relating to the administration of justice, public safety and the prevention of crime, and the social costs associated with crime. Further, Québec argued that s 29 cannot be a valid exercise of Parliament's criminal law power because it is not aimed at preventing crime or at decriminalizing any conduct.

Canada simply asserted that s 29 was an exercise of Parliament's criminal law jurisdiction and that the practical effects on the provinces of destroying this data does not alter the provision's pith and substance.

The majority characterized s 29 by looking to the scheme in the Firearms Act which the provision was undoing. In Reference re Firearms Act (Can.), [2000] 1 SCR. 783, the Court determined that the pith and substance of the scheme enacted by the Firearms Act fell within Parliament's jurisdiction under the criminal law head of power. The majority reasoned that the repeal of the same scheme must be characterized in the same way.

Discussing thecolourability doctrine, the majority opined that courts must be careful in applying...