Supreme Court Long Gun Registry Decision: A Step Backwards for Canadian Federalism

Supreme Court Long Gun Registry Decision: A Step Backwards for Canadian Federalism

Quebec City (Quebec) 28 March 2015 – The Supreme Court of Canada finally put an end to a three-year legal battle between the Québec National Assembly and the Conservative government today. In a narrow 5-4 decision, the country’s highest court declared that the Conservatives could destroy the data contained in the old Long Gun Registry without handing any of it over to Québec. The National Assembly had unanimously asked that the portion of the registry relating to Québécois gun owners be transferred in order to facilitate the start of its own provincial registry, citing that gun registration and licencing was a provincial competency and that Québec had contributed to the production of the registry in the first place.

The decision is no doubt a win for the Conservative government, which just now narrowly puts an end to a bitter, years-long losing streak with the Supreme Court. For Québec, this decision is the final nail in the coffin to a program long held dear. The Long Gun Registry had originally been enacted in the wake of the Polytechnique shootings which had profoundly shocked the province. Its unceremonious, insistent scrapping on ideological grounds by the Conservative government is a slap in the face for many.

For proponents of open, cooperative federalism, particularly in Québec, the decision is a disappointing one. It stands out that among the four dissident judges were all three Québec judges – Justices Louis LeBel (now retired), Richard Wagner, and Clément Gascon – who co-authored the opinion (which was concurred by Justice Rosalie Abella). It is rare for more than two judges to co-author an opinion, and is usually indicative of an intention by the judges to send a strong message. That all three Québec judges co-authored a dissent in a case called Québec v Canada will surely not go unnoticed.  This is about as political as Canada’s highest court gets.

I know how difficult reading Supreme Court decisions can be. Allow me to summarize it:

Majority: “The federal government is allowed to do this.”
Minority: “The federal government is allowed to do this, but if it wanted to play fair, it really shouldn’t.”

There’s no doubt about it, Québec’s legal challenge was a long shot at best. It hinged on unwritten constitutional principles that only rarely hold sway over the actual written constitution. In the broad scheme of things it was probably more of a political move to bring attention to the issue than a serious legal claim, and there is indeed something to be said against using the Supreme Court as a soapbox.

The matter isn’t so much that the constitutional challenge failed, but rather how it failed. The damning sentence, which will likely be cited for years to come, is this:

“We conclude that the principle of cooperative federalism does not prevent Parliament from exercising legislative authority that it otherwise possesses (…).”
Quebec (Attorney General) v Canada (Attorney General), paragraph 21

In the Supreme Court’s judgement, this holds true even if Québec’s goals to form its own gun registry is legitimate, as the court admits it is, and when the burden on the federal government is minimal, as the dissenting opinion clearly lays out.

In other words, the principle of cooperative federalism does not actually require the federal government to cooperate with the provinces when it is acting within its authority, no matter how legitimate the province’s goals might be and no matter how trivial the province’s request might be for the federal government to accomplish. This is now the law in Canada.

In affirming there is no duty for the federal or provincial governments to even consider each other when they are acting within their own power, the Supreme Court may have struck a hard blow against future federal-provincial cooperation. What this means for the future of cooperative federalism couldn’t be more uncertain.

Categories: Opinion

About Author

Farnell Morisset

Farnell Morisset is passionate about discussing (among other things) the issues of modern social identity for many Québécois who, like him, feel deeply connected to the Québécois nation and culture yet do not identify with the traditional francophone non-practicing Catholic nationalist image. He has an engineering degree from Université Laval and is currently a law student at McGill University.

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