Attorney General of Quebec Appellant v. Attorney General of Canada,, 2015 SCC 14

SUPREME COURT OF CANADA Citation: Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693 Date: 20150327 Docket: 35448 Between: Attorney General of Quebec Appellant and Attorney General of Canada, Commissioner of Firearms and Registrar of Firearms Respondents - and - Chief Firearms Officer, Coalition for Gun Control and Canada’s National Firearms Association Interveners Official English Translation: Reasons of LeBel, Wagner and Gascon JJ. Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.

Joint Reasons for Judgment: (paras. 1 to 46) Joint Dissenting Reasons: (paras. 47 to 203): Cromwell and Karakatsanis JJ. (McLachlin C.J. and Rothstein and Moldaver JJ. concurring) LeBel, Wagner and Gascon JJ. (Abella J. concurring) Quebec (Attorney General) v. Canada (Attorney General) , 2015 SCC 14, [2015] 1 S.C.R. 693 Attorney General of Quebec Appellant

v. Attorney General of Canada, Commissioner of Firearms and Registrar of Firearms Respondents and Chief Firearms Officer, Coalition for Gun Control and Canada’s National Firearms Association Interveners Indexed as: Quebec (Attorney General) v. Canada ( Attorney General) 2015 SCC 14 File No.: 35448. 2014: October 8; 2015: March 27.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. on appeal from the court of appeal for quebec Constitutional law — Division of powers — Criminal law — Constitutional classification of repealing enactment — Firearms — Federal legislation abolishing long-gun registry also containing provision requiring destruction of long-gun registration data — Quebec challenging constitutionality of destruction provision and seeking transfer of data connected with province from federal government — Whether principle of cooperative federalism prevents Parliament from legislating to destroy data — Whether destruction provision ultra vires criminal law power of Parliament — Whether Quebec has right to receive long-gun registration data from federal government — Constitution Act, 1867, s. 91(27) — Ending the Long-gun Registry Act, S.C. 2012, c. 6, s. 29 .

Adopted in 1995, the Firearms Act created a comprehensive scheme requiring the holders of all firearms — including long guns — to obtain licences and register their guns. It also made it a criminal offence to possess an unregistered firearm.

The Firearms Act provided for the creation of two types of registries: the Canadian Firearms Registry (“CFR”), maintained by the Registrar of Firearms and containing records of the registration certificates for all prohibited firearms, restricted firearms, and long guns acquired, transferred, or possessed in Canada, and a registry kept by the Chief Firearms Officer (“CFO”) designated for each province and territory, containing records of every firearm’s licence and authorization issued or revoked.

The Registrar and the CFOs could access all records through a single electronic database but the statutory authority of CFOs only permitted them to contribute and modify data in their specific licensing registry. In 2012, Parliament enacted the Ending the Long-gun Registry Act (“ ELRA ”), which repealed the registration requirement for long guns and decriminalized the possession of an unregistered long gun.

Section 29 of the ELRA requires the destruction of all records contained in the registries related to the registration of long guns. In reaction, Quebec expressed its intention to create its own long-gun registry and asked the federal authorities for the data connected to Quebec contained in the CFR. Canada refused and made clear that it intended to permanently destroy all long-gun registration data. In light of this refusal, Quebec sought a declaration that s. 29 of the ELRA is ultra vires and that Quebec has a right to obtain the data.

The Superior Court of Quebec declared s. 29 of the ELRA unconstitutional as it applies to data connected with Quebec and ordered Canada to transfer that data to the province. The Quebec Court of Appeal reversed that decision. Held (LeBel, Abella, Wagner and Gascon JJ. dissenting): The appeal should be dismissed.

Section 29 of the ELRA is constitutional, and Quebec has no legal right to the data. Per McLachlin C.J. and Rothstein, Cromwell, Moldaver and Karakatsanis JJ.: The decision to dismantle the long-gun registry and destroy the data that it contains is a policy choice that Parliament was constitutionally entitled to make. The principle of cooperative federalism does not constrain federal legislative competence in this case, Quebec has no legal right to the data, and s. 29 of the ELRA is a lawful exercise of Parliament’s criminal law legislative power under the Constitution.

Quebec’s position that cooperative federalism prevents Canada and the provinces from acting or legislating in a way that would hinder cooperation between both orders of government has no foundation in our constitutional law and is contrary to the governing authorities from this Court. The principle of cooperative federalism does not prevent Parliament from exercising legislative authority that it otherwise possesses. The primacy of our written Constitution remains one of the fundamental tenets of our constitutional framework, and this is especially the case with regard to the division of powers.

Neither this Court’s jurisprudence nor the text of the Constitution Act, 1867 supports using the principle of cooperative federalism to limit the scope of legislative authority or 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 objectives of another.

Although Quebec submits that it has a right to receive the long-gun registration data whether or not Parliament is

constitutionally entitled to legislate with respect to the fate of that data, it has not established a legal basis for that right. As mentioned, the principle of cooperative federalism does not limit the scope of the legislative powers assigned by the Constitution. Furthermore, accepting Quebec’s position, which arises from its expectation of having continuing access to the data, would circumvent or effectively overturn this Court’s rejection of the “legitimate expectation” doctrine.

The provinces’ reliance on the existence of the data cannot limit Parliament’s capacity to destroy a registry, which flows exclusively from its criminal law head of power. Lastly, even if the data accessible through the CFR was the result of a cooperative effort, any effort on Quebec’s part was statutorily limited to the licensing data held in the CFO’s licensing registry. T his Court has already been called upon, in the Reference re Firearms Act (Can.) , 2000 SCC 31 , [2000] 1 S.C.R. 783, to determine the pith and substance of the scheme enacted by the Firearms Act .

In that case, the Court concluded that the “matter” of the registration and data retention provisions was public safety and should be classified as being in relation to the subject of criminal law. Legislation repealing that scheme, including a provision addressing what will happen to the data collected under the now repealed scheme, must be characterized in the same way.

Section 29, in essence, relates to public safety — as did the long-gun registration scheme being repealed by the balance of the ELRA . That provision does not limit Quebec’s legislative authority to create a provincial long-gun registry, it merely prevents Quebec from using the data obtained through the federal long-gun registry in establishing a provincial registry.

The fact that it has the practical effect of making it more difficult financially for Quebec to create its own gun control regime is not indicative of a “colourable” purpose from a division of powers’ perspective and does not affect the pith and substance of s. 29. There is no significant legal distinction between repealing a criminal provision and providing for what will happen to the data collected under that provision where the data was collected exclusively through the exercise of the criminal law power.

The power to repeal a criminal law provision must logically be wide enough to give Parliament jurisdiction to destroy the data collected for the purpose of that provision. Accordingly, s. 29 of the ELRA should be characterized as being in relation to criminal law. It therefore falls within the legislative competence of Parliament. Per LeBel, Abella, Wagner and Gascon JJ. (dissenting):

Section 29 of the ELRA is unconstitutional and should be declared to be invalid. The ELRA is the legislative measure chosen by Parliament to end its participation in long-gun regulation, but s. 29 goes beyond the scope of that purpose, as it requires that the data in question be destroyed without providing for a possibility of their first being transferred to the provincial partners, which prevents the latter from using them in the exercise of their powers. However, there is no legal basis for Quebec’s request for a compulsory transfer of the data.

The conditions applicable to such a transfer are a matter for the governments concerned, not the courts. When the constitutionality of a statutory provision is challenged on the basis of the division of powers, courts turn to the pith and substance doctrine. To apply this doctrine, they must review the extent to which the impugned provision intrudes on the powers of the other level of government. Where, because of its pith and substance, a provision found in an otherwise valid statute encroaches on the jurisdiction of the other level of government, it must be determined whether the encroachment is ancillary.

The degree of integration of a provision that is needed for an encroachment to be considered ancillary varies with the seriousness, or extent, of the encroachment. If the encroachment of the impugned provision on the jurisdiction of the other level of government is merely marginal or limited, a functional relationship between the provision and the statutory scheme may suffice. If, on the other hand, the provision is highly intrusive vis-à-vis the powers of the other level of government, a stricter test of necessity will apply.

The unwritten principles that underlie our written Constitution, such as federalism, infuse the analysis and

interpretation of the division of powers. The modern view of federalism favours a flexible conception of the division of powers and recognizes a significant overlap between the federal and provincial areas of jurisdiction, allowing governments at both levels to legislate for valid purposes in the areas of overlap. Such a conception facilitates intergovernmental co-operation.

Both in law and in the political arena, the concept of co-operative federalism has been developed to adapt the principle of federalism to this modern reality; it reflects the realities of an increasingly complex society that requires the enactment of co-ordinated federal and provincial legislative schemes. From a legal perspective, it is by allowing for overlapping powers through the application of the pith and substance and ancillary powers doctrines that co-operative federalism is able to meet those needs.

In this case, the trial judge was right to find that there was a federal-provincial partnership with respect to firearms control. This partnership is consistent with the spirit of co-operative federalism. It enabled the federal and provincial governments to work together, rather than in isolation, to achieve both federal (criminal law) and provincial (public safety and administration of justice) purposes.

In the novel circumstances of the dismantling of this partnership, the analysis must be guided by the Constitution’s unwritten principles so as to ensure that the principle of federalism and its modern form — co-operative federalism — are not placed in jeopardy. Parliament or a provincial legislature cannot pass legislation to terminate such a partnership without taking into account the reasonably foreseeable consequences of the decision to do so on its partner’s heads of power.

The courts must, in considering whether legislation or a statutory provision having as its purpose to dismantle the partnership is constitutional, be aware of the impact of that legislation or provision on the other partner’s exercise of its powers, especially when the partner that terminates the relationship is intentionally bringing about that impact. The Court of Appeal strayed from the analytical approach the courts must take. It is true that Parliament can repeal or amend legislation it has validly enacted under one of its heads of power.

Nevertheless, the courts must consider the impugned provision or legislation to determine whether, in pith and substance, all that it does is in fact to repeal or amend legislation that was validly enacted. I t is not enough to say that the legislative measure is merely repealing legislation. The words of s. 29 of the ELRA pose no particular problems of

interpretation. From a structural standpoint, s. 29 is distinct from other sections of the ELRA because it is a transitional provision. From a practical and legal standpoint, the principal effect of s. 29 is to delete the data in the CFR forever. The federal government’s decision to destroy the data without first transferring them to its partners, such as Quebec, has serious consequences that are relevant to the question whether s. 29 is constitutional. The extrinsic evidence shows that the purpose being pursued in enacting s. 29 was indeed to prevent the provinces from using the data.

The trial judge was therefore right to find that Parliament’s intention in destroying the data was to hinder the provinces. In light of the purpose and the effect of s. 29, therefore, the scope of the

section is broader than the mere destruction of the data; it has harmful consequences for the federal government’s partners. The purpose of s. 29 does not relate to the repeal of part of the Firearms Act ; the abolition by the federal

government of the requirement to register long guns and the destruction of the data are two distinct objectives. Given that the data are to be destroyed with no possibility of their first being transferred to the partners, and thereforewithout the impact of this measure on the partners’ exercise of their powers being taken into account, the section’s true purpose is toensure that the information on long guns can no longer be used for any provincial purposes. As a result, the pith and substance of s. 29relates to the provinces’ power over property and civil rights.

To determine whether s. 29 of the ELRA is constitutional on the basis of the ancillary powers doctrine, the seriousness, orextent, of its encroachment on provincial powers must be considered, bearing in mind that the provincial power to make laws in relationto property and civil rights is a head that should not be intruded upon lightly. The seriousness of the encroachment of s. 29 must beanalyzed on the basis of the specific factual and legal context of the case, which includes the existence of the partnership between thefederal government and Quebec.

In this case, in terms of both its nature and its effect, s. 29 causes a substantial encroachment onprovincial jurisdiction. For its encroachment to be found to be ancillary to the ELRA, the degree to which s. 29 is integrated into the Actmust therefore be high, that is, it must satisfy the necessity or “integral part” criterion. The destruction of the data in question in s. 29cannot be considered necessary to the abolition of the requirement to register long guns, as these two purposes are distinct.

Nor can s. 29be linked to the ELRA on the basis of a test of rationality; it is hard to reconcile the manner in which the destruction of the data wasprovided for with the desire certain provinces might show to maintain a registry within the limits of their powers. Furthermore,Parliament declared that its intention was to cause harm to the other level of government. Since, because of its pith and substance, s. 29 of the ELRA does not fall within the federal criminal law power and is notancillary to the ELRA, it has not been shown to be constitutionally valid.

A legislative measure cannot be found to be valid that (1) doesnot fall within the federal criminal law power and that (2) thwarts, by the substantial encroachment it causes, the corollary exercise ofprovincial powers that flowed from the partnership. To destroy the data without first offering to transfer them is unconstitutional. Section29 of the ELRA must therefore be declared to be invalid under s. 52 of the Constitution Act, 1982. Nevertheless, Quebec has not established a legal basis for its claim to the data.

The absence of a legal barrier to the transferof the data does not necessarily mean that Quebec has proven that it is entitled to obtain them through the courts. It is up to thelegislatures to fill legislative gaps that are incompatible with the Constitution, and not up to the courts to supply an exact description ofthe laws the legislatures must adopt to fulfill their constitutional obligations. In some cases, the source of the appropriate remedy must liein the political process rather than in the courts.

In this case, it was up to the members of the partnership to set out the conditions thatwere to apply upon termination of their joint venture in their agreements. Cases Cited By Cromwell and Karakatsanis JJ. Considered: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; referred to: Canadian Western Bank v.Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Reference re Agricultural Products Marketing Act, (SCC), [1978] 2 S.C.R.1198; Fédération des producteurs de volailles du Québec v.

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Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40; RJR-MacDonald Inc. v.Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010]2 S.C.R. 453; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146;Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3S.C.R. 302; Reference re Upper Churchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297; Attorney-Generalfor Ontario v.

Attorney-General for Canada, (UK JCPC), [1912] A.C. 571; Attorney-General for Canada v. Attorney-General for Ontario, (UK JCPC), [1937] A.C. 326; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R.698; Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289. By LeBel, Wagner and Gascon JJ. (dissenting) Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; General Motors of Canada Ltd. v. City NationalLeasing, (SCC), [1989] 1 S.C.R. 641; Reference re Upper Churchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297; Kirkbi AG v.

Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; Reference re Securities Act, 2011SCC 66, [2011] 3 S.C.R. 837; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; Kitkatla Band v. BritishColumbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Same-Sex Marriage,2004 SCC 79, [2004] 3 S.C.R. 698; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; CanadianWestern Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Attorney-General for Ontario v. Reciprocal Insurers, (UKJCPC), [1924] A.C. 328; R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Canada(Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Reference reCanada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525; Northern Telecom Ltd. v. Communications Workers ofCanada, (SCC), [1980] 1 S.C.R. 115; Clark v.

Canadian National Railway Co., (SCC), [1988] 2 S.C.R.680; R. v. Thomas Fuller Construction Co.

(1958) Ltd., (SCC), [1980] 1 S.C.R. 695; Doucet-Boudreau v. Nova Scotia(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Prosper, (SCC), [1994] 3 S.C.R. 236; Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), (SCC),[1993] 1 S.C.R. 839. Statutes and Regulations Cited

Act respecting safety in sports , CQLR, c. S-3.1, s. 46.31. Act to protect persons with regard to activities involving firearms , CQLR, c. P-38.0001, s. 11. Code of Civil Procedure , CQLR, c. C-25, art. 778. Constitution Act, 1867 , ss. 91(27), 92(13) . Constitution Act, 1982 , s. 52. Criminal Code , R.S.C. 1985, c. C-46, ss. 90, 91 . Criminal Law Amendment Act, 1968-69 , S.C. 1968-69, c. 38, s. 6. Ending the Long-gun Registry Act , S.C. 2012, c. 6, ss. 2 to 28 , 27 , 29 . Firearms Act , S.C. 1995, c. 39, ss. 2 “chief firearms officer”, 4 to 14, 13, 56, 57, 60, 70, 83, 84, 87, 90, 95, 112 [rep. 2012, c. 6, s. 27 ]. Firearms Records Regulations , SOR/98-213, ss. 4(1), 7(1) , (2) .

Interpretation Act , R.S.C. 1985, c. I-21, s. 42. Library and Archives of Canada Act , S.C. 2004, c. 11. Order Declaring an Amnesty Period (2006) , SOR/2006-95 [am. 2007-101, 2008-147, 2009-139, 2010-104, 2011-102, 2013-96, 2014- 123]. Privacy Act , R.S.C. 1985, c. P-21. Regulation respecting the exclusion of certain premises and certain means of transportation and respecting the exemption of certain persons , CQLR, c. P-38.0001, r. 1. Authors Cited Abel, Albert S. “The Neglected Logic of 91 and 92” (1969), 19 U.T.L.J. 487. Brown, R. Blake. Arming and Disarming: A History of Gun Control in Canada .

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APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Chamberland, Kasirer, St-Pierre and Lévesque JJ.A.), 2013 QCCA 1138 , [2013] R.J.Q. 1023, [2013] AZ-50965380, [2013] Q.J. No. 6676 (QL), 2013 CarswellQue 7597 (WL Can.) , setting aside a decision of Blanchard J., 2012 QCCS 4202, [2012] R.J.Q. 1895, [2012] AZ-50892414, [2012] Q.J. No. 8319 (QL), 2012 CarswellQue 10074 (WL Can.) . Appeal dismissed, LeBel, Abella, Wagner and Gascon JJ. dissenting. Éric Dufour , Hugo Jean and Suzanne-L. Gauthier , for the appellant. Claude Joyal , Q.C. , and Ian Demers , for the respondents.

No one appeared for the intervener the Chief Firearms Officer. Frédérick Langlois and Alain M. Gaulin , for the intervener the Coalition for Gun Control. Guy Lavergne , for the intervener Canada’s National Firearms Association. The judgment of McLachlin C.J. and Rothstein, Cromwell, Moldaver and Karakatsanis JJ. was delivered by Cromwell and Karakatsanis JJ. — I. Introduction [ 1 ] Fifteen years ago, this Court determined that Parliament, acting under its power to legislate in relation to criminal law, had the constitutional authority to establish a nationwide gun control scheme.

Parliament’s decision to do so was a contentious policy choice that was contested on constitutional grounds. Three years ago, Parliament reversed in part that earlier policy choice: it repealed the legislation that had established the long-gun registry within the gun control scheme, and provided for the destruction of the data it contained.

This too was a contentious policy choice which is now contested on constitutional grounds. [ 2 ] When the government tabled the bill abolishing the long-gun registry and providing for the destruction of the data it contained, Quebec expressed its intention to create its own provincial gun control scheme and asked Canada to give it the data on long guns connected with the province. The federal government refused. As a result, Quebec challenged the constitutionality of the federal law providing for destruction of the data and sought an order requiring the federal government to turn it over.

The Superior Court of Quebec declared that Parliament’s legislative jurisdiction with respect to criminal law does not allow it to legislate for the destruction of the long-gun registration records without first making this data available to provinces seeking to establish their own registries, and ordered the federal government to transfer the relevant data to Quebec. A five-member panel of the Quebec Court of Appeal disagreed. Finding the law a valid exercise of the federal criminal law power, it set aside those declarations and orders. Quebec now appeals to this Court, raising three issues: 1.

Does the principle of cooperative federalism prevent Parliament from legislating to dispose of the data? 2. Does Quebec have the right to obtain the data? 3. Is s. 29 of An Act to amend the Criminal Code and the Firearms Act , S.C. 2012, c. 6, ultra vires Parliament’s criminal law power? [ 3 ] We agree with the conclusions of the Quebec Court of Appeal and would dismiss the appeal.

The principle of cooperative federalism does not constrain federal legislative competence in this case, Quebec has no legal right to the data, and s. 29 of the Act to amend the Criminal Code and the Firearms Act (short title Ending the Long-gun Registry Act (“ ELRA ”)) is a lawful exercise of Parliament’s criminal law legislative power under the Constitution. We add this; to some, Parliament’s choice to destroy this data will undermine public safety and waste enormous amounts of public money.

To others, it will seem to be the dismantling of an ill-advised regime and the overdue restoration of the privacy rights of law-abiding gun owners. But these competing views about the merits of Parliament’s policy choice are not at issue here. As has been said many times, the courts are not to question the wisdom of legislation but only to rule on its legality.

In our view, the decision to dismantle the long-gun registry and destroy the data that it contains is a policy choice that Parliament was constitutionally entitled to make. [ 4 ] We note that our conclusion in this case partly rests on the fact that the Canadian Firearms Registry (“CFR”) flows directly from federal legislation and is not dependent on any provincial statutes. Different considerations might arise in a case involving a truly interlocking federal-provincial legislative framework. However, the CFR is not, in our respectful view, such a scheme.

Therefore we need not consider what might follow if it were. II. Facts and Judicial History A. Overview of the Facts [ 5 ] In 1995, Parliament enacted the Firearms Act , S.C. 1995, c. 39, which created a comprehensive scheme requiring the holders of all firearms — including long guns — to obtain licences and register their guns. It also made it a criminal offence to possess an unregistered firearm. The initial creation of the registry was challenged by several provinces, including Alberta who proceeded with a reference in the Alberta Court of Appeal which led ultimately to an appeal to this Court.

In the Reference re Firearms

Act (Can.) , 2000 SCC 31 , [2000] 1 S.C.R. 783, this Court concluded that the Firearms Act came within the criminal law authority of the federal Parliament, and that “the provinces ha[d] not established that the effects of the law on provincial matters [were] more than incidental”: para. 50. [ 6 ] The Firearms Act provided for the creation of two types of registries.

The Registrar of Firearms (“Registrar”) was to maintain a single registry, the CFR, containing records of the registration certificates for all prohibited firearms, restricted firearms, and unrestricted firearms (long guns) acquired, transferred, or possessed in Canada: s. 83. In addition, the Firearms Act requires that a Chief Firearms Officer (“CFO”) be appointed in each province and territory — either by a provincial minister or by a federal minister: s. 2 .

This officer must license individuals to possess firearms and must keep a registry containing records of every licence and authorization that she issues or revokes: s. 87. By law, the Registrar and the CFOs can access both types of registries: s. 90 . In practice, that access was ensured by the Canadian Firearms Information System (“CFIS”), an electronic database managed by the Royal Canadian Mounted Police (“RCMP”).

Although the provincial government could access all registration and licensing information in all of the registries through the CFIS database, the statutory authority of CFOs only permitted them to contribute and modify data in their specific licensing registry: ss. 87 and 90. [ 7 ] In April 2012, Parliament enacted the ELRA , which repeals the registration requirement for long guns and decriminalizes the possession of an unregistered long gun. The registration requirements for prohibited and restricted firearms remain in force, and the registries continue to collect and maintain that data. [1]

Section 29 of the ELRA requires the destruction of all records contained in the registries related to the registration of firearms that are neither prohibited firearms nor restricted firearms: 29.

(1) The Commissioner of Firearms shall ensure the destruction as soon as feasible of all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under the Commissioner’s control.

(2) Each chief firearms officer shall ensure the destruction as soon as feasible of all records under their control related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under their control.

(3) Sections 12 and 13 of the Library and Archives of Canada Act and subsections 6(1) and (3) of the Privacy Act do not apply with respect to the destruction of the records and copies referred to in subsections (1) and (2). [ 8 ] When it became clear that Canada was going forward with the repeal of the registration requirement for long guns, Quebec expressed its intention to create its own long-gun registry and asked the federal authorities for the data connected to Quebec contained in the CFR. Canada refused and made clear that it intended to permanently destroy all data related to the registration of long guns.

In light of this refusal, Quebec sought a declaration that s. 29 of the ELRA is ultra vires (that is, beyond the powers of Parliament), and that Quebec has a right to obtain the data. To date, the Quebec National Assembly has not enacted legislation creating a provincial long-gun registry. B. Superior Court of Quebec, 2012 QCCS 4202 [ 9 ] In the Superior Court, Blanchard J. held that the CFR is the result of concerted efforts between the different levels of government (federal, provincial and municipal) and is therefore a result of cooperative federalism.

Finding that the pith and substance of s. 29 is to prevent provincial governments from exercising their legislative competence by precluding them from using the product of this partnership, he held that s. 29 amounts to a violation of the principle of cooperative federalism and is ultra vires the powers of Parliament to legislate in relation to criminal law. [ 10 ] In addition to declaring s. 29 of the ELRA unconstitutional as it applies to data connected to Quebec, Blanchard J. ordered Canada to transfer that data to the province. C.

Quebec Court of Appeal, 2013 QCCA 1138 [ 11 ] A five-judge panel of the Court of Appeal unanimously reversed the decision of Blanchard J. [ 12 ] Writing for the Court of Appeal, Duval Hesler C.J.Q. held that Blanchard J. confounded some aspects of the Canadian Firearms Registration System. This confusion resulted in an erroneous finding of fact that the CFR is the result of a partnership between both orders of government.

That being said, Duval Hesler C.J.Q. concluded that this error was of little significance since, in her view, Parliament clearly has the power to destroy the data independent of the existence of any federal-provincial partnership. [ 13 ] The Court of Appeal reasoned that, since this Court held in the Reference re Firearms Act that the creation of the CFR was intra vires (that is, within the authority of) the federal Parliament, Parliament can also legislate to destroy it.

It also held that the principle of cooperative federalism cannot be used to supersede the formal division of powers provided in the Constitution Act, 1867 . [ 14 ] Finally, the Court of Appeal determined that Quebec has no right to obtain the data. The facts that Quebec had chosen to appoint a CFO and that both governments had entered into a financial agreement did not have the effect of granting Quebec any property right in the data. III. Analysis A.

Does the Principle of Cooperative Federalism Prevent Parliament From Legislating to Dispose of the Data? [ 15 ] Quebec invokes the principle of cooperative federalism in support of both its argument that s. 29 of the ELRA is ultra

vires and its claim that Quebec has the right to receive the data contained in the CFR related to long guns connected to Quebec.

Inessence, Quebec is asking us to recognize that the principle of cooperative federalism prevents Canada and the provinces from acting orlegislating in a way that would hinder cooperation between both orders of government, especially in spheres of concurrent jurisdiction. [16] In our respectful view, Quebec’s position has no foundation in our constitutional law and is contrary to the governingauthorities from this Court. [17] Cooperative federalism is a concept used to describe the “network of relationships between the executives of thecentral and regional governments [through which] mechanisms are developed, especially fiscal mechanisms, which allow a continuousredistribution of powers and resources without recourse to the courts or the amending process”: P.

W. Hogg, Constitutional Law ofCanada (5th ed. Supp.), at p. 5-46; see also W. R. Lederman, “Some Forms and Limitations of Co-Operative Federalism”, in ContinuingCanadian Constitutional Dilemmas (1981), 314. From this descriptive concept of cooperative federalism, courts have developed a legalprinciple that has been invoked to provide flexibility in separation of powers doctrines, such as federal paramountcy andinterjurisdictional immunity.

It is used to facilitate interlocking federal and provincial legislative schemes and to avoid unnecessaryconstraints on provincial legislative action: see, e.g., Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 24and 43; Reference re Agricultural Products Marketing Act, (SCC), [1978] 2 S.C.R. 1198; Fédération des producteurs devolailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292, at para. 15; Quebec (Attorney General) v. Canadian Owners andPilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at paras. 44-45; Canada (Attorney General) v.

PHS Community Services Society,2011 SCC 44, [2011] 3 S.C.R. 134, at para. 63.

With respect to interjurisdictional immunity, for example, the principle of cooperativefederalism has been relied on to explain and justify relaxing a rigid, watertight compartments approach to the division of legislativepower that unnecessarily constrains legislative action by the other order of government: “In the absence of conflicting enactments of theother level of government, the Court should avoid blocking the application of measures which are taken to be enacted in furtherance ofthe public interest” (Canadian Western Bank, at para. 37). [18] However, we must also recognize the limits of the principle of cooperative federalism.

The primacy of our writtenConstitution remains one of the fundamental tenets of our constitutional framework: Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at para. 53. This is especially the case with regard to the division of powers: . . . the text of the federal constitution as authoritatively interpreted in the courts remains very important. It tells us who can act in anyevent.

In other words, constitutionally it must always be possible in a federal country to ask and answer the question — What happens ifthe federal and provincial governments do not agree about a particular measure of co-operative action? Then which government andlegislative body has power to do what? [Emphasis added; footnote omitted.] (Lederman, at p. 315) [19] The principle of cooperative federalism, therefore, cannot be seen as imposing limits on the otherwise valid exerciseof legislative competence: Reference re Anti-Inflation Act, (SCC), [1976] 2 S.C.R. 373, at p. 421.

This was recentlyreiterated by this Court in its unanimous opinion in Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 61-62: While flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers. The SecessionReference affirmed federalism as an underlying constitutional principle that demands respect for the constitutional division of powersand the maintenance of a constitutional balance between federal and provincial powers. In

summary, notwithstanding the Court’s promotion of cooperative and flexible federalism, the constitutional boundaries that underliethe division of powers must be respected. The “dominant tide” of flexible federalism, however strong its pull may be, cannot sweepdesignated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state. [Emphasis added.] [20] In our respectful view, the principle of cooperative federalism does not assist Quebec in this case.

Neither thisCourt’s jurisprudence nor the text of the Constitution Act, 1867 supports using that principle to limit the scope of legislative authority orto impose a positive obligation to facilitate cooperation where the constitutional division of powers authorizes unilateral action. To holdotherwise would undermine parliamentary sovereignty and create legal uncertainty whenever one order of government adoptedlegislation having some impact on the policy objectives of another.

Paradoxically, such an approach could discourage the practice ofcooperative federalism for fear that cooperative measures could risk diminishing a government’s legislative authority to act alone. [21] We conclude that the principle of cooperative federalism does not prevent Parliament from exercising legislativeauthority that it otherwise possesses to dispose of the data. B.

Does Quebec Have the Right to Obtain the Data? [22] Quebec submits that it has a right to receive the long-gun registration data from the federal government whether ornot Parliament is constitutionally entitled to legislate with respect to the fate of the data. In addition to the principle of cooperativefederalism considered above, Quebec relies on the findings of the trial judge that Quebec’s contributions to the data contained in the CFRrender the data the result of a federal-provincial partnership.

We note here that there is a factual disagreement with regard to whether ornot the data contained in the CFR is in fact the result of a cooperative effort. The Court of Appeal was of the opinion that theconclusions of Blanchard J. on this matter were based on a palpable error of fact. In our view, this disagreement has no impact on theoutcome of this case. [23] We agree with the conclusion of our colleagues LeBel, Wagner and Gascon JJ. that Quebec “has not established a

legal basis for its claim to the data”: para. 198. We do so for three reasons. [24] First, as mentioned above, the principle of cooperative federalism does not limit the scope of the legislative powersassigned by the Constitution. [25] Second, Quebec’s alleged right to obtain the data arises from its expectation of having continuing access to that dataregardless of changes to federal legislation. We cannot agree that the provinces’ reliance on the existence of the data can limitParliament’s capacity to destroy a registry, which — as explained below — flows exclusively from its criminal law head of power.

Accepting this position would circumvent or effectively overturn this Court’s rejection of the “legitimate expectation” doctrine. ThisCourt has made it clear that a province’s legitimate expectation of action that the federal government would or would not undertake, evenan expectation relating to financial considerations, cannot bind Parliament’s legislative action: Reference re Canada Assistance Plan(B.C.), (SCC), [1991] 2 S.C.R. 525, at pp. 557-59; see also Wells v. Newfoundland, (SCC), [1999] 3S.C.R. 199, at para. 59, and Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40, at para. 39.

Quebec’s positionwould also mean by extrapolation that the adoption of the Firearms Act had a binding effect — the continued existence of the CFR data— which Parliament cannot undo alone.

That conclusion must also be rejected; it is contrary to the established constitutional principlethat Parliament cannot, through ordinary legislation, fetter itself by inhibiting future legislative action: Reference re Securities Act, atpara. 119; Hogg, at pp. 12-8 and 12-9. [26] Third, even if the data accessible through the CFR was the result of a cooperative effort, as asserted by Quebec, anyeffort on Quebec’s part was statutorily limited to the licensing data held in the CFO’s licensing registry.

The Firearms Act did notempower this officer to modify or contribute to the registration certificate data compiled and maintained by the Registrar, nor did theCFO act in her capacity as a provincial official in maintaining the licensing registry. As s. 29 of the ELRA contemplates the registrationdata, not the licensing data, we agree with the Quebec Court of Appeal that [translation] “this claim fails to demonstrate that there is aright to the data in the CFR or that Quebec participated in the creation of the CFR”: para. 57 .

In addition, we note thatQuebec’s argument relies on agreements between the federal and provincial governments, and on other pieces of evidence which includeRCMP documents, federal-provincial funding agreements, and statements from politicians and other officials involved. These legalinstruments and pieces of evidence are unquestionably subordinate to parliamentary sovereignty and can therefore be displaced by validfederal legislation.

Moreover, even if, as Quebec submits, there is no legal obstacle to the federal government transferring the data toQuebec, the absence of a legal obstacle to undertaking a given action does not, alone, create a legal obligation to do so. C. Is

Section 29 Ultra Vires Parliament’s Criminal Law Power?

(1) Applicable Legal Principles [27] The Constitution confers on Parliament the exclusive authority to legislate with respect to, among others, “all[m]atters” coming within “[t]he Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure inCriminal Matters”: Constitution Act, 1867, s. 91(27).

In that regard, the Chief Justice stated the following constitutional question in thiscase: Is s. 29 of the Ending the Long-gun Registry Act, S.C. 2012, c. 6, ultra vires Parliament having regard to its criminal law power under s.91(27) of the Constitution Act, 1867? [28] To answer this question, we first characterize the law — that is, determine its subject matter or “pith and substance”— and then classify it as to whether it is in relation to the subject of criminal law and procedure. [29] The “pith and substance” analysis involves determining the law’s “dominant purpose or true character”: RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para. 29. As Binnie and LeBel JJ. put itin Canadian Western Bank, at para. 26: “This initial analysis consists of an inquiry into the true nature of the law in question for thepurpose of identifying the ‘matter’ to which it essentially relates” (emphasis added). The object of the exercise is to determine whetherthat “matter” comes within a particular class of subjects for the purpose of determining which order of government can legislate.

Boththe law’s purpose and its legal and practical effects are considered as part of this analysis: Reference re Securities Act, at paras. 63-64;Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at para. 20; Kitkatla Band v. British Columbia (Minister ofSmall Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at paras. 53-54. Care must be taken, however, not to confusethe law’s purpose with “the means chosen to achieve it”: Ward v.

Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569, atpara. 25. [30] Where the challenge concerns a particular provision which forms part of a larger scheme, the pith and substanceanalysis begins with the challenged provision: Kitkatla Band, at para. 56. However, the “matter” of the provision must be considered inthe context of the larger scheme, as its relationship to that scheme may be an important consideration in determining its pith andsubstance: Kirkbi AG v.

Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302, at paras. 20-21. [31] Courts must be careful not to endorse a “colourable” statute, that is, one that in form appears to relate to a matterwithin the legislative competence of the enacting order of government, but in substance addresses a matter falling outside its competence:see Hogg, at p. 15-19; Reference re Upper Churchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297. Thecolourability doctrine simply means that “form is not controlling in the determination of essential character”: A. S.

Abel, “The NeglectedLogic of 91 and 92” (1969), 19 U.T.L.J. 487, at p. 494; Hogg, at p. 15-20. Courts are, for good reasons, reluctant to find legislation to becolourable: H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at p. 464.

There is a danger that any broaderapplication of the colourability doctrine may lead the courts to exceed their role of determining the constitutionality of legislation and,instead, express disapproval of either the policy of the statute or the means by which the legislation seeks to carry it out: Hogg, at p. 15-20; see also Ward, at para. 26. [32] Once the subject matter has been identified, the next step of the pith and substance analysis consists of classifyingthe legislation or provision in relation to the division of legislative power in the Constitution.

Here, we must determine whether the“matter” of s. 29 of the ELRA comes within the “subject” of criminal law, a head of power attributed to Parliament at s. 91(27) of the

Constitution Act, 1867 . This classification exercise may — and often does — involve defining the scope of the relevant head or heads of power: Reference re Securities Act , at para. 65 .

If the “matter” of the legislation comes within the “subject” of the head of power of the enacting order of government, the legislation is intra vires even if it has incidental effects on the other jurisdiction’s legislative competence (subject to federal paramountcy in the case of provincial legislation): Reference re Firearms Act , at para. 49. [ 33 ] This point takes on special importance when considering the classification of a law, like this one, that undoes a previously enacted scheme.

In classifying legislation that undoes an existing legislative scheme, due regard must be paid to the proper classification of that scheme . Consider the example of the repeal of a criminal offence. The scope of the criminal law power extends to laws that create a prohibition backed by a penalty for a criminal law purpose: Reference re Firearms Act , at para. 27. A law creating a true criminal offence clearly has these features, but a law repealing that same offence does not; the latter does not create a prohibition backed by a penalty for a criminal law purpose.

The repealing enactment, however, is clearly criminal law because the “matter” of that law comes within the same criminal law subject as did the provision it seeks to repeal. This is why Quebec is clearly right in this case not to question Parliament’s authority to repeal the long-gun registry scheme, and to restrict its challenge to s. 29 of the ELRA , which provides for the destruction of the data. The fatal flaw in Quebec’s analysis, however, is that in characterizing the pith and substance of s. 29, it ignores the place of the data gathering and retention provisions in the overall scheme.

(2) Application (

a) The “Matter” of

Section 29 [ 34 ] In essence, Quebec submits that the pith and substance of s. 29 of the ELRA is to prevent the long-gun registry from being continued through provincial legislation.

Although Quebec does not suggest that this “matter” comes within any of the enumerated heads of provincial legislative power, it submits nonetheless that the federal legislation is not a valid exercise of the criminal law power because it [ translation ] “encroaches massively on the ability of a provincial legislature to exercise as it sees fit its powers with respect to the administration of justice, public safety, the prevention of crime and the social costs associated with crime”: A.F., at para. 122; see also para. 115.

Quebec relies on several statements made by the Prime Minister and other federal cabinet ministers to the effect that Canada’s objective is to put a definite end to the long-gun registry by destroying the data contained in the CFR connected to long guns, and that they will do nothing to support any province or territory who would like to create a local long-gun registry. Quebec also submits that the effect of the destruction of the data will be to make it prohibitively expensive and complicated for the province to create its own long-gun registry.

Section 29 of the ELRA therefore constitutes an encroachment on the province’s powers . [ 35 ] Canada submits that the subject matter of s. 29 is the same as the rest of the ELRA : to abolish the long-gun registry and put an end to what it considers an unwarranted intrusion into the private lives of Canadian gun owners.

Canada also asserts that the practical effects of the destruction of the data on provinces who want to create their own gun control scheme do not change the pith and substance of the impugned provision. [ 36 ] In our respectful view, the proper characterization of the “matter” of s. 29 of the ELRA derives from that of the scheme that it is undoing. In the Reference re Firearms Act , this Court held that both the criminal prohibition on possessing an unregistered firearm and the registration scheme provided for in the Firearms Act were valid public safety measures.

It determined that the purpose of the scheme was to address “the problem of the misuse of firearms and the threat it poses to public safety”: para. 21. It also held that the effects of the scheme supported the conclusion that the Firearms Act is a public safety measure: para. 24. The Court rejected arguments from Ontario and Saskatchewan to the effect that the “matter” of the registration and data retention provisions, which s. 29 seeks to dismantle, was the regulation of property within the province.

The Court concluded that the “matter” of these provisions was the same as the rest of the scheme — public safety — and that they should accordingly be classified as being in relation to the subject of criminal law : We are not persuaded that the registration provisions can be severed from the rest of the Act, nor that they fail to serve Parliament’s purpose in promoting public safety. The licensing provisions require everyone who possesses a gun to be licensed. The registration provisions require all guns to be registered.

The combination of the two parts of the scheme is intended to ensure that when a firearm is transferred from one person to another, the recipient is licensed. Absent a registration system, this would be impossible to ascertain. If a gun is found in the possession of an unlicensed person, the registration system permits the government to determine where the gun originated. With a registration scheme in place, licensed owners can be held responsible for the transfer of their weapons. . . .

These interconnections demonstrate that the registration and licensing portions of the Firearms Act are both tightly linked to Parliament’s goal in promoting safety by reducing the misuse of any and all firearms. Both portions are integral and necessary to the operation of the scheme. [Emphasis added.] ( Reference re Firearms Act , at para. 47) [ 37 ] Viewed in this light, the “matter” of s. 29 is simply to determine what will happen with the data collected under a now repealed legislative scheme.

Given that the “matter” of the registration scheme, including data collection, was found to be public safety in the Reference re Firearms Act , dealing with the collected data following the repeal of the scheme must share that same characterization. It is logical that the ELRA provides for what is to happen with the remains of the scheme that it repeals, and destroying the data is the means Parliament adopted to accomplish that purpose. This is not to say that every measure that is part of or consequent to the repeal of legislation invariably shares the pith and substance of the repealed scheme.

However, in this case, the repealing enactment’s purpose and effects are to determine what will happen to the data collected under the now repealed scheme, a scheme that the Court previously characterized as being in relation to public safety. [ 38 ] Quebec’s submissions, in our respectful view, confuse the subject matter of s. 29 of the ELRA with Canada’s motives and the means employed by Parliament.

In determining the true character of s. 29, we are not concerned with whether destroying the data is good policy, whether Canada’s motives were sound, or whether the destruction of that data conflicts with the policy objectives of Quebec. We recognize that the federal government’s ultimate goal may well have been to prevent Quebec from creating its own long- gun registry. We also accept that the destruction of the data is the means chosen by Canada because of its irremediable nature. That being said, these considerations are not indicative of a “colourable” purpose from a division of powers’ perspective.

An intention on the

part of one level of government to prevent another from realizing a policy objective it disagrees with does not, on its own, lead to theconclusion that there is an encroachment on the other level of government’s sphere of exclusive jurisdiction. The fact that s. 29 of theELRA has the practical effect of making it more difficult financially for Quebec to create its own gun control regime does not, in light ofthe rejection of the legitimate expectations doctrine, affect the pith and substance of the provision.

As Sopinka J. said in Reference reCanada Assistance Plan, “‘[i]mpact’ [upon a constitutional interest outside Parliament’s jurisdiction] with nothing more is clearly notenough to find that a statute encroaches upon the jurisdiction of the other level of government”: p. 567.

In our view, the practical effectsof s. 29 do not exceed that threshold. [39] Quebec also submits that an analogy can be drawn between the facts of this case and those in Upper Churchill, inwhich this Court held that Newfoundland legislation repealing a statutory lease granted to Hydro-Quebec was colourable because it wasin fact expropriating rights situated outside the province: p. 335. This argument implies that s. 29 exceeds Parliament’s criminal lawjurisdiction and is a colourable attempt to legislate in relation to property and civil rights in the province: see P.

Daly, “DismantlingRegulatory Structures: Canada’s Long-Gun Registry as Case Study” (2014), 33 N.J.C.L. 169, at pp. 178-80. [40] We reject this argument. Like the Quebec Court of Appeal, we do not think that the principles in Upper Churchillare applicable to this case. As we have discussed earlier, s. 29 of the ELRA does not seek either in substance or in form to limit Quebec’slegislative authority to create a provincial long-gun registry, whereas the impugned legislation in Upper Churchill did seek to interferewith Quebec’s legislative authority.

Rather, s. 29 simply prevents Quebec from using the data obtained through the federal long-gunregistry in establishing a provincial registry. Quebec does not (and in our view could not) take the position that it could validly enactlegislation that deals with what will happen with the data of the repealed scheme. That being the case, Parliament’s enactment of s. 29cannot be a colourable attempt to legislate in relation to a provincial head of power.

In any event, there is no difference between the formand substance of the provisions at issue; both deal with what will happen to the data collected under the now repealed scheme. In ourview, the doctrine of colourability is not engaged here. [41] In

summary, this Court has already been called upon in the Reference re Firearms Act to determine the pith andsubstance of the scheme enacted by the Firearms Act. In our view, legislation repealing the part of that scheme relating to long guns,including a provision addressing what will happen to the data collected thereunder, must be characterized in the same way. We concludethat s. 29, in essence, relates to public safety — as did the long-gun registration scheme being repealed by the balance of the ELRA. (

b) Classification: Does

Section 29 Come Within the Criminal Law Power? [42] Quebec submits that s. 29 cannot be a valid exercise of Parliament’s criminal law power because it is not aimed atpreventing crime or at decriminalizing any conduct. We disagree and would hold that s. 29 of the ELRA falls under the criminal law headof power. [43] It is not contested that the repeal of criminal provisions constitutes a valid exercise of the criminal law power: Hogg,at p. 18-21. We accept that there is a factual difference between repealing a criminal provision and providing for what will happen to thedata collected under that provision.

That being said, we are of the view that there is no significant legal distinction between these twoactions in the current case because the data at issue here was collected exclusively through the exercise of the criminal law power. Thepower to repeal a criminal law provision must logically be wide enough to give Parliament jurisdiction to destroy the data collected forthe purpose of a criminal law provision.

If a law establishing a scheme requiring collection of data is legislation “in relation to” criminallaw, then legislation providing for the destruction of that data on the repeal of the scheme must also be legislation “in relation to”criminal law. This is the case here. [44] In addition, the prospect that Parliament would not have the power to destroy records under its control and createdunder a scheme validly enacted by it is concerning.

Since we do not see how provinces could have the power to destroy the datacontained in the federally enacted long-gun registry, Quebec’s position — if it were accepted — would suggest that neither Parliamentnor provincial legislatures could legislate to destroy the data of the repealed scheme. We reject this proposition as it would run afoul ofthe principle that the Constitution Act, 1867 provides for a complete division of powers between both orders of governments: Attorney-General for Ontario v. Attorney-General for Canada, (UK JCPC), [1912] A.C. 571 (P.C.), at p. 581; Attorney-Generalfor Canada v.

Attorney-General for Ontario, (UK JCPC), [1937] A.C. 326 (P.C.). There is no topic that cannot belegislated upon: Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 34. Quebec’s proposition would also beinconsistent with the notion that Parliament possesses the residual power to legislate on subject matters that do not come within aprovincial head of power: see, e.g., Hunt v.

T&N plc, (SCC), [1993] 4 S.C.R. 289, at p. 326, and Hogg, at pp. 17-1 and17-2. [45] Therefore, we agree with the Quebec Court of Appeal that s. 29 of the ELRA should be characterized as being inrelation to criminal law. It therefore falls within the legislative competence of Parliament. IV. Disposition of the Appeal [46] We would dismiss the appeal with costs throughout and answer the constitutional question as follows: Is s. 29 of the Ending the Long-gun Registry Act, S.C. 2012, c. 6, ultra vires Parliament having regard to its criminal law power under s.91(27) of the Constitution Act, 1867? Answer: No.

English version of the reasons of LeBel, Abella, Wagner and Gascon JJ. delivered by LeBel, Wagner and Gascon JJ. (dissenting) — I. Introduction

[ 47 ] In 2012, Parliament enacted the Act to amend the Criminal Code and the Firearms Act , S.C. 2012, c. 6 (short title Ending the Long-gun Registry Act (“ ELRA ”)). This Act repeals the provisions of the Firearms Act , S.C. 1995, c. 39 (“ FA ”), relating to the mandatory registration of long guns.

Section 29 of the ELRA provides for the destruction, as soon as feasible, of all data compiled since 1998 with respect to the registration of such guns in Canada. [ 48 ] The Quebec government, which considered the data to be the product of a federal-provincial partnership and wanted to continue registering long guns within its territory, then asked the federal government to transfer to it all data from Quebec concerning registration certificates for long guns. The federal government refused to do so, and the Attorney General of Quebec (“AGQ”) then instituted legal proceedings.

According to the AGQ, the unilateral destruction of these data under s. 29 of the ELRA would be unconstitutional unless they were first transferred to Quebec. [ 49 ] The Quebec Superior Court declared that s. 29 of the ELRA is unconstitutional and that Quebec is entitled to a transfer of these data. The Quebec Court of Appeal unanimously reversed that judgment. The AGQ now appeals to this Court. Our colleagues would dismiss the appeal. [ 50 ] We are of the opinion that the appeal should be allowed, but only in part.

This conclusion is dictated by the exceptional circumstances in which long-gun regulation was implemented in Canada. In our opinion, and this is where we diverge from our colleagues’ view, both the collection of the data with respect to long guns and the broader initiatives aimed at regulating the use of such guns were the result of a partnership with the provinces, including Quebec. Where an integrated scheme such as this requires the exercise of both federal and provincial legislative powers, the analytical framework for questions related to the division of powers must be adapted and applied accordingly.

Whether the means the federal government adopted to terminate this partnership were constitutional can be measured, in particular, in terms of the effect they will have on its partners’ powers. [ 51 ] The ELRA is the measure chosen by Parliament to end its participation in long-gun regulation. But s. 29 goes beyond the scope of that purpose, as it requires that the data in question be destroyed without providing for a possibility of their first being transferred to the provincial partners, which prevents the latter from using them in the exercise of their powers. This

section has significant effects on Quebec’s legislative powers and is not necessary to the achievement of the ELRA ’s purpose.

Section 29 is therefore unconstitutional and should be declared to be invalid. [ 52 ] Although we find that s. 29 is unconstitutional, the AGQ has nonetheless failed to establish a legal basis for his request for a compulsory transfer of the data. The conditions applicable to such a transfer are a matter for the governments concerned, not the courts. II.

Background [ 53 ] Firearms have been subject to regulation in Canada since early in the country’s history: “Canada has had laws restricting the possession and use of firearms since 1877, and a nationwide permit system for the carrying of small arms has been in effect since 1892” (Library of Parliament, “Bill C-19: An Act to amend the Criminal Code and the Firearms Act ”, Legislative

Summary No. 41-1-C19-E, November 1, 2011 (“ Legislative

Summary ”), at p. 1). Since 1969, firearms have been divided into three classes for purposes of regulation: prohibited firearms, restricted firearms and non-restricted firearms (also called “long guns”) ( Criminal Law Amendment Act, 1968-69 , S.C. 1968-69, c. 38, s. 6). The regulation of firearms was originally focused on prohibited and restricted firearms. During the 1970s and 1980s, there was growing discontent over the disparity in treatment between long guns and the other two classes of firearms. Various groups promoting stricter regulation of long guns started a serious debate about public safety: see R. B.

Brown, Arming and Disarming: A History of Gun Control in Canada (2012), at pp. 167-203. Nothing came of their efforts. [ 54 ] The tragedy at the École Polytechnique in Montréal on December 6, 1989 shook the Canadian public. In its wake, was formed in the early 1990s and the intervener Coalition for Gun Control began lobbying the Canadian government and other organizations for stricter gun control: Brown, at pp. 204-7.

After a long debate and despite several failures, the Coalition’s efforts finally came to fruition a few years later. [ 55 ] In 1994, the federal Minister of Justice announced his intention to introduce stronger firearms control measures. In tabling Bill C-68 (which would become the FA ) in the House of Commons, the Minister focused on one key element: the need for and usefulness of a long-gun registration system.

He stressed the important role that the provinces would have in designing this system, making the following comments, among others: During the course of the last several months, I have been in continuous touch with senior officials and indeed with provincial counterparts, attorneys general and ministers of justice, exchanging views about the proposals that will be decided upon and announced this afternoon. ( House of Commons Debates , vol. 133, No. 134, 1st Sess., 35th Parl., November 30, 1994, at p. 8476) We can take the opportunity of designing and implementing such a system in collaboration with provincial authorities, with the input of the firearms’ groups to eliminate irritants, to overcome paperwork burden, to simplify and streamline the system so that all of our objectives can be achieved at the same time. ( House of Commons Debates , vol. 133, No. 154, 1st Sess., 35th Parl., February 16, 1995, at p. 9709) [ 56 ] At the time of the enactment of the FA , there was no dispute that it would be impossible to set up a registration system without provincial collaboration.

Member of Parliament Stephen Harper (who would subsequently become Prime Minister) said the following in the House: We know that the Department of Justice retains overall responsibility for gun control but the program is predominantly administered by provincial and territorial governments, through chief firearms officers and local police agencies.

( House of Commons Debates , vol. 133, No. 216, 1st Sess., 35th Parl., June 12, 1995, at p. 13631) [ 57 ] In Quebec, there was a consensus that the program would be useful, although some questioned whether the compensation for the costs of implementing and administering the program that the federal government proposed to pay the provinces that chose to take part would be sufficient: see, e.g., Quebec, National Assembly, Journal des débats , vol. 34, No. 49, 1st Sess., 35th Leg., May 23, 1995 (online), at 14:40, Mr. Brassard (Minister of the Environment and Wildlife).

Other provinces shared this concern: I have been told the funds that the provinces received are not adequate to cover their costs. . . . The federal government’s latest offer amounts to only about two-thirds of the actual cost incurred for these programs. ( House of Commons Debates , June 12, 1995, at p. 13631) [ 58 ] Upon receiving Royal Assent the day before the sixth anniversary of the École Polytechnique tragedy, the FA created controversy. Alberta challenged its constitutionality in 1996, arguing that it was ultra vires Parliament.

In a unanimous opinion, the Court rejected this argument and held that the FA falls within the federal criminal law power: Reference re Firearms Act (Can.) , 2000 SCC 31 , [2000] 1 S.C.R. 783 (“ FA Reference ”). We will return to this question below. [ 59 ] The coming into force of the FA on December 1, 1998, marked the beginning of the registration of all firearms — including long guns — in Canada.

After that date, any individual, unless exception applied, who acquired or possessed a firearm of any type in Canada was required to hold a licence to possess firearms as well as a specific registration certificate for the firearm in question: ss. 4 to 14 and 112 (rep. s. 27 ELRA ) FA ; ss. 90 and 91 of the Criminal Code , R.S.C. 1985, c. C-46.

Moreover, it should be specified that holding a licence was a precondition for obtaining a registration certificate: s. 13 FA . [ 60 ] In this regard, the FA provides for the establishment of two types of registries: the Canadian Firearms Registry (“CFR”), which is to be maintained by the Registrar of Firearms (“Registrar”), and records of chief firearms officers (“CFOs”) ( ss. 83 and 87 FA ). Whereas there is only one Registrar for all of Canada, each province or territory has its own CFO.

The CFOs for the territories are appointed by the federal Minister of Public Safety and Emergency Preparedness: s. 2(1) “chief firearms officer” FA . With respect to the provinces, on the other hand, it is only if a province has not designated a CFO that the federal minister will do so: ibid.

At the time the FA was passed, CFOs were designated by five provinces, namely Ontario, Quebec, New Brunswick, Prince Edward Island and Nova Scotia (Royal Canadian Mounted Police (“RCMP”), National Program Evaluation Services, RCMP Canadian Firearms Program: Program Evaluation , Final Approved Report, February 2010 (online) (“ CFP Evaluation ”), at p. 9; affidavit of Pierre Perron (Assistant Commissioner of the RCMP and Director General of the CFP), April 5, 2012, joint record (“J.R.”), vol. 3, at para. 10). [ 61 ] Under the FA , the Registrar is responsible for issuing a registration certificate for each firearm: s. 60.

The CFOs, for their part, are responsible for issuing possession licences as well as authorizations to carry and authorizations to transport for firearms belonging to individuals or businesses in their respective provinces: ss. 56 and 57 FA . The CFR contains, inter alia , information on registration certificates, and the records of the CFOs contain information on licences and authorizations to carry.

Section 90 of the FA requires that the Registrar and the CFOs have access to one another’s registries. [ 62 ] The Canadian Firearms Information System (“CFIS”) (formerly known as the Canadian Firearms Registration System (“CFRS”)) allows for the pooling of information in the CFR maintained by the Registrar and the registries kept by the CFOs. The CFIS is now administered by the RCMP, and it provides access to all information that must be kept pursuant to the FA .

However, only the Registrar can modify information recorded in the CFR, and only the CFO can modify records he or she maintains: Firearms Records Regulations , SOR/98-213, s. 7(1) and (2) . [ 63 ] The keeping of the CFR and of the CFOs’ records is one aspect of the broader framework of the Canadian Firearms Program (“CFP”). The CFP has multiple components, including firearms regulation, training and support for police forces and those who work in the criminal justice system, education for firearms owners, and public awareness: CFP Evaluation , at pp. 7-8.

Several aspects of the CFP, such as the mandatory firearms safety course for owners, were developed with provincial co-operation and support: affidavit of Pierre Perron, at para. 7 and Exhibit A. [ 64 ] In 2006, a new federal government came to power. At the outset of its mandate, it announced an amnesty under which owners of long guns would not be liable to sanctions for having failed to register their weapons or to renew their licences to possess firearms: Order Declaring an Amnesty Period (2006) , SOR/2006-95 .

The amnesty period was extended year after year, effectively decriminalizing the failure to obtain a licence and to register long guns: SOR/2007-101, SOR/2008-147, SOR/2009-139, SOR/2010-104, SOR/2011-102, SOR/2013-96 and SOR/2014-123. Nonetheless, the RCMP and its partners continued to administer the CFP, including its long-gun component. [ 65 ] On October 25, 2011, after several bills had died on the Order Paper and following a spirited public debate, Bill C- 19 was tabled in the House of Commons: House of Commons Debates , vol. 146, No. 036, 1st Sess., 41st Parl., at p. 2437.

Its purpose was to abolish the requirement to register long guns and to ensure the destruction of all data related to the registration of such guns. It was only the portion of the CFR concerning long guns that was affected by this bill and is at issue in this appeal. Clause 29 of Bill C-19, which would become s. 29 of the ELRA , read as follows: 29.

(1) The Commissioner of Firearms shall ensure the destruction as soon as feasible of all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under the Commissioner’s control.

(2) Each chief firearms officer shall ensure the destruction as soon as feasible of all records under their control related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under their control.

(3) Sections 12 and 13 of the Library and Archives of Canada Act and subsections 6(1) and (3) of the Privacy Act do not apply with respect to the destruction of the records and copies referred to in subsections (1) and (2).

[66] The Quebec government, with the support of its police officers and much of its population, had made its oppositionto the federal government’s attempts to abolish the registration of long guns known. Between 2006 and 2011, the National Assembly hadadopted at least six motions denouncing the various federal government bills, calling on members of Parliament to vote against thesemeasures and demanding that the CFR be maintained.

On November 2, 2011, it unanimously adopted a new motion, this timedemanding that Quebec’s CFO “take all of the necessary measures to preserve the completeness of data from Québec entered in theFirearms Registry”: Votes and Proceedings, No. 57, 2nd Sess., 39th Leg., November 2, 2011, at pp. 693-94. [67] Two weeks later, Quebec’s Minister of Public Security appeared before the House of Commons Standing Committeeon Public Safety and National Security to ask that the CFR be maintained or, failing that, that Bill C-19 be amended by removing theprovision on the destruction of the data, namely clause 29: House of Commons, Evidence of the Standing Committee on Public Safetyand National Security, No. 012, 1st Sess., 41st Parl., November 17, 2011, at pp. 1-2.

Quebec’s minister also wrote to his federalcounterpart to ask him to agree on terms for transferring CFIS data concerning Quebec citizens.

He noted that this would be [translation]“an excellent opportunity for the federal government to deal with this matter in a spirit of co-operative federalism that would berespectful of, rather than frustrate, Quebec’s collective goals”: letter dated December 2, 2011, J.R., vol. 10, at p. 161. [68] Finally, on December 6, 2011, the National Assembly voted to adopt another motion in which it asked the Quebecgovernment “to seek legal recourse aiming to maintain the federal long gun registry and to ensure that its data is preserved, before theabolition of

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