Mar 31, 2015

Following last week’s 5-4 split decision, in which the Supreme Court affirmed the constitutionality of a federal law requiring the destruction of long-gun registry records, here are a few reactions.  Paul Daly notes that the dissent is likely to mark a beginning of sorts in the exploration of cooperative federalism:

Interestingly, the dissent was not especially radical in its use of cooperative federalism. Although the dissenters were convinced that the registry was a cooperative effort (at paras. 115-135), they did not strike down s. 29 as violating the principle of cooperative federalism. Rather, with the principle of cooperative federalism in mind, they closely analyzed whether s. 29 was truly an exercise of the federal power in respect of criminal law. In a passage that is likely to be cited in decisions and debates to come, they stated:

[T]he dismantling of a partnership like the one established with respect to gun control must be carried out in a manner that is compatible with the principle of federalism that underlies our Constitution. Thus, Parliament or a provincial legislature cannot adopt legislation to terminate such a partnership without taking into account the reasonably foreseeable consequences of the decision to do so for the other partner. 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 (at para. 153).

Léonid Sirota takes on the dissenters – all Quebec justices –for proposing an “unpragmatic” remedy – calling on the parties to negotiate a solution through the political process:

It is striking that, at the conclusion of an opinion that presents itself as attuned to the political realities, a pragmatic rebuttal to a rather dogmatic majority judgment the dissenters propose a remedy that would utterly fail to solve the dispute before it and result in protracted, acrimonious, and ultimately futile negotiations. This is not pragmatism, but either naïveté or a rather cynical bet that, as the negotiations drag on and on, the current federal government will be replaced by one more favourable to Québec’s claims later this year. More importantly though, in my view, the dissent’s proposed remedy amounts to an acknowledgement that Québec’s claim was ultimately political, not legal. “Co-operative federalism” was an attempt to bridge the gap between the two, but even for the dissent, it was not enough.

Yves Boisvert, on the other hand, calls out the government:

What an absurd, ideological waste.  This from a government which, not so long ago, presented itself as the champion of co-operative federalism… which now reveals its political and legal limitations. [Our translation]

Chantal Hébert points to a silver lining for Quebec:

By seeking a remedy based on the principle of co-operative federalism in the courts, Quebec undoubtedly hoped to limit the capacity of future federal governments to engage in such obstruction.

But federalism is a two-way street.

If the province had won the day, its victory could have opened a new flank to potential legal challenges to the way in which Quebec exercises its own legislative and constitutional powers, challenges based on the impact of its policies on the workings of federation.

That sounds like a big door to open just to get one’s hand on largely obsolete gun ownership files.