By a 5 to 4 margin, in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (referred to as the Long Gun Registry case in this post), the Supreme Court of Canada ruled on March 27, 2015 that the Quebec government had no right to insist that, before destroying all data in the now defunct federal long gun registry, the federal government hand over to it the data relating to Quebec resident long gun owners. Two and a half weeks later, by a 6 to 3 margin, in R. v. Nur, 2015 SCC 15, the Court held that the mandatory minimum sentence for possessing prohibited firearms was contrary to s. 12 of the Charter and was not justified under s. 1. What is of interest, besides the result in these two cases, is how the Court divided and the basis for its division.

The background facts to the Long Gun Registry decision are fairly straightforward. In a move reminiscent of Prime Minister Diefenbaker’s decision to not only cancel the Avro Arrow but to destroy all physical evidence and products of that supersonic program, the Harper government passed a statute, Ending the Long-Registry Act, SC 2012, c. 6, section 29 of which requires all data accumulated by that Registry to be destroyed. The Quebec government asked the federal government to turn over the data relating to its resident long gun owners so that it could create its own provincial registry. The federal government refused. The Quebec government then brought these proceedings to compel the federal government to turn over the long gun registry data relating to Quebec residents. Quebec advanced the argument that the principle of cooperative federalism should prevail, requiring the transfer of that information from the federal government to the province of Quebec so that Quebec could set up its own long gun registry. Its arguments were unsuccessful.

The majority was represented by Justices Cromwell and Karakatsanis (McLachlin CJC and Rothstein and Moldaver JJ concurring). The majority noted that “Quebec [was] asking [the Court] to recognize that the principle of cooperative federalism prevents Canada and the provinces from acting or legislating in a way that would hinder cooperation between both orders of government, especially in spheres of concurrent jurisdiction.” [para. 15]. Justices Cromwell and Karakatsanis held that Quebec’s position had “no foundation in [Canada’s] constitutional law” [para. 16]. They based their decision on the concept of the primacy of the written constitution [paras. 17-21]:

[17] Cooperative federalism is a concept used to describe the “network of relationships between the executives of the central and regional governments [through which] mechanisms are developed, especially fiscal mechanisms, which allow a continuous redistribution of powers and resources without recourse to the courts or the amending process”: .. From this descriptive concept of cooperative federalism, courts have developed a legal principle that has been invoked to provide flexibility in separation of powers doctrines, such as federal paramountcy and interjurisdictional immunity. It is used to facilitate interlocking federal and provincial legislative schemes and to avoid unnecessary constraints on provincial legislative action: …. With respect to interjurisdictional immunity, for example, the principle of cooperative federalism has been relied on to explain and justify relaxing a rigid, watertight compartments approach to the division of legislative power that unnecessarily constrains legislative action by the other order of government: “In the absence of conflicting enactments of the other level of government, the Court should avoid blocking the application of measures which are taken to be enacted in furtherance of the 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 written Constitution remains one of the fundamental tenets of our constitutional framework: Reference re Secession of Quebec, [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 any event. In other words, constitutionally it must always be possible in a federal country to ask and answer the question — What happens if the federal and provincial governments do not agree about a particular measure of co-operative action? Then which government and legislative 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 exercise of legislative competence: Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 421. This was recently reiterated 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 Secession Reference affirmed federalism as an underlying constitutional principle that demands respect for the constitutional division of powers and 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 underlie the division of powers must be respected. The “dominant tide” of flexible federalism, however strong its pull may be, cannot sweep designated 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 this Court’s jurisprudence nor the text of the Constitution Act, 1867 supports using that principle 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. Paradoxically, such an approach could discourage the practice of cooperative 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 legislative authority that it otherwise possesses to dispose of the data.
[some footnotes omitted for sake of brevity]

The minority decision authored by all three Quebec justices (LeBel, Wagner and Gascon JJ) and concurred in by Abella J would have given sway to the cooperative federalism argument. The minority found that the trial judge was correct in finding that there had been a partnership between Quebec and Canada in the case at bar in relation to firearm control [para. 116]. This partnership was in keeping with the concept of cooperative federalism. They explained their understanding of how the unwritten principle of cooperative federalism informs and gives texture to the written words of the constitution [paras. 144-47]:

[144] The Court has, while stressing that our written Constitution is paramount, recognized the importance of the unwritten principles that underlie it. These principles infuse the analysis and interpretation of the division of powers. They “assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions”: Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 52. They also reflect our Constitution’s historical context and have facilitated its application throughout its history; thus, they are to the Constitution what sap is to a tree. In this sense, they are “a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution”: ibid., at para. 32.

[145] As this Court explained in Reference re Secession of Quebec, federalism “was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today”, and “political leaders [had] told their respective communities that the Canadian union would be able to reconcile diversity with unity”: para. 43. The principle of federalism requires that the constitutional division of powers be respected and that a balance be maintained between federal and provincial powers. One “power may not be used in a manner that effectively eviscerates another”: Reference re Securities Act, at para. 7; Reference re Secession of Quebec, at paras. 57‑58.

[146] According to the “classical” approach favoured by the Judicial Committee of the Privy Council until 1949, the heads of power constituted “watertight compartments”, and overlaps between them were to be avoided to the full extent possible: Reference re Securities Act, at para. 56.

[147] The modern view of federalism rejects this approach and replaces it with a more flexible conception of the division of powers that is dominant in this Court’s recent jurisprudence. This conception “recognizes that in practice there is significant overlap between the federal and provincial areas of jurisdiction, and provides that both governments should be permitted to legislate for their own valid purposes in these areas of overlap”: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 62; Canadian Western Bank, at paras. 36‑37; Reference re Securities Act, at para. 57. Such a conception thus facilitates intergovernmental co‑operation: see, inter alia, OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at pp. 19‑20, per Dickson C.J.; Reference re Securities Act, at paras. 57‑58. 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.

The minority would require that the dismantling of the Long Gun Registry be carried out with the same federal cooperation that was used for its creation [paras. 151-53]:

[151] In the novel circumstances of this case, our analysis must be guided by the Constitution’s unwritten principles. In particular, we must be careful not to place the principle of federalism and its modern form — co‑operative federalism — in jeopardy. As the Court has noted, “the very functioning of Canada’s federal system must continually be reassessed in light of the fundamental values it was designed to serve”: Canadian Western Bank, at para. 23.

[152] The dominant tide with respect to the division of powers admits of overlapping powers and favours co‑operation between the different levels of governments. It also supports the validity of schemes established jointly through partnerships developed between members of our federation. In our opinion, our courts must protect such schemes both when they are implemented and when they are dismantled. It would hardly make sense to encourage co‑operation and find that schemes established in the context of a partnership are valid while at the same time refusing to take this particular context into account when those schemes are terminated.

[153] In our opinion, the 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.

Thus, in the Long Gun Registry case, the Court’s division was based on the architecture of the Constitution, the written words comprising the skeletal constitutional framework taking precedence over the spirit and intent of the unwritten constitutional principles.

In R. v. Nur, the Court split again. This time, the Charter provided the basis of the division. The Chief Justice wrote the majority opinion (LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ concurring). The Chief Justice found that the mandatory minimum sentences imposed by the Criminal Code were contrary to s. 12’s prohibition of “cruel or unusual treatment or punishment” and could not be saved under s. 1. In so doing, the Chief Justice availed herself of hypothetical situations in order to assess the constitutionality of s. 95(1) of the Criminal Code, necessary in this case because the punishment of the two convicted individuals as imposed by the mandatory minimum sentence provisions was neither cruel or unusual. She stated in this regard [paras. 57-58]:

[57] Unfortunately, the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated. With respect, this overcomplicates the matter. The question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12. The terminology of “reasonable hypothetical” may be helpful in this regard, but the focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases. At its core, the process is simply an application of well established principles of legal and constitutional interpretation.

[58] I conclude that the jurisprudence on general Charter review and on s. 12  review of mandatory minimum sentencing provisions supports the view that a court may look not only at the offender’s situation, but at other reasonably foreseeable situations where the impugned law may apply. I see no reason to overrule this settled principle.

Of great interest is the discussion of the minority, authored by Moldaver J (concurred in by Rothstein and Wagner JJ). Under the heading “Respecting Parliament”, Justice Moldaver made the following comments:

[131] Gun crime is a matter of grave and growing public concern. Successive Parliaments have responded by enacting laws designed to denounce and deter such crime. The mandatory minimums in s. 95(2) were part of a suite of legislative changes put forward as “a direct response to the scourge of handgun crime that plagues our country”: House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 30, 1st Sess., 39th Parl., November 7, 2006, at p. 1. The parliamentary committee studying those changes heard compelling testimony from law enforcement about the devastating impact of gun violence across Canada. Toronto Police Chief William Blair noted a “significant increase in the number of shooting[s]” in Toronto and a rise in gun-related homicides in excess of 85 percent from 2004 to 2005: ibid., No. 34, November 23, 2006, at p. 1. Due to the surge in shootings and gun deaths, 2005 was dubbed by local media as “the year of the gun” (ibid.).

[132] This is the context in which Parliament’s choice to raise the mandatory minimums in s. 95 must be understood. That choice reflects valid and pressing objectives, and it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture. As LeBel J. observed in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, mandatory minimums are “a forceful expression of governmental policy in the area of criminal law” (para. 45).

[133] This Court in Goltz warned against the use of hypotheticals that are “far-fetched or only marginally imaginable” (p. 515). The Chief Justice echoes this point, stating that “[l]aws should not be set aside on the basis of mere speculation” (para. 62). Yet, I fear that the majority’s approach does precisely that. Indeed, the jurisprudence does not reveal any licensing-type cases that have been prosecuted by indictment. Moreover, the confluence of events necessary for a licensing-type offender to face the prospect of a grossly disproportionate sentence strikes me as more imaginary than real. With respect, this hypothetical scenario stretches the bounds of credulity. It is not, in my view, a sound basis on which to nullify Parliament’s considered response to a serious and complex issue. [emphasis added]

Justice Moldaver underscored the importance of respecting Parliament’s choice [paras. 138-140]:

[138] Given this inherent danger, it was open to Parliament to conclude that simple possession of a loaded or readily loaded restricted or prohibited firearm should attract a significant mandatory custodial sentence. As the Minister of Justice stated when introducing the 2008 amendments to s. 95, “illegal possession of these firearms is becoming a growing concern” and “police especially are interested in the higher mandatory minimums for the possession of loaded or restricted firearms”: House of Commons Debates, vol. 141, No. 33, 1st Sess., 39th Parl., June 5, 2006, at p. 1941 (emphasis added). Adding further elements to the offence beyond simple possession would, in my view, unduly limit the application of the mandatory minimums, and thereby undermine Parliament’s objective to get dangerous weapons off the streets before they generate a specific risk of harm.

[139] This is borne out by the committee testimony of Chief Blair, who stressed the importance of empowering police to target possession before a specific risk of harm materializes:

If you’re not a police or security professional in the city of Toronto, the only reason to carry a loaded handgun in our streets is to kill people. When we apprehend those individuals for those offences who are in possession of those guns, we need to be able to intervene at that point. It is a significant and serious enough trigger that the individual represents an overwhelming threat to public safety, and the criminal justice system has to be able to deal effectively with that individual. [Emphasis added.]

(Standing Committee on Justice and Human Rights, No. 34, at p. 4)

Chief Blair further noted that heightened mandatory minimums would play a vital role in deterring this dangerous conduct:

. . . there is certainly a perception of a lack of consequences for those very serious offences, and the sentences that people have been receiving for carrying firearms are more reflective of the carrying of a loaded handgun in the city of Toronto as if it were a regulatory problem as opposed to a significant public safety problem.

. . .

. . . I believe a rational person would be deterred by two things: first of all, the likelihood of being caught; and when caught, suffering with real consequences for their actions. I think both of those things would deter a rational person. [ibid., at pp. 3 and 8]

[140] Based on this compelling testimony, Parliament chose to punish simple possession with significant custodial penalties, while leaving open the option of summary proceedings for the licensing-type offences about which the majority is rightly concerned. I would respect that legislative choice. In my view, sending our elected representatives back to the drawing board on s. 95 would impede the goals of deterring and denouncing the unlawful possession of deadly weapons and keeping them out of the hands of those who would use them as instruments of intimidation, death, and destruction.

Justice Moldaver concluded his analysis with a statement that summarized the entire rationale of his reasons [para. 199]:

Section 95 represents Parliament’s considered response to the pressing problem of gun violence in our communities. Parliament chose to craft a wide-reaching offence to denounce and deter serious criminal activity with lengthy mandatory minimums. At the same time, it provided a safety valve to divert the least serious cases into summary proceedings carrying no minimum sentence. With respect, I see no reason to second-guess Parliament based on hypotheticals that do not accord with experience or common sense. Nor, on my proposed framework, is there any sound basis for disturbing the extensive deliberations of our elected representatives on this important issue. I would allow the appeals, and uphold the constitutional validity of s. 95(2).

In R. v. Nur, three members of the Court focussed on the unwritten principle that the appointed judiciary should respect and defer to the often difficult decisions made by the democratically elected legislators. The majority, on the other hand, substituted their legal opinion on certain constitutional norms outlined by the written words of the constitution (s. 12 of the Charter) for the legislative decision.

Deference to Parliament is no less an unwritten principle than is cooperative federalism. It is a value that judges have opined about in scores of cases. The written words of s. 12 of the Charter are no less part of the written constitution than are the written words of ss. 91 and 92 of the Constitution Act, 1867. In both cases, the Long Gun Registry case and R. v. Nur, the majorities relied on the express written words of the constitution to justify the outcome and position. In both cases, the minorities relied on unwritten constitutional principles. In the former, the unwritten principle was called upon to limit legislative scope. In the latter, it was called upon to respect and enlarge the scope of Parliament’s decision.

In my opinion, the importance is not whether the constitutional “principle” or “provision” is written or not. At all times, the judiciary’s job is to interpret the whole constitution, with all of its written and unwritten parts, so that it works to support a federal Canada in which individuals have certain measures of self-determination and dignity that cannot be infringed without adequate, demonstrable justification. These two cases demonstrate the tensions and forces at play within the Canadian judiciary as the courts struggle to meet their constitutional mandate as the third branch of the government of the Canadian state. Evidently, that struggle results in differing views and different opinions, no doubt honestly and deeply held.

I remain

Constitutionally yours

Arthur Grant