Quebec (AG) v Canada (AG)

The majority, led by Cromwell and Karakatsanis JJ, held that cooperative federalism could not prevent the federal government from unilaterally destroying the registry, since cooperative federalism "cannot be seen as imposing limits on the otherwise valid exercise of legislative competence".[7] Cromwell and Karakatsanis JJ pointed to the possibility that cooperative federalism might work against parliamentary sovereignty and might unduly complicate situations where one level of government's policy choices affect the other's.[8]

Cromwell and Karakatsanis JJ held that Quebec "has not established a legal basis for its claim to the data",[9] finding that Quebec's expectation of continued access to the federal government's database[10] and that Quebec was statutorily limited to licensing data, not registration data.[11]

Cromwell and Karakatsanis JJ then considered whether section 29 of the ELRA was ultra vires the federal government's criminal law power. They characterized section 29 as determining "what will happen to the data collected under the now repealed scheme, a scheme that the Court previously characterized as being in relation to public safety".[12] They held that the fact that section 29 might hinder Quebec's efforts to create their own registry was insufficient to make out colourable legislation.[13] They clarified the pith and substance analysis by specifying that a legislative provision repealing a criminal offence would fall within the scope of the criminal law power, even though it is not strictly a law applying a prohibition and penalty for a public purpose.[14] Classifying the provision itself, Cromwell and Karakatsanis JJ found that it also fell within the federal criminal law power, since "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 a criminal law provision".[15]

The minority, composed of LeBel, Wagner, Abella, and Gascon JJ, found that section 29 of the ELRA was unconstitutional as it did not give Quebec, which the minority considered to be in a partnership with the federal government, the opportunity to gain access to the registry data. However, the minority did not order the government to transfer the data to Quebec.[16]

The dissenting judges looked to the legislative history of the Firearms Act, including comments made in the House of Commons that noted the high degree of provincial involvement in the scheme.[17] The dissenting judges considered three issues in order to determine whether section 29 of the ELRA was ultra vires the federal government:

1. the constitutionality of the Firearms Act was upheld by the Supreme Court in the Reference re Firearms Act since it did not "upset the balance of federalism";[18]
2. the data in the registry was interrelated,[19] meaning that the "issuance of registration certificates... depends directly on the work done by Quebec".[20] Thus the dissenting judges found that Quebec and the federal government had formed a partnership with respect to the gun registry due to that interrelation, even though Quebec did not directly enter all the information into the database.[21] Further, Quebec used the registry information for valid provincial legislative purposes;[22]
3. the pith and substance analysis and the ancillary doctrine allow for overlapping powers which "enable the goal of federalism to be realized",[23] and the ELRA, which ends the registry partnership between Quebec and Canada, must comply with those principles:

[154] In other words, a co-operative scheme from which both the federal and provincial governments benefit cannot be dismantled unilaterally by one of the parties without taking the effect of such a decision on its partner’s heads of power into account. To conclude otherwise would be to accept a one-way form of co-operative federalism. That would upset the balance between, on the one hand, the principle of co-operative federalism—which permits a government at one level to pass laws that affect the powers of the other level—and, on the other hand, the doctrine of interjurisdictional immunity—which is inherent in the principle of federalism.

The dissenting judges found that the pith and substance of the impugned provision was to hinder any provincial attempt to use the long-gun registry data, which falls primarily into the provincial property and civil rights power.[24] The dissenting judges undertook an ancillary doctrine analysis, finding that section 29 of the ELRA encroached significantly on provincial powers, since it "compromise[s] the creation and the usefulness of a future Quebec firearms registry",[25] and that such an encroachment was not necessary or integral to the overall legislative scheme.[26] The dissenting judges thus would have found section 29 of the ELRA unconstitutional, since it amounted to unilateral federal destruction of the registry data without first offering it to the provinces,[27] and would have declared it invalid.

However, the dissenting judges noted that "[t]he absence of a legal barrier to the transfer of the data does not necessarily mean that Quebec has proven that it is entitled to obtain them through the courts"[28] and held that Quebec had not proven that it was entitled to the data. The dissenting judges would have allowed the federal and Quebec governments to instead negotiate their own agreement as to data destruction and termination of the partnership.[29]