Courtroom federalism

By Hugo de Grandpré December 2012

Litigating politics between the provinces and Ottawa continue to make headlines. Who has come out ahead? An overview of a few major disputes.

Courtroom federalism

Veronica Jackson, BC Ministry of Justice, Victoria

A number of major constitutional cases have taken centre stage in federal-provincial relations in recent years. The Insite case, the reference on a single securities regulator, the destruction of the long-gun registry data… There are numerous bones of contention, and there’s surely more to come — particularly with the recent election of the Parti Québécois.

Are Ottawa and the provinces battling it out more than they used to in court? Opinions vary.

“I don’t have the impression that this type of case has increased,” says Veronica Jackson, a lawyer with the constitutional and administrative law group of the British Columbia Justice Ministry. On the contrary, she says, “there seems to be a lot of cooperation and engagement between the provinces and the federal government.”

“In recent years, not just Quebec, but other provinces as well, have applied to the courts more frequently to challenge federal initiatives,” says Sébastien Grammond, dean of the Civil Law Section of the University of Ottawa.

Ron Skolrood

Ron Skolrood
Lawson Lundell, Vancouver

Recent case law could be contributing to this impression. “In the past, the courts spent a lot of time interpreting the Charter…  I believe they are now returning a bit more to issues involving the division of powers, which may have been left on the back burner for a while,” says Ron Skolrood, a partner with Lawson Lundell in Vancouver.

Supreme Court of Canada decisions like the Assisted Human Reproduction Reference in 2010, or Canadian Western Bank v. Alberta in 2007, have offered an interpretation of the division of powers that some parties consider less centralist in terms of its appraisal of some principles, such as paramountcy or exclusive jurisdiction.

Will the provinces be tempted to test these avenues even further? “I think we can expect to see more such disputes involving the division of powers, at least for a while,” says Dwight Newman, constitutional law professor at the University of Saskatchewan.

Below is a look at some recent disputes, while awaiting further developments.

Québec (A.G.) v. Canada (A.G.)
The long-gun registry battle

In September, Superior Court judge Marc-André Blanchard ruled in favour of Quebec in the province’s attempt to prevent the destruction of the data from the long-gun registry. According to Judge Blanchard, such destruction “constitutes a direct attempt to prevent (Quebec) from exercising its constitutional jurisdiction in a given area and is contrary to the principles of cooperative federalism.”

“Now we have one more judge who says the Harper government does not abide by the principles of modern federalism,” wrote La Presse columnist Yves Boisvert, echoing the comments of other journalists.

Ottawa appealed the decision.

In 2000, the Supreme Court of Canada had ruled against Alberta in the reference that came on the heels of the register’s creation, finding that Parliament had acted within the framework of its authority. In all likelihood, this new case will make it to the Supreme Court. Which way will it lean this time?

Reference on Senate reform
Predictably controversial

Ottawa and Quebec are crossing swords on another front: Senate reform.

Professor Dwight Newman

Professor Dwight Newman
University of Saskatchewan, Saskatoon

In May, former Quebec Justice Minister Jean-Marc Fournier applied to the Court of Appeal of Quebec to rule on the constitutionality of the changes proposed by the federal government. “Resorting to the courts should be an exceptional measure,” commented the minister when he announced the reference. He went on to say that, “In light of the lack of discussion and negotiation, Bill C-7 seems to be headed straight towards the same impasse seen in other recent cases, securities and the long-gun registry being only two of them.”

Bill C-7 proposes to limit the senators’ mandate to a single nine-year term. It also provides for an electoral scheme that would allow the populations of the provinces to recommend candidates to the federal government.

Sooner or later, this reform measure — dear to the Harper government — is also bound to end up before the Supreme Court. Perhaps even at Ottawa’s initiative? As we went to press, the possibility of a federal reference was rumoured to be under consideration.

Securities Act Reference
Putting the brakes on centralization?

Ottawa’s plan to create a national securities regulator caused a lot of ink to flow, including in the Supreme Court. Several provinces, including Alberta, Quebec, and Manitoba, opposed the federal initiative, which was supported by Ontario. The Court accepted their arguments and ruled it unconstitutional, since it encroached on provincial authority over property and civil rights.

According to Grammond, this decision was of prime importance if we were to avoid the risk of an undue centralization of federal powers. “We were saying that if it went through, everything else would go through. So on the one hand, the political and economic importance of the case was major. And on the other hand, the legal importance of the precedent created by a decision in favour of Ottawa would also have been major,” says the jurist, who represented the Institute for Governance of Private and Public Organizations, which supported the position of the provinces.

Canada (A.G.) v. PHS Community Services
Those controversial injections

The securities regulator, the Khadr affair… the Harper government has had some major reversals in the Supreme Court of Canada in recent years. The decision in the case of the Vancouver Insite supervised injection clinic is the latest one.

In 2008, Ottawa refused to grant the legal exemption needed for the clinic to continue its activities. Only this time the Court found that this refusal violated the Charter and rejected British Columbia’s arguments concerning the division of powers.

Even so, the ruling may have encouraged similar cases: supported by certain interests, a former prisoner filed a lawsuit against Ottawa in September. He claims that the government’s refusal to supply sterile syringes in prison is unconstitutional.

C-10 and criminal justice
Until the next fight?

The toughening of criminal justice by the federal government has been another bone of contention between Ottawa and the provinces in recent years.

In Ontario, at least three judges have refused to apply the minimum sentences or reversals of the burden of proof instituted by the Conservative government in 2008.

In another recent case that involves amendments that came into force that same year, the Supreme Court struck down a provision requiring defendants to demonstrate how a malfunctioning breathalyzer machine produced inaccurate test result.

Up to this point, most of the opposition has come from lawyers and the courts. But the coming into force a few months ago of omnibus Bill C-10 — which some provinces strongly criticized — could alter the situation. Already the Barreau du Québec is stepping into the judicial arena by challenging the constitutionality of mandatory minimum sentences.

Hugo de Grandpré is a member of the Quebec Bar and Parliamentary correspondent for the daily newspaper La Presse.

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