The Supreme Court of Canada recently made a landmark ruling that will have a significant impact on constitutional law. In Opsis Airport Services Inc. v. Québec (Attorney General), the Court summarized the case law developed in the wake of Canadian Western Bank v. Alberta and clarified the analytical framework applicable to the constitutional doctrine of interjurisdictional immunity.
In this case, the Supreme Court reviewed two decisions of the Québec Court of Appeal. The appellants Opsis Airport Services Inc. (“Opsis”), Quebec Maritime Services Inc. (“QMS”), and Michel Fillion received statements of offence charging them with having contravened provisions of the Private Security Act (“PSA”), a provincial statute. Opsis, QMS, and Mr. Fillion contested these statements of offence on the basis that the PSA was constitutionally inapplicable to them. In their view, the PSA impairs the core of exclusive federal powers, namely the power over aeronautics and the power over navigation and vessels under section 91(10) of the Constitution Act, 1867.
In the Opsis case, the trial judge refused to declare the PSA constitutionally inapplicable. On appeal, this judgment was overturned by the Superior Court but subsequently upheld by the Québec Court of Appeal. A majority of the Québec Court of Appeal concluded that the PSA did not impair the core of the federal aeronautics power.
In the QMS case, the trial judge declared the PSA inapplicable to QMS and Mr. Fillion. This judgment was overturned on appeal by the Superior Court. On appeal, a majority of the Québec Court of Appeal ruled that the PSA did not impair the core of the federal navigation and shipping power.
In a unanimous decision, the Supreme Court allowed the appeals in both cases and declared the entire PSA constitutionally inapplicable to Opsis, QMS, and Mr. Fillion pursuant to the doctrine of interjurisdictional immunity. The Court also reiterated the principles that must guide the application of this doctrine in Canadian law. Key insights include the following.
1. The doctrine of interjurisdictional immunity can be addressed before the doctrine of federal paramountcy.
In Canadian Western Bank, the Supreme Court indicated that it was generally preferable to consider federal paramountcy before interjurisdictional immunity. However, the Court qualified this statement in Opsis by indicating that “in most cases” it will be more “logical and appropriate” to consider the applicability of a statute before its operability. That being said, the Court did not make this principle a hard and fast rule, noting that it may be expedient “in some circumstances” to consider the doctrine of federal paramountcy first. Notwithstanding this openness, the Court is careful not to specify the circumstances in which this second approach might be more appropriate.
2. The application of the doctrine of interjurisdictional immunity depends on two conditions being met.
In articulating its reasons “in line with the decisions rendered [...] since Canadian Western Bank,” the Supreme Court reminds us that the application of the doctrine of interjurisdictional immunity requires: 1) an intrusion on the core of an exclusive head of power and 2) an impairment of the core of the exclusive head of power.
3. It is permissible to identify the core of a power even without a specific precedent.
Since Canadian Western Bank, case law has favoured the application of the doctrine of interjurisdictional immunity in situations already covered by precedent. This approach raised the question of whether it was necessary for pre-Canadian Western Bank case law to have identified the core of a power for the doctrine to apply. The Supreme Court resolved this issue by endorsing a flexible approach, recognizing that the absence of precedent is not determinative. In the circumstances, the Court had no difficulty in concluding that airport security is at the core of the federal aeronautics power, and that the security of marine facilities and their operations is at the core of the federal navigation and shipping power.
4. The question of whether the core of an exclusive power has been impaired is a question of law.
The main question before the Supreme Court was how to qualify the impairment test set out in Canadian Western Bank. The majority of the Québec Court of Appeal had found, in both the Opsis and QMS cases, that the PSA did not interfere with the appellants’ activities, notably in that there was no evidence of any impairment, even potential, of the federal legislative powers in question. The Supreme Court rejected this approach. First, the Court reiterated that “[d]etermining whether the core of an exclusive power has been impaired is a question of law,” such that “the analysis focuses solely on the effects of the statute of the other level of government on the core of an exclusive power.” In other words, the analysis does not depend on the evidence introduced by the parties, although this may prove “helpful.” Citing Bell Canada (1988), certain aspects of which had been set aside in Canadian Western Bank, the Court added that it is possible to take into account the effects of the impugned statute’s application that may amount to an impairment “[e]ven where the evidence is silent in this regard.” In this sense, the Court warned against a “wait and see” position, which would require waiting for the effects of a statute’s application to materialize before considering its constitutional application. On the contrary, the Court held that a finding of impairment is permissible “when the interpretation of a legislative provision or scheme clearly reveals the potential [...] for impairment of the core of an exclusive power.”
5. A licensing scheme does not lend itself to a siloed analysis.
Rejecting the respondents’ argument, the Supreme Court refused to limit its analysis of whether there was an impairment in this case to the provisions of the PSA governing the obtention of a licence. According to the Court, a licensing scheme must generally be “taken as a whole,” particularly because obtaining a licence may be pointless if it cannot be kept or renewed. In this case, the Court concluded that the overall scheme of the PSA, and in particular the power to suspend, cancel, or refuse to renew an agent licence conferred on the Bureau de la sécurité privée, was likely to create an impairment by allowing a provincial administrative body to have “the final say” on the manner in which activities falling within the core of an exclusive federal power must be conducted.
6. The PSA must be declared constitutionally inapplicable in its entirety.
Given that the impairing provisions of the PSA cannot be severed from the entire licensing scheme created by this statute, the Supreme Court concluded that the appropriate remedy was to declare the entire PSA constitutionally inapplicable to the appellants. Indeed, according to the Court, “[s]ince a targeted declaration of inapplicability might change the nature of the legislative scheme intended by the legislature, the appropriate remedy is to read down the statute as a whole so that the appellants are excluded from its scope.”
The Opsis decision builds on the Canadian Western Bank decision, in that the Court clarified the analytical framework it had developed in that case. As such, it represents an important milestone in the evolution of constitutional law jurisprudence.
Langlois represented QMS and Mr. Fillion in this matter.