Alberta is in the news again and it may be laying the groundwork to test the limits of Canadian federalism law. In early March, it introduced Bill 8, the Alberta Firearms Act, designed to “protect gun owners from the federal firearms confiscation program.” This follows its announcement in December that it will “take over” prosecutions under the federal Firearms Act (1995) in the province and will issue guidance to Crown prosecutors in the province.

While the law will ultimately be made operational through regulations, a portion of this bill regulating the seizure of guns appears to be unconstitutional to the extent that it applies to the federal executive. But the mechanism does reflect a view that has some support in the scholarship on this issue. In other words, Alberta may be onto something with this specific proposal.

The background and recent announcements

The federal Firearms Act falls squarely within federal jurisdiction. While there was some debate about its constitutionality at the time of its adoption, the Supreme Court of Canada upheld the law in 2000 as a valid exercise of federal authority over the “criminal law” under Section 91(27) of the Constitution Act, 1867. Legal debates surrounding the scope of the criminal law power are not new and persist to this day, as illustrated by the deeply divided opinion in the Supreme Court reference on the Genetic NonDiscrimination Act. The debate about that law is now settled.

However, the picture with respect to the authority to enforce federal firearms provisions is more complex. The federal Firearms Act includes a provision entrusting the attorney general of Canada or his delegate to commence proceedings in respect of an offence. In other words, some firearms prosecutions are handled by federal prosecutors. But Attorney General David Lametti, was correct to note in December that some federal firearms offences were already handled by provincial prosecutors.

The Alberta government’s recent steps must be understood against this backdrop. In December, the province proposed to take over the handling of prosecutions under the federal Firearms Act in the province at the beginning of this year. The province also issued a protocol to Crown prosecutors in the province with guidance for dealing with these charges. The protocol says that it will not be in the public interest to proceed with a charge of possession of a banned firearm in some circumstances.

The first part of this proposal is the potentially problematic portion of the announcement, while the second part is a simple exercise of the provincial power to decline enforcement of federal laws. This new bill, which notably focuses on the seizure of firearms, similarly appears to cross a constitutional line if its wording means that it would effectively prevent the federal government from enforcing its own law.

The unique history of the criminal law and the administration of justice

This brings me to a substantive analysis. A province has the right to decline to administer federal laws or programs, but it cannot relieve individuals of their obligation to comply with laws of general application or ignore court rulings. This is a basic feature of the Canadian federal system. Each government has its own executive branch, which is accountable to its legislature and can be tasked with executing its laws or programs.

The Supreme Court has held that one order of government can be asked to administer the laws or programs of another, but it is not required to do so. Indeed, there is no positive obligation on any government to co-operate with another.

This is nothing novel to scholars of intergovernmental relations. If the law were different and each government could direct the officers of the other, the entire body of law on intergovernmental agreements would have to be set aside. In that case, the lines of accountability that underlie our federal system would also be shattered. This is not to say that unco-operative conduct is something to be celebrated. There may be good reason to co-operate in some cases.

However, in the Canadian context, the story is a bit more complex with respect to the criminal law. I briefly alluded to this fact in a previous article in Policy Options when I noted that the investigation and prosecution of criminal offences is “a form of consensual inter-delegation expressly permitted by the text of the Constitution.”

This can be explained by the fact that the Constitution grants the provinces jurisdiction over the “administration of justice in the province.” Prior to the 1980s, some argued that this means that only the provinces can decide whether to investigate and prosecute criminal offences under federal law. In other words, while Parliament has the authority to adopt the substantive criminal law, only the provinces are tasked with its administration and can make decisions accordingly. Others disagreed and expressed the view that the federal government could enforce its own laws.

The debate came to a head in the late 1970s and early 1980s. The majority in the Supreme Court held that the federal government can enforce its own criminal laws. However, that authority can also be delegated to the provinces. This is consistent with the court’s articulation of federalism in later cases and fits neatly with the principles established in other administrative inter-delegation cases.

Relying on Canada’s particular constitutional history and tradition, then-Justice Brian Dickson dissented and argued that only the provinces were invested with this authority under the Constitution. The view expressed in the dissent continues to be defended by some scholars, most notably University of Guelph’s Dennis Baker, who argues that the majority’s approach is at odds with the vision of the framers and historical practice.

Tethering his analysis to more recent developments in the law, Baker also observes that the court’s ruling is inconsistent with Canada’s specific constitutional structure. Two other Supreme Court jurists declined to express a firm view but did not disagree with the opinion advanced by the majority and were content to be bound by it.

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Another point continues to be the subject of sustained debate, however. One view is that the majority opinion stands for the proposition that provincial decision-making in this area is dependent on an initial delegation from the federal government. The other view is that this reading of the majority opinion is too expansive. For these scholars, while inter-delegation is undoubtedly permitted, the provinces also have independent authority to enforce the criminal law if they so choose, irrespective of whether that power has been the subject of a delegation.

This means there is an open debate about the legality of the Alberta decision in December to take over prosecutions of Firearms Act offences in the province if there is no initial delegation. But, the new bill appears to go even further. It notably provides that “[n]o person shall act as a seizure agent without holding a valid licence” under provincial law. If the bill is designed to completely prevent the federal government from enforcing its own law with its own agents, it is unconstitutional. Alberta’s position would reflect Justice Dickson’s dissent, which is not the current state of Canadian constitutional law. Of course, it is always open to the Supreme Court to revisit its case law.

Ultimately, it will be for the courts to decide whether these developments in Alberta are consistent with the Constitution. But, then again, that might be the entire point.

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Jesse Hartery
Jesse Hartery is a member of the Quebec and Ontario bars, and a PhD candidate at Melbourne Law School. His research focuses on constitutional theory and comparative federalism. Twitter @JesseHartery  

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