Cooperative, or competitive?

The critics of the Supreme Court’s decision in the long-gun registry case, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14,  have lamented the majority’s failure to make good on what seemed like the promise of cooperative federalism in the Court’s recent jurisprudence. In La Presse + today, Jean Leclair argues that the judges in the majority “most certainly weaken the principle of cooperative federalism, which they had so extolled” (translation mine). Striking a more optimistic note over at I-CONnect, Paul Day hopes the dissent will “become the point of departure for Canadian courts and commentators interested in exploring ‘cooperative federalism’.” There certainly has been much talk about cooperative federalism in connection with this case, and more broadly in recent years. But what if the phrase were not an apt description for the Supreme Court’s actual concerns? I am, very tentatively, inclining to the idea that it would have been more accurate to speak not of cooperative, but of competitive federalism.

Now, the “competitive” part of competitive federalism usually refers to “horizontal” competition between the components in a federation (e.g. the States in the United States or the provinces in Canada). The idea is that these components will compete with each other by enacting different policies on the same subject. Individuals and businesses will “purchase” these different policies by moving from one jurisdiction to another one, whose policies they prefer and, similarly to what happens in the marketplace, this competition will show whose policy is the most attractive one, or allow a differentiation between the regulators allowing the preferences of persons with different tastes to be satisfied.

Applying this idea to the “vertical” context of competition between the federation and the components is not straightforward, because in the vertical context, the central legislature will normally hold a trumping power (e.g. through the Supremacy Clause under the U.S. Constitution or the paramountcy doctrine in Canadian constitutional law). The competition is not entirely fair, since one of the competitors can pretty much declare himself the winner. And that’s when the competition can take place at all. Because the two levels of legislatures have different legislative powers, there are many areas over which they cannot compete.

But, in the Canadian context at least, vertical competitive federalism is not impossible. Indeed, under the guise of encouraging “cooperative federalism,” the Supreme Court has actively promoted it. As prof. Daly notes, the Court

has employed cooperative federalism as an interpretive principle to reshape constitutional law: most notably, the doctrine of interjurisdictional immunity–premised on the existence of exclusive zones of federal and provincial authority in the areas of competence set out in the Constitution Act, 1867–has been reduced to virtually nothing.

While I do not think that “virtually nothing” is quite correct, because interjurisdictional immunity still applies, at least, in “situations already covered by precedent” (Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22, at par. 77), the Court’s unwillingness to expand its application is indeed the most significant consequence of what it describes as its embrace of the cooperative federalism principle. But it seems to me that the limitation of interjurisdictional immunity is conducive to competition rather than cooperation. So, too, are the Court’s insistence on interpreting the notion of conflict between federal and provincial law narrowly, so as to limit the scope of potential application of the paramountcy doctrine, and the application of the “double aspect” doctrine, which allows concurrent jurisdiction over “matters” deemed to be at once federal in one “aspect” and provincial in another. Together, these principles in the Supreme Court’s federalism jurisprudence counteract, in part, the two factors that make vertical competition in a federation difficult. Limiting the scope of interjurisdictional immunity expands the areas over which Parliament and the provincial legislatures have concurrent jurisdiction and which both can regulate, while limiting the application of the paramountcy doctrine results in fewer occasions on which Parliament’s regulation prevails simply by virtue of being Parliament’s.

Of course, the vertical competition for which the Court thus makes room isn’t quite the same as horizontal federal competition. The option of moving away from a set of policies one doesn’t like is off the table, because Parliament’s policies are applicable throughout the country. But voters still have the option of rewarding the government that enacts the policies they support, and punishing the one that doesn’t. The competition between the two levels of government is thus not for citizens and businesses who can move from one jurisdiction to the next, but for the political benefits that result from enacting policies that citizens want to see enacted.

This brings me back to the gun registry issue. Québec presented the registry as the product of federal-provincial cooperation; the dissenting judges at the Supreme Court, as well as their academic supporters such as profs. Leclair and Daly accepted that characterization. But isn’t it at least as plausible to regard the federal registry as the product of competition between Parliament and the legislatures for the political benefits of satisfying the citizenry’s preferences in the area of gun control? Parliament created the registry because it, or its masters in the executive, thought that this would have political benefits for them. Now, however, a differently constituted Parliament, catering to a different electoral coalition, thinks that it will benefit from enacting a different policy.

Seen from this perspective, the issue for the Supreme Court was not whether a partner in a cooperative venture had acted disloyally, but whether one competitor had to assist the other in implementing a policy it chose to discard. Imposing a requirement to do so would have restricted the freedom of the market for policies and might conceivably have deterred entrants, contrary to the Court’s apparent policy of encouraging vertical regulatory competition within the Canadian federation.

Now it is still arguable that competition in a federal context must be loyal, and that Parliament had failed to respect that requirement, or indeed that competition has no place in this context. Either way, you can endorse my re-interpretation of the case, as an analytical matter, and still believe that its outcome was a mistake. But I would suggest that the majority’s decision is at least more consistent with the Court’s previous cooperative competitive federalism jurisprudence than its critics allow, and that, conversely, the dissent’s position involves a greater departure from the previously accepted principles than defenders claim.

Booze, Fights, and Federalism

As Justice Fish pointed out in a recent lecture on “The Effect of Alcohol on Canadian Constitution,” “alcohol has nurtured our constitutional development from its earliest days.” Canadian constitutional lawyers can proudly say, with Churchill, that we “have taken more out of alcohol than alcohol has taken out of” us. For instance, the double aspect doctrine, after which this blog is named, originates in an alcohol-related case, Hodge v. The Queen, (1883), [1883-1884] 9 App Cas 117. This venerable tradition is alive and kicking. The most recent booze-fuelled constitutional case, R. v. Keshane, 2012 ABCA 330, was decided just last week by the Alberta Court of Appeal.

Ms. Keshane got into a fight outside a bar in Edmonton. Police officers saw the fight and gave her a ticket for contravening s. 7 of Edmonton’s Public Places Bylaw, which provides that “[a] person shall not participate in a fight or other similar physical confrontation in a public place.” Not contesting the facts, she rather challenged the constitutional validity of this provision, arguing that it was, in pith and substance, related to criminal law, and thus beyond the powers of the province of Alberta, from which the City of Edmonton’s bylaw-making jurisdiction is delegated. Parliament has “exclusive Legislative Authority [in] all matters [related to] … Criminal Law” by virtue of subs. 91(27) of the Constitution Act, 1867.

The first thing a court must do when deciding a division of powers challenge to a legislative provision is to determine its “pith and substance”―the thing that it is intended to do and what it really does. The purpose of the prohibition on fighting, says the court, “to promote the safe, enjoyable and reasonable use of such property for the benefit of all citizens of the City” (par. 26). It is different from the criminal law’s purposes in that it aims more at making city streets safer and more enjoyable rather than at protecting the victims of assaults. The effect of the challenged provision is also somewhat different from that of related criminal law provisions, not only in that it prescribes a much milder punishment, but also in that it prohibits some activities, such as consensual fights, which the criminal law does not. The court also finds no “ulterior motive” underlying the prohibition; it is not a disguised attempt to achieve some aim that really belongs to the field of criminal law.

That said, it is also undeniable that the prohibition on fighting overlaps with some criminal law provisions, and that it is possible to describe at as aimed at the maintenance of peace and safety, which are traditional criminal law purposes. Furthermore, the offence of fighting in a public place is not directly linked to “property and civil rights,” over which the province has jurisdiction, although there is an indirect link, insofar as fights on city streets tend to reduce the enjoyment of property, whether public or private. And then there’s the matter of the Supreme Court’s decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43, which held that a municipal bylaw outlawing being on the street for the purpose of prostitution was, in pith and substance, criminal, and thus beyond the powers of the province and the municipality. Indeed, in Westendorp, Chief Justice Dickson clearly assumed that the idea that a municipality could  “punish assaults that take place on city streets as an aspect of street control” was preposterous.

The court decides that this is not enough to make the prohibition on street fighting criminal law. “[A] degree of overlap with criminal law does not compel the conclusion that the dominant purpose is within federal legislative jurisdiction” (par. 37a), and provincial legislation can address potential harm to the enjoyment of property, and not merely actual harm. As for Westendorp, it is distinguishable, because the bylaw at issue there criminalized the very fact of being on the street for the purpose of prostitution, rather than any act that really tended to threaten the enjoyment of property. Justice Dickson’s comment implying that a municipality could not “punish assaults … as an aspect of street control” was an obiter, and “in the context of having found an ulterior motive” (par. 37h) behind the bylaw, which is not present here.

The  court holds that the prohibition on street fighting can be characterized as both criminal and provincial, in equal measure. It thus has “a double aspect,” and is, therefore, valid provincial law.

I’m not quite sure about this conclusion, in particular about the distinctions the court draws with Westendorp. As in that case, it is possible to say that the prohibition on fighting does not really aim at nuisances caused by the fighting but at the act itself, regarded as an evil to be suppressed. And anyway I’m not at all convinced that Chief Justice Dickson’s comment about the punishment of assaults by a municipality, albeit admittedly an obiter, depended specifically on the finding of ulterior motive.

Perhaps the Supreme Court should take up this case. It might seem not to be of national importance. But, to quote Churchill again, it is “pretty hazardous to interfere with the ineradicable habit of a lifetime”―whether drinking in Churchill’s case, or developing constitutional law under the influence of alcohol in the case of Canadian courts.