Good Faith Across the Public-Private Divide

I spent most of today and yesterday in a colloquium on cooperative federalism, as part of the “G3” initiative that groups Université de Montréal, Université libre de Bruxelles and Université de Génève. I gave a talk on the gun registry case under reserve at the Supreme Court of Canada.

One of the issues that interested participants was the recent recognition by the Court that a general duty of good faith is an organizing principle of contract law: Bhasin v. Hrynew, 2014 SCC 71. Does this augur well for Quebec’s claim of entitlement to the gun registry data? Interestingly, although the Court recognized a general principle of good faith in contract law, it urged courts to be cautious and proceed incrementally in identifying new duties founded on the principle (see e.g. para. 66).

I urged the Court to follow a similar approach in the gun registry case in my Constitutional Forum article on unwritten constitutional principles. On the one hand, it could impose a positive obligation to act in good faith in a federal-provincial partnership, an obligation similar to the federal duty of good faith towards First Nations. This duty would, naturally, be conditional on the existence of a cooperative federalism arrangement.

On the other hand, I suggested, the Court could take a more modest approach and simply say, in the present case, that the federal government acted in bad faith (in a legal sense) in destroying the data unilaterally in order to prevent the provinces from using it. The latter option would be more in line with the spirit of Hrynew and, indeed, with the common law’s general preference to focus on the presence of bad faith rather than the absence of good faith. In any event, it is interesting that good faith is on the Court’s mind in private law at a time when it might influence the outcome of an important public law case.

Purely coincidentally, I find myself finalizing the proofs of my article on the case, “Dismantling Regulatory Structures: Canada’s Long-Gun Registry as Case Study“. Here, for those who have not yet read it, is my conclusion:

Two major issues emerge from the story of the long-gun registry. First, the scope of the power to repeal legislation. Second, the appropriate means of dismantling a regulatory agency.

 

Repealing a statute does not give a legislature in a federation a carte blanche legitimating the destruction of extant things. Repealing a law and destroying data are two very different actions and require distinct jurisdictional bases. In most cases, the distinction between repealing statutes and destroying extant things will not be problematic. In areas of exclusive federal jurisdiction, a statute that “tidies up” a situation created by a previous federal law will also be a legitimate exercise of federal power (as would a “tidying up” provision in a particular statute).
Beyond that, some “tidying up” might be accomplished without specific constitutional or statutory authority. Let us imagine that, with respect to the registry, there is a dedicated “Canadian Firearms Information System Building”. Does the federal government need to rely on specific authority to dispose of that building? Or to remove the name of the “Registrar of Firearms” from a federal website? Clearly not. The federal government is entitled to manage its own property and run its departments. If it does not have specific constitutional authority, such authority would readily be implied. In the final analysis, it can always rely on its inherent or “third source” powers. In short, best practice in dismantling regulatory agencies can be achieved relatively easily.

 

Several problems, however, attend Parliament’s attempt to destroy the data collected in the long-gun registry. Logic and authority argue against giving the power to repeal the Act a broad scope. The power to repeal is not unlimited and does not extend so far as to justify an unprecedented provision like s. 29.

 

The data concerns information about weapons held by citizens in the provinces of Canada. In other words, it is a matter of “property and civil rights in the province”, which is reserved entirely to the provincial governments. The “pith and substance” of s. 29 is “property and civil rights in the province” and beyond the authority of the federal government. It is beyond the federal government’s legislative authority, and it is also beyond any implied or inherent authority, because these powers must be exercised in conformity with the division of powers.

 

Reliance on the ancillary powers doctrine must be either rationally related or necessary to the overall purpose of the legislation. We need not ask whether the test of rational connection or necessity applies here, because s. 29 satisfies neither of them. Destroying the existing data is not even rationally connected to decriminalization and the abolition of the registry and it is certainly not necessary. The data could simply be conserved and protected. Destroying the data is completely unconnected to the goal of prospectively abolishing the registry.

 

While the principle of cooperative federalism does not provide a stand-alone basis for striking down s. 29, it is useful in interpreting and defining the limits of legislative competence. It underpins, for example, the Churchill Reversion distinction between repealing legislation and rewriting history. It implies that a sweeping power of repeal is inappropriate. And it colours the appropriate interpretation of the Firearms Act, suggesting that there are no watertight compartments, but rather an interlocking and overlapping federal-provincial scheme of mutual assistance and support.

In addition, the principle of cooperative federalism helps to resolve the question whether the data ought to be transferred to Québec. If s. 29 is unconstitutional, that does not mean the federal government is powerless to do things with the data. But any authority it has must be exercised in accordance with unwritten constitutional principles, including that of cooperative federalism. This is within the conventional understanding of the appropriate sphere of application of unwritten constitutional principles to exercises of discretion. It provides a basis, independent of any findings of fact on ownership, for compelling the federal government to return the records to Québec.

This content has been updated on November 28, 2014 at 22:10.