In Opsis Airport Services Inc. v. Quebec (Attorney General) (Opsis), the Supreme Court of Canada (SCC) affirmed that the doctrine of interjurisdictional immunity (IJI) remains an essential feature of Canada’s federal constitutional framework. The SCC allowed two appeals of convictions under Quebec’s Private Security Act on the basis that the provincial legislation did not apply to the federally regulated appellants, an airport security company and an international marine transportation company. The SCC held that the impairing provisions could not be severed from the broader scheme of the legislation, and found the entire statute was constitutionally inapplicable to the appellants.
Background
This appeal resolves two cases involving charges under Quebec’s Private Security Act (PSA). The PSA requires that private security agencies and individual agents be licensed by the Quebec Bureau de la Sécurité Privée (Bureau). The Bureau is a self-regulatory body which has the power to issue and revoke licences, provide training for agents, enforce the PSA and its regulations and issue directives to licensees.
Opsis Airport Services (Opsis), an airport security business, was contracted to operate an emergency call centre and provide camera surveillance at Montréal–Trudeau International Airport. Quebec Maritime Services (QMS) monitored and controlled access to the Pointe-au-Pic international shipping terminal in La Malbaie, Quebec. Both companies were charged under the PSA for operating a private security business and carrying out private security activities without a provincial licence from the Bureau.
The IJI doctrine protects the “core” of an exclusive federal or provincial head of power – its “basic, minimum and unassailable content” – from intrusion by the other level of government. To succeed in an IJI claim challenging a provincial law, the claimant must demonstrate that applying the law impairs, or “seriously or significantly trammels”, the core of a federal head of power.
Under the Constitution Act, 1867, the federal Parliament has exclusive jurisdiction over aeronautics, including the operation of airports, and navigation and shipping. At trial, both Opsis and QMS argued that the PSA did not apply to them under the doctrine of IJI. In both cases, the Quebec Court of Appeal found that the PSA did not impair the core of the federal powers to regulate aeronautics or international marine shipping.
The SCC Decision
In a unanimous decision, the SCC declared the entirety of the PSA constitutionally inapplicable to Opsis and QMS pursuant to the doctrine of IJI. The SCC affirmed the “essential role” of IJI in Canadian federalism “because it makes it possible to ‘balanc[e] the need for intergovernmental flexibility with the need for predictable results”.
The SCC applied the two-part IJI test from Canada Western Bank v. Alberta and Quebec v. Canadian Owners and Pilots Association. At the first step of the test, the SCC held that the PSA intruded on the core of exclusive federal powers. In Opsis, the SCC affirmed that airport security is at the core of the federal aeronautics power. For QMS, the Court held that, despite the absence of any precedent on point, there was no doubt that the security of marine facilities and their operations is at the core of the federal navigation and shipping power.
At the second step, the SCC held that the application of the PSA would impair exclusive federal jurisdiction. The SCC found that the requirement for private security agencies to obtain a licence under the PSA was not enough to establish impairment. However, the Bureau’s powers under the PSA to suspend, cancel or refuse to renew a licence, and issue directives to agency licensees, could impair federal power. The SCC noted that the Bureau had the power and discretion to set standards of conduct and hold licence holders to those standards, the violation of which could lead to a suspension or cancellation of the licence. As a result, the Bureau, as a provincial body, would have the final say on how security activities must be conducted in airports or international ports.
In reaching these conclusions, the SCC rejected the Quebec Court of Appeal’s findings that it would be “hypothetical” or “speculative” to find impairment on the basis that the Bureau may exercise its enforcement powers to suspend or cancel licences for breaching its standards of conduct. Rather, the SCC held that the Bureau’s power “to suspend, cancel or refuse to renew an agent licence...clearly reveals the potential for impairment.”
As for remedy, the SCC declared that the PSA as a whole was inapplicable to the appellants. The SCC determined that the sections of the PSA providing the Bureau authority to regulate and enforce its standards of conduct and issue directives could not be severed from the remainder of the PSA scheme. These impairing aspects were essential to the Bureau’s mandate under the PSA to regulate and supervise private security activities.
Key Takeaways
Opsis demonstrates that the IJI doctrine remains essential to Canada’s federal framework, and it may signal that courts will start to apply the doctrine more robustly.
While IJI is generally reserved for situations already covered by precedent, an applicable precedent is not required, and IJI can be applied in new scenarios in a principled manner.
Even where only parts of a provincial statute impair the core of an exclusive federal power, courts may find the entire provincial law inapplicable to federal undertakings where the impairing provisions cannot be severed from the rest of the statute.
For more information, please contact the authors or any other member of our Litigation & Dispute Resolution group.
