Gagnon, Ruel, Lavallée

Appeal from a judgment of the Superior Court reversing a judgment of the Court of Québec that had found the respondent guilty of operating an enterprise that carries on a private security activity without holding an agency licence of the appropriate class. Allowed, with dissenting reasons.

The respondent, who operates an electronic security system as part of its activities at the emergency call centre of the Montreal–Pierre Elliott Trudeau International Airport, was found guilty of the offence in section 114 of the Private Security Act (CQLR, c. S-3.5). The Superior Court sitting in appeal quashed the conviction and declared the law inapplicable to the activities the respondent carried on at the airport. The only issue at play at first instance and before the Superior Court was the applicability of the Private Security Act in light of the doctrine of exclusive federal jurisdiction over aeronautics. The appellants argue that the appeal judge erred in declaring that the law was inapplicable to the respondent.

Parliament has exclusive jurisdiction to regulate the field of aeronautics, which includes the operation of aircraft but also airports and aerodromes. Airport security is also within the core of the federal power, as the appeal judge concluded. Air transportation safety is necessarily dependent on airport safety. The respondent’s activities therefore fall within the core of the federal power.

The appeal judge erred as to the intensity of the effects necessary to find an impairment of federal jurisdiction and as to the burden of proof required to establish the existence of an impairment. The application of the Private Security Act to the respondent causes no real impairment. None of the provisions accepted by the appeal judge seriously encroaches on the respondent’s activities in what makes them specifically of federal jurisdiction. A purely speculative or hypothetical impairment is insufficient. There is no encroachment on the core of the power over aeronautics since the Private Security Act does not regulate how activities in an emergency call centre are carried out. The provincial scheme governing agency licences does not grant the Bureau de la sécurité privée (BSP) the discretion to dictate the way security agents must exercise their functions. It aims solely to ensure that agent licence holders comply with basic and general standards of conduct. These standards seek to protect the public, and they are similar to the professional standards agents must follow. They therefore do not seriously or significantly trench on the core of federal power.

The appeal judge also erred in finding that the mere existence of the BSP’s power to issue directives to the respondent as an agency licence holder constitutes an impairment. Finding that any hypothetical impairment can lead to a broader application of the doctrine of interjurisdictional immunity is contrary to the restricted approach that has been adopted since Canadian Western Bank v. Alberta (S.C. Can, 2007-05-31), 2007 SCC 22, SOQUIJ AZ-50435443, J.E 2007-1068, [2007] R.R.A. 241 (sum.), [2007] 2 S.C.R. 3. The BSP’s powers of inspection and investigation in no way encroach on the respondent’s activities. The doctrine of interjurisdictional immunity does not apply in this case, and even if it did apply, the inapplicability of the Act in its entirety would not be the appropriate remedy.

Ruel J.A., dissenting, would have dismissed the appeal. His dissent concerns the scope of the Private Security Act and the application of the doctrine of interjurisdictional immunity.

Legislation interpreted: Private Security Act

Text of the decision :http://citoyens.soquij.qc.ca