Gagnon, Ruel, Lavallée

Appeal from a judgment of the Superior Court reversing a Court of Québec judgment declaring sections 16, 116, and 117 of the Private Security Act (CQLR, c. S-3.5) inapplicable and inoperative with respect to the appellants. Dismissed, with dissenting reasons.

The appellant SMQ carries on activities in the area of longshoring. The appellant Fillion works for SMQ as a security guard. The Court of Québec acquitted the appellants of offences under the Private Security Act after finding its provisions inapplicable and inoperative with respect to the appellants. The Superior Court, sitting in appeal, set aside that judgment and found that the doctrines of interjurisdictional immunity and federal paramountcy do not apply to this case. The appellants argue that the appeal judge erred in the application of the standard of review and in his analysis of the constitutional doctrines.

The applicable standard in matters of constitutional interpretation is correctness. Deference is owed the factual findings underlying the constitutional analysis when they may be treated separately. The appeal judge did not confuse the doctrine of interjurisdictional immunity with those of pith and substance or double aspect. He knew that the constitutionality of the Private Security Act was not challenged and that only its applicability to SMQ’s maritime activities under the doctrine of interjurisdictional immunity was at issue. His analysis followed the approach in Transport Desgagnés Inc. v. Wärtsilä Canada Inc. (S.C. Can., 2019-11-28), 2019 SCC 58, SOQUIJ AZ-51648348, 2019EXP-3251, [2019] 4 S.C.R. 228.

The lack of precedent on the application of the interjurisdictional immunity doctrine in matters of marine facility security does not prevent this doctrine from applying and does not suffice to set aside the Superior Court judgment. A large part of SMQ’s activities concern the safety of shipping and marine facilities, which belongs to the core of the federal power. The Private Security Act scheme on agency licences does not grant the Bureau de la sécurité privée the discretion to dictate the way security agents must exercise their functions. Rather, it aims to ensure that licence holders comply with basic and general standards of conduct. These requirements are not likely to significantly encroach on the federal power. They seek to protect the public and do not affect the work or responsibilities of maritime security agents or any other staff member of the marine facility.

According to the interpretation of the second paragraph of section 16 of the Private Security Act, longshoremen who must momentarily carry on guard duties do not need a security agent licence because it is not their main activity. The provincial statute, however, requires that Fillion hold a licence because he is a security agent who manages access to the marine facility. He is not a longshoreman and does not carry on any longshoring activity. The appeal judge did not err in his analysis of the interjurisdictional immunity doctrine. The impugned provisions do not seriously or significantly trench on the federal power and are therefore applicable to the appellants. The fact that SMQ must comply with the requirements for the security agents it employs does not impair a vital and essential part of the federal power. The introduction of international marine safety conventions into Canadian law cannot unilaterally broaden the scope of the legislative competence in the matter. The fact that Parliament legislated in this regard is not sufficient to establish an impairment.

With respect to the doctrine of federal paramountcy, the appellants’ argument that the conflict of purpose arises from the fact that the Private Security Act concerns private security, whereas the federal legislation instead concerns public security amounts to pleading an occupied field. Just because there is a corpus of public regulations does not mean that a corpus of private regulations cannot be juxtaposed if it does not frustrate its purpose. In the absence of evidence of this frustration, the argument does not withstand scrutiny. The provincial legislation does not frustrate the federal purpose. The federal legislation on marine transportation safety is not compromised by the enactment of the impugned provincial rules. They are juxtaposed with the federal rules and do not conflict with them. They even favour them.

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

Legislation interpreted: sections 16, 116, and 117 of the Private Security Act.

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