Opsis Airport Services Inc. v. Quebec (Attorney General), 2023 QCCA 506, 2023 QCCA 325, 2025 SCC 17 (40786) (40791)
“Opsis Airport Services Inc. (“Opsis”) is an enterprise that provides airport security services; it operates the emergency call centre at the Pierre Elliott Trudeau International Airport in Montréal. Quebec Maritime Services Inc. (“QMS”) is an enterprise that works in the international marine transportation sector; it performs loading operations on transatlantic ships out of a terminal located in La Malbaie. F is an employee of QMS who monitors and controls access to the port facility. Opsis, QMS and F received statements of offence charging them with having contravened the provisions of the Private Security Act (“PSA”), a statute enacted by the Quebec legislature, that required them to hold a licence to carry on a private security activity. It is common ground that Opsis, QMS and F did not comply with the requirements of the PSA. However, they contested their statements of offence on the basis that the PSA is constitutionally inapplicable to them by virtue of the doctrine of interjurisdictional immunity because, according to them, the PSA impairs the core of exclusive federal powers.
In the case involving Opsis, the trial justice held that the doctrine of interjurisdictional immunity was of no assistance and accepted the guilty pleas. That judgment was reversed by the Superior Court, which set aside the guilty verdicts, finding that the PSA as a whole should be declared constitutionally inapplicable to Opsis. In its opinion, airport security necessarily forms part of the core of the federal aeronautics power, and Opsis’s activities fall within this core. It found an impairment of the core of the federal power, and it was of the view that the three aspects of the provincial legislative scheme creating the impairment could not be easily isolated from the rest of the PSA. The Court of Appeal overturned the Superior Court’s decision and affirmed the guilty verdicts. It agreed that Opsis’s activities fall within the core of Parliament’s aeronautics power, but it found that that the PSA did not impair the core of this power.
In the case involving QMS and F, the trial judge found that the PSA was inapplicable to them because it impairs the core of exclusive federal jurisdiction over marine security and labour relations in a federal undertaking, and he acquitted QMS and F. On appeal, the Superior Court found that the impairment test was not met and convicted QMS and F. The Court of Appeal dismissed the appeal brought by QMS and F. Reaffirming the substance of its reasons in the case involving Opsis, it was of the view that the application of the PSA does not create an impairment.”
The SCC (9:0) allowed the appeals.
The Court wrote as follows (at paras. 1-2, 75-78, 80-85):
“These appeals afford this Court an opportunity to look once again at the contours of the doctrine of interjurisdictional immunity. Since the landmark case of Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, the Court has continued, for the reasons mentioned in that case, to take a cautious approach to the applicability and scope of this doctrine. Despite this Court’s hesitation to make increased use of this doctrine, our jurisprudence shows that it still remains useful. The reasons that follow are in line with the decisions rendered by this Court since Canadian Western Bank.
In the two cases in question, the appellants received statements of offence charging them with having contravened certain provisions of the Private Security Act, CQLR, c. S‑3.5 (“PSA”), a statute enacted by the Quebec legislature. It is common ground that the appellants did not comply with the requirements of the PSA. However, the appellants contested their statements of offence on the basis that the PSA is inapplicable to them by virtue of the doctrine of interjurisdictional immunity. A majority of the Quebec Court of Appeal rejected the appellants’ arguments, which they have raised again before this Court. We would allow the appeals. Some aspects of the licensing scheme established by the PSA have the effect of giving the administrative body created by the provincial legislature the final say on the manner in which the appellants’ security activities falling within the core of an exclusive federal power are conducted. These impairing aspects of the PSA cannot be severed from the rest of the statute, which means that the statute must be declared wholly inapplicable to the appellants pursuant to the doctrine of interjurisdictional immunity.
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The agent licensing scheme established by the PSA thus allows an administrative body created by the provincial legislature to have “the final say” on the manner in which activities — including those of the appellants — falling within the core of an exclusive federal power must be conducted, as was the case in COPA (paras. 1 and 46‑48). In other words, such activities are “at the mercy” of the Bureau (National Battlefields Commission, at p. 859). But one of the purposes of the doctrine of interjurisdictional immunity is precisely to prevent one level of government from being able to “achieve indirectly what it lacks the authority to achieve directly” (K. Wilkins, “Exclusively Yours: Reconsidering Interjurisdictional Immunity” (2019), 52 U.B.C. L. Rev. 697, at p. 712). We therefore have no difficulty in concluding that, given the effect of s. 30 para. 1(5) PSA, which must be read in conjunction with the PSA’s other provisions concerning standards of conduct, there is in the instant cases an impairment of the core of Parliament’s exclusive aeronautics and maritime jurisdiction.
To “protect the public”, the Bureau may, in particular, issue “directives to an agency licence holder regarding the agency licence holder’s activities” (s. 42(1) PSA). Because this power relates solely to agency licences, it concerns the Opsis case only. Section 29(4) PSA provides that if an agency licence holder “fails to follow the directives issued by the Bureau”, its licence may be suspended, cancelled or not renewed.
The majority of the Court of Appeal noted that this power represents at most a [translation] “purely speculative impairment” as there is no certainty that the Bureau will exercise it and, furthermore, that if it does, it will exercise it in a manner that impairs the core of the federal aeronautics power (C.A. reasons (Opsis), at paras. 202‑3 (emphasis deleted)).
Respectfully, we cannot accept that view for reasons similar to those just stated. Like the Bureau’s powers in relation to standards of conduct, the power to issue to an agency licence holder “directives . . . regarding the agency licence holder’s activities” gives the Bureau a broad discretion. This power is a sword of Damocles hanging over the head of an enterprise like Opsis, given that the Bureau has the authority to dictate how it must carry on its airport security activities and that, it if fails to comply, it may lose its agency licence (s. 29(4) PSA) and thus no longer be able to carry on private security activities (s. 4 PSA). It therefore seems clear that the application of s. 29(4), which must be read in conjunction with s. 42(1) PSA, has the effect of subjecting Opsis’s activities falling within the core of an exclusive power of Parliament to the control of an administrative body created by the provincial legislature. Here again, we have no difficulty in concluding that there is an impairment of the core of Parliament’s exclusive aeronautics power.
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To summarize, two aspects of the PSA’s licensing scheme meet the second condition for the applicability of the doctrine of interjurisdictional immunity in these two appeals. First, with regard to agent licences, the impairment arises from the powers that the Bureau has where it determines that the standards of conduct for private security have been violated (s. 30 PSA). Second, with regard to agency licences, the impairment arises from the powers that the Bureau has where the directives it issues regarding private security activities are not complied with (s. 29 PSA).
We must now determine whether only these two aspects of the PSA should be declared inapplicable to the appellants or whether it is instead appropriate to declare that the entire licensing scheme created by this statute is inapplicable to them. Given that the impairing provisions cannot be severed from the coherent whole formed by the PSA, this second avenue, in our view, is to be preferred.
The fact is that the two impairing aspects of the PSA are related to the Bureau’s essential function, namely its mission to protect the public, including by ensuring the enforcement of the PSA and the regulations thereunder (s. 41). Morissette J.A. rightly pointed out that the PSA gives the Bureau [translation] “functions analogous to that of a professional order” (Société québécoise des infrastructures, at para. 12). As expressly stated in s. 23 of the Professional Code, CQLR, c. C‑26, a professional order must “in particular supervise the practice of the profession by its members” in order to accomplish its principal mission, which is “to ensure the protection of the public”.
If the Bureau loses its power to suspend, cancel or refuse to renew the agent licence of a holder who violates the standards of conduct determined by regulation (s. 30 para. 1(5) PSA), this would significantly limit its ability to supervise private security activities. The same is true as regards the exercise of this power where an agency licence holder fails to follow the directives issued to it by the Bureau (s. 29(4)). The absence of these two impairing aspects of the PSA would deprive the Bureau of important tools to accomplish its primary mission of protecting the public. In that case, the Bureau’s power to issue directives to an agency licence holder (s. 42(1) PSA) and its power to make regulations determining standards of conduct to be followed by agent licence holders (s. 107(6) PSA) would cease to have binding effect and would become essentially symbolic.
From this perspective, it seems clear that the Quebec legislature would not have enacted the PSA without the impairing provisions, which are truly unseverable from the rest of the statute and essential to the whole of which they form part. Since a targeted declaration of inapplicability might change the nature of the legislative scheme intended by the legislature, the appropriate remedy is to read down the statute as a whole so that the appellants are excluded from its scope (see, by analogy, Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 114; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 50‑51). In light of our conclusions, it is not necessary to consider the parties’ arguments on the doctrine of federal paramountcy. The PSA is declared constitutionally inapplicable to the appellants pursuant to the doctrine of interjurisdictional immunity. Opsis’s appeal is allowed, with costs in this Court and in the Court of Appeal. The judgment of the Court of Appeal is set aside, and the judgment of the Superior Court is restored. The appeal of QMS and Mr. Fillion is also allowed, with costs in this Court and in the Court of Appeal. The judgments of the Court of Appeal and the Superior Court are set aside, and the judgment of the Court of Québec is restored in part, the declaration of inapplicability being replaced by the declaration we are making concerning the PSA as a whole.”