The Federal Government has introduced legislation in Bill C-21 which authorizes municipalities to opt-in to federal legislative bans on handguns. While Bill C-21 is likely constitutional in its own right, it doesn’t matter to Saskatchewan municipalities: the Saskatchewan Government has blocked them from using it.
Unlike provinces or the Federal Government, municipalities do not get their powers from the constitution. Municipalities are creatures of provincial statute. In Saskatchewan, municipalities are governed by either The Cities Act, SS 2002, c C-11.1, The Municipalities Act, SS 2005, c M-36.1 or The Northern Municipalities Act, 2010, SS 2010, c N-5.2. Thus, it is up to the provincial governments to grant powers to the municipalities, not the Federal Government.
While provincial governments have jurisdiction over municipalities, it is the Federal Government that governs criminal law. Limiting firearms is generally part of the criminal law. The Supreme Court of Canada held, in Reference re Firearms Act (Canada), 2000 SCC 31, that gun control is a valid purpose for the Parliament’s jurisdiction over criminal law. In the case of Bill C-21, a clear prohibition that is backed with penalties is created, and thereby meets the other criteria for being a valid exercise of the criminal law power. It is evidently within Parliament’s power to impose a ban or other regulations on handguns.
But the Federal Government does not want to ban handguns, it wants the municipalities to be able to do so. This is where Federal Government has a problem: it is unconstitutional for the Federal Government to delegate primary legislative authority to a provincial government (see e.g. Reference re Constitutional Validity of Bill No. 136 (Nova Scotia) (1950), [1951] SCR 31; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 SCR 189). If the Federal Government wanted to let municipalities set their own laws on firearms, they would be transferring its power to regulate firearms to provincial creatures and, in a sense, to the provincial governments.
This is where Bill C-21 is creative. Instead of transferring power to provincial bodies, the Federal Government proposes to create a number of offences that are contingent on specific facts. This is an exercise of federal power. The municipality can choose from a number of offences and pass a bylaw indicating that said offence will apply within its boundaries. The municipality will then notify the Federal Government of this bylaw. After that point, federal authority will be the basis for the chosen offence within the municipality. Because it is a federal law which creates the offence and Parliament could change that federal law at any time, this does not appear to be delegation of primary legislative authority.
While the Federal Government is being clever with the introduction of Bill C-21, the provincial governments hold a trump card. On July 3, 2020 The Miscellaneous Municipal Statutes Amendment Act, 2020, SS 2020, c 30, obtained Royal Assent and, in doing so, all municipal governments lost the power to passing “any new bylaws respecting firearms.”
It is now outside of the jurisdiction of any municipality in Saskatchewan to pass a new bylaw respecting firearms. With that, Saskatchewan has played its trump card.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.