Introduction
In Opsis Airport Services Inc. v. Québec (Attorney General),1 the Supreme Court of Canada unanimously reaffirmed the application of the doctrine of interjurisdictional immunity, which protects an exclusive jurisdiction—federal or provincial—from interference by the other order of government.
The Court reiterates that two conditions must be met for this doctrine to apply: (1) an intrusion on the core of an exclusive head of power of the other level of government and (2) impairment of the core of the exclusive head of power.
When it applies, the contested provisions remain valid but are declared inapplicable to the persons who brought the action (in this case, Opsis, SMQ, and Mr. Fillion), as they impede matters that would fall under the essential content of the exclusive jurisdiction of the other level of government. When the contested provisions are inseparable from an entire provincial scheme, the entire scheme will be declared inapplicable.
Facts in Dispute
Opsis Airport Services Inc. ("Opsis"), Services maritimes Québec inc. ("SMQ") and Michel Fillion, an SMQ employee ("Mr. Fillion"), are challenging statements of offence alleging that they contravened the Private Security Act ("PSA"),2 a Québec law, on the grounds that the PSA is inapplicable to them due to the doctrine of interjurisdictional immunity.3
Indeed, their services are strictly regulated by federal legislation.
Opsis is a company that provides airport security services at Pierre Elliott Trudeau International Airport. Its activities are governed by the Canadian Aviation Security Regulations, 20124 made under the Aeronautics Act,5 a federal statute.6
SMQ operates in the international marine shipping sector and handles loading operations on transatlantic vessels from the Pointe-au-Pic terminal in La Malbaie. Its activities are governed by the Canada Shipping Act, 20017 and the Marine Transportation Security Act,8 which are federal laws.9
The Opsis and SMQ cases were heard together before the Supreme Court of Canada.
Reasons for the Court
1) Exclusivity of Jurisdiction and Federal Paramountcy
The Court indicates that, in general, the analysis of interjurisdictional immunity should be favoured before examining federal paramountcy, distinguishing itself from its judgment in Canadian Western Bank v. Alberta, 2007 SCC 22, without, however, ruling out the possibility that, in certain circumstances, it may be advantageous to consider the doctrine of federal paramountcy before that of interjurisdictional immunity. According to the doctrine of federal paramountcy, when the effects of provincial legislation are inconsistent with federal legislation, the federal legislation must prevail and the provincial legislation must be declared inoperative to the extent of the inconsistency. In Opsis, the Court recognized that, in most cases, it is more logical and appropriate to assess the applicability of a statute (through the doctrine of exclusivity of powers) before its operability (through the doctrine of federal paramountcy).10
2) Conditions of Application of the Doctrine of Interjurisdictional Immunity
a. Intrusion on the core of an exclusive head of power of the other level of government
The Court concludes that the application of the PSA to the activities of Opsis, SMQ, and Mr. Fillion constitutes an intrusion on the core of an exclusive head of power of the other level of government.11
i. Opsis Case
In the Opsis case, the Court reaffirmed that aeronautics falls under the exclusive jurisdiction of the federal Parliament by virtue of its power to legislate for the peace, order, and good government of Canada (s. 91 of the Constitution Act, 1867).12 This jurisdiction extends not only to the regulation of the operation of aircraft, but also to the regulation of the operation of airports and aerodromes.13 The Court continues in the line of its judgments in Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292, Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581 and Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536.14
It therefore concludes that the tasks associated with Opsis' mandate undeniably fall within the core of aeronautical jurisdiction, in that they are related to the safety of air transport itself. They include providing camera surveillance of interior and exterior locations at the airport and operating the computer systems of the call centre.15
ii. SMQ Case
In SMQ, the Court found that jurisdiction over navigation and shipping is assigned to the federal Parliament under subsection 91(10) of the Constitution Act, 1867. This jurisdiction is broad and "encompasses those aspects of navigation and shipping that engage national concerns which must be uniformly regulated across the country, regardless of their territorial scope".16 The Court concluded that "even without any specific precedent in this regard, there is no doubt that the security of marine facilities and their operations is at the core of the federal navigation and shipping power".17
The Court concludes that SMQ's activities fall squarely within the core of this jurisdiction, given the clear link between the security of marine facilities and SMQ's operations, which aim to ensure the security of the Pointe-au-Pic terminal.18
b. Impairment of the core of the exclusive head of power
To determine whether there is an impairment, the Court refuses to adopt a narrow approach consisting of examining in silos the provisions relating to obtaining agent and agency licenses. The Court will analyze the licensing regime as a whole, although this may vary depending on the specifics of a dispute and the law being challenged.19
To assess the sources of hindrance, the Court examines various contentious aspects of the PSA.
According to the Court, two aspects of the PSA's licensing regime constitute impediments:
1) Regarding the agent's license: it derives from the powers held by the Bureau de la sécurité privée, the administrative body created by the provincial legislature, when it determines that there has been a contravention of private security conduct standards (s. 30 PSA). These powers allow it to have the final say on how the activities of Opsis and SMQ should be conducted, even though these activities fall under federal jurisdiction in aeronautical and maritime matters.20
2) Regarding the agency permit, the impediment stems from the powers the Bureau has when its directives concerning the exercise of private security activities are not followed (s. 29 PSA). These powers allow the Bureau to dictate to Opsis how to carry out its airport security activities and even to suspend its agency license if it refuses to comply, whereas the said activities fall under federal jurisdiction in aeronautics.21
c. Declaration of Inapplicability
The Court decided to declare the entire permit scheme established by this Act inapplicable to Opsis, SMQ, and Mr. Fillion, rather than merely declaring that these two aspects of the PSA are inapplicable to them, because the impeding provisions are inseparable from the coherent whole that the PSA forms.22
Given this finding, the Court did not have to address the issue of federal paramountcy.23
Footnotes
1. 2025 SCC 17 ["Opsis".
2. RLRQ, c. S-3.5.
3. Opsis, para 2.
4. SOR/2011-318.
5. R.S.C. 1985, c. A-2.
6. Opsis, para 3.
7. S.C. 2001, c. 26.
8. S.C. 1994, c. 40.
9. Opsis, para 5.
10. Opsis, para 52.
11. Opsis, paras 58 and 61.
12. Opsis, para 54.
13. Opsis, para 55.
14. Opsis, para 54.
15. Opsis, para 58.
16. Opsis, para 59.
17. Opsis, para 60.
18. Opsis, para 61.
19. Opsis, para 63.
20. Opsis, paras 74-75.
21. Opsis, para 78.
22. Opsis, para 81.
23. Opsis, para 85.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
