In its decision Opsis Airport Services Inc. v. Quebec (Attorney General)[1] rendered on May 30, 2025 (Opsis judgment), the Supreme Court of Canada declared the Private Security Act, CQLR c. S-3.5 (the PSA) wholly inapplicable to two businesses under federal jurisdiction by virtue of the doctrine of interjurisdictional immunity, thereby setting aside the guilty verdicts rendered pursuant to the statements of offence issued under that Act.
In its reasons, the Supreme Court reaffirmed the principles established in Canadian Western Bank v. Alberta[2] (Canadian Western Bank), thereby maintaining a cautious approach in the application of this doctrine. The Court stated, however, that it is important to take into account the effects of the application of the impugned provisions, regardless of whether they have materialized, thereby providing businesses navigating different regulatory regimes with a clear avenue for challenging legislative or regulatory provisions.
Overview of Opsis and SMQ Cases: Central Issue and Lower Court Decisions
This ruling follows those rendered by the Québec Court of Appeal in Procureur général du Québec c. Opsis Services aéroportuaires inc., 2023 QCCA 506 (Opsis), and Services maritimes Québec inc. c. Procureur général du Québec, 2023 QCCA 325 (SMQ).
The first case involves Opsis, a company providing airport security services and operating the emergency call centre at Pierre Elliott Trudeau International Airport in Montréal, while the second case involves the company SMQ and one of its employees. SMQ, along with its employee, operates in the international maritime transportation sector. In particular, SMQ carries out loading operations on transatlantic ships out of a terminal in La Malbaie, Québec, and its employee monitors and controls access to this port facility.
The Opsis and SMQ cases therefore pertain to the security of airports and of marine facilities and their operations.
In both cases, the Court of Appeal reviewed the application of the PSA, which regulates private security services in Québec through the Bureau de la sécurité privée (BSP). The Director of Criminal and Penal Prosecutions charged Opsis, SMQ and its employee pursuant to statements of offence issued by the BSP for failing to obtain the licences required under the PSA.
Opsis, SMQ and its employee argued, among other things, that the licensing scheme established by the PSA does not apply to them by virtue of the doctrine of interjurisdictional immunity.
The doctrine of interjurisdictional immunity serves to protect the core of an exclusive legislative power, whether federal or provincial, from being impaired by the other level of government. It depends on two conditions being met, namely (1) intrusion on the core of an exclusive head of power[3] and (2) impairment of the core of the exclusive head of power.[4]
After contradictory rulings by the lower courts, a majority of the Québec Court of Appeal held that the PSA applied to Opsis, SMQ and SMQ’s employee, and noted that concluding otherwise would be tantamount to deciding a constitutional dispute on the basis of hypothesis, conjecture or speculation.
Supreme Court’s Application of Doctrine of Interjurisdictional Immunity
Applying the two-pronged test of interjurisdictional immunity, the Supreme Court first found that the security of airports or marine facilities and their operations related to the core of the federal heads of power over aeronautics[5] or navigation and shipping.[6]
The Supreme Court went on to conclude that two aspects of the PSA’s licensing scheme impair the exercise of these federal powers, namely the regulatory standards of conduct prescribed by the BSP and the BSP’s authority to issue directives regarding the activities of agency licence holders.
The Court noted that these two aspects grant the BSP, an administrative body created by the provincial legislature, “the final say” on how Opsis and SMQ are to carry on their security activities. To support this conclusion, the Supreme Court also noted that the BSP sets the relevant standards of conduct and has the power to suspend, cancel or refuse to renew an agent licence on this basis, as well as to issue directives governing the activities of security officers. According to the Court, this broad discretion allows the BSP to dictate how businesses carry on their security activities, failing which their permits will be suspended or withdrawn.
In its reasons, the Supreme Court reiterated that the cautious approach set out in Canadian Western Bank should prevail when applying the doctrine of interjurisdictional immunity, due to the “modern conception of cooperative federalism, which favours, where possible, the ordinary operation of statutes enacted by both levels of government.”[7]
Contrary to the reasons of the majority of the Court of Appeal, the Supreme Court concluded that predictability is key to the proper functioning of the division of powers, and that it is therefore important to take into account the effects of the application of the impugned provisions, regardless of whether there is proof of the effects, and whether or not the effects have materialized. In other words, it is not necessary to show that an impairment has already occurred, the mere possibility of an impairment is sufficient[8] since the courts cannot assume the reasonable exercise of a discretionary power.[9]
According to its analysis, the Court therefore concluded that the PSA is wholly inapplicable to Opsis, SMQ and SMQ’s employee, on the grounds that the Québec legislator would not have enacted the PSA without the impairing provisions, as they were deemed “unseverable” and essential to the PSA’s licensing scheme.
The Supreme Court therefore overturns the guilty verdicts.
Takeaways and Remarks
Regarding the division of powers, courts cannot take a “wait-and-see” position when the interpretation of the provisions of a regulatory regime clearly reveals the potential for impairment of the core of an exclusive legislative jurisdiction, including an impairment resulting from a regime conferring “the final say” to the other level of government.
The Opsis judgment is one of a series in which the courts have examined the applicability of provincial laws to federal activities, such as the IMTT case in 2019[10] and, more recently, a 2025 British Columbia Court of Appeal decision regarding the transportation of petroleum products.[11] As a result, the judgment reiterates and clarifies an avenue for challenging the applicability of such provisions for certain businesses navigating different regulatory regimes.
Since the application of interjurisdictional immunity depends on the interpretation of the impugned provisions, such a challenge raises a pure question of constitutional law, which may entail several advantages. In particular, such a decision is subject to the standard of correctness and is therefore exposed to heightened scrutiny by appellate courts.[12]
