Quebec (Attorney General) v. Lacombe

Quebec (Attorney General) v. Lacombe
Collection
Supreme Court Judgments
Date
2010-10-15
Neutral citation
2010 SCC 38
Report
[2010] 2 SCR 453
Case number
32608
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 32608
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453
Date: 20101015
Docket: 32608
Between:
Attorney General of Quebec
Appellant
and
Anabelle Lacombe, Jacques Picard, 3845443 Canada Inc.
and Canadian Owners and Pilots Association
Respondents
‑ and ‑
Attorney General of Canada, Attorney General of Ontario,
Attorney General of New Brunswick, Attorney General of British Columbia,
Municipality of Sacré‑Cœur and Greater Toronto Airports Authority
Interveners
Official English Translation: Reasons of LeBel and Deschamps JJ.
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 68)
Concurring reasons in part:
(paras. 69 to 74)
Dissenting reasons:
(paras. 75 to 187)
McLachlin C.J. (Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
LeBel J.
Deschamps J.
______________________________
Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453
Attorney General of Quebec Appellant
v.
Anabelle Lacombe, Jacques Picard,
3845443 Canada Inc. and
Canadian Owners and Pilots Association Respondents
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of New Brunswick,
Attorney General of British Columbia,
Municipality of Sacré‑Cœur and
Greater Toronto Airports Authority Interveners
Indexed as: Quebec (Attorney General) v. Lacombe
2010 SCC 38
File No.: 32608.
2009: October 14; 2010: October 15.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Constitutional law — Division of powers — Aeronautics — Ancillary powers — Municipal by‑law prohibiting construction of aerodromes on lake and throughout much of municipality’s territory — Company operating aerodrome on lake in violation of by‑law — Whether by‑law valid provincial legislation — Whether by‑law relates, in pith and substance, to federal jurisdiction over aeronautics — If so, whether by‑law valid under ancillary powers doctrine — Constitution Act, 1867, s. 91 .
Since 2005, a company has carried on a business of air excursions on Gobeil Lake in the municipality of Sacré‑Cœur. It obtained a licence from the federal Department of Transport, issued pursuant to regulations under the federal Aeronautics Act and authorizing it to provide the services, and registered its aerodrome pursuant to the Canadian Aviation Regulations. Gobeil Lake is used by vacationers for fishing, swimming and other outdoor activities. In 1995, municipal zoning by‑law No. 210, adopted pursuant to the Quebec Act respecting land use planning and development, was amended by by‑law No. 260. Under by‑law No. 210, Gobeil Lake was situated in zone 33‑RF. Schedule B of that by‑law contains zoning charts for the municipality which authorize uses in each zone. Initially, the zoning chart contained no box for “water aerodromes” or “aeronautics”. By‑law No. 260 split zone 33‑RF in two, assigning part of it to a new zone 61‑RF. Gobeil Lake remained in zone 33‑RF. By‑law No. 260 went on to add note N‑10 to the zoning chart for zone 61‑RF, specifically authorizing the construction of rafts, wharves, or other structures for the landing of float planes and the deplaning of passengers. The municipality applied for an injunction ordering the company to cease its aviation activities on Gobeil Lake on the ground that operation of the aerodrome and the associated business in zone 33‑RF violated the by‑law. The Superior Court found that the legislation at issue was a valid municipal zoning by‑law, with only incidental effects on the federal subject of aeronautics. The Court of Appeal set aside that decision, concluding that the by‑law, though valid, could not apply to the aerodrome because of the doctrine of interjurisdictional immunity.
Held (Deschamps J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ.: While the preamble of by‑law No. 260 states that its purpose is to find a balance between the activities of summer home owners and more commercial land uses, the evidence reveals that the real object of the by‑law is not related to zoning and does not fall under any provincial head of power. Rather, its essence is to regulate the location of water aerodromes in the municipality, a matter within the exclusive federal jurisdiction over aeronautics. Since by‑law No. 260 is, in pith and substance, about the regulation of aeronautics, it falls outside provincial jurisdiction.
By‑law No. 260 is not saved by the ancillary powers doctrine. Under that doctrine, a provision which is, in pith and substance, outside the competence of its enacting body will be saved where it is an important part of a broader legislative scheme that is within the competence of the enacting body. The degree of integration required increases in proportion to the seriousness of the encroachment. Where the impugned measure encroaches only slightly on the jurisdiction of the other level of government, a rational, functional connection is required. As the degree of intrusion grows more serious, the required degree of integration tends toward a test of necessity. By‑law No. 260 does not constitute a serious intrusion on federal jurisdiction and the rational functional test is applicable. To meet the test, a prima facie invalid measure must complement rather than merely supplement the legislative scheme. It must, both rationally and in its function, further the purposes of the valid legislative scheme of which it is said to be part. While by‑law No. 210 is generally valid legislation in relation to land use planning, the general ban on aerodromes in zone 33‑RF introduced by by‑law No. 260 is not rationally and functionally connected to by‑law No. 210. A close examination of the purposes and effects of by‑law No. 260 reveals that it does not further the objectives of zoning law generally, or by‑law No. 210 in particular. By‑law No. 260 was passed to protect the use of Gobeil Lake and similar areas by vacationers. However, it does not confine its ban on aerodromes to vacation areas. Rather, it bans aerodromes throughout the municipality, which spans a variety of land uses. The lack of connection between by‑law No. 260 and the general zoning purposes of by‑law No. 210 is evidenced by the lack of correlation between the nature of the areas affected and the ban on aerodromes. By‑law No. 260 purports to regulate the location of aerodromes without reference to the underlying land use regime. It does not function as zoning legislation, but rather, is a stand‑alone prohibition. It treats similar parcels differently, and different parcels the same, belying the first principle of zoning legislation.
By‑law No. 260 cannot be interpreted as merely exempting zone 61‑RF from a general, pre‑existing prohibition against aerodromes in by‑law No. 210. The wording of by‑law No. 210 does not establish that before the amendment, it prohibited aerodromes generally in zone 33‑RF, and the conduct of the villagers after the passage of by‑law No. 210 belies the assertion that they understood it as prohibiting aerodromes on Gobeil Lake. Finally, the province conceded that by‑law No. 260 had the effect of prohibiting the construction of water aerodromes on Gobeil Lake. In any event, if by‑law No. 210 did have the effect of prohibiting water aerodromes, it would be inapplicable to the extent it did so, under the doctrine of interjurisdictional immunity. A prohibition on aerodromes, even as part of a broad class of land uses, would result in an unacceptable narrowing of Parliament’s legislative options. This would have the effect of impairing the core of the federal power over aeronautics.
Per LeBel J.: For the purposes of the doctrine of interjurisdictional immunity, the municipality’s decision to allow float planes to take off from and land on one lake within its territory rather than another was a valid exercise of its land use planning power and not a significant intrusion on the core of the federal aeronautics power. However, there is an operational conflict between the rights granted in the air operator certificate issued by the federal government — in respect, inter alia, of the place of business — and the municipal by‑law, which prohibited the operation of any such business at the place referred to in the certificate. As a result, the doctrine of federal paramountcy works in the respondents’ favour and precludes the municipal by‑law from applying to their activities.
Per Deschamps J. (dissenting): Aviation activities were prohibited in zone 33‑RF from the time by‑law No. 210 was adopted in 1993. No support for the interpretation to the effect that the purpose of by‑law No. 260 was to regulate the location of water aerodromes in the municipality’s territory can be found either in the ordinary meaning of the words of the zoning by‑law or in the evidence. In fact, that interpretation is contradicted by the statement of the Director General of the municipality that aside from its intention to grant a specific authorization in a new zone 61‑RF, the municipality intended not to impose a new prohibition, but to confirm the existing prohibition of aviation activities in zone 33‑RF. The Court has never considered itself bound by a party’s interpretation of the law or by a “concession” on a question of law.
From the standpoint of constitutional validity in light of the division of powers, the location of aerodromes, as a factual matter, has a double aspect because it can be understood from two different legal perspectives: (1) a broader perspective, that of zoning in the exercise of the exclusive provincial power to make laws in relation to municipal institutions; and (2) a narrower perspective, that of regulating aerodromes in the exercise of the exclusive federal aeronautics power. Before determining whether a provision is constitutionally valid, it is necessary to identify the pith and substance of the rule established by the provision in issue, not of a given set of facts, since fact situations can validly be addressed from two different normative perspectives. Simply showing that a rule adopted by a government at one level is connected, in its essence, with an exclusive power of the other level of government will often end the enquiry into its validity.
In this case, the zoning by‑law, as a whole, is valid. While it may have the effect, in a given zone, of prohibiting or permitting the use of aircraft on land or water or the operation of some form of aerodrome, this results first and foremost from the decision to authorize or not to authorize certain types of uses on an exclusive basis. The municipal land use planning system based on the authorization of classes of uses falls under the exclusive power of the provinces to make laws in relation to municipal institutions and does not, in pith and substance, regulate a matter that falls primarily under the federal aeronautics power, as would be the case with rules dealing specifically or directly with conditions for the takeoff of aircraft or the location of aerodromes.
However, the effect of the note N-10 introduced by by‑law No. 260 is that it applies directly to float planes and water aerodromes, since the effect of inserting the note in the zoning by‑law’s specifications grid is to specifically authorize aviation activities in zone 61-RF. Since the note N-10 mechanism appears to be invalid, it must be determined whether that mechanism should be found to be valid pursuant to the ancillary powers doctrine. The test to be met is that of a functional relationship, since what is in issue is an authorization and since the rule, which relates only to the location of water aerodromes, can amount only to a minor overflow into the federal power. Given the increased flexibility made possible by the specific authorization based on note N‑10, as compared with the relative inflexibility of the mechanism of classes of uses, the impugned provisions have a functional relationship with the zoning by‑law as a whole. They are valid as a delegated exercise of a power ancillary to the power in relation to municipal institutions.
What had to be shown for the provisions in issue to be declared inapplicable pursuant to the doctrine of interjurisdictional immunity has not been shown. The purpose of that doctrine is to protect powers of one level of government from certain effects of valid rules adopted by a government at the other level. Because it is inconsistent with co‑operative federalism and has exerted a centralizing pressure on the Canadian federation, which it tends to make asymmetrical, the doctrine of interjurisdictional immunity should, in principle, be limited to protecting cores of power that the courts have already found to require protection. It cannot be limited to the protection of federal powers, however. Furthermore, the fact that a rule is valid because its subject matter has a double aspect does not change the conditions that must be met for the doctrine of interjurisdictional immunity to apply, since where a double aspect relates to the application of an exclusive power, it does not change the exclusive nature of the power. The exclusive federal aeronautics power has a protected core, and the location of airports and aerodromes is part of it. Where there is a conflict, it must be determined whether activities at the core of the exclusive power are impaired. The test is that of the impairment of activities, not that of merely affecting the core of the protected power. The analysis must relate to the concrete effects of the impugned legislative measure.
In this case, it has not been shown how or why the application of valid municipal rules respecting land use planning to aerodromes can have the effect of impairing the activities of aviation undertakings. As a factual matter, the location of aerodromes coincides with a type of decision relating to small‑scale aviation activities. Small‑scale aviation requires a sufficient area for the construction of an aerodrome. Yet it has been established that the municipal by‑law does leave enough room for such activities. Not only are they specifically authorized in zone 61‑RF, but they are also authorized indirectly in at least one other zone. Finally, the requirement that an aerodrome comply with municipal or agricultural zoning does not limit the possibility of its being used for emergency landings.
Nor can federal paramountcy be relied on against the municipal by‑law in issue. The doctrine of paramountcy can come into play only where a federal rule and a provincial rule are so incompatible that there is an actual conflict between them. The unwritten constitutional principle of federalism and its underlying principles of co‑operative federalism and subsidiarity favour a strict definition of the concept of conflict: either it must be impossible to comply with a rule of a government at one level without violating one of a government at the other level (“operational conflict”), or complying with the rule must conflict with Parliament’s purpose (“conflict of legislative purposes”). A conflict of purposes can exist only if there is a restriction on the exercise of a right positively provided for in a rule, as opposed to a simple freedom. Also, the provincial prohibition in question must be, if not identical, at least similar in nature, to the prohibition to which the federal positive right can only form an exception.
There is no operational conflict in this case between by‑law No. 210 and the federal aeronautics legislation, since it is possible to comply with the municipal by‑law without violating the federal legislation. Nor can compliance with by‑law No. 210 frustrate a purpose being pursued by Parliament. The municipal by‑law in issue is not incompatible with the exercise of any positive right granted in the federal legislation. The procedure for registering aerodromes that is provided for in regulations merely confers a right to have certain information about aerodromes published. As for the air operator certificate, although it does authorize, subject to certain conditions, the operation of certain types of aircraft for the purpose of providing commercial aviation services, it grants no positive right to operate aircraft or an aerial work undertaking in a given territory.
In sum, the impugned provisions of by‑law No. 210 are valid, applicable and operative. Moreover, the governments that are closest to citizens and have jurisdiction over land use planning should have reasonable latitude to act where the central government fails to do so or proves to be indifferent. There is something fundamentally incoherent in the interpretation of the rules of Canada’s federalist system if a municipality is unable to establish reasonable limits to ensure that uses of its territory are compatible with one another where no activities falling under the core of a protected federal power are actually impaired and there is no inconsistency with federal legislation.
Cases Cited
By McLachlin C.J.
Applied: Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292; R. v. Swain, [1991] 1 S.C.R. 933; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Papp v. Papp, [1970] 1 O.R. 331; referred to: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; R. v. Morgentaler, [1993] 3 S.C.R. 463; Attorney‑General for Ontario v. Canada Temperance Federation, [1946] A.C. 193; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31; St. Catharines Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577; Attorney‑General of Ontario v. Attorney‑General for the Dominion of Canada, [1894] A.C. 189; Grand Trunk Railway Company of Canada v. Attorney‑General of Canada, [1907] A.C. 65; Attorney‑General for Canada v. Attorney‑General for British Columbia, [1930] A.C. 111; Attorney‑General for Canada v. Attorney‑General for the Province of Quebec, [1947] A.C. 33; Fowler v. The Queen, [1980] 2 S.C.R. 213; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Nykorak v. Attorney General of Canada, [1962] S.C.R. 331; Gold Seal Ltd. v. Attorney‑General for the Province of Alberta (1921), 62 S.C.R. 424; Attorney General of Canada v. C.P.R., [1958] S.C.R. 285; R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695; Regional Municipality of Peel v. MacKenzie, [1982] 2 S.C.R. 9; R. v. Zelensky, [1978] 2 S.C.R. 940; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; Ontario Home Builders’ Association v. York Region Board of Education, [1996] 2 S.C.R. 929; Young v. Young, [1993] 4 S.C.R. 3; Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), 2005 SCC 44, [2005] 2 S.C.R. 286; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3.
By LeBel J.
Referred to: British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86.
By Deschamps J. (dissenting)
Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; M. v. H., [1999] 2 S.C.R. 3; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86; Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302; R. v. Zelensky, [1978] 2 S.C.R. 940; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Commission du Salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Smith v. The Queen, [1960] S.C.R. 776; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; St‑Louis v. Commission de protection du territoire agricole du Québec, [1990] R.J.Q. 322; Re Orangeville Airport Ltd. and Town of Caledon (1976), 11 O.R. (2d) 546; Venchiarutti v. Longhurst (1992), 8 O.R. (3d) 422; Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581; Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641, leave to appeal refused, [2001] 1 S.C.R. ix; Re Walker and Minister of Housing for Ontario (1983), 41 O.R. (2d) 9; Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Manitoba v. Attorney‑General for Canada, [1929] A.C. 260; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
Statutes and Regulations Cited
Act respecting land use planning and development, R.S.Q., c. A‑19.1, s. 113.
Aeronautics Act, R.S.C. 1985, c. A‑2, s. 4.9 .
Canadian Aviation Regulations, SOR/96‑433, ss. 301.03, 302.01, 700.01, 700.02, 702.07, 702.08, 702.09, 702.12, 703.07, 703.16, 704.07, 704.15, 705.07, 705.20.
Cities and Towns Act, R.S.Q., c. C‑19.
Commonwealth of Australia Constitution Act, s. 51(xxxix).
Constitution Act, 1867, ss. 91 , 92 , 92A , 94A , 95 .
Constitution of the United States of America, art. I, § 8, cl. 18.
Municipal Code of Québec, R.S.Q., c. C‑27.1.
Municipality of Sacré‑Cœur, By‑law No. 209, Règlement relatif aux permis et certificats, aux conditions préalables à l’émission de permis de construction, ainsi qu’à l’administration des règlements de zonage, de lotissement et de construction (1993), ss. 4.1, 4.2 [am. No. 260, 1995].
Municipality of Sacré‑Cœur, By‑law No. 210, Règlement de zonage (1993), ss. 2.2, 4.1, 4.2, Sch. B [am. No. 260, 1995].
Municipality of Sacré‑Cœur, By‑law No. 211, Règlement de lotissement (1993) [am. No. 260, 1995].
Municipality of Sacré‑Cœur, By‑law No. 260, Règlement aux fins de modifier le règlement numéro 209 intitulé “Règlement relatif aux permis et certificats, aux conditions préalables à l’émission de permis de construction, ainsi qu’à l’administration des règlements de zonage, de lotissement et de construction”, le règlement numéro 210 intitulé “Règlement de zonage”, le règlement numéro 211 intitulé “Règlement de lotissement”, de façon à créer la nouvelle zone 61‑RF (1995), preamble, ss. 4.1, 4.2.
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 5e éd. Cowansville, Qué.: Yvon Blais, 2008.
Côté, Pierre‑André, avec la collaboration de Stéphane Beaulac et Mathieu Devinat. Interprétation des lois, 4e éd. Montréal: Thémis, 2009.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 1. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2009, release 1).
Issalys, Pierre, et Denis Lemieux. L’action gouvernementale: Précis de droit des institutions administratives, 3e éd. Cowansville, Qué.: Yvon Blais, 2009.
APPEAL from a judgment of the Quebec Court of Appeal (Brossard, Thibault and Vézina JJ.A.), 2008 QCCA 426, [2008] R.J.Q. 598, SOQUIJ AZ-50478099, [2008] Q.J. No. 1595 (QL), 2008 CarswellQue 13000, reversing a decision of the Superior Court, 2006 QCCS 1171, [2006] R.D.I. 320, SOQUIJ AZ-50359210, [2006] J.Q. no 1948 (QL), 2006 CarswellQue 1973. Appeal dismissed, Deschamps J. dissenting.
Alain Gingras and Sébastien Rochette, for the appellant.
Mathieu Quenneville and Yvan Biron, for the respondents Anabelle Lacombe, Jacques Picard and 3845443 Canada Inc.
Pierre J. Beauchamp, Dan Cornell and Emma Beauchamp, for the respondent the Canadian Owners and Pilots Association.
Ginette Gobeil and Claude Joyal, for the intervener the Attorney General of Canada.
Hart M. Schwartz and Josh Hunter, for the intervener the Attorney General of Ontario.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
R. Richard M. Butler and Jean M. Walters, for the intervener the Attorney General of British Columbia.
Mahmud Jamal, for the intervener the Greater Toronto Airports Authority.
No one appeared for the intervener the Municipality of Sacré‑Cœur.
The judgment of McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
The Chief Justice —
I. Introduction
[1] The waters of Gobeil Lake have of late been clouded by conflict. Seeking to preserve the tranquility of their rustic setting, owners of summer homes spurred their municipal government to outlaw an aerodrome on the lake. Anabelle Lacombe and Jacques Picard, the operators of this aerodrome, challenged the validity of the municipal prohibition on the ground that the federal Parliament has exclusive jurisdiction to determine the location of aerodromes. Thus, the future of aeronautics on Gobeil Lake comes before this Court as a question of federalism, pitting the local interest in land use planning against the national interest in a unified system of aviation regulation.
[2] Like the companion case of Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 (“COPA”), this appeal involves a clash between provincial zoning laws and the federal jurisdiction over aeronautics. As in that case, the issues are whether the provincial zoning legislation is valid; if so, whether the doctrine of interjurisdictional immunity prevents the application of the provincial law; and finally, whether the doctrine of federal paramountcy prevails over the provincial zoning law.
[3] I conclude that the impugned portion of the provincial law at issue in this case falls outside the jurisdiction of the province and is ultra vires. Furthermore, I find that it is not sufficiently integrated within a valid legislative scheme to be saved under the doctrine of ancillary powers. Thus, this portion of the provincial law is invalid. Having reached this conclusion, it is not necessary to consider the application of interjurisdictional immunity or federal paramountcy, which are discussed in COPA. Though my reasoning differs somewhat, I agree in the result with the Quebec Court of Appeal that the Province’s claim cannot prevail. I would dismiss the appeal and read down the municipal by-law so that it does not affect aerodromes.
II. The Facts
[4] Lacombe and Picard are the directors of a company that carries on a business of air excursions. In 2002, the company commenced operations out of Long Lake, and moved in 2005 to Gobeil Lake, where Lacombe and Picard had a summer home. Gobeil Lake is a recreational lake, used by vacationers for fishing, swimming and other outdoor activities.
[5] Lacombe and Picard obtained a licence from the federal Department of Transport authorizing them to provide commercial aerial work and air taxi services, operating out of Gobeil Lake. This licence was issued pursuant to regulations under the federal Aeronautics Act, R.S.C. 1985, c. A-2 . The company registered its aerodrome on Gobeil Lake pursuant to the Canadian Aviation Regulations, SOR/96-433. The company was required to provide the Minister of Transport with information respecting the location, markings, lighting, use and operation of the aerodrome. The Minister then published this information, making it available to the aviation public.
[6] In 2006 the municipality of Sacré-Cœur obtained an injunction from the Superior Court against Lacombe and Picard, ordering them to cease their aviation activities on Gobeil Lake, on the ground that operation of the aerodrome and the associated business violated the zoning for Gobeil Lake.
III. Judicial History
[7] The Quebec Superior Court found that the legislation at issue in this case is a valid municipal zoning by-law, with only incidental effects on the federal subject of aeronautics: 2006 QCCS 1171, [2006] R.D.I. 320. The court rejected Lacombe and Picard’s defence that, despite its validity, the by-law does not apply to their aerodrome because of the doctrines of interjurisdictional immunity and federal paramountcy.
[8] The Quebec Court of Appeal allowed the appeal: 2008 QCCA 426, [2008] R.J.Q. 598. Applying this Court’s decision in Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292, it concluded that the by-law, though valid, could not apply to Lacombe and Picard’s aerodrome because of the doctrine of interjurisdictional immunity.
IV. The Statutory Framework
A. The Provincial Statute
[9] It is agreed that the current zoning by-law forbids aviation on Gobeil Lake. The complexity of the zoning scheme makes it something of a challenge to understand why this is so. However, the legislative effect is clear.
[10] Section 113 of the provincial Act respecting land use planning and development, R.S.Q., c. A-19.1, authorizes a municipality to “adopt a zoning by-law for its whole territory”. Operating under this delegated statutory power, the municipality of Sacré-Cœur adopted a comprehensive code of zoning regulations in 1993.
[11] By-law No. 209[1], s. 4.1, provides that no construction may be commenced without a permit. Section 4.2 states that it is not necessary to obtain a permit (1) for temporary buildings; (2) integrated buildings that were anticipated in previous permits; or (3) where the cost of construction does not exceed $1,000. Given that the cost of erecting an aerodrome exceeds this threshold, by-law No. 209 effectively bars construction without a permit, and by-law No. 210[2] provides that no permit will be issued unless the activity is authorized.
[12] By-law No. 210, Sch. B, contains the zoning charts for the municipality. These charts authorize certain uses in each zone. A party may apply for a permit wherever a particular use is authorized. Initially, the zoning chart contained no box for “water aerodromes” or “aeronautics”. The parties to the present appeal agree that in light of this silence, the by-law was interpreted to permit water aerodromes by analogy to other approved uses. The Attorney General of Quebec presents this interpretation in paras. 11 and 39 of its factum. Moreover, the parties argued this appeal on the basis of their shared understanding that by‑law No. 210 did not prohibit the landing and taking off of hydroplanes at the relevant location and that the amendment brought about by by‑law No. 260[3] was necessary to achieve that result. This shared understanding is reflected in both their written and oral submissions in this Court. While the proper interpretation of the provisions is debatable, the parties’ shared understanding of the interpretation is plausible and I do not think the Court should approach the case on a basis that does not reflect that shared understanding on which all of the submissions of the parties were formulated.
[13] Following the adoption of by-law No. 210, local residents of Gobeil Lake complained about aeronautics activity on the lake, which was being used by an air operator that preceded Lacombe and Picard. The municipality discussed [translation] “doing something about the float planes using Gobeil Lake with a view to finding a solution to the incompatibility of that commercial activity of maintaining a float plane base with the use of the lake by vacationers” (solemn affirmation of Sarto Simard, Director General and Secretary-Treasurer of the municipality of Sacré‑Cœur, at para. 12). The result was by-law No. 260, which was adopted in 1995. The preamble to by-law No. 260 states that its purpose is to find a balance between the activities of summer home owners and more commercial land uses.
[14] By-law No. 260 amended by-law No. 210 to effectively prohibit aerodromes, not only in the vacation area of Gobeil Lake, but in a larger part of the municipality, which contained land devoted to a variety of uses. Under by-law No. 210, Gobeil Lake was situated in zone 33-RF. By-law No. 260 split zone 33-RF in two, assigning part of it to a new zone 61-RF. Gobeil Lake remained in zone 33-RF. By-law No. 260 went on to add a note, note N-10, under [translation] “specifically authorized uses”, in the zoning chart for zone 61-RF, which authorized the construction of rafts, wharves, or other structures for the landing of float planes and the deplaning of passengers. When an activity is specifically authorized in one zone (61-RF) and the zoning chart for a second zone (33-RF) is silent on the matter, the activity is prohibited in the second zone by the principle of inclusio unius est exclusio alterius. Thus, the effect of note N-10 was to authorize the construction of water aerodromes in zone 61-RF, and to implicitly prohibit them in zone 33-RF (and all other zones that do not contain an express approval).
[15] As Quebec conceded, by-law No. 260 prohibited the construction of water aerodromes on Gobeil Lake and throughout much of the municipality.
B. The Federal Scheme
[16] The federal government regulates aviation throughout Canada under the Aeronautics Act and its regulations. This Act treats different sectors of the industry differently. Private aerodromes, our concern in this case, are governed by a permissive regime that does not require prior federal authorization for the location of aerodromes. However, once an aerodrome is registered with the Minister of Transport, it is subject to federal regulation and safety standards.
[17] In this case, Lacombe and Picard wished to conduct commercial air operations, so they were required to first obtain authorization under the federal regulations. Registration documents were required; standards were imposed. The Minister then accepted Lacombe and Picard’s proposed activities and publicized the existence of the Gobeil Lake aerodrome to other aviators.
V. Issues
[18] The issues are:
1. Are the amendments brought by by-law No. 260 valid provincial law?
2. If so, are they inapplicable under the doctrine of interjurisdictional immunity?
3. If applicable, are the amendments brought by by-law No. 260 superseded by federal law under the doctrine of paramountcy?
VI. Analysis
A. Are the Amendments Brought by By-law No. 260 Valid Provincial Legislation?
[19] The first step in determining the validity of the amendments brought by by-law No. 260 is to identify their dominant characteristic: R. v. Swain, [1991] 1 S.C.R. 933, at p. 998; see also Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 52. This is known as the “matter” of the legislation. Once the matter of the legislation has been determined, the next step is to assign this matter to one or more heads of legislative power: Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 450. If the matter comes within one of the heads of power allocated to the provinces under the Constitution Act, 1867 , then the impugned law is valid. If it does not, then the court must consider whether the prima facie invalid law is saved by the doctrine of ancillary powers (also known as the ancillary doctrine: see Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 45).
(1) Identifying the Matter of the Impugned Legislation
[20] The first step is to characterize the main thrust, or “pith and substance”, of by-law No. 260: Swain, at p. 998. As LeBel J. explained in Kitkatla, at para. 53, there are two aspects to the characterization of the pith and substance of a law: (1) the purpose of the legislation and (2) its effect. The purpose of a law may be determined by examining intrinsic evidence, like purposive clauses and the general structure of the act. It may also be determined with reference to extrinsic evidence, such as Hansard or other accounts of the legislative process: Kitkatla, at para. 53. The effect of a law is found in both the legal effect of the text and the practical consequences that flow from the application of the statute: R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 482‑83.
[21] The essence of by-law No. 260 is this: it prohibits the construction of aerodromes in zone 33-RF and elsewhere in the municipality, which includes Gobeil Lake, while permitting their construction in the remaining zone, zone 61-RF, subject to obtaining a building permit.
[22] As noted above, the preamble to by-law No. 260 states that its purpose is to find a balance between the activities of summer home owners and more commercial land uses. However, the evidence reveals that by-law No. 260 actually had a narrower purpose than the restriction of commercial land uses in recreational areas. The municipal council discussed “doing something about the float planes using Gobeil Lake with a view to finding a solution to the incompatibility of that commercial activity of maintaining a float plane base with the use of the lake by vacationers” (solemn affirmation of Sarto Simard, at para. 12). The council crafted a solution that had the effect of prohibiting certain aviation activities — and only those aviation activities — from a significant portion of the municipality (those zones in which water aerodromes are not specifically approved). In oral argument before this Court, counsel for the Attorney General of Quebec stated that [translation] “[i]f N10 is quashed, then it will be the status quo ante, and given this situation, the Municipality believed this amendment was necessary if it was to succeed in limiting the operation of a float plane base to a single lake in the Municipality. . . . The Municipality assumed that the float plane base was not prohibited.” Quebec also stated that by-law No. 260 [translation] “has the effect and purpose of prohibiting water aerodromes . . . . It can be seen from the wording of the by-law that its real purpose was to regulate the location of water aerodromes in the municipality’s territory.”
[23] In my view, these statements accurately capture the essence of by-law No. 260. I conclude that the matter of the impugned legislation is, in pith and substance, the regulation of aeronautics.
(2) Assigning the Matter to a Head of Legislative Power
[24] Having characterized the pith and substance of the impugned provision, the second step is to determine which level of government has jurisdiction to enact laws in relation to this matter. This inquiry seeks to allocate the matter to one of the heads of power granted to Parliament and the legislatures under the Constitution Act, 1867 .
[25] T