Keep calm and go hunting: By-law deemed unreasonable and inoperative in Mascouche
- Posted by Me Camille Ingarao
Last fall, in Ouellette v. Mascouche (City of) (2022 QCCS 4190), the Superior Court, rendered by the Honourable Charles Bienvenu, j.s.c., ruled on the unreasonableness of the City of Mascouche’s By-law 1153 on the use of weapons (hereinafter the “By-law”) and on its incompatibility with federal and provincial legislation in force regarding hunting and firearms’ transportation.
The By-law regulated the possession of weapons and delimited the areas where hunting was permitted on the City’s territory. According to the City, the purpose of the By-law was to enhance public safety and welfare. It established a clear standard for the use of weapons within the City. Moreover, the City considered that it had full jurisdiction to adopt the By-law under the Municipal Powers Act (RLRQ c. C-47.1), since regulating safety is a delegated power by the Province to the municipalities, despite its impact on the right to hunt (par. 58 to 62).
Unreasonable and prohibitive By-law
However, The Superior Court found that some of the provisions of the By-law had the effect of prohibiting the use of weapons anywhere in the City and, therefore, prohibited hunting. The Court noted that municipalities must apply the powers delegated to them by the provincial legislature in a reasonable manner and that a by-law may be found to be unreasonable “where it is unreasonably restrictive, results in a formal and total prohibition, or results in an unreasonable encroachment on the rights of those subject to it” (para. 87). (Our translation)
In order to assess whether the City had respected the limits of the powers delegated by the Province and whether the By-law’s content was unreasonable, the Superior Court analyzed its objectives and its practical effects. It found that the effect of certain provisions of the By-law was to prohibit hunting in all places within the City, which was contrary to the objectives of the By-law, namely the boundaries of hunting zones and the regulation of the possession and use of weapons (paras. 153, 154, 169, 180). Accordingly, the Court found some of the provisions of the By-law to be unreasonable and declared them void:
“ A by-law may affect the activity of hunting but it cannot be abusive or a misdirection or prohibit it altogether unless there is a compelling justification. It is a matter of degree and a reasonable exercise of the City’s powers.
 The City is unreasonably exercising its powers under the MLA as it does not have the power to pass a purely prohibitive by-law. In this regard, the province does not delegate authority to the City to prohibit hunting altogether. By-law 1153 constitutes a formal and total prohibition of hunting and is therefore void.”
Conflict with federal and provincial laws and regulations
The Superior Court also declared several provisions of the By-law inoperative by addressing the conflicts they generated with federal and provincial standards, particularly in the areas of firearms transportation and wildlife control.
The Court recalled that a conflict between a municipal by-law and a federal statute is analyzed according to the constitutional doctrine of federal paramountcy (prépondérance fédérale); thus, where valid provincial and federal statutes are inconsistent, the federal statute prevails and the provincial statute is declared inoperative with respect to the conflicting provisions (paras. 101-108). It also noted that in the event of a conflict between a municipal by-law and a provincial statute, the provincial legislation prevails over the municipal by-law under section 3 of the Municipal Powers Act.
In this case, the Court found that the application of certain provisions of the By-law were in direct conflict, at the federal level, with the Firearms Act (S.C. 1995, c. 39) and the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations (SOR/98-209), and, at the provincial level, with the Firearms Safety Enhancement Act (SOR/98-209). 39) and the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations (SOR/98-209), and, at the provincial level, the Act to Promote the Protection of Individuals with Respect to Activities Involving Firearms (R.S.Q., c. P-38.0001), the Act respecting the conservation and development of wildlife (R.S.Q., c. C-61.1), the Hunting Regulation (R.S.Q., c. C-61.1, r.12 ) and the Regulation respecting fishing and hunting zones (R.R.S.Q., c. C-61.1, r. 34), and should therefore be declared inoperative.
Delay of judicial inaction
Finally, the Court considered the delay of judicial inaction between the adoption of the By-law and the filing of the action (an appeal for judicial review), i.e. 5 years and 3 months, as criticized by the City. Indeed, the City was asking that the appeal be dismissed since it had not been filed within a reasonable period of time of approximately 30 days following the adoption of the By-law.
While it is true that article 529 paragraph 3 of the Code of Civil Procedure of Quebec (RLRQ, c. c-25.01) provides that an appeal must be brought within a reasonable period of time, a period of time that is assessed, among other things, on the basis of the nature of the act subject to judicial review, the causes of the delay and the conduct of the plaintiffs, there are cases in which this period of time does not apply:
“ The requirement of reasonable time does not apply where the judicial review is for lack of160 or excess of jurisdiction161 or where a regulation conflicts or is incompatible with federal norms because of the constitutional division of powers.162 The same is true where the norm under review is ultra vires and absolutely void.163 “ The requirement of reasonable time does not apply where the judicial review is for lack of or excess of jurisdiction. The same is true when the norm under review is ultra vires and of absolute nullity.163 “
In this case, since the adoption of the provisions of the By-law at issue stemmed from the City’s lack or excess of jurisdiction and/or created a conflict with federal standards for the transportation of firearms, the Court rejected the application of reasonable time to dismiss the appeal (paras. 255 and 256). The Court noted, however, that even if there had been a question of reasonable time, the diligent conduct of the plaintiffs justified the delay for judicial inaction for more than 5 years following the enactment of the By-law (para. 257).
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