Gagné, Cotnam, Cournoyer

Appeal from a judgment of the Superior Court allowing the appeal from a conviction. Allowed in part.

The respondents were convicted of breaching sections 16 and 19 of the appellant municipality’s By-law 06-2015 respecting the emptying of septic tanks. The Superior Court judge found that the by-law’s subject-matter was the same as that of the Regulation respecting waste water disposal systems for isolated dwellings (CQLR, c. Q-2, r. 22), enacted under the Environment Quality Act (CQLR, c. Q-2), and that, absent ministerial approval, the primacy rule in section 118.3.3 of the Act must apply, rendering By-law 06-2015 of no force or effect.

The appellant submits that there is no identity of subject-matter between the by-law and the regulation because their purposes are not identical but complementary. The intervenor Union des municipalités du Québec (UMQ) adds that a municipal by-law establishing a specific procedure that is complementary to the general standards prescribe in provincial regulations does not require ministerial approval.

It is immaterial whether By-law 06-2015 is complementary to the provincial regulation or whether it can be reconciled with it. As soon as the by-law and the regulations contemplate the same subject-matter, ministerial approval is required. In this case, the by-law and the regulation concern the same subject-matter, namely, the maintenance of waste water treatment systems for isolated dwellings. Moreover, paragraph 4 of section 118.3.3 of the Environment Quality Act, which creates an exception to the primacy rule when the municipal by-law concerns the implementation of the provisions of a regulation made under that Act, does not apply in this case because the municipal by-law does not concern the implementation of the provisions of the provincial regulation. On the contrary, it prohibits any persons or businesses not mandated by the municipality from emptying septic tanks, and imposes a time period for systematic emptying. It therefore goes further than the provincial regulation. Ultimately, the need for ministerial approval is not illogical, in view of the municipal jurisdiction over the environment and the emptying of septic tanks in particular. The primacy rule set out in section 118.3.3 of the Act presumes the municipal by-law is intra vires.

Under article 184 paragraph 8 of the Code of Penal Procedure (CQLR, c. C-25.1), the municipal court judge could only rule on the operability of the provisions creating the offences alleged against the respondents, namely, sections 16 and 19 of By-law 06-2015. The same is true of the Superior Court judge in the exercise of his appellate jurisdiction conferred by articles 266 et seq. of the Code of Penal Procedure. The appeal should therefore be allowed for the sole purpose of limiting the declaration of inoperability to sections 16 and 19 of By-law 06-2015.

Text of the decision: http://citoyens.soquij.qc.ca