Parachuting into the Fall Session at the Quebec Court of AppealProcureure générale du Québec c. Leclerc, 2018 QCCA 1567 (CanLII)
Fans of recreational skydiving and fans of interjurisdictional immunity will both find something to love in the Quebec Court of Appeal’s recent decision in Procureure générale du Québec c. Leclerc, 2018 QCCA 1567. The headline? A recreational skydiving business on a private airfield is protected by interjurisdictional immunity against the effect of municipal zoning laws.
Mme Leclerc owns three lots in the municipality of Lévis. All three are zoned exclusively for agricultural use. Regardless, her family has operated a private airfield on this land since the 1970s, seemingly without any objection by the municipality. Indeed, a building permit was sought and accorded for the construction of a new hangar in 2008. In 2012, however, when Mme Leclerc leased the airfield to a recreational skydiving company, Lévis changed its tone. Over the course of the next two years, the municipality issued no less than seventy-two municipal infractions against Mme Leclerc and her tenants, including unauthorized land use in contravention of zoning bylaws and construction without a permit.
In her defence against these infractions, Mme Leclerc argued that her airfield and the parachutes falling on it are exempt from the operation of those bylaws by the doctrine of interjurisdictional immunity. Because aeronautics is an area of exclusive federal legislative jurisdiction, and because skydiving is an aeronautic activity, she argued, provincial regulations like zoning bylaws do not apply to airfields. In this argument she was joined by the Attorney General of Canada, who intervened in support of Mme Leclerc’s constitutional arguments.
The municipal court of Lévis upheld the infractions. It agreed with the municipality and the Attorney General of Québec that skydiving does not lie at the core of the federal power over aeronautics. On appeal to the Superior Court, Mme Leclerc and the Attorney General of Canada prevailed: the Superior Court declared parts of the Règlement sur le zonage and the Règlement sur les permis to be constitutionally inapplicable to the Leclerc airfield due to interjurisdictional immunity.
Interjurisdictional immunity fans should read closely the Court of Appeal’s reasons explaining why they agree that skydiving falls within the core of the federal power over aeronautics. As my reader may know, interjurisdictional immunity is very rarely extended to new situations. The Supreme Court has stated that the application of IJI is “generally limited to the cores of every legislative head of power already identified in the jurisprudence”; “the absence of prior case law favouring its application to the subject matter at hand” generally dooms a novel IJI argument to failure. This is because interjurisdictional immunity is perceived as being in conflict with more popular modern doctrines of constitutional interpretation such as double aspect, necessarily incidental, and cooperative federalism.
So did the Court of Appeal find that prior case law expressly permitted the application of IJI to “the subject matter at hand”? No, it did not. Justice Gagné, writing for the Court, determined that “the subject matter at hand” is skydiving, not aeronautics. As there is no precedent dealing with the question whether skydiving lies at the core of federal competence over aeronautics, the direct precedent loophole would be of no use to Mme Leclerc.
But Gagné J. reasoned that the doctrine is limited, not defunct: “la PGQ et la Ville ont tort d’affirmer que cette doctrine ne peut s’appliquer en l’absence d’un précédent et que ce seul motif suffit pour infirmer le jugement de la Cour supérieure.” IJI can still apply where (1) the ability of one legislature to regulate a matter at the core of an area within its exclusive jurisdiction is (2) impaired by the legislative efforts of another legislature.
In the case before it, the Court of Appeal recognized that skydiving lies at the core of the federal aeronautics power. Skydiving is not an accessory to the operation of airports or aircraft, as are the labour relations within an airport, for example. Rather, “le parachutisme est certainement une activité qui se pratique dans l’espace aérien et qui est indissociable ‘de la navigation aérienne prise comme un tout’.” This conclusion reached, it was easy to see that the zoning bylaw had the effect of allowing the municipality to forbid skydiving on the airfield. This impairment of activity at the core of federal jurisdiction could not be allowed, and so the bylaw must be declared inapplicable.
The Court allowed the appeal on one point, however: it disagreed with the Superior Court that the building permit violations ought to be quashed and part of the Règlement sur les permis declared inapplicable. The Superior Court had accepted the argument that no building permit could have been sought in this case, since building permits are only issued to structures that are properly zoned. The Court of Appeal reasoned, however, that once the zoning bylaw had been declared inapplicable, this impediment would be no more. From that point on, cooperative federalism ought to be given a chance to work its magic.
Interjurisdictional immunity fans will, I expect, be eagerly watching to see whether leave to appeal is filed with the Supreme Court. Skydiving fans, I expect, have more exciting things to do.