Congrégation des
témoins de Jéhovah de St‑Jérôme‑Lafontaine v. Lafontaine
(Village), [2004] 2 S.C.R. 650, 2004 SCC 48
Congrégation
des témoins de Jéhovah de St‑Jérôme‑Lafontaine,
Roberto
Biagioni and Denis Léveillé Appellants
v.
Municipality
of the village of Lafontaine, Harold Larente
and Attorney
General of Quebec Respondents
and
Seventh‑Day
Adventist Church in Canada, Evangelical
Fellowship of
Canada and Canadian Civil Liberties Association Interveners
Indexed
as: Congrégation des témoins de Jéhovah
de St‑Jérôme‑Lafontaine v. Lafontaine (Village)
Neutral
citation: 2004 SCC 48.
File
No.: 29507.
2004: January 19;
2004: June 30.
Present: McLachlin
C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and
Fish JJ.
on appeal from
the court of appeal for quebec
Municipal law — Procedural fairness — Refusal by
municipality to amend zoning by‑law to allow religious group to build
place of worship on land it purchased — Whether municipality required to
provide reasons for its decision.
Constitutional law — Charter of Rights — Freedom of
religion — Whether municipality’s decision not to amend its zoning by‑law
to allow religious group to build place of worship on land it purchased
infringes freedom of religion — Canadian Charter of Rights and Freedoms,
s. 2 (a).
The Jehovah’s Witnesses were looking for a suitable
parcel of land on which to establish a place of worship in the respondent
municipality. The zoning by‑law allowed places of worship to be built in
a regional community use zone. As they felt that no land was available in this
zone, the Jehovah’s Witnesses made a conditional offer to purchase a lot
located in a residential zone and applied for an amendment to the zoning by‑law.
The amendment was refused on the ground that this would have resulted in an
increase in the tax burden for ratepayers. The Jehovah’s Witnesses purchased
another lot in a commercial use zone and applied twice for a zoning change, but
the municipality categorically refused to grant their applications, giving no
reasons for its refusal. The Jehovah’s Witnesses instituted a proceeding for
mandamus, alleging that the municipality’s refusal to amend its zoning by‑law
violated their freedom of religion under s. 2 (a) of the Canadian
Charter of Rights and Freedoms . They also challenged the constitutionality
of the provisions of the Act respecting land use planning and development
relating to the process for approving amendments to zoning by‑laws by way
of referendum, contending that such a public consultation would violate their
freedom of religion. The trial judge dismissed the application after finding
that lots were still available in the only zone in which places of worship
could be built. The Court of Appeal set aside this finding of fact, but the
majority dismissed the appeal on the ground that the municipality was not
responsible for the unavailability of land and was under no positive obligation
to preserve freedom of religion.
Held (Major,
Bastarache, LeBel and Deschamps JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and
Iacobucci, Binnie, Arbour and Fish JJ.: In weighing the merits of the
Congregation’s rezoning requests, the Municipality was discharging a duty
delegated to it by the Legislature. The Municipality was bound to exercise the
powers conferred upon it fairly, in good faith and with a view to the public
interest. The Municipality did not fulfill its duty of procedural fairness in
responding to the second and third rezoning applications brought by the
Congregation because the Municipality gave no reasons for its denial.
When making an administrative decision affecting
individual rights, privileges or interests, a public body like a municipality
is bound by a duty of procedural fairness whose content varies according to
five factors. In this case, a review of these factors indicates that the
Municipality’s duty of procedural fairness to the Congregation was heightened
by the aggravated potential for abuse of discretionary statutory authority, the
absence of an appeal provision, the expectations established by the
Municipality’s own conduct in responding to the Congregation’s first rezoning
application, and the importance of the decision to the Congregation, impacting
as it did on the right of the Congregation to practice the religion of its
choice. Little deference is due to the Municipality’s decisions concerning the
second and third applications for rezoning because there is no record to
indicate that the Municipality has actually engaged its expertise in evaluating
the applications. These factors suggest that the Municipality was required to
carefully evaluate the Congregation’s applications for a zoning variance and to
give reasons for refusing them.
In refusing to justify its decisions, the Municipality
breached its duty of procedural fairness. It acted in a manner that was
arbitrary and straddled the boundary separating good from bad faith. The
matter should be remitted to the Municipality for reconsideration of the
Congregation’s rezoning application.
Per Bastarache, LeBel
and Deschamps JJ. (dissenting): In the absence of a palpable and
overriding error, the Court of Appeal could not review the trial judge’s
finding of fact regarding the availability of a lot. This finding, which was
based on an assessment of witnesses’ credibility, should be restored and it
justifies dismissing the Jehovah’s Witnesses’ application, since it precludes a
conclusion that their freedom of religion was infringed.
Neither the purpose nor the effect of the zoning by‑law
has been to infringe the freedom of religion of the Jehovah’s Witnesses.
First, the zoning by‑law cannot be considered prohibitive since it does
not prohibit the “place of worship” use everywhere within the municipality’s
boundaries. Second, freedom of religion is a fundamental right that imposes on
the state and public authorities, in relation to all religions and citizens, a
duty of religious neutrality. For that reason, the municipality is required to
structure its by‑laws in such a way as to avoid placing unnecessary
obstacles in the way of the exercise of religious freedoms, although it does
not have to provide the Jehovah’s Witnesses with access to a lot that corresponds
better to their selection criteria. Furthermore, the rights protected by
s. 2 (a) of the Charter are not absolute. First, freedom of
religion is limited by the rights and freedoms of others. The diversity
of opinions and convictions requires mutual tolerance and respect for others.
Second, although the very nature of the zoning by‑law means that the
Jehovah’s Witnesses do not have absolute freedom to choose the location of
their place of worship, this limit is necessary to protect safety and order,
and ensure proper land use, in the municipality and does not constitute a
violation of freedom of religion. Finally, churches and their members are not
exempted from making any effort, or even sacrifice, inter alia in the
exercise of their freedom of worship. Since at least one lot remains available
in the regional community use zone, the Jehovah’s Witnesses must comply with
the municipality’s zoning by‑law and build their place of worship in the
zone where this use is authorized.
If no land were available in the regional community
use zone, this would constitute an infringement of freedom of religion under
s. 2 (a) of the Charter , because the construction of a place
of worship, which is an integral part of this freedom, would then be impossible
within the boundaries of the municipality. This infringement would result not
from the existence of the zoning by‑law, but from the refusal to adapt it
to evolving community needs. Even though, as a general rule, the Charter does
not require the state to take positive steps in support of the exercise of the
fundamental freedoms provided for in s. 2 (a), and even though the
state must refrain from implementing measures that could favour one religion
over another, this would be an exceptional situation in which freedom of
religion could have no real meaning unless the public authorities took positive
action. The municipality would therefore have to amend the by‑law.
If there had been a violation of the Charter ,
the only possible remedy that would have been appropriate was an order to the
municipality to review its zoning by‑law so as to make land available to
the appellants on which they could build their place of worship. It would not
have been appropriate to suspend the operation of the Act respecting land
use planning and development and its process for approval by way of
referendum, as it cannot be assumed that this democratic process, which is
consistent with the nature of municipal government in Canada, in any way
infringes the freedom of religion guaranteed by s. 2 (a) of the Charter .
Concerning the administrative law issue, a more
precise and rigorous justification for the municipality’s repeated refusals to
amend its zoning by‑law would not only have given the Jehovah’s Witnesses
a better understanding of the municipality’s decision, it also would have given
its decision‑making process the required transparency and the appearance
of procedural fairness.
Per Major J.
(dissenting): There is agreement with the result in the judgment of
LeBel J., but reasons restricted to his conclusions on the findings of
fact of the trial judge and the absence of any infringement to freedom of
religion.
Cases Cited
By McLachlin C.J.
Referred to:
Cardinal v. Director of Kent Institution, [1985] 2
S.C.R. 643; Attorney General of Canada v. Inuit Tapirisat of Canada,
[1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602; Nicholson v. Haldimand‑Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817; Godbout v.
Longueuil (City), [1997] 3 S.C.R. 844; Toronto (City) v. Trustees of the
Roman Catholic Separate Schools of Toronto, [1926] A.C. 81; Kuchma v.
Rural Municipality of Tache, [1945] S.C.R. 234; Norfolk v. Roberts
(1914), 50 S.C.R. 283; In re Glover and Sam Kee (1914), 20 B.C.R. 219; Re
Howard and City of Toronto, [1928] 1 D.L.R. 952; Roncarelli v. Duplessis,
[1959] S.C.R. 121; Kane v. Board of Governors of the University of British
Columbia, [1980] 1 S.C.R. 1105; Bendahmane v. Canada (Minister of
Employment and Immigration), [1989] 3 F.C. 16; Qi v. Canada (Minister of
Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57; Mercier‑Néron
v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Prud’homme
v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85; Whiten v. Pilot
Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18; Young v. Young,
[1993] 4 S.C.R. 3.
By LeBel J. (dissenting)
Saint‑Michel‑Archange (Municipalité de)
v. 2419‑6388 Québec Inc., [1992] R.J.Q. 875; Orford
(Canton) v. Fonds de placement Hamel inc., [1995] Q.J. No. 2260 (QL); Housen
v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Big M Drug Mart
Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986]
2 S.C.R. 713; Ross v. New Brunswick School District No. 15, [1996] 1
S.C.R. 825; Trinity Western University v. British Columbia College of
Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; Dunmore v. Ontario (Attorney
General), [2001] 3 S.C.R. 1016, 2001 SCC 94; Delisle v. Canada (Deputy
Attorney General), [1999] 2 S.C.R. 989; Haig v. Canada, [1993] 2
S.C.R. 995; Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817.
Statutes and Regulations Cited
Act
respecting administrative justice, R.S.Q., c. J‑3,
ss. 2, 3, 5, 8.
Act respecting land use
planning and development, R.S.Q., c. A‑19.1,
ss. 113(3), 123 to 133.
Canadian Charter of Rights and
Freedoms, s. 2 .
Charter of human rights and
freedoms, R.S.Q., c. C‑12, s. 3.
Cities and Towns Act, R.S.Q., c. C‑19, s. 410.
Constitution Act, 1867, s. 93 .
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 47 .
Zoning By‑Law No. 362 for
village de Lafontaine, adopted April 2, 1991 (came into force on May 18,
1991), ss. 2.2.1, 2.2.3.2, 2.2.3.3, 2.2.5.3.
Authors Cited
L’Heureux,
Jacques. Droit municipal québécois, t. II. Montréal: Wilson &
Lafleur/SOREJ, 1984.
Ogilvie, M. H. Religious
Institutions and the Law in Canada, 2nd ed. Toronto: Irwin Law, 2003.
Woehrling, José. “L’obligation
d’accommodement raisonnable et l’adaptation de la société à la diversité
religieuse” (1998), 43 McGill L.J. 325.
APPEAL from a judgment of the Quebec Court of Appeal,
[2002] R.J.Q. 3015, [2002] Q.J. No. 4728 (QL), affirming a judgment of the
Superior Court, J.E. 99‑333. Appeal allowed, Major, Bastarache,
LeBel and Deschamps JJ. dissenting.
André Carbonneau and David M.
Gnam, for the appellants.
Michel Lalande and Jean‑Pierre
St‑Amour, for the respondents the Municipality of the village of
Lafontaine and Harold Larente.
Mario Normandin, for
the respondent the Attorney General of Quebec.
Gerald D. Chipeur and Ivan
Bernardo, for the interveners the Seventh‑Day Adventist Church in
Canada and the Evangelical Fellowship of Canada.
Andrew K. Lokan
and Megan Shortreed, for the intervener the Canadian Civil Liberties
Association.
The judgment of McLachlin C.J. and Iacobucci, Binnie,
Arbour and Fish JJ. was delivered by
The Chief Justice —
I. Summary
1
The issue in this case is whether the municipality of the village of
Lafontaine (the “Municipality”) lawfully denied an application for rezoning to
permit the Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine (the
“Congregation”) to build a place of worship. Unlike my colleague Justice
LeBel, I conclude the Municipality did not. Although the Municipality’s first
denial of permission to rezone complied with the law, the second and third did
not, in my view, because the Municipality gave no reasons for its denial,
instead taking the position that it enjoyed absolute discretion to refuse the
zoning variance with no explanation to the Congregation.
2
In weighing the merits of the Congregation’s rezoning requests, the
Municipality was discharging a duty delegated to it by the Legislature. It was
bound to exercise the powers conferred upon it fairly, in good faith and with a
view to the public interest. Here, on the facts as found by the trial judge,
the Municipality failed to do so. Accordingly, I would remit the matter to the
Municipality for reconsideration.
II. The Duty on the Municipality
3
A public body like a municipality is bound by a duty of procedural
fairness when it makes an administrative decision affecting individual rights,
privileges or interests: Cardinal v. Director of Kent Institution,
[1985] 2 S.C.R. 643; Attorney General of Canada v. Inuit Tapirisat of Canada,
[1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602; Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311. The decision to deny the
application for rezoning affected the Congregation’s rights and interests.
There can thus be no question that the Municipality owed the Congregation a
duty of fairness.
4
At issue in this case is the content of this duty. More
particularly and on the facts as found, does the duty require the Municipality
to give the Congregation reasons for refusing the rezoning application? Or does
it clothe the Municipality with absolute discretion to refuse the
Congregation’s application?
5
The content of the duty of fairness on a public body varies according to
five factors: (1) the nature of the decision and the decision-making process
employed by the public organ; (2) the nature of the statutory scheme and the
precise statutory provisions pursuant to which the public body operates; (3)
the importance of the decision to the individuals affected; (4) the legitimate
expectations of the party challenging the decision; and (5) the nature of the
deference accorded to the body: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817. In my view and having regard to the
facts and legislation in this appeal, these considerations require the
Municipality to articulate reasons for refusing the Congregation’s second and
third rezoning applications.
6
The first factor — the nature of the decision and the process by which
it is reached — merges administrative and political concerns. The decision to
propose a draft by-law rezoning municipal territory is made by an elected
council accountable to its constituents in a manner analogous to that in which
Parliament and the provincial legislatures are accountable to their own: Godbout
v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 51. This decision is
moreover tempered by the municipality’s charge to act in the public interest: Toronto
(City) v. Trustees of the Roman Catholic Separate Schools of Toronto,
[1926] A.C. 81 (P.C.), at p. 86. What is in the public interest is a matter of
discretion to be determined solely by the municipality. Provided the
municipality acts honestly and within the limits of its statutory powers, the
reviewing court is not to interfere with the municipal decision unless “good
and sufficient reason be established”: Kuchma v. Rural Municipality of Tache,
[1945] S.C.R. 234, at p. 243 (per Estey J.); see also Norfolk v.
Roberts (1914), 50 S.C.R. 283, at p. 293; In re Glover and Sam Kee
(1914), 20 B.C.R. 219 (S.C.), at pp. 221-22; Re Howard and City of Toronto,
[1928] 1 D.L.R. 952 (Ont. S.C., App. Div.), at p. 965.
7
However, the elected councillors cannot deny a rezoning application in
an arbitrary manner. Where the municipal council acts in an arbitrary fashion
in the discharge of its public function, “good and sufficient reason” exists to
warrant intervention from the reviewing court in order to remedy the proven
misconduct. The need for judicial oversight of arbitrary municipal decision
making is only heightened by the aggravated potential for abuse of
discretionary statutory authority. As Rand J. has made clear in Roncarelli
v. Duplessis, [1959] S.C.R. 121, at p. 140, no discretion casts a net wide
enough to shield an arbitrary or capricious municipal decision from judicial
review:
In public regulation of this sort there is no such
thing as absolute and untrammelled “discretion”, that is that action can be
taken on any ground or for any reason that can be suggested to the mind of the
administrator; no legislative Act can, without express language, be taken to contemplate
an unlimited arbitrary power exercisable for any purpose, however capricious or
irrelevant, regardless of the nature or purpose of the statute.
8
The second factor is the statutory scheme and its provisions, in this
case the Act respecting land use planning and development, R.S.Q., c.
A-19.1, which grants the Municipality authority to consider a rezoning
application. Even so, the absence of an appeal provision demands greater
municipal solicitude for fairness. Enhanced procedural protections “will be
required when no appeal procedure is provided within the statute, or when the
decision is determinative of the issue and further requests cannot be
submitted”: Baker, supra, at para. 24, per L’Heureux-Dubé J.
9
The third factor requires us to consider the importance of the decision
to the Congregation. The stringency of procedural protection is directly
proportional to the importance of the decision to the lives of those affected
and the nature of its impact on them: Baker, supra, at para. 25;
see also Kane v. Board of Governors of the University of British Columbia,
[1980] 1 S.C.R. 1105, at p. 1113. Here, it becomes important that the municipal
decision affects the Congregation’s practice of its religion. The right to
freely adhere to a faith and to congregate with others in doing so is of
primary importance, as attested to by its protection in the Canadian Charter
of Rights and Freedoms and the Quebec Charter of human rights and
freedoms, R.S.Q., c. C-12.
10
The fourth factor — the legitimate expectations of the Congregation —
also militates in favour of heightened procedural protection. Where prior
conduct creates for the claimant a legitimate expectation that certain
procedures will be followed as a matter of course, fairness may require consistency:
Baker, supra, at para. 26; see also Bendahmane v. Canada
(Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.); Qi v.
Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d)
57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and
Welfare) (1995), 98 F.T.R. 36. Here, the Municipality followed an involved
process in responding to the Congregation’s first rezoning application, in so
doing giving rise to the Congregation’s legitimate expectation that future
applications would be thoroughly vetted and carefully considered.
11
The fifth factor — the nature of the deference due to the decision maker
— calls upon the reviewing court to acknowledge that the public body may be
better positioned than the judiciary in certain matters to render a decision,
and to examine whether the decision in question falls within this realm.
Municipal decisions on rezoning fall within the sphere in which municipalities
have expertise beyond the capacity of the judiciary, thus warranting deference
from reviewing courts. However, this factor may not carry much weight where,
as here on the second and third applications for rezoning, there is no record
to indicate that the Municipality has actually engaged its expertise in
evaluating the applications.
12
The five Baker factors suggest that the Municipality’s duty of
procedural fairness to the Congregation required the Municipality to carefully
evaluate the applications for a zoning variance and to give reasons for
refusing them. This conclusion is consistent with the Court’s recent decision
in Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85, at para.
23, holding that municipal councillors must always explain and be prepared to
defend their decisions. It is also consistent with Baker, where it was
held, at para. 43 dealing with a ministerial decision, that if an organ of the
state has a duty to give reasons and refuses to articulate reasons for
exercising its discretionary authority in a particular fashion, the public body
may be deemed to have acted arbitrarily and violated its duty of procedural
fairness.
13
Giving reasons for refusing to rezone in a case such as this serves the
values of fair and transparent decision making, reduces the chance of arbitrary
or capricious decisions, and cultivates the confidence of citizens in public
officials. Sustained by both law and policy, I conclude that the Municipality
was bound to give reasons for refusing the Congregation’s second and third
applications for rezoning. This duty applied to the first application, and was
complied with. If anything, the duty was stronger on the Congregation’s second
and third applications, where legitimate expectations of fair process had been
established by the Municipality itself.
III. Applying the Duty of Fairness to the
Facts
14
Before considering the rezoning applications, it is necessary to deal
with a preliminary question: does the trial judge’s finding that
Mrs. Jolicoeur was willing to sell a P-3 property to the Congregation
resolve the matter and make it unnecessary to consider the Municipality’s
treatment of the Congregation’s application for rezoning, as LeBel J.
concludes?
15
Like LeBel J., I accept the finding of fact that land was available in
Zone P-3. However, this does not resolve the issue, in my view, because the
Municipality’s duty of procedural fairness to the Congregation is not
contingent upon the interactions of the Congregation with third parties, namely
Mrs. Jolicoeur. The Municipality’s duty exists independent of the
Congregation’s own conduct.
16
I therefore find it necessary to consider whether the Municipality
fulfilled its duty of procedural fairness in responding to the rezoning
applications brought by the Congregation. In my view, the answer is no.
17
The Congregation requested a zoning variance from the Municipality on
three separate occasions. On each occasion, the Municipality refused the
request. The process by which the Municipality refused the first request
withstands judicial scrutiny. But the process followed to respond to the second
and third requests does not.
18
On March 4, 1992, after having concluded no land was available in P-3,
the Congregation entered into a purchase agreement for a parcel of land located
at the intersection of 112th Avenue and Maurice Boulevard, conditional upon
obtaining rezoning approval. The parcel was located in a residential zone, not
a P-3 community zone where the construction of churches was permitted.
However, another P-3-zoned structure was already located in the area.
19
On May 12, 1992, the Municipality referred the request to its Comité
consultatif d’urbanisme for a recommendation. Realizing that places of worship
normally enjoy exemption from property taxes, the Comité commissioned a study
from Marcel Bélanger, then assistant secretary-treasurer, on the financial
impact upon city taxpayers of granting the Congregation’s request. Bélanger
reported back to the Comité on June 10, concluding that granting the
Congregation’s zoning variance would result in increased property taxes for
neighbouring residents. On June 23, the Comité recommended that the
Municipality deny the Congregation’s request for a zoning variance. On July 6
at a public meeting, the Municipality announced its final decision to deny the
request, supported by detailed reasons.
20
At the urging of the Mayor, the Congregation met with the Municipality’s
building inspector the next day, July 7. The building inspector indicated on a
map the location of P-3 zones in which the Congregation could purchase land to
build its place of worship. The building inspector added that if no land were
available for purchase in Zone P-3, the Congregation would have to reapply for
a zoning variance. To this point, the Municipality’s conduct cannot be faulted.
21
Following this advice, the Congregation renewed its search for available
land in Zone P-3. Again its search turned up no available land in P-3 zones
and the Congregation took its search to other zones. It found a suitable lot
in a commercial zone at 2373 Labelle Boulevard — only 400 metres from another
place of worship — and entered into a conditional purchase agreement. Still
following the building inspector’s earlier advice, the Congregation filed a
second request for a zoning variance.
22
The Congregation’s accompanying letter, dated February 1, 1993, detailed
its four-year-long effort to build a place of worship in the Municipality and
expressed its inability to find any available land in Zone P-3. It requested a
zoning variance for the commercial-zoned property it now proposed to acquire.
The Congregation asked for an audience with the Municipality in order to
personally present its construction plans.
23
Three days later, on February 4, the Municipality sent the Congregation
a letter summarily denying its request. It gave no reasons for this decision.
The Municipality did not engage in an evaluative process like the one it undertook
in response to the Congregation’s first request for a zoning variance, nor
indeed any evaluative process at all. The Municipality did not refer the
matter to its Comité. It did not study the financial impact of granting the
zoning variance. And it did not grant the Congregation the courtesy of meeting
with its representatives to discuss the Congregation’s construction plans,
which by then had been derailed for four years. The Municipality contented
itself with advising that lots in P-3 were available.
24
This advice was no substitute for a proper evaluation of the rezoning
application and accompanying reasons justifying the refusal. The Municipality
knew that the Congregation believed on the basis of two searches that no P-3
lots were available. Yet, it offered only the general observation that lots
were available without offering any direction. In fact, as the trial judge
found, land was available in P-3. But this is not the issue. The issue
is whether, in these circumstances, the Municipality’s curt dismissal of the
Congregation with the advice that land was available in P-3 constitutes a
sufficient justification of its refusal to grant the second rezoning
application to comply with the duty of fairness it owes the Congregation — a
duty heightened by the Congregation’s legitimate expectations. I conclude that
it does not.
25
Had this second application been a mere request for reconsideration, one
might have understood the absence of evaluation and reasons. But this was not
so. The Congregation’s second request concerned a different parcel of land,
located in a commercial zone rather than a residential zone, and situated near
another place of worship. The findings of the Bélanger study on tax impact of
granting a zoning variance and the accompanying analyses of the first
application were inapplicable to these new and different circumstances. A new
evaluation was required, together with an explanation. Neither was offered.
26
Having been told land was available in P-3 but not informed as to where,
the Congregation yet again renewed its search for land in P-3. It canvassed
landowners in this zone, but again concluded that no suitable properties were
for sale. Armed with written confirmation from P-3 property owners attesting to
the unavailability of land in Zone P-3, the Congregation presented its third
request to the Municipality for a zoning variance on May 31, 1993. The request
related to the same property that had been the subject of the second request.
In a series of letters to the Municipality, the Congregation presented evidence
of its fruitless search to identify any available land in Zone P-3.
27
The Municipality responded by letter, dated August 24, 1993. Again, it
refused the application for rezoning. Again, it offered no reasons. This time
it did not even tell the Congregation that land was available in Zone P-3. The
Municipality contented itself with asserting — erroneously — that since the
Legislature had conferred discretion upon it, the Municipality was not required
to offer any justification for refusing the Congregation’s rezoning
application:
[translation]
You have made a number of applications to amend the zoning by-law. The
Legislature has given the municipal council the responsibility for exercising
this power, which is discretionary. Upon careful consideration, the
municipality of Lafontaine has decided not to take action in respect of your
applications. The municipal council of Lafontaine is not required to
provide you with a justification and we therefore have no intention of giving
reasons for the council’s decision. [Emphasis added.]
28
Where, one asks, is the recognition that the Municipality must exercise
its legislatively conferred discretion in the public interest? Where is the
recognition that the Municipality owed a duty of fairness to the Congregation?
The Congregation in making its second and third applications was acting in good
faith on the advice it had received from the municipal inspector following the
rejection of its first application. The Congregation offered evidence of good
faith searches for land in P-3 to no avail — evidence the Municipality did not
bother to comment on, much less rebut.
29
The Municipality’s attitude was clear. The Congregation was welcome to
find land in P-3 on its own. If it was unable to do so, the Municipality was
prepared to neither accept an application for rezoning nor justify its
refusal. The letter effectively foreclosed any possibility that the
Municipality would assist the Congregation in its quest for land upon which to
build its place of worship. Not surprisingly, the Congregation concluded
further applications would be fruitless and commenced this litigation.
30
In refusing to justify its decision to deny the second and third
applications for zoning variances, the Municipality breached the duty of
procedural fairness it owed to the Congregation — a duty heightened by the
expectations established by the Municipality’s own conduct and the importance
of the decision to the Congregation, impacting as it did on the right of the
Congregation to practise the religion of its choice. The Municipality acted in
a manner that was arbitrary and straddled the boundary separating good from bad
faith. It follows that the second and third refusals do not comply with the
law and must be set aside.
IV. Remedy
31
I would allow the appeal, set aside the second and third rezoning
refusals, and remit the matter to the Municipality for reconsideration of the
Congregation’s rezoning application.
32
The Congregation argues that this remedy is inadequate because it fears
that the Municipality will once again refuse its application, this time with
proper reasons. Accordingly, it asks this Court to order the Municipality to
grant its rezoning application. But such an order presupposes that the
Congregation is entitled to a favourable decision by the Municipality in the
proper exercise of its discretion. Having already discussed the broad scope of
the municipal power to pursue its urban planning program with fairness, in good
faith and with a view to the public interest, I take no position on this
matter.
33
It may be that in appropriate cases, high-handed or outrageous conduct
as that of the Municipality in this appeal might support an order for
solicitor-and-client costs or punitive damages: Whiten v. Pilot Insurance
Co., [2002] 1 S.C.R. 595, 2002 SCC 18; Young v. Young, [1993] 4
S.C.R. 3. Although the Congregation has made no such request to this
Court, we nevertheless retain the right to issue an order for
solicitor-and-client costs where circumstances so warrant: Supreme Court Act,
R.S.C. 1985, c. S-26, s. 47 . However, in light of our inability to conclude on
the facts whether the Municipality acted in bad faith in denying the
Congregation’s second and third rezoning applications, I would decline to award
solicitor-and-client costs in this appeal.
34
It is also unnecessary to consider the constitutionality of the impugned
provisions of the Act respecting land use planning and development and
to answer the constitutional questions.
V. Conclusion
35
I would allow the appeal with costs to the Congregation and remit the
Congregation’s rezoning application for the property located at 2373 Labelle
Boulevard to the Municipality, to be considered in accordance with these
reasons and in observance of the lawful exercise of discretionary authority.
The following are the reasons delivered by
36
Major J. (dissenting) — I
agree with the result in the judgment of LeBel J. but restrict my reasons to
his conclusions on the findings of fact of the trial judge and the absence of
any infringement to freedom of religion.
English version of the reasons of Bastarache, LeBel and Deschamps JJ.
delivered by
LeBel J. (dissenting) —
I. Introduction
37
This appeal concerns a municipal zoning problem relating to the
construction of a place of worship for a religious group. The dispute
arose out of the refusal of the municipality of the village of Lafontaine (the
“municipality”) to amend its zoning by‑law to allow the appellants to
build a place of worship, a Kingdom Hall, on land they bought in a zone where
the construction of such facilities is not permitted. More specifically, it is
necessary to determine whether the municipality’s refusal to amend its zoning
by‑law infringes the freedom of religion guaranteed by s. 2 (a)
of the Canadian Charter of Rights and Freedoms (the “Charter ”).
If so, it will be necessary to find an appropriate remedy, which will entail a
review of the constitutionality of provisions of the Act respecting land use
planning and development, R.S.Q., c. A‑19.1 (“ALUPD”), relating
to the referendum process for approving amendments to zoning by‑laws.
The case also raises a preliminary issue, that is, whether the Court of Appeal
was correct in varying the trial judge’s finding of fact that lots were
available in the zone where the establishment of places of worship is permitted
by the municipal by‑law. Finally, there remains a question of
administrative law relating to the provision of reasons for the municipality’s
decision not to amend its zoning by‑law that should be addressed.
38
The courts below dismissed the appellants’ case. I conclude, for
reasons that are different from those of the Quebec Court of Appeal and that I
will now set out, that an infringement of freedom of religion has not been
established and that the appeal should be dismissed.
II. Origins of the
Case
39
The respondent municipality, the village of Lafontaine, is located near
St‑Jérôme, Quebec. In 2002, the municipality was amalgamated with the
city of St‑Jérôme. The appellants have been looking for a suitable
parcel of land in this municipality on which to establish a place of worship, a
“Kingdom Hall”, since 1989 and have been seeking permission from the
municipality to build such a facility since 1992.
40
The municipality’s zoning by‑law No. 362, as it read in 1992,
allowed places of worship to be built in a regional community use zone
designated as Zone P‑3 (ss. 2.2.1 and 2.2.5.3). As they felt
that no land was available in this zone for the construction of
their Kingdom
Hall, the appellants made an initial offer, conditional on the amendment of the
municipality’s zoning by‑law, to purchase a lot located in a residential
zone. On receiving the appellants’ application, the municipality refused to
amend its zoning by‑law on the ground that this would have resulted in an
increase in the tax burden for ratepayers, since places of worship are exempt
from paying tax. Following this refusal, the appellants made a second
conditional offer on November 22, 1992, this time to purchase a lot
in Zone C‑3, a commercial use zone. They then applied to the
municipality a number of times for a zoning change that would permit them to
build their place of worship on this lot. The municipality categorically
refused to grant their application. There were then some heated exchanges with
the municipality’s lawyers, who justified the refusal to amend the zoning by‑law
on the basis that lots were available in Zone P‑3. On
August 5, 1993, after the municipality refused to amend its zoning by‑law,
the appellants bought the lot in Zone C‑3.
41
To obtain the necessary permits to build their place of worship on this
lot, the appellants instituted a proceeding for mandamus. They based
their proceeding on grounds based primarily on constitutional law, alleging
that the municipality’s refusal to amend its zoning by‑law violated their
freedom of religion under s. 2 (a) of the Charter and under
the Charter of human rights and freedoms, R.S.Q., c. C‑12
(the “Quebec Charter”). They also asked that the provisions of
the ALUPD relating to the process for approving amendments to zoning by‑laws
by way of referendum be declared unconstitutional, because such a public
consultation, in their view, would violate their freedom of religion. This
proceeding gave rise to the case now before our Court.
III. Judicial History
A. Quebec Superior
Court (J.E. 99-333)
42
Dubois J. of the Quebec Superior Court began by finding that,
pursuant to the municipality’s zoning by‑law, places of worship could be
built only in Zone P‑3. To build such a facility in another zone,
in this case Zone C‑3, the by‑law would have to be amended.
43
After conducting a detailed analysis of the evidence before him, the
trial judge held that lots on which the appellants could build their place of
worship were still available in Zone P‑3 and that some of them were
still up for sale. According to Dubois J., 709,873 square feet of
land in Zone P‑3 had yet to be developed. At least two lots were
still on the market in that zone. In his view, one lot, which he called the [translation] “island lot”, was
available and would be a suitable site for the appellants’ place of worship,
since it was even larger than the lot they had purchased. According to
Dubois J., another lot, one belonging to Francine Jolicoeur that was
located behind the Pavillon Ste‑Marie (P‑3‑418), was also
available. He found Ms. Jolicoeur’s testimony to the effect that she was
prepared to sell this lot to be credible. In his opinion, the appellants
should have made Ms. Jolicoeur a formal offer to purchase to determine
whether the lot was indeed available.
44
Dubois J. also refused to characterize the zoning by‑law as
prohibitive, since it allowed the construction of places of worship in
Zone P‑3. He concluded by stating that, since the purpose of the by‑law
was to organize the municipality’s territory while ensuring that citizens’
interests were taken into account and that order was maintained in the
municipality, the by-law did not infringe freedom of religion. The Superior
Court accordingly dismissed the appellants’ application for mandamus.
B. Court of Appeal,
[2002] R.J.Q. 3015
45
The Quebec Court of Appeal was divided as to how to dispose of the
appeal. Gendreau and Pelletier JJ.A., who formed the majority of the
Court, dismissed the appeal, while Robert C.J.Q., who dissented, would have
allowed it.
46
The majority agreed with the conclusion of Robert C.J.Q. that the trial
judge had made an unreasonable error in finding that lots on which the
appellants could build their place of worship were still available in
Zone P‑3. Thus, all the judges of the Court of Appeal agreed
that no land was available in that zone on which to build a Kingdom Hall.
47
However, in the opinion of the majority, the municipality was not
responsible for this unavailability. Since the zoning by‑law was not
prohibitive, as it did not make it impossible to locate places of worship
within the boundaries of the municipality, it could not be regarded as the
reason why no land was available in Zone P‑3. Rather, the source of
the problem was the refusal of landowners in that area to sell lots to the
appellants. The majority added that the municipality was under no
positive obligation to preserve freedom of religion under s. 2 (a)
of the Charter . This led them to conclude that the municipality was not
under an obligation to ensure that every religious community could have a place
of worship located within its boundaries. The majority therefore
dismissed the appeal.
48
Robert C.J.Q., dissenting, would have allowed the appeal. In his
view, the trial judge had correctly concluded that, pursuant to the zoning by‑law,
places of worship could be built only in Zone P‑3 and that the by‑law
would have to be amended to allow the construction of such facilities in other
zones, such as Zone C‑3.
49
However, the Chief Justice felt that the trial judge had made a palpable
and overriding error in assessing the facts with respect to the availability of
lots in Zone P‑3. In his view, the Superior Court made an initial
error of this nature in assessing the evidence relating to the availability of
the “island lot”. The island was in fact too small for the appellants’
construction plans, because a strip of land varying between 10 and
15 metres in width had been set aside to protect the river banks.
Moreover, the island’s access road would be insufficient for a traffic volume
of 40 to 50 vehicles. At any rate, the appellants had been told that
the land was not for sale. Robert C.J.Q. was also of the opinion that the
burden placed on the appellants as regards their dealings with Ms. Jolicoeur
to purchase her land was excessive. In his view, the evidence did not support
a finding that she was in fact prepared to sell the portion of her land located
behind the Pavillon Ste‑Marie. He therefore was of the view that no land
was available in Zone P‑3 for the construction of the appellants’
place of worship. As I have already mentioned, the majority accepted this
finding of fact.
50
Unlike the majority, Robert C.J.Q. held that the application of the
zoning by‑law infringed the freedom of religion guaranteed by s. 2 (a)
of the Charter , as it made it impossible for the appellants to build a
place of worship. The municipality was therefore under a duty to make a
reasonable effort to accommodate the appellants. It should have amended
its zoning by‑law at that time to allow the place of worship to be built
in another zone within its boundaries.
51
In the dissenting judge’s opinion, this infringement of the appellants’
right to freedom of religion should be remedied by granting the appellants a
constitutional exemption from the zoning by‑law. This form of remedy
would make it unnecessary to amend the zoning by‑law. An amendment would
require the application of the ALUPD, which would entail the risks
inherent in its process for approval by way of referendum. Robert C.J.Q.
therefore would have ordered the municipality to issue a building permit to the
appellants for the construction of their place of worship on the lot they had
acquired in Zone C‑3.
IV. Leave to Appeal to
the Supreme Court and Constitutional Questions Stated by the Court
52
Leave to appeal to this Court was granted on April 10, 2003:
[2003] 1 S.C.R. viii. The appellants then asked the Court to state
the constitutional questions raised in this case in relation to the process for
approving amendments to by-laws by way of referendum as provided for in
ss. 123 to 130 and 132 ALUPD. On June 5, 2003, the
following questions were stated:
1. Do ss. 123 to 130 and 132 of the Act
respecting land use planning and development, R.S.Q., c. A‑19.1,
infringe the right to freedom of religion guaranteed by s. 2 (a) of the Canadian
Charter of Rights and Freedoms ?
2. If so, is the infringement a reasonable
limit prescribed by law that can be demonstrably justified in a free and
democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?
3. Do ss. 123 to 130 and 132 of the Act
respecting land use planning and development, R.S.Q., c. A‑19.1,
infringe the right to equality without discrimination guaranteed by s. 15(1) of
the Canadian Charter of Rights and Freedoms ?
4. If so, is the infringement a reasonable
limit prescribed by law that can be demonstrably justified in a free and
democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?
V. Constitutional and Legislative Framework
53
The constitutional and legislative provisions applicable to this case
can be found in the appendix to these reasons.
VI. Issues
54
The dispute now before this Court raises four main issues. First,
it must be determined whether the Court of Appeal erred in varying the trial
judge’s findings of fact regarding the availability of lots in Zone P‑3.
The next question is whether the wording of the municipality’s zoning by‑law
and the municipality’s refusal to amend it infringe the freedom of religion
guaranteed by s. 2 (a) of the Charter . It would also have
been possible to consider whether the right to freedom of religion guaranteed
by s. 3 of the Quebec Charter had been violated. Although
the appellants alleged such a violation in their legal proceedings, the debate
between the parties centred on the interpretation and application of the
Canadian Charter , so the analysis will be limited to the freedom of
religion guaranteed by s. 2 (a) of the Canadian Charter . If
it is found that this fundamental freedom has been infringed, appropriate
remedies will have to be selected. In this analysis, the constitutional
questions stated by this Court will have to be answered. Finally, although the
issue was not directly argued by the appellants, I believe it is important to
comment, in an administrative law context, on whether the municipality is under
an obligation to provide the appellants with reasons for its decisions not to
amend its zoning by‑law and, if so, to what extent.
VII. Analysis
A. Interpretation of the Zoning By‑law
55
Before I begin my analysis of the four issues, I should mention that I
cannot accept the appellants’ submission that a liberal construction of the
zoning by‑law would lead to the conclusion that it authorizes the
establishment of places of worship in Zone C‑3. This submission is
based on the wording of s. 2.2.3.3 of the zoning by‑law, which sets
out the uses authorized for Zone C‑3, namely [translation] “uses in the nature of
sales and service”, including, “but . . . not limited to, the
establishments listed below and establishments of a similar nature”; included
in the list are “Commercial 2 (local)” uses, which, according to
s. 2.2.3.2, include “social clubs”. The appellants argue that, since the
list of authorized uses is not exhaustive, and since places of worship are
similar in nature to social clubs, it follows that the establishment of places
of worship is permitted in Zone C‑3.
56
Under s. 113(3) ALUPD, municipalities have the authority to
prohibit particular uses in specific zones within their boundaries. In
principle, a municipality may implicitly prohibit certain uses by listing the
authorized uses for a zone (Saint-Michel-Archange (Municipalité de) v. 2419‑6388
Québec Inc., [1992] R.J.Q. 875 (C.A.), at p. 883). Thus, a
municipality that lists the permitted uses for a zone automatically excludes
any use not on the list (Orford (Canton) v. Fonds de placement Hamel inc.,
[1995] Q.J. No. 2260 (QL) (Sup. Ct.)). The appellants contend that this
principle does not apply to s. 2.2.3.3 of the zoning by‑law, because
the municipality has clearly stated that the list of authorized uses is not exhaustive.
As pointed out by the dissenting member of the Court of Appeal, this contention
cannot be accepted in relation to this by-law because of the ejusdem generis
rule of interpretation, according to which a generic term that completes an
enumeration must be interpreted in light of the genus of the other terms.
In the case at bar, the provisions relating to Zone C‑3 concern
commercial uses. In this context, a “social club” cannot therefore be
interpreted as being similar in nature to a place of worship.
57
In my opinion, therefore, the municipal by‑law permits the
establishment of places of worship only in Zone P‑3. Having said
this, I will now turn to the analysis of the issues.
B. Did the Court of Appeal Err in Varying
the Trial Judge’s Findings of Fact?
58
The Court of Appeal unanimously concluded that the trial judge had made
an overriding error in assessing the evidence relating to the availability of
certain lots in Zone P‑3. Contrary to the trial judge’s finding,
the Court of Appeal acknowledged that no lots were available in this zone for
the appellants to build their place of worship. Although I agree with the
Court of Appeal that the “island lot” was not available for the construction of
the appellants’ place of worship, I respectfully consider its conclusion
regarding Ms. Jolicoeur’s lot to be wrong. It reached that conclusion by
means of an impermissible interference with the trial judge’s assessment of the
facts and even with his assessment of certain witnesses’ credibility.
Consequently, the trial judge’s findings of fact with respect to the
availability of this lot should be restored.
59
According to the principles restated by this Court in Housen v.
Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, an
appellate court may not review the findings of fact of a trial court unless the
trial court has made a palpable, serious and overriding error. This duty of
deference is particularly strong in respect of the assessment of witnesses’
credibility. In the case at bar, as Robert C.J.Q. concluded, the trial judge
made a reviewable error with respect to the availability of the “island lot”.
The trial judge clearly failed to take into account the consequences of the
strip along the river bank and of the narrowness of the bridge providing access
to the island.
60
Robert C.J.Q. also faulted the trial judge for making a palpable and
overriding error regarding the availability of the lot belonging to
Ms. Jolicoeur. His opinion on this point can be found in particular in
the following comments from his reasons, at paras. 76‑77:
[translation]
In my view, there was no need for the appellants to make a formal offer to
purchase. Ms. Jolicoeur’s disinterest, coupled with the uncontradicted
statement that the Secretary-Treasurer had asked her not to sell to the
Jehovah’s Witnesses, led the appellants to believe in good faith that the lot
was not available.
Furthermore, Ms. Jolicoeur’s testimony five
years after the fact to the effect that the lot was available in 1992 and 1993
and was still available in 1998 is surprising, to say the least. Her version of
the facts is contradicted by her conduct throughout the years in question. The
judge, in preferring her version, made a palpable and overriding error,
particularly in attributing a hidden motive to the appellants, one not
supported by the evidence, namely that they wanted a lot that was located near
a major thoroughfare.
61
With respect, I do not believe that, on this point, the trial judge made
a palpable and overriding error within the meaning of the case law of this
Court. Dubois J. stated in his reasons for judgment that one of the
appellants’ representatives, Mr. Biagioni, testified that
Ms. Jolicoeur had shown a marked disinterest in selling her property, that
the Secretary-Treasurer of the municipality, a certain Mr. Campbell, had
told her not to sell the lot to the Jehovah’s Witnesses, and that she had not
replied to the appellants’ letters. The trial judge acknowledged that
Ms. Jolicoeur’s testimony was consistent with that of Mr. Biagioni in
that she admitted that she had neither returned the appellants’ calls nor
responded to their letters. However, Dubois J. noted that the two
witnesses contradicted each other on one specific and important point.
Contrary to what Mr. Biagioni had said, Ms. Jolicoeur stated that
Mr. Campbell had not called her to recommend that she not sell to the
Jehovah’s Witnesses, but to ask her why she had refused to sell them her land.
She added that the appellants wanted to buy a portion of her land that was not
for sale, that is, the one on the main road where the Pavillon Ste‑Marie
is located. She testified that she had offered to sell the back portion of her
land to the appellants, but that they were not interested. Faced with this
contradiction between the two witnesses, the trial judge found
Ms. Jolicoeur to be more credible and preferred her version of the facts
to Mr. Biagioni’s version. Dubois J. therefore held that [translation] “Ms. Jolicoeur’s
testimony cannot be discounted, and her land in Zone P‑3 was available in
1992 and 1993 and remains so to this day in 1998” (p. 29 of the full
text). Thus, the trial judge addressed the issue of the witnesses’
credibility. There was no need for the Court of Appeal to reassess the
evidence heard by the trial judge to determine if this conclusion was
reasonable. Absent a palpable error, the Court of Appeal should have deferred
to the trial judge’s finding of fact. Since this finding was valid, it should
not have been varied by the Court of Appeal.
62
In these circumstances, since there was no valid reason for reviewing
the trial judge’s findings of fact, it is necessary to analyse the parties’
submissions starting from the premise that at least one parcel of land in
Zone P‑3, the one that Ms. Jolicoeur owned behind the Pavillon
Ste‑Marie, remained available as a site for the appellants’ place of
worship. In my view, this finding of fact would justify dismissing the
appellants’ application from the outset, since it precludes a conclusion that
the respondent infringed the appellants’ constitutional guarantee of freedom of
religion under s. 2 (a) of the Charter , as we will now see.
C. Was There an Infringement of the Freedom
of Religion Guaranteed by Section 2 (a) of the Charter ?
63
Before I address the question of freedom of religion, it should be noted
that the municipality’s zoning by‑law did not prohibit the “place of
worship” use everywhere within its boundaries; rather, it permitted this use in
a specified zone. Therefore, the by‑law cannot be considered prohibitive
as defined by the courts (Saint‑Michel-Archange, supra, at
p. 882; J. L’Heureux, Droit municipal québécois (1984),
t. II, pp. 316-17, at para. 606). The wording of the by‑law
leaves room for the exercise of freedom of worship. We must now determine
whether the room it leaves is consistent with the constitutional requirements
of the Charter .
64
Freedom of religion is a fundamental right and represents a major
triumph of our democratic society. The philosophical and political values
underpinning Canadian democracy recognize the need to respect the diverse
opinions and beliefs that guide the consciences and give direction to the lives
of all members of our society. It is because of the crucial importance of this
fundamental right that this Court decided it was essential to give it a liberal
interpretation in R. v. Big M Drug Mart Ltd., [1985]
1 S.C.R. 295, at p. 336:
The essence of the concept of freedom of religion is the right to
entertain such religious beliefs as a person chooses, the right to declare
religious beliefs openly and without fear of hindrance or reprisal, and the
right to manifest religious belief by worship and practice or by teaching and
dissemination.
65
The concept of freedom of religion, which is not strictly limited to the
above definition, includes a positive aspect, that is, the right to believe or
not believe what one chooses, to declare one’s beliefs openly, and to practice
one’s religion in accordance with its tenets. This positive aspect also
includes the right to proselytize, that is, to teach and
disseminate
one’s beliefs. Freedom of religion also has a negative aspect, that is,
the right not to be compelled to belong to a particular religion or to act in a
manner contrary to one’s religious beliefs (J. Woehrling, “L’obligation
d’accommodement raisonnable et l’adaptation de la société à la diversité
religieuse” (1998), 43 McGill L.J. 325, at p. 371). This
fundamental freedom imposes on the state and public authorities, in relation to
all religions and citizens, a duty of religious neutrality that assures
individual or collective tolerance, thereby safeguarding the dignity of every
individual and ensuring equality for all.
66
The duty of neutrality appeared at the end of a long evolutionary
process that is part of the history of many countries that now share Western
democratic traditions. Canada’s history provides one example of this
experience, which made it possible for the ties between church and state to be
loosened, if not dissolved. There were, of course, periods when there was a
close union of ecclesiastical and secular authorities in Canada. European
settlers introduced to Canada a political theory according to which the social
order was based on an intimate alliance of the state and a single church, which
the state was expected to promote within its borders. Throughout the history
of New France, the Catholic church enjoyed the status of sole state religion.
After the Conquest and the Treaty of Paris, the Anglican church became the
official state religion, although social realities prompted governments to give
official recognition to the status and role of the Catholic church and various
Protestant denominations. This sometimes official, sometimes tacit
recognition, which reflected the make‑up of and trends in the society of
the period, often inspired legislative solutions and certain policy
choices. Thus, at the time of Confederation in 1867, the concept of
religious neutrality implied primarily respect for Christian denominations.
One illustration of this can be seen in the constitutional rules relating to
educational rights originally found, inter alia, in s. 93 of the Constitution
Act, 1867 .
67
Since then, the appearance and growing influence of new philosophical,
political and legal theories on the organization and bases of civil society
have gradually led to a dissociation of the functions of church and state;
Canada’s demographic evolution has also had an impact on this process, as have
the urbanization and industrialization of the country. Although it has not
excluded religions and churches from the realm of public debate, this evolution
has led us to consider the practice of religion and the choices it implies to
relate more to individuals’ private lives or to voluntary associations (M.
H. Ogilvie, Religious Institutions and the Law in Canada (2nd ed.
2003), at pp. 27 and 56). These societal changes have tended to create a
clear distinction between churches and public authorities, placing the state
under a duty of neutrality. Our Court has recognized this aspect of
freedom of religion in its decisions, although it has in so doing not
disregarded the various sources of our country’s historical heritage. The
concept of neutrality allows churches and their members to play an important
role in the public space where societal debates take place, while the state
acts as an essentially neutral intermediary in relations between the various
denominations and between those denominations and civil society.
68
In this context, it is no longer the state’s place to give active
support to any one particular religion, if only to avoid interfering in the
religious practices of the religion’s members. The state must respect a
variety of faiths whose values are not always easily reconciled. As this Court
observed in Big M, supra, “[w]hat may appear good and true to a
majoritarian religious group, or to the state acting at their behest, may not,
for religious reasons, be imposed upon citizens who take a contrary view”
(p. 337; see also pp. 347 and 350-51). In R. v. Edwards
Books and Art Ltd., [1986] 2 S.C.R. 713, this Court had occasion
to restate this concern with preventing public authorities from intruding on
private beliefs (at p. 759):
The purpose of s. 2 (a) is to ensure that society does not
interfere with profoundly personal beliefs that govern one’s perception of
oneself, humankind, nature, and, in some cases, a higher or different order of
being.
The guarantee
of freedom of religion set out in s. 2 (a) of the Charter prohibits
the state from compelling an individual to adopt or renounce a particular
belief or to practice a particular religion. This obligation remains
essentially a negative one. As a general rule, the state refrains from acting
in matters relating to religion. It is limited to setting up a social and
legal framework in which beliefs are respected and members of the various
denominations are able to associate freely in order to exercise their freedom
of worship, which is a fundamental, collective aspect of freedom of religion,
and to organize their churches or communities. In this context, the principle
of neutrality must be taken into account in assessing the duty of public
entities, such as municipalities, to actively help religious groups.
69
A review of the various components of the concept of freedom of religion
might suggest that the rights protected by s. 2 (a) of the Charter
are absolute, but such is not the case. This freedom is limited by the
rights and freedoms of others. The diversity of opinions and convictions
requires mutual tolerance and respect for others. Freedom of religion is
also subject to limits necessary “to protect public safety, order, health, or
morals . . . .” (Big M, supra, at p. 337; Ross v.
New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at
para. 72; Trinity Western University v. British Columbia College
of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at
para. 29). This Court has stressed that, in order to prove a violation of
freedom of religion, it must be shown that the interference with the religious
belief or practice in question is not trivial or insubstantial. Thus,
churches and their members are not exempted from making any effort, or even
sacrifice, inter alia in the exercise of their freedom of worship:
The Constitution shelters individuals and groups only to the extent
that religious beliefs or conduct might reasonably or actually be threatened.
For a state‑imposed cost or burden to be proscribed by s. 2 (a)
it must be capable of interfering with religious belief or practice. In short,
legislative or administrative action which increases the cost of practising or
otherwise manifesting religious beliefs is not prohibited if the burden is
trivial or insubstantial: see, on this point, R. v. Jones, [1986]
2 S.C.R. 284, per Wilson J. at p. 314.
(Edwards Books, supra, at p. 759)
70
I concluded above that the trial judge’s findings of fact regarding the
availability of certain lots in Zone P‑3 and, more specifically, of
the one belonging to Ms. Jolicoeur, should be restored in this case. As
this lot should have been considered available, the appellants cannot complain
that the zoning by‑law, by making it impossible for them to establish a
place of worship in the municipality, violates their freedom of religion. The
appellants could in fact have built a Kingdom Hall, on Ms. Jolicoeur’s lot
at least, had they come to an agreement with her.
71
As the municipality is required to be neutral in matters of religion,
its by-laws must be structured in such a way as to avoid placing unnecessary
obstacles in the way of the exercise of religious freedoms. However, it
does not have to provide assistance of any kind to religious groups or actively
help them resolve any difficulties they might encounter in their negotiations
with third parties in relation to plans to establish a place of worship.
In the case at bar, the municipality did not have to provide the
appellants with access to a lot that corresponded better to their selection
criteria. Such assistance would be incompatible with the municipality’s duty
of neutrality in that the municipality would be manipulating its regulatory
standards in favour of a particular religion. Such support for a religious
group could jeopardize the neutrality the municipality must adopt toward all
such groups. Moreover, as this Court stated in Edwards Books,
“[s]ection 2(a) does not require the legislatures to eliminate every
minuscule state‑imposed cost associated with the practice of religion”
(p. 759). Although the very nature of the zoning by‑law means that
the appellants do not have absolute freedom to choose the location of their
place of worship, this limit is necessary to protect safety and order, and
ensure proper land use, in the municipality and does not constitute a violation
of freedom of religion. Neither the purpose nor the effect of this by‑law
has been to infringe the appellants’ freedom of religion.
72
Since at least one lot remains available in Zone P‑3 for the
construction of their place of worship, the appellants must comply with the
municipality’s zoning by‑law and build their place of worship in that
zone, where such a use is authorized. Their religious beliefs and practices do
not exempt them from complying with municipal by‑laws. For this
reason, I would dismiss the appeal. Having reached this conclusion, I
could end my analysis here. However, for the sake of discussion only, and
because of the nature of the debate that has taken place in the Quebec courts
and in this Court and the importance of the constitutional issues raised, I
propose to go on to review the parties’ positions based on a different,
fictitious premise. I will now consider what the legal consequences would have
been had the evidence shown that no land was available in Zone P‑3
for the appellants to establish a place of worship.
D. Hypothetical Situation in Which No Land Was Available in Zone P‑3
73
The appellants submit that, because no land is available in Zone P‑3,
the zoning by‑law, as it is drafted, combined with the municipality’s
refusal to amend it, constitutes an infringement of their freedom of religion
under s. 2 (a) of the Charter . If no land were in fact
available, I would agree with them. Thus, under the zoning by‑law,
places of worship may be established only in Zone P‑3, but no land would
be available there. The appellants would therefore be unable to build their
place of worship anywhere within the boundaries of the municipality. Freedom
of religion includes the right to have a place of worship. Generally speaking,
the establishment of a place of worship is necessary to the practice of a
religion. Such facilities allow individuals to declare their religious
beliefs, to manifest them and, quite simply, to practise their religion by
worship, as well as to teach or disseminate it. In short, the construction of
a place of worship is an integral part of the freedom of religion protected by
s. 2 (a) of the Charter .
74
In the case at bar, the appellants have shown that their Kingdom Hall, a
place of prayer and contemplation that serves as a venue for weddings and
funerals, is necessary to the manifestation of their religious faith. They
should therefore be free to establish such a facility within the boundaries of
the municipality. If no land were available in Zone P‑3, they would
be prevented from doing so, in which case they would be unable to practise
their religion, and their freedom guaranteed by s. 2 (a) of the Charter
would be infringed accordingly.
75
Contrary to the conclusion of the majority of the Court of Appeal, I
believe this infringement would not be solely attributable to the property
owners who had refused to sell their land in Zone P‑3 to the
appellants. Our Court has stated that “the contribution of private actors
to a violation of fundamental freedoms does not immunize the state from Charter
review; rather, such contributions should be considered part of the factual
context in which legislation is reviewed” (Dunmore v. Ontario
(Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94,
at para. 26). Thus, the infringement of the appellants’ freedom of religion
would result not from the existence of the zoning by‑law, but from the
refusal to adapt it to evolving community needs in a situation in which no land
was available in the zone set aside for the establishment of places of worship.
76
The problem consists in identifying cases in which it will be possible
to require the municipality to amend its zoning by‑law while respecting
its duty of neutrality. As a general rule, the Charter does not
require the state to take positive steps in support of the exercise of the
fundamental freedoms provided for in s. 2 (a) of the Charter .
The principle of neutrality discussed above means that the state must even
refrain from implementing measures that could favour one religion over another
or that might simply have the effect of imposing one particular religion.
However, there may be situations in which an absolute application of this
principle unduly restricts the free exercise of religion. In some cases, an
inflexible application of the principle of neutrality that fails to take the
circumstances into account may prove to be inconsistent with the right to the
free exercise of religion. In this regard, Professor Woehrling observed that [translation] “the two constituent
principles of freedom of religion — free exercise and state neutrality — must
be regarded as mutually limiting, since giving the broadest scope to one will
inevitably negate the other” (Woehrling, supra, at p. 379).
77
Our Court has noted on numerous occasions that it is not always enough
for the state to adopt a posture of restraint. The Court has recognized that,
in certain exceptional circumstances, positive government action may be
required to make a fundamental freedom meaningful (Delisle v. Canada
(Deputy Attorney General), [1999] 2 S.C.R. 989, at paras. 7
and 33; Haig v. Canada, [1993] 2 S.C.R. 995, at
p. 1039; Dunmore, supra).
78
Dunmore is an example of a case in which exceptional
circumstances imposed a positive obligation on the state. In Dunmore,
Ontario’s Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A,
excluded agricultural workers from the labour relations scheme it established.
The appellants contended that this exclusion infringed their right to freedom
of association under s. 2 (d) of the Charter . Bastarache J.,
writing for the majority, concluded that the total exclusion of these workers
did in fact infringe their freedom of association and that a minimum level of
protection had to be provided for persons employed in agriculture in Ontario.
He noted that, in principle, the fundamental freedoms guaranteed by the Charter
place only a negative obligation on the state, which is only required to
refrain from interfering (para. 19). However, when the state creates a
situation that interferes with the exercise of a freedom, it may be required to
take positive steps to put an end to the interference. In such a case, it is
essential to prove that the limit complained of is related to the freedom at
issue and not to access to a particular statutory scheme. In other words, it
must be proven that the impugned measure makes it impossible to exercise, or at
least substantially interferes with, one’s freedom (para. 25). As
Bastarache J. mentions, it will only be in exceptional cases that
underinclusive legislation will have a substantial impact on the exercise of a
fundamental freedom (para. 22).
79
The case at bar involves one such exceptional situation in which a
posture of restraint on the municipality’s part would interfere with the
appellants’ freedom of religion. It would be utterly impossible for the
appellants to establish their place of worship within the boundaries of the
municipality if no land were available in the only zone where this type of use
is authorized. As it would then be impossible to practise their religion, this
would constitute direct interference with their freedom of religion. This is a
clear example of a case in which freedom of religion can have no real meaning
unless the public authorities take positive action. Since such positive action
would be required, it would constitute a reasonable limit on the principle of
state neutrality. Thus, for the appellants to enjoy their freedom of religion,
the municipality would have to amend the by‑law. This brings me to the
question of the remedies that could have been available had I concluded that no
land was available in Zone P‑3.
E. What Are the Appropriate Remedies?
80
Since no infringement of a Charter right has been established in
this case, there is nothing to remedy. However, had a violation been
established, the appellants asked this Court to compel the municipality to
amend its zoning by‑law to allow the construction of their place of
worship on the lot they acquired in Zone C‑3. The appellants also
asked that this amendment not be subject to the process for approving
amendments by way of referendum under ss. 123 to 130 and 132 ALUPD,
because they contend that those provisions are contrary to the freedom of
religion guaranteed by s. 2 (a) of the Charter . Such a
remedy could not have been granted in the circumstances of the case at bar.
81
This Court could in fact have ordered the municipality to amend its
zoning by‑law, but we could not have imposed on the municipality our
choice of location for the establishment of the appellants’ place of
worship. The purpose of zoning by‑laws is to organize a
municipality’s territory so as to protect citizens’ interests and maintain
order. They must be drafted in light of a large number of factors, and it is
ordinarily only those with political power who are in a position to measure the
impact of those factors. It would therefore have been up to the municipality
to determine the zone where the appellants could establish their place of
worship. In so doing, the respondent municipality would have had to take
into account the restrictions resulting from the regional development plans
established by the regional county municipality pursuant to the ALUPD.
Thus, the only possible remedy that would have been appropriate was an order to
the municipality to review its zoning by‑law so as to make land available
to the appellants on which they could build their place of worship.
82
It would not have been appropriate to suspend the operation of the ALUPD
and its process for approval by way of referendum. It cannot be assumed that
this democratic process, which is consistent with the nature of municipal
government in Canada, in any way infringes the freedom of religion guaranteed
by s. 2 (a) of the Charter or that it is considered suspect
in relation to the values enshrined in the Charter . In the case at
bar, the municipality did not draft a by-law to amend its zoning by‑law,
and a public meeting was not held to study such a draft by-law (ss. 125 to
127 ALUPD). The by-law was not submitted for the approval of the
qualified voters to determine whether it would be submitted for approval by way
of referendum (ss. 130 to 133 ALUPD), nor was a referendum held to
approve the by‑law to amend the zoning by‑law. It cannot be
assumed that residents of the municipality would look unfavourably on the
Jehovah’s Witnesses and that the outcome of a referendum would be negative.
Thus, it would be inappropriate to declare ss. 123 to 130 and 132 et
seq. ALUPD unconstitutional or to suspend, a priori, the
operation of those provisions.
83
In short, if no land had been available in Zone P‑3, this
Court would have found an infringement of the freedom of religion protected by
s. 2 (a) of the Charter and would have ordered the
municipality to review the zoning by‑law, taking into account all the
interests, both public and private, at issue, in order to amend it, if
necessary, to permit the appellants, as far as possible, to build their place
of worship within the municipality’s boundaries. However, this Court
would have had no valid reason to override the democratic control mechanisms
provided for in Quebec’s municipal legislation with respect to zoning.
84
I would also note in closing that the amalgamation of municipalities has
probably resulted in changes relating to zoning in the municipality, which is
now part of the city of St‑Jérôme. As the parties did not discuss this
consequence of the passage of time in a case that has been going on for too
long, it would have been difficult for the Court to devise an effective remedy.
F. The Impact of Administrative Law
85
In addition to the constitutional questions discussed so far, this
appeal has administrative law implications. However, the appellants declined
to base their case on the principles of administrative law, preferring to focus
on their arguments based on freedom of religion. As a result, the questions of
administrative law cannot form the basis of this Court’s decision, although
some comments are in order due to the importance of these questions.
86
In their pleadings, the appellants limited themselves to maintaining
that the municipality, in refusing to amend its zoning by‑law, had
exercised its discretion in an unreasonable and arbitrary manner and had acted
in bad faith. Although these contentions are not supported by the evidence,
they do show that an argument relating to procedural fairness, based on the
reasons given for the municipality’s negative decisions, could have been raised
by the appellants, but they declined to do so at the hearing before this Court.
87
The municipality’s decision to refuse to amend its zoning by‑law
is within the scope of its discretionary power, as it had to decide whether it
would be appropriate to amend the by‑law. The municipality had a range
of options at its disposal, and its constituting act did not dictate which one
it should select (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at para. 52). This type
of decision made by an administrative authority can at times be subject to a
duty of procedural fairness. For example, the Act respecting
administrative justice, R.S.Q., c. J‑3 (“AAJ”), which was
enacted by the Quebec legislature on December 16, 1996, and came into
force on April 1, 1998, after the facts giving rise to this case took
place, requires government departments and bodies to comply with procedural
fairness in their discretionary decision‑making processes. Thus,
the organizations to which this act applies have a duty to act fairly
(s. 2 AAJ), including a requirement to give reasons for any
unfavourable decisions they make (ss. 5 and 8 AAJ). As
municipalities are not subject to this act (s. 3 AAJ), it must
be determined whether they are subject to the same duty by virtue of the legal
rules gradually developed by the common law to define the obligations of
procedural fairness applicable to government organizations.
88
In Baker, supra, this Court stated that “[t]he fact that a
decision is administrative and affects ‘the rights, privileges or interests of
an individual’ is sufficient to trigger the application of the duty of
fairness: Cardinal v. Director of Kent Institution, [1985]
2 S.C.R. 643, at p. 653” (para. 20). To define the
variable content of this duty, it is necessary to consider five open-ended
factors that serve to ensure that individuals affected by a decision have the
opportunity to present their case fully and fairly and that decisions are made
using a fair, impartial and open process appropriate to their statutory,
institutional and social context (Baker, at paras. 22 and 28).
Thus, the scope of this duty will depend on the nature of the decision, on the
decision-making process, on the nature of the statutory scheme, for example
whether it includes a right of appeal, on the importance of the decision to the
person affected, on the legitimate expectations of that person and on the
choices of procedure made by the decision‑making body (Baker, at
paras. 23-28).
89
When applied to the case at bar, these factors would, at the least,
place the municipality under an obligation to give reasons for its repeated
refusals to amend its zoning by‑law. The municipality’s decision
regarding the application to amend the zoning by‑law, which was not
subject to a specific decision‑making process, could not be appealed by
the appellants even though it had a direct effect on their right to freedom of
religion guaranteed by s. 2 (a) of the Charter . Normally,
the appellants could expect to receive reasons from the municipality for its
decision. The importance of a negative decision to the appellants, who as a
result found it impossible to build the place of worship they needed to
practice their religion, in itself placed the municipality under an obligation
to give reasons for its decision.
90
The municipality did not give sufficient reasons for its decisions.
After receiving the appellants’ application to amend the zoning by-law in
relation to their first offer to purchase the lot located in a residential
zone, the municipality’s explanation for its refusal was that such an amendment
would result in an increase in the taxation rate and that the owners of
adjacent lots who would be affected by this increase would not take part in the
process of approval by way of referendum provided for in the ALUPD.
Then, when the municipality refused to amend its zoning by-law in relation to
the second lot the appellants wished to purchase, the one located in
Zone C‑3, it justified its decision on the basis that lots were
available in Zone P‑3 but did not identify the lots in
question. The appellants, convinced that no lots were available in that
zone, then applied to the municipality on four other occasions to amend the
zoning by‑law. The municipality simply repeated that lots were available
in Zone P‑3 and that it was therefore under no obligation to amend
its zoning by‑law.
91
In its replies, the municipality never did specify which lots were
available or give any other reasons for its decision. This refusal to provide
the appellants with valid reasons is obvious from a letter the municipality’s
attorney sent to the appellants on August 24, 1993, in which he wrote: [translation] “Upon careful
consideration, the municipality of Lafontaine has decided not to take action in
respect of your applications. The municipal council of Lafontaine is not
required to provide you with a justification and we therefore have no intention
of giving reasons for the council’s decision.” The respondent should have
given more detailed reasons for its decisions.
92
More detailed reasons would have given the appellants a better
understanding of the municipality’s decision and, above all, demonstrated to
them that there were in fact lots available in Zone P‑3. As a
result, they would not have been left with the impression that the
municipality’s decision was arbitrary or that the municipality had acted in bad
faith. A more precise and rigorous justification would therefore have given
the municipality’s decision‑making process the required transparency and
the appearance of procedural fairness.
VIII. Conclusion
93
For the reasons set out here, I would answer the constitutional
questions in the negative and dismiss the appeal with costs.
APPENDIX
Constitutional
and Legislative Provisions
(1) Canadian
Charter of Rights and Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(2) Cities
and Towns Act, R.S.Q., c. C-19
410. The council may make by-laws:
(1) To secure peace, order, good government,
health and general welfare in the territory of the municipality, provided such
by-laws are not contrary to the laws of Canada, or of Québec, nor inconsistent
with any special provision of this Act or of the charter;
(3) Village
of Lafontaine, By‑law No. 362, Zoning By‑law
(April 2, 1991)
[translation]
2.2.1 CLASSES
For the purposes of this by-law, certain uses are grouped based on
compatibility. These uses are:
. . .
C use Commercial 1 (C-1)
use Commercial 2 (C-2)
use Commercial 3 (C-3)
. . .
P use Community 1 (P-1)
use Community 2 (P-2)
use Community 3 (P-3)
use Community 4 (P-4)
2.2.3.2 Commercial 2 (Local)
This zone is reserved for uses in the nature of sales and service
. . . .
This classification includes, but is not limited to, the establishments
listed below and establishments of a similar nature . . . :
. . .
‑ hotels, motels, night clubs, social clubs, exhibition halls;
. . .
2.2.3.3 Commercial 3 (Regional)
This zone is reserved for uses in the nature of sales and service and
for small‑scale industries/businesses . . . .
This classification includes, but is not limited to, the establishments
listed below and establishments of a similar nature:
‑ Commercial 1 (neighbourhood) and Commercial 2 (local) uses;
. . .
2.2.5.3 Community 3 (Regional)
This zone is reserved for the following activities relating to public
administration, education, recreation, health care and community‑oriented
cultural activities:
. . .
‑ places of worship;
(4) Act
respecting land use planning and development, R.S.Q., c. A‑19.1
113. The council of a municipality may adopt a zoning by‑law
for its whole territory or any part thereof.
A zoning by‑law may include provisions
regarding one or more of the following objects:
. . .
(3) to specify, for each zone, the structures
and uses that are authorized and those that are prohibited, including public
uses and buildings, and the land occupation densities;
. . .
123. Sections 124 to 127 apply with respect to
(1) zoning, subdivision and building by‑laws;
. . .
(4) by‑laws to amend or replace a by‑law
mentioned in subparagraphs 1 to 3.
. . .
For the purposes of this division, a by‑law
that is subject to approval by way of referendum is a by‑law that
(1) is designed to amend a zoning or subdivision
by‑law by adding, amending, replacing or striking out a provision bearing
on a matter mentioned in any of subparagraphs 1 to 5, 6, 10, 11 and 16.1
to 22 of the second paragraph of section 113 or in the third paragraph of the
said section, or a matter mentioned in any of subparagraphs 1, 3 and 4.1 of the
second paragraph of section 115; and
(2) is not a concordance by‑law enacting,
pursuant to section 58, 59, 102 or 110.4, an amendment referred to in
subparagraph 1 for the sole purpose of taking into account an amendment to
or revision of the land use planning and development plan or the coming into
force of the original planning program or of the amendment to or revision of
the planning program.
. . .
124. Every by‑law to which this section applies shall be
adopted in draft form by the council of the municipality.
. . .
125. The municipality shall hold a public meeting in connection
with the draft by‑law, presided by the mayor or by a member of the
council designated by the mayor.
The date, time and place of the meeting shall be
fixed by the council, which may delegate all or part of this power to the clerk
or secretary‑treasurer of the municipality.
126. At least seven days before the public meeting is held, the
clerk or secretary‑treasurer of the municipality shall post, in the
office of the municipality, a notice setting out the date, time, place and
object of the meeting, and publish it in a newspaper circulated in its
territory.
. . .
127. During the public meeting, the person presiding must
explain the draft by‑law and hear every person or body wishing to express
an opinion.
Where the draft by‑law contains a provision
making it a by‑law subject to approval by way of referendum, the person
responsible for explaining the draft by‑law shall identify that provision
and explain the nature of and means of exercising the right of certain persons
to make an application, pursuant to the provisions of subdivision 2, for
any by‑law containing that provision to be submitted for the approval of
certain qualified voters.
128. Once the public meeting on a draft by‑law containing
a provision making it a by‑law subject to approval by way of referendum
has been held, the council of the municipality shall adopt, with or without
change, a second draft by‑law. No such provision may be included in the
second draft by‑law unless it relates to a matter in respect of which
such a provision was included in the first draft by‑law.
However, the council is not bound to adopt a second
draft by‑law if the by‑law it adopts under section 134 no
longer contains any provision making it a by‑law subject to approval by
way of referendum.
. . .
129. A summary of the second draft by‑law may be produced
under the responsibility of the municipality.
. . .
130. If the second draft by‑law contains a provision
making the by‑law a by‑law subject to approval by way of
referendum, an application may be made under this section and under
sections 131 and 133 to require that any by‑law containing the
provision that is adopted under section 136 be submitted for the approval of
certain qualified voters.
. . .
131. Every interested person in a zone or a sector of a zone
may sign an application originating from that zone or sector.
For the purposes of this subdivision, an interested
person in a given zone or sector of a zone is a person who would be a qualified
voter and whose name would be entered on the referendum list of the zone or
sector if the reference date, within the meaning of the Act respecting
elections and referendums in municipalities (chapter E‑2.2), was the
date of adoption of the second draft by‑law and if the sector concerned,
within the meaning of that Act, was that zone or sector.
132. Following the adoption of the second draft by‑law,
the clerk or secretary‑treasurer shall, in accordance with the Act
governing the municipality for such purposes, issue a public notice
(1) setting out the number, title and date of
adoption of the second draft by‑law;
(2) giving a brief description of the object of
the provisions in respect of which an application may be made, or mentioning
the fact that a copy of the summary of the second draft by‑law may be
obtained, free of charge, by any person who so requests;
(3) (a) stating which interested
persons are entitled to sign an application in respect of each provision and
the tenor of an application or, if the object of the provisions is not stated
in the notice, explaining, in a general manner, entitlement to sign an
application and the tenor of an application and stating how information may be
obtained to determine which interested persons are entitled to sign an
application in respect of each provision and the tenor of an application;
(b) setting out the conditions of
validity of an application;
(4) determining the interested persons in a zone
and the manner in which a legal person may exercise the right to sign an
application, or stating how such information may be obtained;
(5) describing, using street names whenever
possible, the perimeter of each zone from which an application may originate,
otherwise than by reason of the fact that it is contiguous to another zone,
illustrating it by means of a sketch, or indicating the approximate location of
the zone and stating the fact that a description or illustration is available
for consultation at the office of the municipality;
(6) mentioning the fact that the provisions in
respect of which no valid application is received may be included in a by‑law
that is not required to be submitted for the approval of the qualified voters;
(7) stating the place, dates and times at which
the second draft by‑law is available for consultation.
. . .
133. An application, in order to be valid, must
(1) state clearly the provision to which it
refers and the zone or sector of a zone from which it originates;
(2) be signed by at least 12 interested persons
in a zone or sector in which there are more than 21 interested persons, or, in
other cases, by a majority of the interested persons;
(3) be received by the municipality not later
than the eighth day following the day on which the notice provided for in
section 132 is published.
The provisions of the Act respecting elections and
referendums in municipalities (chapter E‑2.2) dealing with the
manner in which a legal person may exercise its rights, the manner in which
qualified voters entitled to have their names entered on the referendum list
are to be counted, and applications for the holding of a referendum poll apply,
adapted as required, to the signing of an application.
Appeal allowed with costs, Major,
Bastarache, LeBel and Deschamps JJ.
dissenting.
Solicitor for the appellants: André Carbonneau, Montréal.
Solicitors for the respondents the Municipality of the village of
Lafontaine and Harold Larente: Deveau, Bissonnette, Monfette,
Fortin & Associés, Saint‑Jérôme.
Solicitors for the respondent the Attorney General of Quebec: Bernard,
Roy & Associés, Montréal.
Solicitors for the interveners the Seventh‑Day Adventist
Church in Canada and the Evangelical Fellowship of Canada: Chipeur
Advocates, Calgary.
Solicitors for the intervener the Canadian Civil Liberties
Association: Paliare Roland Rosenberg Rothstein, Toronto.