Sinclair v. Quebec (Attorney General) [1992] 1 S.C.R. 579: -- Language guarantees -- Instruments of legislative nature -- Quebec legislation amalgamating two cities

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Stevenson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law -- Language guarantees -- Instruments of legislative nature -- Quebec legislation amalgamating two cities -- Legislative process divided into a series of discrete steps -- Whether all instruments, from ministerial order postponing municipal elections to notification of the issuance of letters patent for new city, must comply with s. 133 of Constitution Act, 1867 -- An Act respecting the cities of Rouyn and Noranda, S.Q. 1985, c. 48.

The Act respecting the cities of Rouyn and Noranda, which was aimed at amalgamating the two cities under certain conditions, came into force in 1985. The Minister of Municipal Affairs ordered the postponement of the election in Rouyn pursuant to s. 19 of the Act and, when the two cities were unable to reach a draft agreement on the terms of the amalgamation, issued an order in lieu of the draft agreement pursuant to s. 4. The result of the referendum was in favour of the amalgamation and, as provided by s. 14, the Quebec government conferred letters patent on the new city. The letters patent were published in the Gazette officielle du Québec and came into force that same day (s. 15). The Act was printed and published in French and English in conformity with s. 133 of the Constitution Act, 1867 but the order postponing the election in Rouyn, the order issued in lieu of a draft agreement, the order in council ordering the issuance of letters patent for the new city, the letters patent themselves and the notice of issuance of the letters patent were printed in French only. The last three instruments were also published in the Gazette officielle du Québec in French only. The respondents brought an action in the Superior Court for a declaration that the Act was unconstitutional. The trial judge dismissed the action but the Court of Appeal reversed the judgment. At the hearing of this appeal, this Court rejected from the bench respondents' arguments based on the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms challenging the constitutionality of the Act: [1991] 3 S.C.R. 134. The sole issue remaining in this appeal is whether all the instruments, from the ministerial order postponing the municipal elections to the notification of the issuance of the letters patent for the new city, were subject to the requirements of s. 133, which applies to statutes and all other instruments of a legislative nature.

Held: The appeal should be dismissed. All the instruments were subject to the requirements of s. 133 of the Constitution Act, 1867.

The National Assembly of Quebec has attempted to divide the legislative process into a number of discrete steps, and then to claim that each of these individual steps, considered in isolation, lacks a legislative character. The requirements of s. 133 cannot be circumvented by the disingenuous division of the legislative process in this manner. If the net effect of a series of discrete acts has a legislative character, then each of these component acts will also be imbued with this same character. Here, all of the instruments challenged were part of a process which, when viewed in its entirety, was undoubtedly legislative. Accordingly, all of them were subject to the requirements of s. 133. Since none of the instruments complied with that section, they are, and always have been, nullities and of no legal force and effect. One cannot ignore, however, that, de facto, a new city has been in existence since 1986, operating on the faith of purported letters patent establishing its constitution. This is an appropriate case for this Court to exercise its suspensive power by declaring that the instruments in this appeal, while invalid for non-compliance with s. 133, shall continue in force for a period of time in order to permit the National Assembly to take whatever steps it sees fit to remedy the constitutional defects. This period of time shall be for one year from the date of this judgment.

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