Municipal Drug Paraphernalia Bylaw - Ultra Vires
March 5, 2013 by Michael Styczen, P.Eng
We have recently covered municipal ultra vires cases related to shark fin soup and puppies. In this case, an Alberta ban on some sales of drug paraphernalia was found to be outside the municipalities' competence.
The City of St. Albert, apparently concerned about the proliferation of head shops and other illicit activity, passed an amendment to its Business License Bylaw in 2012 that outlawed the sale of drug paraphernalia within St. Albert:
Not long after the bylaw was passed, a local business was inspected by the City, a violation ticket was issued under that section, and the business' business license was "seized" for five days. The business responded by seeking a declaration that the bylaw was invalid.
The primary grounds upon which the bylaw was alleged to be ultra vires the municipality was that it was in pith and substance a criminal law matter (and thus within federal jurisdiction.
In that regard, the Court noted that the Business Licencing Bylaw is primarily concerned with the licensing of businesses, and was otherwise not concerned with the regulation or control of the sale of goods and services.
In addition, while the City had argued that the purpose of the prohibition was to protect the safety, health and welfare of its citizens (a municipal head of power under Section 7(a) of the Municipal Government Act), all of the extrinisic evidence around the passing of the bylaw indicated that the City was primarily concerned with the illegal consumption of drugs. The court also noted that a similar prohibition already exists in Section 462.1 of the Criminal Code.
The court concluded that the bylaw had the "look and feel" of morality legislation, was designed to address deficiencies in enforcement of the Criminal Code, and was thus in pith and substance criminal law legislation.
In terms of effect, the Court found that the effect of the bylaw (to preclude the operation of certain shops and the sale of certain products) was also in pith and substance a criminal law matter. While the indirect effect might have been to improve the health and safety of St. Albert citizens, any such indirect effect was uncertain and could not save the bylaw.
Accordingly, the bylaw was found to be ultra vires the municipality and was struck down.
The Court did not rule on other grounds of invalidity alleged by the the shop, including allegations that the bylaw infringed Charter guarantees of free expression, fundamental justice, and non-discrimination.
The case is Smith v. St. Albert (City), 2012 ABQB 780