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:
(h) "restricted product" means any of the
(i) a product that displays a marijuana plant,
(ii) a device intended to facilitate smoking activity, including
a pipe (metal / glass blown, plastic, wood), water bong or
(iii) a type of grinder (electric or manual),
(iv) a type of digital weigh scale,
(v) a detoxifying product (including a drink, pill or other
product) marketed for masking drug effects or making such effects
undetectable through tests;
No person may, in a single business location or under a single
business license, display or offer for sale restricted products
from 3 or more categories thereof.
(2) No person may sell a restricted product to a minor.
(3) No person shall display a restricted product at a place of
business such that the restricted product is visible from outside
the place of business.
(4) The restrictions of this section 14.1 do not apply in the
context of a licensed or regulated pharmacy as contemplated by the
Pharmacy and Drug Act, RSA 2000 ch.P-13, or a licensed business
within which such licensed or regulated pharmacy is operated.
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
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.
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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