In our municipal practice, we are often asked to review draft by-laws or prosecute by-law infractions. In both scenarios, we come across situations in which we believe the by-law would not withstand a court challenge on the void for vagueness argument. A recent Ontario case illustrates this situation and provides a good outline of the issues to be considered when drafting by-laws.
The Ontario Superior Court recently revisited the "void for vagueness" argument in relation to a definition in a municipal by-law. In 2312460 Ontario Ltd. v. Toronto (City), 2013 ONSC 1279, 115 O.R. (3d) 206, the Court held that the prohibition in a by-law regarding "adult entertainment establishments" was void for vagueness. It is not unusual to have by-laws challenged on this basis in the context of charges for a violation of a by-law under the Provincial Offences Act.
In the 2312460 Ontario Ltd. ("231") case, 231 brought an application before the Superior Court for a determination of rights under a zoning by-law. In 2012, 231 purchased the property in question and leased it to a corporation, 748485 Ontario Ltd. (748), for the operation of an "Aren't We Naughty" ("AWN") store. AWN operates a chain of stores selling goods such as lingerie, books, vibrators, condoms and other items. Shortly after the store was opened, AWN was charged with the offence of operating an adult entertainment establishment where prohibited contrary to the Zoning By-Law.
The City and 748 had visited this issue before. In 2009, 748 had requested from the City an assessment of whether its proposed use of the property for an AWN store was permitted. City staff responded by indicating the zoning did not permit AWN to sell adult novelties. 748 then applied to the Committee of Adjustment for a minor variance that would permit AWN's proposed use. This application was refused in March of 2010, and 748 appealed the decision to the Ontario Municipal Board. The Board refused the variance, holding that the items offered for sale by AWN were "goods" within the meaning of the definition of "adult entertainment establishment" and therefore the proposed use by AWN was prohibited.
Zoning By-Law 514-2003 governed the uses at the property. The provision at issue stated as follows:
"The following uses shall be prohibited: service stations and public garages; new and used car sales rooms and lots; the manufacture of confectionary; drive-through facilities; monuments related to cemeteries; adult video and massage parlours; and adult entertainment establishments as defined by the Municipal Act, 2001." [emphasis added]
The Municipal Act, 2001 defines adult entertainment establishments as:
"Any premises or any part of them ... if, in the pursuance of a business, goods, entertainment or services that are designed to appeal to erotic or sexual appetites or inclinations are provided in the premises or part of the premises."
231 argued that the prohibition of "adult entertainment establishments" as defined in the Municipal Act, 2001 was vague and void for uncertainty. 231 argued that the Ontario Municipal Board's decision did not provide any certainty regarding these terms. 231 further argued that the application of the by-law's provisions against AWN was discriminatory because many of the same goods sold by AWN were sold in other retail establishments not considered to be adult entertainment establishments.
The City relied on the OMB's decision and argued that the definition provided sufficient guidance for legal debate, and therefore was not vague.
The Court found that the provisions of By-Law 514-2003 in question were vague and void for uncertainty. The By-Law did not define "goods". Further, what a person finds erotic or appealing to his or her sexual appetite could vary widely, and it was not clear whose sexual appetites were in question. The Court found that it was impossible to tell whether an item met the definition of "erotic", or what was meant by "designed to appeal". "Designed to appeal" could relate to the design of the packaging, marketing, the good itself or the function of the item.
The Court pointed to the specific example of a dog collar sold at AWN, noting that the item could be erotic to one person and not to another.
The Court also found that the provisions of the by-law were discriminatory, because the sale of the same item (for example, a dog collar) was prohibited for one store (e.g. AWN) but not another (e.g. a pet store).
In addressing the arguments before it, the Court looked at principles developed by the Courts in the past and compiled an excellent summary of tests to be applied in determining whether a by-law is too vague to be enforceable:
- "In interpreting the meaning of the words of an Act, the court is to read the provisions in their entire context and apply the plain and ordinary meaning of the words."1
- "[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense...every word of a statute is presumed to have a role in achieving the objective of the Act."2
- "[M]unicipalities bear the onus to draft by-laws clearly in order that every citizen may understand and comply with them."3
- "While the definition in an enabling legislation may deal in generalities when broadly granting the power to enact a by-law, the by-law itself must be sufficiently specific to enable the proposed licensee to perceive his obligations in advance."4
- "In deciding whether a law is too vague, the court is to consider factors such as the need for flexibility and the interpretative role of the courts, the impossibility of achieving absolute certainty and the possibility that many varying judicial interpretations of a given disposition may exist."5
- A law must be precise enough such that a conviction will not automatically flow from a decision to prosecute i.e. there must be some limit on enforcement discretion.6
- "[A] law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate" as to the scope of the prohibited conduct.7
- Council has an obligation when drafting by-laws to be clear enough to enable every citizen to understand the by-law in order to comply with it.8
When faced with a challenge to a by-law on an argument of vagueness, the Court has outlined the following test: "the vagueness must be so serious that the judge concludes that a reasonably intelligent man, sufficiently well-informed if the by-law is technical in nature, is unable to determine the meaning of the by-law and govern his actions accordingly."9
The 231 case is a good illustration of the difficulties that come with void for vagueness arguments. Here we had two different adjudicative bodies considering the issue and coming to different conclusions. To be fair, the Ontario Municipal Board looked at the definition in the context of a minor variance application and had to assume the Zoning By-Law was proper, while the Superior Court was addressing the specific issue of vagueness, with case law directly on point. This case demonstrates how fact-specific this issue is, and despite setting out numerous tests and criteria, it can still be a difficult task to determine how best to set out a definition. In this case, the City had adopted a definition set out by the Provincial Legislature, and this was determined not to be sufficient by the Court.
In almost every case, it is important to look to definitions set out in statutes when drafting by-laws. These definitions are carefully thought out and tend to be consistent between different statutes. However, as demonstrated by the 231 case, there is no guarantee that even a statutory definition adopted in a by-law will withstand a vagueness challenge on a particular fact situation.
It is a difficult job to predict all arguments that can be raised and all fact situations that might be encountered when drafting a by-law. To determine whether a draft by-law is going to withstand such challenges, the principles outlined in the 231 case can provide some guidance to municipalities. We also have some suggestions that may assist. Consider reviewing void for vagueness cases on similar by-laws to see examples of arguments and fact situations that arise. Sometimes looking at definitions that have not worked will aid in coming up with one that will. These cases also give some insight on the type of issues that arise for particular types of by-laws.
It often helps to step into the shoes of a defendant and think of the types of defences that you would argue if being prosecuted under the by-law in question. When drafting a by-law, keeping in mind the enforcement end is important and thinking about the situation from a potential defendant's perspective can assist.
Having a different perspective can help, so have someone else review the proposed definition. Consider having legal counsel review the draft by-law. Lawyers are experienced at picking up on potential arguments and may have already dealt with challenges to similar by-laws.
Finally, when you have decided on a definition, apply the test: would a reasonably intelligent person be able to read the by-law and know whether or not he or she has complied with it?
It is not uncommon for municipalities to face challenges to its by-laws on the void for vagueness basis. Taking the time when drafting the by-law to do some background research and some peer or legal reviewing can assist in avoiding such situations.
1 2312460 Ontario Ltd. v. Toronto (City), 2013 ONSC 1279, 115 O.R. (3d) 206 at para. 15.
2 Ibid. at para. 15, citing R. v. Katigbak, 2011 SCC 48.
3 Ibid. at para. 17.
4 Ibid. at para. 17, citing Hamilton Independent Variety and Confectionary Stores Inc. v. Hamilton (City),  20 M.P.L.R. 241 (CA)).
5 Ibid. at para. 21.
6 Ibid., citing R. v. Nova Scotia Pharmaceuticals Society,  2 S.C.R. 606.
7 Ibid. at para. 29.
8 Ibid. at para. 31.
9 Fountainhead Fun Centres Ltd. v. Montreal (Ville),  1 S.C.R. 368, 1985 CarswellQue 54 at para. 82.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.