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 following:
(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 orvaporizer,
(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 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