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Digest of the Week — Municipal Bylaw on Drug Paraphernalia Not Criminal Law

Smith v. St. Albert (City) |  (WestlawNext Canada)
2014 CarswellAlta 296 |  (Westlaw Canada)
Alberta Court of Appeal

Municipal law | Attacks on by-laws and resolutions | Grounds | Ultra vires | Beyond power of municipality | Prohibiting activity

Appellant municipality became concerned about sale of paraphernalia connected to illegal drug trade and city council amended business licence by-law by adding provision that restricted businesses from displaying or offering for sale three or more restricted products as defined in s. 2 of by-law — Respondent store sold products that fell into restricted products category — Municipality ticketed store for violating by-law — Store and owner brought application to quash by-law — Chambers judge concluded that, in pith and substance, by-law was criminal law and was ultra vires authority of municipality — Municipality appealed quashing of by-law — Appeal allowed — By-law, in pith and substance, created business licensing regime that was designed to create safe and viable communities by restricting cumulative sale of goods linked to drug consumption — Essential character of by-law was about suppressing conditions that were likely to lead to commission of all types of crime that might ultimately affect public order and safety in communities — By-law had certain criminal law aspects as it overlapped with existing offences in Criminal Code that prohibited promotion and sale of instruments for illegal drug use; it imposed penal consequences, including imprisonment, for by-law violations; it filled in perceived gap in criminal law; and it had focus on morality and public order — By-law had provincial aspects, including suppression of conditions that were likely to cause crime and prevention to enforce local standards of morality; and business licensing and impacts on property and civil rights — Pith and substance of by-law provisions fell under multiple heads of power, federal power over criminal law and provincial power over licensing and regulating businesses in community — Federal and provincial aspects of by-law were of roughly equal importance — Double aspect doctrine applied — By-law was valid.
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