 |
 |
 |
|
|
Ontario >> Superior Court of Justice >>
|
|||||||||||||||||||||||||||||||||||||||||||||
|
Citation: Xentel DM Inc. v. Windsor (City) Date: 2004-09-07 Docket: 03-CV-000781 URL: http://www.canlii.org/on/cas/onsc/2004/2004onsc12120.html
|
||||||||||||||||||||||||||||||||||||||||||||||
|
COURT FILE
ONTARIOSUPERIOR COURT OF
|
|
B E T W E E |
) |
|
|
|
) |
|
|
XENTEL DM INCORPORATED, |
) ) ) ) |
Stanley M. Makuch, Signe B. |
|
|
) |
|
|
Applicants |
) |
|
|
|
) |
|
|
– and – |
) |
|
|
|
) |
|
|
|
) |
|
|
THE CORPORATION OF THE CITY |
) ) ) |
Mark P. Nazarewich, Office |
|
|
) |
|
|
Respondent |
) ) |
|
|
|
) |
|
|
|
)) |
HEARD: |
|
|
|
|
Richard C.
Gates
A.
INTRODUCTION
[1]
This application is brought by Xentel DM Incorporated (the
Applicant) against the City of Windsor (the City). The applicant is
seeking a Declaration that City By-law No. 298-2002 (the By-law)
passed by Windsor City Council (Council) is invalid and a further
Order enjoining the City and its employees and agents from taking
any action to enforce the By-law as it relates to the participation
of an animal or animals in live public entertainment in the
City.
B.
BACKGROUND
[2]
This action is based upon a by-law passed by the City
which prohibits the conducting, operating, taking part in or
carrying on of any entertainment whatsoever which involves the
participation of exotic animals, as defined therein.
[3]
Xentel is a circus producer and is responsible for the
logistics of “bringing the circus to town”, such as the one
involved here. It arranges the venue and obtains all the necessary
permits, to ensure compliance with animal protection legislation,
for the care of performers and to ensure public safety. Outdoor
Amusement Business Association (“OABA”) is a trade association for
the outdoor amusement industry and has more than 5000 members. The
OABA is involved in establishing industry-wide safety guidelines
and regulations; it lobbies governments; it established a code of
ethics and assists its members to speak as one voice. TZ is a
member of the OABA and is a family of circus performers, which
since 1763, and has travelled all through Europe, Africa, and North
America. Garden Brothers another family organization was
established in 1938 and is the largest three-ring circus in North
America. It is owned and operated by the third-generation of
members of the Garden family and is also a member of the
OABA.
[4]
The Applicants contend that a vital component of the
circus entertainment produced by them is the use of live exotic
animal performers. They maintain that the use of exotic animals is
an integral part of the traditional circus culture as well as an
important feature to circus patrons.
[5]
The Respondent City of Windsor passed the By-law in
question, it argues, for the purpose of protecting the citizens of
the City of Windsor from animal attacks, and for no other improper
purpose.
[6]
The By-law is as follows:
By-law
A BY-LAW TO
PROTECT PERSONS WITHIN THE CITY OF WINDSOR FROM HARM FROM
PERFORMING ANIMALS:
WHEREAS
Section 236.7 of the Municipal Act, R.S.O. 1990, c.
M.45 provides that a municipal council may pass by-laws
prohibiting or regulating menageries, circus-riding and other like
shows usually exhibited by showpersons;
AND WHEREAS
the Council of the Corporation of the City of Windsor wishes to
ensure the safety and well-being of its residents and visitors by
prohibiting certain animal performances within its
boundaries;
NOW
THEREFORE, the Council of the Corporation of the City of Windsor
enacts as follows:
DEFINITION
1.
In this by-law
a.
“animal” means a mammal, bird,
reptile, amphibian, fish or insect but does not include human
being.
b.
“performance” means a circus,
carnival, show, form of entertainment, exhibition, menagerie or act
of showmanship.
c.
“person” includes a corporation and
the heirs, executors, administrators or other legal representatives
of a person.
PROHIBITED
PERFORMANCES
2.
No person may conduct, operate, take
part in or carry on a performance, or assist in conducting,
operating or carrying on a performance that involves the
participation of an animal or animals.
3.
Nothing in this by-law prohibits or
restricts the following:
a.
Displaying or showing animals in
agricultural fairs;
b.
Horse races;
c.
Rodeos;
d.
Magic acts using birds, domestic
dogs, domestic cats, or rabbits;
e.
Horse or pony riding;
f.
A performance whose main object is
for educational purposes and does not involve the participation or
inclusion of any of the following;
i.
Felids,
except the domestic cat;
ii
Canids,
except the domestic dog;
iii.
Gorillas;
iv.
Ursidae, except koala
and panda bears;
v.
Elephants;
vi.
Rhinoceri;
vii.
Hippopotamuses;
viii.
Crocodilians;
viii.
Ungulates, except domestic goats,
sheep pigs cattle
horses, mules and donkeys;
x.
Hyaenas
g.
Domestic dog or
domestic cat shows.
GENERAL
4.
Where the provisions of any other
by-law are inconsistent with the provisions of this by-law, the
provisions of this by-law shall prevail
5.
Any person who contravenes the
provisions of this by-law is guilty of an offence and on conviction
is liable to a fine as provided in the Provincial Offences
Act.
At this point it would
be helpful to outline the chronology of events that preceded the
passing of the By-law, before proceeding to identify and discuss
the issues.
CHRONOLOGY OF EVENTS
April 29, 2002
Staff Report recommending issuance of permit
subject to conditions, for Circus at Riverfront
Festival Plaza.
May 6, 2002
Council Meeting which adopts Staff Report
approving issuance of permit, subject to con-
ditions. Representatives from ARK II, Youth for a
Better World and Shrine Circus (TZ Productions)
make deputations.
June 17, 2002
Letter from Zoo Check respecting the issue of wild
animals in circuses and travelling shows.
July 8, 2002
Council Meeting. Zoo Check correspondence on
agenda. Motion passed requesting legal opinion on
restricting performing animal acts.
July 25, 2002
Legal Report Prepared.
In and around this
time, materials prepared and delivered
to council by animal
rights organizations.
August 21, 2002
Xentel correspondence to Council.
August 22, 2002
Outdoor Amusement Business Association
correspondence to Council.
August 26, 2002
Council Meeting. Representatives from TZ
Productions, Outdoor Amusement Business
Association, Zoo Check, ARK II, Jazzpurr Society
For Animal Protection.
September 20, 2002
Correspondence on behalf of Outdoor Amusement
Business Association from Cassels, Brock &
Blackwell to Members of City Council.
September 23, 2002
By-law read three times and passed.
C.
ISSUES
[7]
While the By-law does exempt certain
entertainment involving animals, including domestic cat and dog
shows, rodeos and agricultural fairs, the Applicants argue that it
is invalid for the following reasons:
a)
The By-law was enacted for an improper purpose;
(paragraphs 9-45)
b)
The By-law unlawfully discriminates in the
municipal law sense because it bans circus entertainment using
exotic animals and no other entertainment, without authority or
purpose.
c)
The passing of the By-law violates the doctrine
of fairness by denying the Applicants’ right to continue to provide
exotic animal entertainment without providing them with an
opportunity for a hearing; and (paragraphs 46-48)
d)
The By-law is in pith and substance an attempt
to regulate public morality by banning entertainment with exotic
animals and as such involves the exercise of the criminal law power
exclusively vested in the Parliament of Canada pursuant to s.
91(27) of the Constitution Act, 1897; (paragraphs
86-103)
e)
The By-law is void for vagueness in that it
exempts performances, such as agricultural fairs and those for
educational purposes, without any attempt to define or establish
the meaning of these terms; (paragraphs. 49-85)
f)
The By-law contravenes the freedom of expression
guaranteed to the Applicants and others under section 2(b) of the
Canadian Charter of Rights and Freedoms (the
Charter) which cannot be justified under section 1.
(Paragraphs 104-130)
[8]
I shall now deal
with all of the above issues in the same order.
(D)
ANALYSIS
(A)
Did the City enact the By-law
for an improper purpose?
[9]
The Applicants
maintain that although the stated purpose of the By-law is the
protection of residents and visitors, the actions of Council reveal
that the true purpose of the By-law is the protection of exotic
animals. Further, they argue that since the City does not have the
authority to regulate for the purpose of animal welfare, the By-law
is ultra vires and invalid.
[10]
The Applicants
support their position with the affidavit of Len Wolstenholm and
the transcripts of various City of Windsor Council Meetings. They
demonstrate, through Mr. Wolstenholm’s affidavit, that in the
spring of 2002 the Shriners applied for a permit to hold a Shrine
Circus (the “Circus”), which included exotic animal performances,
in the City at the River Front Festival Plaza. Up until this time
there had never been any issues or concerns with respect to the
Circus applications, and Council had previously approved these
applications without controversy. The evidence establishes that the
Shrine Circus had performed in Windsor for 18 years previously
without any incidents whatsoever related to public safety, or for
that matter, to the welfare of the animals. The evidence also
establishes that Garden Brothers has operated its Circus across
Canada for 54 years likewise without any incidents pertaining to
its patrons. At the meeting of May 6, 2002, however, various animal
rights activists attended, voicing their opposition to the Circus
application on the basis that the Circus uses exotic animals for
entertainment.
[11]
It is, I
believe, important to note that notwithstanding the concerns
expressed by the animal rights’ activists, Council approved the
2002 permit application. In so doing, Council required the Circus
to enter into a standard Parks Use Agreement wherein it agreed to
comply with all by-laws, provide an emergency response plan, and
allow random inspections by the Windsor-Essex County Humane
Society. According to the transcripts and the affidavit of Len
Wolstenholm, the decision to approve the Application was based upon
the following information:
a)
In 2001, the Circus had been inspected by
members of the Windsor Fire Department, who were satisfied with the
Circus’ Emergency Response Plan.
b)
The Windsor Humane Society confirmed that there
had been no incidents or evidence of abuse with respect to the
circus animals and,
c)
The Circus would not receive its permit unless
the Police and Fire Departments approved the Emergency Response
Plan.
[12]
Therefore in
2001 the Circus fulfilled all conditions of application approval,
and both the Police and Fire Departments were satisfied with the
Emergency Response Plan. Accordingly a permit was issued and the
Circus performed with exotic animals during that year, again
without incident. This demonstrates that in the past the City was
content with the safety measures and plans established by the
Circus and approved by Police, Fire and Sanitation
authorities.
[13]
In 2002 another
permit was routinely requested on behalf of the Shrine Circus to be
held at the Riverfront Plaza between May 31st and June
2nd.
[14]
A brief review
of the chronology, supra, leading up to the 2002 By-law prohibiting
the Circus, would, I believe, be helpful.
(1)
Following receipt of the
Shrine Circus request for a permit for 2002 and as a result of
discussions originally held at the time it issued a permit for
2001, the City Parks Department convened a meeting on April 29,
2002 of some of the interested parties on both sides of the animal
issue, including ARK II (an animal rights advocacy group) and
Xentel D.M. the Circus Performance Company and one of the
Applicants herein. As a result of that meeting certain agreements
were reached:
§
Applicants with animal acts were to inform the
Windsor Essex County Humane Society so that inspections would be
carried out.
§
The applicants would have an emergency response
plan in place that is reviewed by the Windsor Police Service and
Fire Chief.
§
That ARK II would provide information to the
local Shrine Club for events without animals that could be explored
in addition to events already conducted.
§
That ARK II provide information to the Windsor
Essex County Humane Society that may be beneficial to the
inspection staff.
(2)
It was therefore
recommended by the City administration that a permit be issued for
2002 to the Shrine Circus subject to it executing a City of Windsor
Parks Use Agreement, which it did. The relevant clauses of this
Agreement are as follows:
§
To indemnify and save harmless the Corporation,
from and against all damages which it may suffer and against all
claims or actions which may be made against the corporation,
arising from the use of the Park or from any non-compliance with or
violation of the terms of this Agreement;
§
To provide and maintain public liability and
property damage insurance containing endorsements naming the
Corporation, as an additional named insured, in the amount of
$5,000,000 satisfactory to the Commissioner of Legal and Human
Resources;
§
To comply with all Police, Fire, safety and
sanitary laws, By-laws and Regulations of the Corporation, the
Police Services Board, any Provincial or Federal authority, or made
by Fire Insurance Underwriters.
§
To agree to random inspections by the Windsor
Essex County Humane Society and co-operate with inspection staff to
allow access to these inspections.
§
To have an Emergency Response Plan and to
provide a copy of the plan in confidence to the Chief of Police and
the Fire Chief for review, a minimum of 7 days prior to the
event.
(3)
Subsequently on May 26,
2002, the administration report with its conditions was approved by
Council. Up to this point in time, at least, things seemed to be
following the course established in previous years. However, this
all started to change with the receipt by the City of a letter from
Zoo Check Canada, another animal rights advocacy group, dated June
17, 2002, authored by one Kim Robinson, describing herself as
Circus Campaigner. In the letter she confirmed that her concerns
were primarily the welfare of circus animals and their biological
and ethological (behavioural) needs.
(4)
Most of the letter
catalogues a number of issues relating to animal welfare. She
disputes the Circus industry claim to provide an educational
benefit to its patrons and states that;
“These educational
claims are not based on empirical studies”
However, in a
passing reference, later in the same letter on the issue of public
safety, she makes a number of critical comments about safety
incidents which are alleged to have occurred in Canada and around
the world, without substantiating any of them or, to use her own
words, providing any proof by way of “empirical studies” that would
connect the issue of the use of exotic animals to the issue of
public safety.
(5)
From the evidence it
would appear that apart from its June 17, 2002 letter, Zoo Check
itself never bothered to investigate the safety issues with either
the City or the Applicant Circus, nor did it examine the Emergency
Response Plan required by Council from the Applicant which was
executed by it and subsequently approved by the appropriate City
authorities.
Zoo Check also took
the position that:
“Many
performing wild animals in circuses and traveling shows touring
Canada endure a life characterized by emptiness, deprivation and
brutality. In addition to being degraded through ridiculous
performances and stunts, they suffer from extreme confinement,
inappropriate social groupings and harsh, sometimes abusive
training methods.”
[15] This
letter as received, was noted in the Council Minutes of July 8,
2002 and as a result, Councillor Zuk requested a report be prepared
concerning the legality of banning animal acts in the City. On July
25, 2002 George Wilkki, the Acting Commissioner of Legal and Human
Resources, delivered a report which concluded in part, that a
by-law passed for the purpose of protecting animals would be
ultra vires the municipal authority, and the only way
achieve this end would be to pass a by-law, the object of which
would be the protection of the public. In that report, he
stated:
It is very
clear that council has been pressured by “animal rights”
groups/individuals to pass a by-law to restrict animal performances
mainly because of the alleged mistreatment of the animals that
perform in those shows. A secondary reason put forward has been for
the protection of the public.
[16]
During the next few months, Council
received voluminous amounts of correspondence from animal rights
groups and individuals in the form of letters, e-mails and other
materials urging the prohibition of animal acts due to the
immorality of entertaining with exotic animals. Significantly, none
of the communication received from these groups or individuals
contained any evidence of a threat to public safety arising out of
circus acts in the City of Windsor.
On August 26, 2002 was a further public
meeting held in the City of Windsor Council Chambers at which time
a number of delegations had registered in order to speak to the
issue of the municipal by-law.
Toward the end of that meeting, councilor
Zuk proposed a motion, which was accepted that the Administration
be directed to develop a by-law that prohibited traveling animal
acts within the municipality, recognizing that under the
Municipal Act the Council have the authority to pass by-laws
to prohibit or regulate circuses for the well being of its
residents.
Toward the end of the dialogue between
various groups and members of Council, Councillor Cassivi framed a
comment, which I believe captures the essence of the discussion
that had been ongoing and, as well, the intent of Council when he
stated that he would support the motion on the floor;
Because I concluded really that the
people of the City of Windsor have reached a level of
sophistication where their entertainment no longer has to be at the
expense of animal discomfort or distress.
[17]
The Applicants
contend, and I accept, that Council did not undertake nor did it
direct its staff to do so, any consultant studies or reports on the
issue of public safety and exotic animal performances. Furthermore
it undertook no investigations or risk analysis on the causal
connection, if any, between exotic animal performances and public
safety. In short, given the nature of the issue, its profile as
generated by the animal rights advocates, the narrow scope of its
legal authority as defined by in-house counsel, the City failed to
exercise the degree (if any) of due diligence, which the
circumstances and complexities of the issue required. This failure,
for the Reasons expressed below, in my view renders the By-law void
as being ultra vires its authority.
[18]
The Respondent
conversely asserts that its By-law is intra vires council’s
authority as the City is entitled to pass by-laws pursuant to
s. 236(7) of the Municipal Act, R.S.O.
1990, c. M.45 which states:
236. A council
of a local municipality may pass by-laws regulating:
…
7. Exhibitions
of wax works, shows, etc. – For prohibiting or regulating and
licensing exhibitions of wax works, menageries, circus-riding, and
other like shows usually exhibited by showpersons…
[19] As this
is a decision by an elected council, I must consider whether it’s
intra or ultra vires. In Shell Canada Products Ltd. v. Vancouver
(City) (1993), 110 D.L.R. (4th) 1
(SCC)(“Shell“), Vancouver City Council decided to make a
symbolic gesture against companies with business links to South
Africa. It passed resolutions having the force of
by-laws that the City would not do business with Shell until that
company divested itself of its South African holdings.
The city continued to do business with other companies having South
African connections. Justice McLachlin wrote a compelling and
much-followed dissent in Shell that stated, in essence,
Courts should give a “wide berth” to elected councils when making
decisions within their authorization. While I accept this, in my
view, her opinion in that case would only apply to those decisions
made by council that clearly fall within its scope of authority.
Justice McLachlin stated in part;
Judicial review of
municipal decisions is necessary. It is important that
municipalities not assume powers which have not been conferred on
them, that they not violate civil liberties, that disputes between
them and other statutory bodies be resolved, and that abuses of
power are checked. On the other hand, it is important that the
courts not unduly confine municipalities in the responsible
exercise of the powers which the legislature has conferred on
them.
[20] She
described two different approaches to the review of municipal
decisions – a “pro-interventionist” approach as enunciated in
Merritt v. City of Toronto (1895), 22 OA.R. 205, and a
“benevolent construction” approach as described in City of
Hamilton v. Hamilton Distillery Co. (1907), 38 S.C.R. 239. The
latter she viewed as being more generous and flexible than the
former. The classic definition of this approach was stated by Lord
Greene M. R. in Associated Picture Houses, Ltd. v. Wednesbury
Corp., [1948] 1 K.B. 223 (C.A.) at p. 228 as follows:
It is not to be
assumed prima facie that responsible bodies like the local
authority in this case will exceed their powers [and]…the
court…must not substitute itself for that authority.
[21]
Justice
McLachlin cited this passage with approval and added:
Judicial
intervention, said Lord Greene, would be justified where there was
evidence of bad faith or absurdity, where the decision was
unreasonable in the sense that no reasonable authority could ever
have come to it. But, he said at p.230, “to prove a case of that
kind would require something overwhelming….”
[22]
She also stated
that:
Recent
commentary suggests an emerging consensus that courts must respect
the
responsibility of elected municipal bodies to serve the
people who elected them and
exercise
caution to avoid substituting their views of what is best for the
citizens for
those of
municipal councils. Barring clear demonstration that a municipal
decision
was beyond its
powers, courts should not so hold. In cases where powers are
not
expressly conferred but may
be implied, courts must be prepared to adopt the
“benevolent
construction” which this Court referred to in Greenbaum, and
confer the
powers by
reasonable implication. Whatever rules of construction are applied,
they
must not be
used to usurp the legitimate role of municipal bodies as
community
representatives.
[23]
In her
dissenting opinion of that case she also stated that the benevolent
construction approach serves a number of purposes, not the least of
which is that courts must accord proper respect to the democratic
responsibilities of elected municipal officials and the rights of
those who elect them. Justice McLachlin concluded her discussion of
the issue of judicial review by stating:
It may be
that, as jurisprudence accumulates, a threshold test for judicial
intervention
in municipal
decisions will develop. For the purposes of the present case,
however,
I find it
sufficient to suggest that judicial review of municipal decisions
should be
confined to
clear cases. The elected members of council are discharging a
statutory
duty. The
right to exercise that duty freely and in accordance with the
perceived
wishes of the
people they represent is vital to local democracy. Consequently,
courts
should be
reluctant to interfere with the decisions of municipal councils.
Judicial
intervention
is warranted only where a municipality’s exercise of its powers
is
clearly ultra
vires, or where council has run afoul of one of the other accepted
limits
on municipal
power.
[24]
Here, the power to pass a by-law for public safety is expressly
conferred, and therefore it must be viewed not by implication, but
rather within the context of the circumstances which caused Council
to pass it in the first place. In the case at hand, an attempt to
legislate for animal welfare by clothing the By-law with the
trappings of public safety without ever having undertaken even a
reasonable minimum of due diligence investigation or review, is
clearly in my view, ultra vires Council’s power as defined in
s.236(7) of the Municipal Act.
[25] The
City of Windsor had the power conferred upon it by s.236(7), but
the basis on which it exercised that power in passing its by-law
was flawed. We are not, here, seeking to imply on a reasonable or
deferential basis the power to pass a public safety by-law and
therefore deference must give way to a critical analysis of
Council’s action and to confine its authority to the powers
expressly conferred, namely, for public safety. [See R.. v.
Sharma, supra]
[26] The
result of Shell and other decisions that follow it including
Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 and R. v. Guignard, [2002] 1 S.C.R. 472, would indicate
that the courts show considerable deference to an elected councils’
decisions. However, when an elected council clearly acts outside of
its authority, the scope of review by a court should not in my view
be focused on deference to council but rather, on compliance with
and conformity to its legislative mandate.
[27] I
believe that it is also important to note the comments by Laskin J.
in Shell where he stated:
Bad faith by a
municipality connotes a lack of candour, frankness and
impartiality. It includes arbitrary or unfair conduct
and the exercise of power to serve private purposes at the expense
of the public interest: see Makuch, Canadian Municipal
and Planning Law (Toronto: Carswell, 1983) at pages 215 to 219.)
The signs of bad faith were discussed in the following
passage in Howard v. Toronto (City), supra, at pages 574-75, cited
by the motion judge:
‘The Court is
prohibited from quashing a by-law on the ground of
unreasonableness, real or supposed, provided the council in passing
it acted in good faith, but the unreasonableness of the by-law may
be given in evidence to establish want of good faith in the council
who passed it: (citing the Consolidated Municipal Act,
1922).
A by-law may
be quashed if the council in enacting it was not using its power in
good faith in the interest of the public, but simply to subserve
the interests of private persons….
What is or is
not in the public interest is a matter to be determined by the
judgment of the municipal council; and what it determines, if in
reaching its conclusion it acted honestly, and within the limits of
its powers, is not open to review by the Court.’
[28]
Sopinka J., for the majority in Shell also observed at page
13-14:
Generally, a
municipal authority is authorized to act only for municipal
purposes. In R. v. Sharma (1993), 100 D.L.R.
(4th) 167 at page 180 (SCC), Iacobucci, J., speaking for
the court, adopted the principle from Stanley M. Makuch, Canadian
Municipal and Planning Law (Toronto: Carswell, 1983),
at page 115, that as statutory bodies, municipalities
‘… may
exercise only those powers expressly conferred by statute, and
those indispensable powers essential and not merely convenient to
the effectuation of the purposes of the corporation.’
In most cases, as here, the problem arises with respect to the
exercise of a power that is not expressly conferred but is sought
to be implied on the basis of a general grant of power.
It is in these cases that the purposes of the enabling
statute assume great importance. The approach in such circumstances
is set out in the following excerpt in Rogers, The Law of Canadian
Municipal Corporations, supra, 64.1, at page 387, with which I
agree:
‘In
approaching a problem of construing a municipal enactment a court
should endeavour firstly to interpret it so that the powers sought
to be exercised are in consonance with the purposes of the
corporation. The provision at hand should be construed
with reference to the object of the municipality: to
render services to a group of persons in a locality with a view to
advancing their health, welfare, safety and good
government.’
Any ambiguity or
doubt is to be resolved in favour of the citizen, especially when
the grant of power contended for is out of the ‘usual range’:
see Rogers, op. cit., at 64.1, and Re:
Taylor and City of Winnipeg (1996), 11 Man. R. 420, per Taylor,
C.J.M.”
[29]
Any analysis of
whether the By-law in question is ultra vires must consider
the evidence in light of the foregoing statements by McLachlin J.
in the Shell case.
[30]
There are
additional cases, which I believe are relevant to this issue. In
114957 Canada Ltee (Spraytech, Société d’arrosage) v. Hudson
(Town), [2001] 2 S.C.R. 241 at paragraph 21, the Supreme
Court of Canada stated that the courts should accord municipal
powers a liberal and benevolent interpretation, and further that
only in the clearest of cases should a municipal by-law be held to
be ultra vires. The Supreme Court in Hudson approved the
dictum of McLachlin J. in Shell at paragraph 19, stating,
“barring clear demonstration that a municipal decision was beyond
its powers, courts should not so hold.” This finding of the Supreme
Court was recently cited with approval by the Ontario Court of
Appeal in Toronto (City) v. Goldlist Properties Inc. [2003]
O.J. No. 3931.
[31]
I believe that
this statement of the law accords with two other recent judgments
that, while I am not bound by them, also explain the state of the
law. In Lambert v. Whistler (Resort Municipality), [2004]
B.C.J. No. 494 (B.C. S.C.), “A municipality may enact a by-law for
an ulterior purpose without necessarily invalidating the By-law,
but it must act within the scope of the empowering
legislation.”
[32]
Moreover, in
Alberta Commercial Fisherman’s Assn. v. Opportunity
(Municipality), [2001] A.J. No. 459 (Q.B.), Justice Murray
recognized the importance of Shell and made several
statements which I believe are germane to this case:
As creatures of
statute, municipalities can exercise only those powers conferred
upon them by the Provincial Legislature. The exercise of such
powers is reviewable by the Court to the extent of determining
whether the actions are intra vires. See Shell Canada Products
Ltd. v. Vancouver (City) (1994),
110 D.L.R. (4th) 1 (S.C.C.) and R. v. Greenbaum,
[1993] 1 S.C.R. 674. The powers given to a
municipal government must be exercised for the purpose for which
they are given. Since municipalities derive their legislative
powers from the Provincial Legislature, they must frame their
By-laws strictly within the scope delegated to them by the
Legislature. See Verdun v. Sun Oil Co. Ltd.,
[1952] 1
S.C.R. 222, per Fateaux, J. If there is no legislative
authority for their actions, then those actions are beyond the
competence of Council: See Re Teron Developments Ltd. et al v.
The City of Edmonton et al (1977),
81 D.L.R. (3d) 543 (Alta. C.A.) affirmed
121 D.L.R. (3d) 760.
The Court has the
right and the duty to ascertain if the power given to Opportunity
by the Legislature was used by it for a proper purpose. If it is
found that Opportunity used its by-law-making powers for an
unauthorized or ulterior purpose, then such exercise of power is
ultra vires Opportunity and the By-law so passed will be declared
invalid and quashed. See Jones and deVillars, Principles of
Administrative Law (3rd ed.) 1999 at p. 157, Re Teron
Developments Ltd. et al (supra) and Re Regional Municipality of
Ottawa-Carleton and the Municipality of Marlborough (1974),
42 D.L.R. (3d) 641, where Mr. Justice Lacourciere at p. 649
said:
A by-law must be
passed for the purpose allowed by the statute, and council must not
seek, in enacting a by-law, to accomplish indirectly that which
cannot be directly accomplished in the manner provided by the
Legislature.
This judgment was affirmed by the
Ontario Court of Appeal without written reasons (1975),
50 D.L.R. (3d) 68 n. It has also been
held that the fact that Council may have had more than one purpose
in enacting a by-law and that one of the purposes, even the
predominant one, was beyond its power, does not render the by-law
invalid if it also has an honest purpose that is within its
statutory powers. See Koslowski and Skjelvik v. Corporation of
the District of West Vancouver,
[1981] 4 W.W.R. 454 per McEachern,
C.J.S.C. at (B.C.S.C.) 467 and Falardeau v. Town of Hinton
(1983),
50 A.R. 120, per McFadyen, J. at p.
130. The ulterior purpose alleged in this case was an attempt to
interfere with or control the fish population in the lakes within
its geographical domain.
[33]
Finally, the
Ontario Court of Appeal in R. v. Konakov, (2004) 69 O.R.
(3d) 97 recently held:
With respect to the appeal judge,
the issue before him was whether the City had the authority to pass
the By-law at issue, not whether the By-law was reasonable. The
decision of Rogers v. City of Toronto (1915), 33 O.L.R. 89
cited with approval in Shell Canada Products Ltd. v. Vancouver
(City), [1994] 1 S.C.R. 231 at para. 94 stands for the
proposition that, in reviewing the exercise of municipal power on
the basis of jurisdiction to pass a by-law, courts ought not to
assess the reasonableness of a particular exercise of municipal
power. That is a different issue. Further, the doctrine of
unreasonableness permitting the declaration of invalidity of
municipal by-laws is a limited one such as where it can be shown
that the by-law was enacted in bad faith or discriminates in a
manner that was unrelated to a valid planning purpose: R. v. Bell, [1979] 2
S.C.R. 212; Re H.G. Winton Ltd. and Borough of North York
(1979) 88 D.L.R. (3d) 733 (Ont. Div. Ct.). See also Canadian
Municipal and Planning Law (Ontario: Carswell, 1983) by Stanley
Makuch at 201 and 207. A by-law, otherwise enacted for proper
municipal purposes, is not unreasonable or invalid merely because
it contains a moral element: Nova Scotia (Board of Censors) v. MacNeil,
[1978] 2 S.C.R. 662.
[34] The
court cannot legitimize an ultra vires exercise of council’s power
where it merely describes its By-Law in terms of the relevant
section. The pith and substance of this By-law in my view is animal
welfare and not public safety. To give support to the defence
argument in the Shell case requires, in my view, that there
be some factual or contextual underpinnings which might support
Council’s best intentions. But as stated earlier, there was no
evidence of Council having directed its mind to the causal
connection between public safety and the performance of exotic
animals. If anything, there is ample evidence to suggest it failed
its due diligence obligation which in my view, existed in the
circumstances. Expressed another way, what the By-law attempts to
do is simply prohibit the activity (exotic animal performances)
without responding to the core issue, namely whether public safety
was adversely affected..
[35] In
examining the evidence, I have also noted that many of the
councillors’ statements in the transcripts appear to be, and
actually are, at odds with the “official” or stated purpose of the
By-law. The Applicants bring these statements directly into
question. I now consider the role of an elected official and how
this court should examine statements made by such an official
because an elected official is permitted to demonstrate an opinion
or speak out regarding the subject matter before him/her. I have
considered in depth the following excerpt from Old St. Boniface
Residents’ Assoc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at pg. 1197:
In my opinion the
test that is consistent with the functions of a municipal
councillor and enables him or her to carry out the political and
legislative duties entrusted to the councillor is one which
requires that the objectors or supporters be heard by members of
Council who are capable of being persuaded. The
Legislature could not have intended to have a hearing before a body
who had already made a decision which is irreversible.
The party alleging disqualifying bias must establish that there is
a prejudgment of the matter, in fact, to the extent that any
representation at variance with the view, which has been adopted,
would be futile. Statements by individual members of Council,
while they may very well give rise to an appearance of bias, will
not satisfy the test unless the court concludes that they are the
expression of a final opinion on the matter, which cannot be
dislodged. In this regard, it is important to keep
in mind that support in favour of a measure before a committee
and a vote in favour will not constitute disqualifying bias in the
absence of some indication that the position taken is incapable of
change. The contrary conclusion would result in the
disqualification of a majority of Council in respect of all matters
that are decided at public meetings at which objectors are entitled
to be heard. [Emphasis added.]
[36] I have
also read and considered Re McGill and City of Brantford
(1980), 111 D.L.R. (3d) 405) (Ont. HCJ Div. Ct.). In Re
McGill, Justice Henry of the Ontario Divisional Court held that
elected officials are permitted to be biased to a certain extent as
they fulfill their elected duties. Below are several excerpts from
Henry J.’s decision, portions of which I have emphasised. I will
explain the reason for the emphasis later.
But the real point in each of those
cases is that the Court concluded that the Council had “made an
irrevocable decision to approve the proposal” and was fatally
biased. This has not been demonstrated in the case at bar. There
is no convincing evidence that the members of the Brantford Council
did not honestly and fairly open their minds to the objections.
They might be expected to have formed a tentative conclusion, and
even to have expressed it. In this sense they were all biased one
way or the other, because it was their function to take a position
at all stages of development. It must be assumed that the
Legislature was aware of this when it required the Council to hold
a hearing. The type of disabling bias that is referred to in the
New Zealand cases is one which convinces the mind that because of
the irreversibility of the steps taken, a hearing in the true sense
of that term cannot be held; it is a sham. [Emphasis
added.]
Bias in the context of this case is a
slippery term. Council would perforce have appeared to be in favour
of the by-law. That impression must arise from Council’s propelling
the plan to the stage where a hearing was required under s. 446
[am. 1978, c. 101, s. 16, of the Municipal Act, R.S.O. 1970, c.
284]. That degree of commitment could easily disqualify a judicial
tribunal for bias. However, because it is an inevitable element in
the process of bringing a by-law to the point where a hearing is
required, it does not amount to disqualifying bias. It is an
element that is built into the process.
If, however, during that process
Council created by words or conduct an impression that could
reasonably be seen as determination to pass or, as here, neglect
any due diligence investigation, the by-law notwithstanding what
might occur at the hearing, that, in my opinion would be sufficient
to invalidate the hearing. That would be disqualifying bias.
[Emphasis added.]
[37]
Re
McGill, supra, was cited with
approval by both the Court of Appeal and the Supreme Court of
Canada in Old St. Boniface, supra, at pgs
1184-1185:
Huband J.A. distinguished Wiswell,
supra, on the ground that it was based on a denial of the
opportunity to be heard due to failure to comply with statutory
notice requirements. He cited with approval the
decision of the New Brunswick Court of Appeal in Oley and Moffatt
v. Fredericton (1984),
57 N.B.R. (2d) 361, which in turn relied on Re McGill and City
of Brantford (1980),
111 D.L.R. (3d) 405 (Ont. Dist. Ct.). That case
held that Council can hold preliminary views, but must be able to
hear and consider the objections honestly and fairly.
Justice Huband concluded, at p. 264:
The learned trial judge specifically
found that Councillor Savoie acted in what he believed to be “the
best interests of his community”. Whether the electors
of Old St. Boniface share in his opinion of the public weal is a
question that can be answered by them at the next election. But it
is not for the courts to prevent Councillor Savoie from taking an
open leadership role, for that is his function as an elected
representative responsible for the growth and development of the
urban area. It is also his duty, of course, to be
receptive to persuasion from those who hold contrary views when he
subsequently considers and votes upon issues within committees and
on Council itself. There is nothing in the record to
suggest that Councillor Savoie functioned beyond the parameters of
these lawful expectations.
[38]
In the case before me, the
Applicant has been permitted to present its Circus to the public
upon satisfying the necessary conditions, that is, establishing
safety plans and having these plans and procedures approved by the
Fire Department and Police Department. It had done this in previous
years without incident, and the Circus followed the same procedure
in 2002. The difference between 2002 and any previous year was the
presence of animal rights activists.
[39]
It is important
to note that council had approved the permit before Ms. Robinson’s
letter from Zoo Check arrived, at which time Councillor Zuk
requested a report regarding the legality of banning animal acts in
the City. The report from Mr. Wilkki, initiated by Councillor Zuk
after the receipt of this letter, stated:
It is very clear that council has
been pressured by “animal rights” groups/individuals to pass a
by-law to restrict animal performances mainly because of the
alleged mistreatment of the animals that perform in those shows. A
secondary reason put forward has been for the protection of the
public.
Mr. Wilkki’s report was prepared
for the City, and was a frank statement of the circumstances. I
accept the report as evidence that the primary reason the report
was prepared was to examine the City of Windsor’s ability to ban
animal acts and in the process thereby legislating for animal
welfare.
[40]
Importantly, Zoo Check did not
contact the Circus or examine the Circus’ safety procedures,
training methods, or animal living quarters. As such, Zoo Check
would not have been privy to the Circus’ safety plans or emergency
response procedures. The letter sent by Ms. Robinson was written
out of concern for the welfare of the animals, not the welfare of
the citizens of Windsor. It would certainly appear that this letter
spurred counsellor Zuk into action whereby she requested a report
from the City administration to explore the legality of banning
animal acts in the City of Windsor.
[41]
As previously
discussed in Alberta Commercial Fisherman’s Assn. v. Opportunity
(Municipality), even if Council may have had more than one
purpose in enacting a by-law and that one of the purposes, even the
predominant one, was beyond its power, this does not necessarily
render the By-law invalid if it also has an honest purpose that is
within its statutory powers. The purpose and content of the letter
from Ms. Robinson and Councillor Zuk’s subsequent response to that
letter together with the report from Mr. Wilkki make it clear that
the By-law’s primary purpose was to protect the welfare of
performing animals. Furthermore, statements made by Council confirm
that it knew that enacting a by-law for the purposes of animal
welfare was beyond its legislative purview. Because it is within
Council’s power to legislate with respect to the safety of its
Citizens, this ‘honest purpose’ power would save the by-law if
there were a valid and driving purpose behind it.
[42]
After
consideration of all the evidence before me, I cannot find that the
safety of the citizens of Windsor was the driving purpose behind
the By-law. I am mindful of the fact that I should only intervene
in the ‘clearest of cases’ and if there is a finding of bad faith.
While I do believe that Council was acting in the public interest
by protecting the welfare of animals and by protecting the citizens
of Windsor from animal attack, I adopt the statement from
Pedwell v. Pelham (Town), [2003] O.J. No. 1774 (Ont. C.A.)
when I say that “Council’s own subjective assessment of the
character of their conduct does not resolve the problems of whether
they acted in good faith in so doing.” The process by which Council
reached its conclusion was flawed and demonstrates an element of
bad faith. Specifically, Council did not direct Staff to consult
with the Police or Fire Departments regarding the risk to public
safety; Council did not direct Staff to contact the Windsor/Essex
Humane Society to obtain further information as to their monitoring
of the Circus Animals; Council did not examine the rate of injury
experienced in rodeos, agricultural fairs, or other activities that
are exempted from the By-law; Council did not examine the
statistics describing the rate injuries incurred by the public as a
result of circus animals. In fact, the only report before Council
was the report of April 29, 2002 that recommended the approval of
the Circus’ permit application and it had received the approval of
the Windsor Police and Fire Services.
[43]
Furthermore,
statements made by Council members indicate that there was an
overriding concern about the welfare of the performing animals.
While Council attempted to focus on the issue of public safety, and
indeed made statements that they were not satisfied with the safety
plans proposed by the Circus that had been accepted in previous
years, there was no basis for Council to make these statements. The
process by which Council reached its decision to ban the
performance of exotic animals was marked by the absence of
frankness and impartiality, which are indicia of good faith. (See
Pedwell v. Pelham (Town), supra.) I arrive at this
conclusion having regard to the fact that elected officials may
make their opinions public and continue to keep an open mind about
the subject matter.
[44]
I find that
while Council undoubtedly believed it was acting in the public
interest, the manner in which it reviewed the materials in reaching
this decision demonstrates a lack of good faith. I must therefore
find the By-law invalid.
Therefore the answer to
this question is Yes.
DISCRIMINATION
(B)
Does the by-law unlawfully
discriminate in the Municipal law sense because it bans circus
entertainment using exotic animals and no other entertainment
without authority or purpose?
[45]
As Robins J. observed in the Divisional Court
reasons in the case of H.G. Winton & North York (1978),
20 O.R.(2d) 737,
A municipality can or may discriminate
in the passage of its by-laws, but there must be a rationale basis
for it, supported by a due diligence review of the various options
open to it. In that case the municipality rezoned. In that case the
municipality rezoned a piece of property intended to be used for
the construction of a church, to thwart the church’s intended use.
There was no planning reason put forward to justify this decision,
which was in effect based solely on a ratepayer petition, which
opposed it. On this basis therefore the Divisional Court found that
the rezoning by-law was arbitrary and discriminatory and therefore
could not stand. Robins J. also observed that Council had no
material before it, apart from that petition, especially no report
from the Planning Department including zoning studies, traffic
reports and the like.
[46] As was
noted by him, every zoning by-law is discriminatory in the sense
that the municipality chooses the types of use it will permit in
lands under its jurisdiction but there must be a rational basis to
warrant such discrimination.
[47] In the
case at hand, while we are not dealing with a planning by-law,
nevertheless the same principles, in my view, apply
[48] The
thrust of the City of Windsor’s by-law discriminates between the
types of animals and the types of activities that could participate
in a circus.
[49]
However, in order to attach some justifiable rationale
to this, Council was, as has been noted, vested with an obligation
of due diligence. In passing the By-law, it ignored this obligation
and as well, the past practices that had been developed between the
Applicants and the City. In particular, I note:
(i)
The previous
years’ compliance with the City’s request for a Rescue Plan and its
approval by the Police and Fire authorities.
(ii)
Compliance with the
Parks Department Use Agreement.
(iii)
No previous reported incidents
of injury in 18 years of prior operation of the Circus in
Windsor.
(iv)
It attempted to discriminate
between animals and activities without resort to any information on
risk analysis.
(v)
It failed to consider the issue of the causal connection, if any,
between exotic animal usage and public safety.
(vi)
It ignored or chose to refrain from undertaking any type of
analysis of risk assessment with respect to the exotic
animal-public safety issue.
(vii)
Notwithstanding the precise warning given by its own counsel, Mr.
Wilkki against acting in the interest of animal welfare and his
warning that Council was being “pressured” by the animal rights
activists, it shows to nevertheless receive great masses of
arguably inflammatory material and submissions from them without
seeking to test the credibility of any of the information.
[50] As noted
in my Reasons hereafter, there was no doubt a great deal of
information available, statistical and otherwise on the exotic
animals-public safety issue, which was considered in the review
undertaken by Mr. Stamm for the Applicants.
[51]
Furthermore, on the Risk Assessment issue as it relates to exotic
animals/public safety, I note in my Reasons under Issue F relating
to the Charter the commercial insurance market has analyzed
this issue and has concluded that the risk of potential spectator
injury is so low that it does not even warrant a special insuring
risk category or rate, to be charged to its circus operator
clients. The circus industry as a whole enjoys the same risk rating
as the general commercial insurance market.
[52]
Therefore, while I acknowledge that the municipality here can
discriminate between various interest groups and issues in the
course of passing its by-laws, I adopt the reasoning by analogy of
Robins J. in the Winton case and find that there must be
reasonable and proper grounds to warrant discriminatory distinction
between, as here, types of animals and types of performances in
which the animals appear.
[53]
When the evidence is viewed as a whole, I find that Windsor City
Council was cautioned by its counsel about the limitation of its
authority to legislate in this area. It effectively chose to ignore
this advice. It was influenced no doubt by the passionate pleas by
the Animal Rights activists who addressed Council together with the
wealth of material which they provided to it. I view this material
to be in the main, misleading or inflammatory. Council permitted
itself to stray too far off course and went beyond the limit, where
deference for its decision could be justified.
[54]
Section 236.7 of the Municipal Act specifically provides the
authority to council to regulate for public safety, but apart from
the occasional utterance about this by one or more councilors
during the debates, there is no evidence before me that it even
considered the causal connection between exotic animal performances
and public safety. Nor did it attempt to inform itself through its
administration or by way of retention of outside experts, if
necessary, to assess the issue of public safety which is the
cornerstone of its legislative authority in the first place. This
is the essence of at least the minimal due diligence which in my
view Council was obligated in circumstances of this case, to carry
out.
[55]
For its part,
the Applicants produced the evidence of one of its witnesses, Gary
Stamm, M.A. an Economist who has education, training and experience
in statistics and higher mathematics as applied to economic issues.
His research includes econometric modelling and risk analysis. He
has produced hundreds of such reports over the last 37
years.
[56]
He notes that
while the By-law would expressly permit exotic animals to appear at
an Agricultural Fair or a Rodeo, there was no analysis undertaken
by Council on any potential public safety issues whereas it
purports (again without any analysis) to pass its By-law based on
public safety. Arguably therefore, Council has discriminated
against an activity, which involves exotic animals on a basis other
than public safety.
[57]
By consulting a
number of external sources including the Ontario Coroner’s office,
the Insurance Bureau of Canada (I.C.B.) and the Canadian Institute
for Health Information, Mr. Stamm opined that from a statistical
and risk perspective, it is abundantly clear that the incidents of
injury in a Circus environment is insignificant when compared, say,
to reported dog bites to the general population or, injury or death
to snowmobilers in Canada. All of this information and data was
similarly available to the City had it chosen to access it, for
consideration of the public safety issue which, as noted earlier,
is the only basis upon which s.236.7 of the Municipal Act
permits it to pass such a By-law. However, it chose not to consider
this information or at least access it, before enacting the
By-law.
[58]
This bolsters an
inference that its prime reason (the “pith and substance” factor)
in passing such a By-law was for reasons of animal health and
welfare, which was clearly ultra vires the municipality.
[59]
Because the
By-law discriminates between animals as compared to differentiating
and addressing known risks, there is therefore no sustainable or
rationale basis upon which it could deal with the core issue of
public safety.
[60]
However, if one
were to assume that the discrimination between animals was
justified, this too fails when one undertakes a review of the
material that the activists themselves at Zoo Check and ARK II
supplied to Council. Mr. Stamm testified that this material
demonstrates that in the past 13 years in North America, there have
been only approximately 45 incidents involving elephants, on an
average of 3.5 per year in which injury or death ensued, but
virtually all of these involved trainers or other Circus employees
and not the general public. Similarly there were no reports of
death to a member of the public in the same period of time, caused
by any of the so-called big cats.
[61]
On an annual
basis therefore in the past 13 years, an average of 3 members of
the public per year, sustained an injury at a circus compared with,
in the last 7 years alone, the fact that there were 207 deaths
arising out of the operation of snowmobiles in Canada.
[62]
Mr. Stamm’s
evidence included information provided to a United States
Congressional Hearing on the Circus Industry in 1999, which
demonstrated that approximately 30,000,000 people attended a circus
annually. Therefore during the past 13 years the overall attendance
at circuses was in the range of 300,000,000 – 400,000,000 people.
During this time the 45 incidents referred to occurred, none of
which involved members of the public.
[63]
Leslie Fox,
representing the People for Ethical Treatment of Animals (P.E.T.A.)
as well as being the acting Executive Director of Fur Bearer
Defenders (to protect fur bearing animals) tendered a great deal of
material to Council but admitted that neither she, nor anyone else
she knew, ever analyzed any of the information or undertook a due
diligence assessment of it. Therefore, as untested and patently
misleading and unreliable as the material was, this is what was
given to Council to assist in its deliberations She further
admitted that the bulk of the information by its very nature, dealt
with animal welfare and not public safety.
[64]
Therefore in the
context of the hearing before Council, it should have been obvious
that substantially the entire focus of the animal activists
delegations was animal welfare and not public safety. Added to this
was the admonition from the City’s own lawyer about “pressure” from
those groups. Comments made by several of the members of Council in
responding to this issue during the course of its deliberations on
the subject would also suggest that not withstanding a somewhat
token recognition of the public safety requirement to legitimize
the By-law, Council was already directing its mind to animal
rights. Once the Zoo Check letter of June 17, 2002 was received at
City Hall and Counsellor Zuk requested on July 8th a
legal opinion from the City Solicitor on the legality of
restricting animal acts (which was provided by Mr. Wilkki on July
25th about the same time when a flood of material from
the animal activists groups had been received), the wheels were set
in motion. The Council was warned about the importance of the
public safety issue as being the only basis to properly pass the
By-law. The animal welfare/public safety issue was “front and
centre” for the Council, but it effectively ignored or refused to
acknowledge any obligation of a reasoned and balanced review of the
issue; in other words, there was no due diligence performed
although a 2 month period passed between Mr. Wilkki’s report of
July 25th and September 23rd when the By-law
was passed on three readings that same night. In the interim, the
September 20th letter from the Applicant’s counsel put
these issues squarely before Council. It might have, even at that
late date deferred the matter to consider the issue and possibly
undertake some independent inquiry. It chose not to.
[65]
While Council
can discriminate it must do so with the underpinnings of fairness
and impartiality. In my view it violated these principals which are
the usual indicia of good faith, in passing its By-law.
[66]
Viewed from a distance, the By-law
would appear to be a reaction to a well-orchestrated lobby group
and Council appears to be paying little more than lip service to
its fundamental public safety obligation. The consequence of its
reaction, in the form of the By-law in question, in my view
discriminates in the municipal law sense against the applicants and
for this reason I find that the By-law in question is invalid.
Therefore the answer to this question is
Yes.
(C)
Did the City violate the
principles of fairness in not providing the Circus with a
hearing?
[67]
Procedural fairness may be said to require a full hearing when
there is an economic interest at stake, or when the business of the
applicants is seriously affected. In this instance, the Applicants
have failed to demonstrate that not allowing the Circus to bring
exotic animals into the City of Windsor would seriously affect its
business. The City of Windsor is not the only city in which the
Circus performs, and the By-law does not absolutely restrict the
Circus from performing using persons and domestic animals
instead.
[68]
As stated
elsewhere in these Reasons the evidence demonstrates that Council
did not consider all the evidence in passing its By-law. However,
this was not a judicial decision, but rather one made by elected
officials as part of an administrative process. As such, the level
of fairness is not that which is expected of a Court. Nevertheless
there was a minimal expectation of fairness that Council would
allow the Circus an opportunity to speak and that Council itself or
Administration would research and consider whether there was any
causal connection between the performance by exotic animals in
Windsor at the Circus, and the safety of its citizens.
[69]
Therefore I find
that the City did violate the principles of fairness by arriving at
a decision again, marked by the absence of frankness and
impartiality which are the usual indicia of good faith.
(D)
Is the By-law void for
vagueness in that it exempts performances, such as rodeos and
agricultural fairs and those for educational purposes, without any
attempt to define or establish the meaning of these
terms?
[70] The
applicant contends that the by-law is void for vagueness
because:
a)
It exempts rodeos and agricultural fairs, which are undefined,
without providing any guidance as to whether the ban of exotic
animal performances applies to animals being displayed at these
events; and
b)
It exempts performances whose “main object is for educational
purposes” without any attempt to define or establish what is meant
by “educational purposes.”
[71] The
Applicants argue that Council enacted a by-law that purports to
license and regulate, however, in so doing, Council did not use
words with a precision that people could understand and follow.
They state that for example, “educational purposes” can have a
variety of meanings, including the demonstration of the intellect
and abilities of animals.
[72]
Moreover, they maintain that the By-law is unclear as to whether
exotic animals can perform at agricultural fairs such as which
currently occurs. Therefore it is not capable of a clear
interpretation or enforcement.
[73]
Conversely the Respondent asserts its by-law is not vague in that
should the court interpret the By-law by attributing the ordinary
meaning rule to the words in it then, there is no ambiguity or
vagueness. The ordinary meaning rule states that, absent any reason
to object, the ordinary meaning of the words should be used to
interpret the legislation.
[74]
Additionally the Respondent states that the doctrine of
severability should be applied in the event that part of the By-law
is found to be vague. Should this doctrine be engaged, the
remaining portion, which is not vague, would be of full force and
effect. In support of this, the City argues that courts should be
loathe to quash an entire by-law if it is possible to sever the
valid from the invalid.
[75] The
concept of vagueness and the interpretative approach to be taken in
determining whether a statute, regulation, or by-law is void for
vagueness, has been considered by a number of sources and
cases:
[76]
Section 10 of the Interpretation Act, R.S.O. 1990 c. I.11
states:
10.
Every Act shall be
deemed to be remedial, whether its immediate purport is to direct
the doing of any thing that the Legislature deems to be for the
public good or to prevent or punish the doing of any thing that it
deems to be contrary to the public good, and shall accordingly
receive such fair, large and liberal construction and
interpretation as will best ensure the attainment of the object of
the Act according to its true intent, meaning and
spirit.
[77]
In R. v. Loscerbo (1994), 92 Man.R. (2d) 263
(C.A.)(WL) the
Manitoba Court of Appeal was required to interpret a statute that
created a quasi-criminal or regulatory offence with penal
consequences. Chief Justice Scott reviewed the current authorities
on statutory interpretation, with particular reference to the older
doctrine of “strict construction.” He defined the current approach
to the problem, as articulated by Chief Justice Lamer in R. v.
Z. (D.A.), [1992] 2 S.C.R. 1025 at p. 1042:
In interpreting the relevant provisions of an Act, the express
words used by Parliament must be interpreted not only in their
ordinary sense but also in the context of the scheme and purpose of
the legislation: …I am of the view that the Court of Appeal
properly proceeded on this basis when it stated that the best
approach to the interpretation of words in a statute is to place
upon them the meaning that best fits the object of the statute,
provided that the words themselves can reasonably bear that
construction.
[78] In
R. v. Sandler, [1971] 3 O.R. 614 at 620, the court
stated:
When a municipal council purports
to legislate under the powers found in the Municipal Act and
thereby creates obligations to be observed by its citizens, the
failure to observe which attracts punishment, it is to be expected
that the by-law creating such obligations will itself be so
explicit that a well-intentioned citizen seeking to observe the
provisions of the by-law may, from a reading of the by-law, without
the enlargements of its requirement by the order of a municipal
servant, be able to satisfy himself that he has complied with its
requirements.
[79] In
Good v. Jacob Y. Shantz Son & Co. (1911), 23 O.L.R. 544 at 552
(C.A.), Garrow, J.A. defined the issue this way:
It is a general principle of legislation, at which superior
legislatures aim, and by which inferior bodies clothed with
legislative powers, such as… municipal councils…are bound, that
all laws shall be definite in form and equal and uniform in
operation, in order that the subject may not fall into legislative
traps or be made the victim of caprice or of favouritism — in
other words, he must be able to look with reasonable effect before
he leaps:
[80]
The
principles to be applied in construing or interpreting municipal
legislation are succinctly summarized by Rogers in his leading text
on municipal law, The Law of Canadian Municipal
Corporations, 2d ed. (looseleaf) (Toronto: Carswell, 1971),
Vol. 1, where he states, under the heading “Judicial Construction
of By-Laws,” at p. 474:
A by-law should be reasonably clear, definite and free from
ambiguity in its language; otherwise, defective draughtsmanship may
result in its circumvention by a judicial construction at variance
with the intention of council or even in the by-law being declared
illegal because of uncertainty.
…
The whole purpose of judicial interpretation is to determine the
intent of the enacting body when it has not been clearly disclosed
by its forms of legislative expression.
…
The intention of the framers of a by-law must be ascertained from
the language used and the nature and purpose of the by-law itself.
The object is to determine the intent of the council and give
effect to it and this is the intent as expressed in the by-law and
not what might have been intended but not expressed. The court
should construe the by-law so as to give reasonable effect to the
object aimed at and policy declared by council. It should be
interpreted to give effect to the object and scheme of the by-law,
and be construed reasonably having regard to the public
interest.
[81] At
page 475-476, Rogers continues:
The courts have taken the view that by-laws passed by local
authorities are to be benevolently interpreted and are to be
supported if possible, unless it can clearly be seen that a by-law
is made without jurisdiction.
[82] In
Niagara Falls v. Chiu, (2003), 38 M.P.L.R. (3d) 254, the
Ontario Court of Justice considered legislation passed by the city
with respect to “body rub parlours.” At issue was whether the
impugned legislation was void for vagueness in that the actions
described under “body rub” could conceivably include hairdressers,
athletic trainers, baby-sitters or other service personnel. Moses,
J.P. stated at paragraph 21:
The “void for
vagueness” doctrine has a history based in American jurisprudence.
In the United States, laws will be deemed to be unconstitutionally
vague if the wording of the law:
a)
Fails to give fair notice to
citizens of the prohibited conduct; or
b)
Encourages arbitrary enforcement of
the law and if found
as such, the law will place an individual’s life, liberty or
property at risk, thus violating the principle of “due process of
law,” a right guaranteed under the United States
Constitution.
[83]
Furthermore, in R. v. Zundel, (1987), 31 C.C.C. (3d) 97
(Ont. C.A.) the Ontario Court of Appeal outlined the void for
vagueness doctrine as well as the vagueness and overbreadth
doctrines as they appear in Canadian law at paragraph 25:
Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended
effect of a statute may be perfectly clear and thus not vague, and
yet its application may be overly broad. Alternatively, as an
example of the two concepts being closely inter- related, the
wording of a statute may be so vague that its effect is considered
to be overbroad.
[84] In
R. v. Canadian Pacific Ltd., (1995), 99 C.C.C. (3d) 97 the
Supreme Court of Canada directed that in order to determine
vagueness, the court must exhaust its interpretative role:
Vagueness must not, however, be considered IN ABSTRACTO, but must
be assessed within the larger interpretative context developed
through an analysis of considerations such as the purpose,
subject-matter and nature of the impugned provision, societal
values, related legislative provisions, and prior judicial
interpretations of the provision. Only after a Court has exhausted
its interpretative role, will it then be in a position to determine
whether the provision affords sufficient guidance for legal
debate.
[85]
Moreover, in Canada v.
Pharmaceutical Society (Nova Scotia), (1992), 74 C.C.C.
(3d) 289 (S.C.C.) Gonthier, J. for the Supreme Court stated:
Factors to be considered in
determining whether a law is too vague include:
a)
The need for flexibility and the interpretive role of the
Courts,
b)
The impossibility of achieving absolute certainty, a standard of
intelligibility being more appropriate, and
c)
The possibility that many varying judicial interpretations of a
given disposition may exist and perhaps coexist…
[86] The
Supreme Court in the same case also stated, with respect to
overbreadth:
…over breadth remains no more than an analytical tool. The
alleged overbreadth is always related to some limitation under the
Charter. It is always established by comparing the ambit of
the provision touching upon a protected right with such concepts as
the objectives of the state, the principles of fundamental justice,
the proportionality of punishment or the reasonableness of searches
and seizures, to name a few. There is no such thing as overbreadth
in the abstract. Overbreadth has no autonomous value under the
Charter.
[87] In
this case, the Applicants contend that the lack of definition of
certain terms renders this by-law invalid. Specifically, they
assert that the lack of definition of “rodeo” and “agricultural
fair” results in this law being too vague and uncertain. I cannot
agree, for the following reasons:
[88]
While the stated intent of the By-law here is to protect the
citizens of Windsor from harm from performing exotic animals, there
exists sufficient ambiguity in the By-law to cause problems.
[89]
First and foremost, a circus does not neatly fall under the
language of s. 236.7 of the Municipal Act, which includes
headings of menagerie or circus- riding.
me · nag · er · ie n.
a)
A collection of wild or strange animals, especially for
exhibition.
b)
A place where they are kept of exhibited.
c)
A diverse or miscellaneous group.
[90]
This definition of menagerie is compatible with most other
dictionaries, which I have consulted. Furthermore, while this
definition would seem to incorporate a troupe of wild animals,
passively displayed, it does not appear to contemplate an active
performance by animals, as does “circus”:
cir · cus n
a)
A large public entertainment, typically presented in one or more
very large tents, featuring exhibitions of pageantry, feats of
skill and daring, performing animals, etc., interspersed throughout
with the slapstick antics of clowns.
b)
A troupe of performers, esp. a travelling troupe that presents such
entertainments, together with officials, other employees and the
company’s performing animals, travelling wagons, tents, cages, and
equipment.
c)
A circular arena surrounded by tiers of seats, in which public
entertainments are held; arena.
rid · ing v
.
a)
To sit on and manage a horse or other animal in motion; be carried
on the back of an animal.
b)
To be carried on something.
[91]
Furthermore the By-law also contains the word domestic,
which I will discuss with reference to the purported vagueness of
it.
do · mes · tic adj
a)
Of or pertaining to the home, the household, household affairs, or
the family.
b)
Devoted to home life or household affairs.
c)
tame; domesticated.
d)
Of or pertaining to one’s own or a particular country as apart from
other countries.
e)
Indigenous to or produced or made within one’s own country: not
foreign; native.
[92]
Menagerie, as defined, appears to bring the by-law close to
the intentions of s. 236.7 of the Municipal Act, however
there still exists a degree of uncertainty. A menagerie is defined
as a collection of wild or strange animals for exhibition. Nowhere
in the definition does it discuss entertainment or feats by those
animals.
[93]
Moreover, there is no available definition of “circus-riding.”
However, when considering the definition of the two words together
– circus and riding – one ends up with the absurd: one who rides on
a large public entertainment or a troupe of performers. This,
certainly, is not what was intended under the Municipal Act.
What must have been contemplated was the act of riding animals
within a circus context. The By-law in question does not
contemplate circus riding, or the act of riding in a circus, save
and except to allow horse and pony riding. Therefore, it would
appear that “circus-riding”, as it were, does not aid in the
examination of the applicability of the By-law.
[94]
That said, however, I believe that, when taken in unison,
“menagerie” and “circus-riding” may sufficiently
describe a circus – a collection of wild or strange animals for
exhibition, during which one may sit on and manage a horse or other
animal in motion.
[95]
This is a tenuous explanation at best. However, in its entirety, s.
236.7 states that a municipality may pass by-laws “…prohibiting
or regulating menageries, circus-riding and other like shows
usually exhibited by showpersons…” [Emphasis added.] On this
basis circuses could be included under the latter category of
“other like shows”. Therefore, I find that the By-law was validly
passed under the Municipal Act.
[96] I
must next consider whether the By-law is void for vagueness. There
are several problems with the By-law which I will attempt to
articulate.
[97] The
By-law does not define several words, including:
a)
Agricultural fairs;
b)
Rodeos;
c)
Educational purposes; and
d)
Domestic.
[98]
This raises several issues. Firstly, I believe that the Applicants’
challenge of the meanings of Rodeo and Agricultural Fair are
unfounded. Using the principles of statutory interpretation, the
meaning of these terms should be determined by looking to their
regular usage. This is easily accomplished when one looks at the
normal definition and usage of “Rodeo” and “Agricultural” or
“Agriculture” used in conjunction with “Fair”. The Applicants next
argue that it is unknown whether exotic animals are permitted to be
used at these shows. The use of exotic animals, however, is not the
issue. The By-law does not purport to regulate the use of exotic
animals, only the use of animals in performances that would cause
harm to the public. Therefore I reject the challenge of these
words.
[99]
“Educational Purposes” is somewhat more troublesome in that the
by-law does not explain what is meant by a performance for
educational purposes. Again, I do not see any merit to this
argument. Generally, the over breadth or vagueness argument will
focus on the fact that too many groups’ rights are infringed by a
by-law, or that it is over inclusive. Here, however, educational
performances are only restricted by the By-law if they include
certain animals that allegedly may cause harm to the public.
Because the phrase “Educational purposes” may be broadly read, it
serves to allow more exclusions to the By-law, and not to
unduly restrict the freedom of more people.
[100]
While counsel for the Applicants did not specifically analyze the
word “Domestic”, this term requires a more in-depth examination.
The word includes several concepts, some of which are, of the
“home” and “tame”. Under s. 3(f)(i) of the By-law, a performance
for educational purposes that includes the participation or
inclusion of Felids may not be carried out, with the
exception of the domestic cat. It may be argued that a lion trained
for the purposes of appearing in circus-type shows conceivably
could fall under the heading of “domestic.” As “cat” may include
“any of several carnivores of the family Felidae, such as
the lion, tiger, leopard, jaguar, etc.”, a tamed lion or tiger
would fall under this category.
[101]
This analysis seems to fit with the purpose of the By-law, namely,
the protection of persons in the City of Windsor from harm from
performing animals. If an animal is domesticated or tame, there
would be lesser reason to fear that such an animal would pose a
threat to the public.
[102]
Therefore, a circus which involves the performance of domesticated
lions and/or tigers, while probably not the intention of city
council, might be legal under the By-law. If this were the end of
this issue, I believe my conclusion would be that, while the by-law
is flawed, it is not void for vagueness. In fact, it is specific
enough to allow for only the performance by domesticated
animals.
[103]
Unfortunately, however, the issue does not end there. The question
becomes, what then, is the result, regarding the owner of a dog or
cat that is foreign in nature (a Siamese cat or Irish Setter), or
one that that is not tamed or domesticated? Surely, a puppy is
neither tame nor domesticated. Simply watching such a puppy nip and
tug at its owner could be described as a performance. (Note that
performance does not require any sort of remuneration under the
By-law). Furthermore, would a Doberman Pinscher, indigenous to
Germany, and therefore not a domestic dog, be prohibited from
exhibiting a display of sitting for a bone or shaking a paw, if
this were otherwise considered by some to be a form of
entertainment?
[104]
The exact definition of domestic cannot be derived from the By-law
alone. The word “domestic” is used pervasively throughout the
By-law, in different contexts. For example, in clause 3(d): “Magic
acts using birds, domestic dogs, domestic cats, or rabbits”. This
list includes two unclassified categories of animals – birds and
rabbits. It is, therefore, lawful for a magician to use a Peregrine
Falcon, Bald-Headed Eagle, or Canada goose in a magic act and he or
she is not restricted to using pigeons. Furthermore, the rabbit
need not be tame – it may be a jackrabbit or hare. It is impossible
to discern what meaning should be attributed to “domestic” using
the doctrine of ejusdem generis, as these categories are inherently
not “of the same kind”.
[105]
While “domestic” is also used in other areas of the By-law, it is
of no help. It states that domestic cats and domestic dogs are an
exception to the By-law, as are domestic cat and dog shows.
[106]
Therefore, because the word domestic is not defined, sections of
this by-law become void for vagueness – namely sections: 3(d);
3(f)(i); 3(f)(ii); and 3(g).
[107]
Consequently, it must be determined whether or not these sections
could be severed from the By-law. Had I not found that the By-law
was otherwise invalid for the reasons stated above and for reasons
to follow, these sections could be severed from it, as it would not
have been sufficiently affected to render it void for vagueness in
its entirety.
Therefore the answer to this
question is NO.
(E) Is the By-law, in
pith and substance, an attempt to regulate public morality
by
banning
entertainment with exotic animals and as such involve the exercise
of the criminal law power exclusively vested in the Parliament of
Canada pursuant to s. 91(27) of the Constitution Act,
1897?
[108]
The Applicants argue that the “pith and substance” of the By-law
can be ascertained by examining the background and circumstances
surrounding the enactment, and such analysis leads to the
conclusion that the by-law is an attempt to regulate public
morality. Therefore they argue the City has improperly exercised a
criminal law function, which is beyond its jurisdiction because
pursuant to s. 91 of the Constitution, it is solely within
the ambit of Parliament.
[109]
By s.446 of the Criminal Code, it is an offence to
cause pain, injury, or suffering to an animal or bird. The
Applicants contend that the impugned by-law is really seeking to
end any suffering to exotic animals by prohibiting the performances
by them.
[110]
The City’s position, put succinctly, is that the By-law was enacted
intra vires the municipality’s legislative power, and the
fact that the By-law contemplates moral considerations is not a
reason to declare it invalid.
[111]
The Municipal Act, R.S.O. 1990, c.
M.45, s. 102, at the relevant time stated:
102. Every council may pass such by-laws and make such
regulations for the health, safety, morality and welfare of
the inhabitants of the municipality in matters not specifically
provided for by this Act and for governing the conduct of its
members as may be deemed expedient and are not contrary to law.
[Emphasis added.]
…
236. A council
of a local municipality may pass by-laws:
…7. For
prohibiting or regulating and licensing exhibitions of wax works,
menageries, circus-riding, and other like shows usually
exhibited by showpersons, and for regulating and licensing roller
skating rinks and other places of like amusement, and
merry-go-rounds, switchback railways, carousels and other like
contrivances, and for imposing penalties not exceeding the amount
of the licence fee on offenders against the by-law, and for levying
the same by distress and sale of the goods and chattels of the
showperson or proprietor, or belonging to or used in such
exhibition or show whether owned or not owned by such showperson or
proprietor. [Emphasis added.]
(a)
A licence shall not be
granted for any such exhibition or show to be held on the days of
the exhibition of any district or township agricultural society,
within 275 metres from the grounds of the society, or for any such
exhibition or show in or in connection with which gambling is
carried on or goods, wares or merchandise are sold or trafficked
in. R.S.O. 1990, c. M.45, s. 236, par.
7; 1996, c. 1, Sched. M, s. 20 (3).
[112]
In Stadium Corp. of Ontario Ltd. v. Toronto (City), (1992),
10 O.R. (3d) 203 (Div. Ct.) the Court quoted with approval R. v.
Fink [1967] 2 O.R. 132 (H.C.J.):
Needless to say, every regulatory enactment which is declaratory of
some unlawful conduct can be said to advance some notion of public
morality. Yet, just because public morality is
advanced by an enactment does not mean that the statute must
inevitably fall within the confines of the federal criminal law
power.
[113]
Subsequently in Rio Hotel v. New Brunswick Liquor Licensing Board, [1987] 2
S.C.R. 59, the Supreme Court of Canada upheld the traditional
view that provinces have the right under the division of powers
under the Constitution Act, 1867, to enact regulations in the
nature of police or municipal regulation of a merely local
character to preserve in the municipality, peace and public
decency, and to repress drunkenness and disorderly and riotous
conduct.
[114]
The issue before the Supreme Court of Canada in Rio was
whether conditions regarding acceptable levels of nudity and the
rules for staging like events, that were attached to licences
granted by the Liquor Licensing Board trespassed on the federal
criminal power. The basis for the argument was that there were
similar provisions in the Criminal
Code that dealt with nudity and indecent or obscene
performances in theatre, and as such, the conditions as legislated
by the province infringed on the criminal power. In rejecting these
arguments, Dickson C.J.C. enunciated a two-stage inquiry. First, it
was necessary to classify the legislation either as a valid
provincial Act or a colourable attempt to legislate on matters
restricted to Parliament. In so doing, Dickson C.J.C. was required
to classify the “matter” of the impugned law. Secondly, it was
necessary to determine to what extent the legislation conflicted
with validly enacted federal law, in this case the Criminal
Code. In particular, the paramountcy doctrine provides that
to the extent that validly enacted provincial law is in direct
conflict with validly enacted federal law, the provincial
legislation is inoperative.
[115]
In Rio, the Court held that the legislation was intra
vires the province, and that there was no direct conflict
between the licence conditions precluding nude entertainment and
various provisions of the Criminal
Code, notwithstanding some overlap. The double aspect
doctrine, which provides that federal and provincial Legislatures
may create laws that overlap to some extent provided that there is
no direct conflict in the application or enforcement of the
respective laws, was held to be applicable in Rio Hotel, supra. In the end, the provincial regulatory
scheme relating to the sale of alcohol in the province could
operate concurrently with the federal Criminal
Code provisions without difficulty.
[116]
In Re Ontario Adult Entertainment Bar and Municipality of
Metropolitan Toronto, [1997] O.J. No. 3772 (C.A.), the Ontario
Court of Appeal had to determine whether a by-law which addressed
“public concerns for the health and safety of the public and the
women employed in these businesses” engaged the paramountcy
doctrine as it was alleged to have encroached on the criminal law
power. The appellant in Re Ontario argued that Rio,
supra, had to be read in light of the Supreme Court decision in
R. v. Morgentaler, [1988] 1 S.C.R. 30, in
which the Court struck down a provincial enactment which provided
that certain medical procedures, including abortion, could not be
performed outside of hospitals.
[117]
Finlyson J.A. in Re Ontario, supra, distinguished Sopinka
J.’s decision in Morgentaler. In Morgentaler, the
provincial legislation was “virtually indistinguishable” from that
used by the Criminal Code in describing abortion. Accordingly,
the by-law in Morgentaler was held to be regulating morality
and was clearly, in pith and substance, a criminal law enactment.
In the Re Ontario case, however, Finlyson J.A. held that the
impugned by-law was enacted for valid provincial objects, namely
the regulation of business in the interests of health and safety,
and as well as the prevention of crime. The Court here held that
the B-law was regulatory and could not be said to be an attempt to
legislate over morality, although an ancillary effect of that
regulation was to touch on matters of morality.
[118]
In accordance with Dickson’s analysis in Rio, I must first
classify the legislation either as a valid provincial Act or a
colourable attempt to legislate on matters restricted to
Parliament. In doing so, I must examine the pith and substance of
the legislation. With this in mind, it is helpful to use the
Windsor Council’s debates as guidance, as Courts often refer to
Hansard when attempting to determine Parliament’s intention. In
this case, there is conflicting evidence as to the real intention
of Council. Some statements made, clearly indicate an intention to
legislate with respect to the welfare of the animals, while others
indicate an intention legislate with respect to the safety of the
spectators. The second is firmly within the ambit of the Council,
while the first is ultra vires council.
[119]
In the case at hand, as in Stadium Corp., supra, there is no
evidence that the by-law was enacted to regulate morality in the
sense of preventing the moral corruption of circusgoers. Even if
there is some element of public morality in the by-law, s.102 of
the Municipal Act, as it then was, allows for limited
regulation of public morality as it relates to the residents of a
municipality.
[120]
Furthermore, the court in Fink, supra, stated:
In a country as vast and diverse as Canada, where tastes and
standards may vary from one area to another, the determination of
what is and what is not acceptable for public exhibition on moral
grounds may be viewed as a matter of a “local and private nature in
the Province” within the meaning of s. 92(16) of the B.N.A. Act,
and as it is not a matter coming within any of the classes of
subjects enumerated in s. 91, this is a field in which the
legislature is free to act.
[121]
In McNeil
v. Nova Scotia (Board of Censors), [1978] 2 S.C.R. 662,
Ritchie J. for the Supreme Court of Canada stated:
The by-law is a regulatory enactment that restricts, regulates, and
under some conditions prohibits the keeping of exotic animals
within the city for the purpose of ensuring the safety and
protection of the public and the welfare of animals. It is
therefore an enactment within provincial competence as legislation
in relation to property and civil rights within the province and in
relation to matters of a local and private nature within the
meaning of heads 92(13) and 92(16) of the Constitution Act,
1867.
[122]
Ritchie J. further stated at 699:
The by-law prohibits the keeping of exotic animals whether or not
cruelty is proven, and does not deal with the same subject matter
as the Criminal Code prohibitions against cruelty to animals. It
is not legislation in relation to criminal law and does not intrude
upon any area occupied by Parliament.
[123]
As such, although the By-law in question does touch on public
morality, being the humane treatment of exotic animals, the By-law,
in and of itself, does not appear to infringe on the federal
criminal law power. The By-law also appears not to condemn or
punish ill treatment of animals and likewise it should not be found
unconstitutional on this ground. Should it be found that Council
did intend to regulate the treatment of animals, then the By-law
usurps the federal criminal power by attempting to sanction such
behaviour, and as such, the document of paramountcy would make it
unconstitutional.
[124]
However, in the text Municipalities and Canadian Law: Defining the
Authority of Local Governments (Saskatoon, Saskatchewan: Purich
Publishing, 1996) Felix Hoehn suggests at pp. 165-166 that:
Even in those jurisdictions where a general power to prohibit a
land use is expressly conferred, the prohibition of a use may still
be ultra vires if it is discriminatory or in bad faith. Similarly,
if a general ban of a use is motivated by considerations of
morality, then it may be ultra vires as an infringement of the
criminal law power. One might, for instance, speculate that an
absolute prohibition of strip clubs may be motivated more by moral
objections to the use than by objections strictly related to land
use planning.
[125]
This excerpt was cited with approval in Konakov, supra. In
the case before me there is ample evidence that the by-law was
primarily motivated by considerations of animal welfare and an
examination and assessment of any evidence to support the public
safety purpose of s.236(7) was virtually ignored by Council in
reaching its decision. Therefore, in accordance with my earlier
discussion of the evidence, I find that the resulting ban on the
performance of circus animals was primarily (or in pith and
substance) motivated by considerations of morality, and is
therefore ultra vires Council as an infringement of the criminal
law power.
Therefore the answer to this
question is Yes.
(F)
Does the By-law contravene s.
2(b) of the Charter? If so, is the by-law saved by s. 1 of
the Charter?
[126]
The Applicants submit that performances using
animals constituting a unique form of artistic expression, is
therefore a protected form of expression under the Charter.
Further, they argue that the nature of that expression, being
economic, does not remove the activity from the category of a
constitutionally protected expressive activity.
[127]
The Respondent relies on Stadium Corp. of
Ontario Ltd. v. Toronto (City) (1992), 10 O.R. (3d) 203 (Div
Ct.). It is important to note that the Ontario Court of Appeal did
not make any pronouncements on the Charter issue at the
appellate level as Grange J. stated “I believe we should not
pronounce upon it because, as Mr. Lepofsky has argued and the
Supreme Court of Canada has held, constitutional issues should not
be addressed unless required for the resolution of the issues.”
Furthermore, the Divisional Court in Stadium Corp. noted
that although the Applicant in that case argued that the
by-law was passed to prevent the dissemination of an intellectual
message, it adduced no evidence that there is in fact any
constitutionally protected message communicated through the medium
of exotic animal shows or exotic animals in circus acts. Such is
not the case here. The Applicants here have provided evidence and
expert opinion that the Circus is a culture best viewed through the
expressive performances of both its human and animal performers.
As such, there is no basis on which I should
accept as final the Divisional Court decision of Stadium
Corp. Nor should I rely on a judgment that was overturned at
the Appellate level where the issue at the heart of this case was
not examined by that Court.
[128]
There are several reasons and rationales for
guaranteeing the freedom of expression. First and foremost is the
protection of expression in its role as an instrument of democratic
government. Peter Hogg mentions other rationales for the
constitutional protection of freedom of expression in the text
Constitutional Law of Canada, 4th ed. (Toronto:
Carswell, 2002) at pp. 995-996 and those include the protection of
freedom of expression as an instrument of truth, and as an
instrument of personal fulfilment.
[129]
In Irwin Toy v. Quebec, [1989] 1 S.C.R. 927 at p. 977, the
majority of the Supreme Court of Canada stated:
…(1) seeking and attaining the truth is an inherently good
activity; (2) participation in social and political decision-making
is to be fostered and encouraged; and (3) the diversity in forms of
individual self-fulfilment and human flourishing ought to be
cultivated…
[130]
Where government action is challenged under s. 2(b), the first step
that the court must take is to ascertain whether the activity for
which Charter protection is being claimed, may properly be
characterized as falling within freedom of expression. Thus, I must
determine whether a circus conveys or attempts to convey a meaning,
having expressive content which prima facie falls within the
scope of a guarantee. The evidentiary burden
lies with the Applicants to establish that the activity of
possessing and displaying and performing with exotic animals is
“expression” within the meaning of the Charter, s. 2(b), in
the sense that it conveys meaning or a message which has been
suppressed by the by-law.
[131]
The Supreme Court of Canada considered the
meaning of the term “expression” in Irwin Toy, supra,
stating at p. 968; “Activity is expressive if it attempts to
convey meaning.” In Constitutional Law of Canada, supra,
Peter Hogg expands on this definition stating that because most
human activity combines expressive and physical elements, very
little activity will not be protected by the Charter. In
fact, as stated in Irwin Toy, supra, only activity that is
“purely physical and does not convey or attempt to convey meaning”
will not be protected. Hogg continues stating at p. 968,
“Obviously, all forms of art are sufficiently communicative to be
protected: novels, plays, films, paintings, dances, and music.”
[132]
Moreover, the principle of content neutrality whereby s. 2(b)
protects expression regardless of its message, means that s. 2(b)
extends Charter protection to activity that is arguably
undeserving of protection. See R. v. Zundel, [1992] 2 S.C.R. 731.
[133]
In 605715 Saskatchewan Ltd. v. Saskatchewan
(Liquor and Gaming Licensing Commission (1999), 192 D.L.R.
(4th) 150, leave to appeal dismissed, [2000] S.C.C.A.
No. 555, a corporation operated a nightclub in which female
dancers disrobed until they were entirely nude. This activity
violated s. 54(1)(b) of The Alcoholic Control Regulations, 1994,
R.R.S. c.
A-18.01, Reg. 3, which stipulated that it was a term of
every liquor permit that the permit holder not allow a striptease
performance on the premises to which the permit related. The
corporation’s liquor licence was suspended as a result. While the
suspension was ultimately upheld, the Saskatchewan Court of Appeal
held that nude dancing was a Charter guaranteed expressive
activity, stating:
The Supreme Court of Canada has consistently held the guarantee of
freedom of expression must be given a generous interpretation. In
Libman v. Quebec (A.G.),
[1997] 3 S.C R. 569 at 591-592,
151 D.L.R. (4th) 385, Cory J. said: The Court favours a very
broad interpretation of freedom of expression in order to extend
the guarantee under the Canadian Charter to as many
expressive activities as possible. Unless the expression is
communicated in a manner that excludes the protection, such as
violence, the Court recognizes that any activity or communication
that conveys or attempts to convey meaning is covered by the
guarantee of s. 2(b) of the Canadian Charter.
[134]
Later in R.. v. Guignard, [2002] 1 S.C.R. 472, the court confronted the issue
of commercial expression where it stated at page 483:
In applying s. 2(b) of the Charter, this Court has
recognized the substantial value of freedom of commercial
expression. The need for such expression derives from
the very nature of our economic system, which is based on the
existence of a free market. The orderly operation of
that market depends on businesses and consumers having access to
abundant and diverse information. Thus, in Ford v.
Quebec (Attorney General),
[1988] 2 S.C.R. 712, at pp. 766-67, this
Court rejected the argument that commercial speech was not subject
to the constitutional guarantee:
[g]iven the earlier
pronouncements of this Court to the effect that the rights and
freedoms guaranteed in the Canadian Charter should be given
a large and liberal interpretation, there is no sound basis on
which commercial expression can be excluded from the protection of
s. 2(b) of the Charter.
[135]
The Supreme Court continued at page
484:
The decisions of this Court accordingly recognize that commercial
enterprises have a constitutional right to engage in activities to
inform and promote, by advertising. As we know and can attest,
sometimes with mixed feelings, the ubiquitous presence of
advertising is a defining characteristic of western societies.
Usually, it attempts to convey a positive message to
potential consumers. However, it sometimes involves
comparisons and may even be negative. On the other
hand, consumers also have freedom of expression. This sometimes
takes the form of “counter-advertising” to criticize a product or
make negative comments about the services supplied.
Within limits prescribed by the legal principles relating to
defamation, every consumer enjoys this right.
Consumers may express their frustration or disappointment with a
product or service. Their freedom of expression in
this respect is not limited to private communications intended
solely for the vendor or supplier of the service.
Consumers may share their concerns, worries or even anger with
other consumers and try to warn them against the practices of a
business. Given the tremendous importance of economic
activity in our society, a consumer’s “counter-advertising” assists
in circulating information and protecting the interests of society
just as much as does advertising or certain forms of political
expression. This type of communication may be of
considerable social importance, even beyond the merely commercial
sphere.
[136]
Generally, the term “expression” embraces all content of expression
irrespective of the particular meaning or message sought to be
conveyed and no matter how offensive and obnoxious the message.
Evidence led by the Applicants indicates that circus life
constitutes a distinctive culture, one aspect of which is the
unique bond and integration between humans and different species of
animals. Jennifer Johnson, an anthropologist who has experience
travelling with and researching circuses has testified that circus
performances with exotic animals “challenge everyday notions about
the relationships between humans and animals, evoke emotion and
educate spectators as to the intelligence, skills and characters of
the animal performers, as well as provide circus performers with
the opportunity to express their distinct culture.” Therefore, the
activity in a Circus arguably attempts to convey a meaning, and at
this point in the analysis, the line is drawn only at the type of
activity or expression that incites violence.
[137]
The above statement made by Ms. Johnson in her
affidavit bears directly on another point; that freedom of
expression protects not only the expressor, but also the public,
which is the recipient of the expression. (See Irwin Toy,
supra, p.612). Therefore, circus performers have a right to
express their distinct culture, as does the general public to
experience the fruits of that distinct culture.
[138]
As such, I find that circus performances,
including those performances featuring animals, are protected under
s. 2(b) of the Charter.
[139]
In my view, the purpose of the by-law here was
to restrict expression. Any activity that conveys meaning or that
attempts to convey a meaning is protected. (See Irwin Toy,
supra, at p. 607.) Circus performances attempt to convey a meaning,
be it the communication of its distinct culture, the process by
which animals and humans can co-operate, or human mastery over
animals. Any of the above demonstrates an example of an attempted
communication of a message to the public and the expression of this
message by the performers. Any regulation or law that curbs these
performances necessarily restricts that expression. Therefore, I
find that the By-law contravenes s. 2(b) of the Charter
since it denies the Applicants the opportunity of expressing ideas
relating to any of the above messages.
[140]
Having found that the By-law violates s. 2(b) of
the Charter, the freedom of expression, I must now determine
whether the By-law is saved by s. 1 of the Charter. The onus
lies on the municipality to justify its restriction. Because
s.1 is being invoked by the City of Windsor for the purpose of
justifying a violation of the Charter protected freedom of
expression, a high degree of probability will be required which
should be cogent and persuasive to justify such violation to the
Court. (See R. v. Oakes, supra, p.138).
[141]
To establish that a restriction is justified, the City of Windsor
must determine: (See R. v. Oakes (1986), 24 C.C.C. (3d) 321
(SCC)).
1. Whether the legislation is trying to achieve a
sufficiently important objective to justify limiting a
Charter right.
2. Three part proportionality test:
a.
Is there a rational connection between the
legislation and it’s objective?
b. Is there minimal impairment? (Main
Focus)
c.
Overall proportionality?
[142]
At page 486-489 of Guignard, supra, the
Supreme Court Stated:
In Sharpe, supra, McLachlin C.J. summarized the onus imposed on the
public authority under s. 1 of the Charter as follows.
To justify the intrusion on free expression, a
government must demonstrate, through evidence supplemented by
common sense and inferential reasoning, that the impugned law meets
the tests set out in R. v. Oakes,
[1986] 1 S.C.R. 103, and refined in
Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835, and Thomson
Newspapers Co. v. Canada (Attorney General), supra.
The goal of the impugned law must be pressing and
substantial. The law must be proportionate to the goal
in the sense of furthering the goal, being carefully tailored to
avoid excessive impairment of the right, and productive of benefits
that outweigh the detriment to freedom of expression.
(See Sharpe, at para. 78; P. W. Hogg, Constitutional Law of Canada
(loose-leaf ed.), vol. 2, at pp. 35-16 and 35-17; H. Brun and G.
Tremblay, Droit constitutionnel (3rd ed. 1997), at pp. 930-36; M.
Rothstein, “Section 1: Justifying Breaches of Charter Rights and
Freedoms” (1999-2000),
27 Man. L.J. 171.)
In this case, in addition to
denying that the constitutional guarantee had in any way been
violated, the respondent argued, in the alternative, that its
by-law was justified under s. 1 of the Charter on the ground
that it was designed to prevent visual pollution and driver
distraction. The justification process is not limited to the
objective defined. The other tests must also be met,
including demonstration of a rational connection, minimal
impairment and proportionality.
[143]
In this case, the purported objective of the
By-law is to protect the residents and visitors by
prohibiting certain animal performances within its
boundaries. As enunciated by Dickson C.J. in
Oakes, supra, the protection of Windsor’s residents and
visitors from animal attacks that could otherwise have been
prevented is a “pressing and substantial” concern. Further, the
security of the public is a “collective goal of fundamental
importance.” As such, I find that the objective of the By-law is
sufficiently important to justify limiting the Circus’ s. 2(b)
Charter right.
[144]
However, having found that the objective of the
By-law is sufficiently important to justify restricting a
Charter right, I must now examine the By-law in light of the
three-part proportionality test as defined in Oakes,
supra.
[145]
The first element of that proportionality test
is determining whether the By-law is “rationally connected” to the
objective of the law. As stated in R. v. Edwards Books and
Art [1986] 1 S.C.R. 103 at p. 139, “The requirement of
rational connection calls for an assessment of how well the
legislative garment has been tailored to suit its purpose.”
Furthermore, as stated in Oakes, supra, the by-law must not
be “arbitrary, unfair, or based on irrational
considerations.”
[146]
At first glance, the By-law appears to be at least connected to the
objective that banning the use of potentially dangerous exotic
animals from public performances within the City limits should
result in the increased safety of Windsor’s residents and visitors.
However, in this instance, the By-law has been based on irrational
considerations. Council passed the By-law without examining the
actual danger, if any, posed to the residents and visitors of the
City. As stated in Constitutional Law of Canada, supra,
Peter Hogg states at p. 891, “The essence of rational connection is
a causal relationship between the objective of the law and the
measures enacted by the law.” In this case, City presented no
scientific evidence of any causal relationship between the total
prohibition of exotic animal performances in circuses and public
safety. Furthermore, counsel for the City concedes that there is no
evidence of any harm suffered by a resident or visitor of Windsor
by a circus animal. While the Respondent City argues that proof of
actual harm is not necessary, I remain unconvinced that sufficient
evidence was considered by Council to arrive at the decision to ban
the performances in question.
[147]
The Applicants’ evidence demonstrates to the contrary that, for
example, in North America in 1999 approximately 30,000,000
people attended circuses with no reported incidents of injury to
any patrons whereas in the same year 4,700,000 people suffered a
dog bite.
[148]
Furthermore, the Commercial Insurance market has analyzed the risk
of spectator injury at circus performances and on a risk assessment
basis has deemed this risk to be so low as not to warrant a special
insuring risk category or rate, to its circus operator clients. In
other words, the circus industry enjoys the same risk rating as the
general commercial insurance market, as for instance, that rating
enjoyed by the operator of a doughnut store against the chance of a
customer falling on his business premises.
[149]
The Applicants also argue that Council did not consider the
comparative risks to the public with respect to rodeo events,
agricultural fairs or other of the by-laws exceptions. Simply
banning some animals and not others for the purposes of public
safety, without either an actual analysis of the potential risk
issue, or at least some clear reason to do so based on evidence,
does not satisfy the rational-connection test. Therefore I conclude
that there is no rational connection between the By-law and its
objective.
[150]
The second stage of the test, being the minimal
impairment issue, also known as least drastic means, requires that
the impugned law should impair the right in question “as little as
is reasonably possible.” (See R. v. Edwards Books and Art,
supra.) In determining whether the By-law minimally impairs the
freedom in question, I must give deference to the legislative
choice so long as that choice is within a “margin of appreciation”
as defined in Edwards Books, supra. which is, according to
Hogg in Constitutional Law of Canada, supra, at p.
897 “a zone of discretion in which reasonable legislators could
disagree while still respecting the Charter right.”
[151]
On the issue of minimal impairment, had Council
examined the actual risk and public safety issue using a reasonable
degree of evidence and concluded that a risk existed, then this
by-law could be considered to have minimally impaired the rights of
the Applicants, as it does not ban the Circus outright, only the
performance by certain animals. However, Council did not examine
actual evidence of injury, nor did it embark on any inquiry to
gather evidence to support its conclusion. As there is no rational
evidence upon which Councils’ decision was based, it cannot be said
that this by-law was either a reasonable solution or that it only
minimally impaired the Applicants’ freedom of
expression.
[152]
The requirement of proportionate effect is the
final step in the three-part proportionality test, which requires,
according to Dickson C.J. in Oakes, supra, “a
proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and
the objective which has been identified as of ‘sufficient
importance'”. Lamer, C.J. rephrased this test in Dagenais v. CBC, [1994] 3 S.C.R. 835 at p. 889
stating:
…[T]here must be a proportionality between the deleterious
effects of the measures which are responsible for limiting the
rights or freedoms in question and the objective, and there must be
a proportionality between the deleterious and the salutary effects
of the measures.
[153]
Again, had Council arrived at the decision to
ban the performances of exotic animals using sufficiently probative
evidence, the effect of this by-law would likely be proportionate
to the restrictions placed upon the Circus. The by-law does not
prevent the Applicants from expressing the circus culture through
the use of non-exotic animal and human performances. Thus, contrary
to the Applicants’ submission, the Circus’ freedom of expression is
not completely limited and would be proportional to the salutary
effects of public safety. However, because the
By-law was passed for the ulterior purpose of animal welfare the
Respondent City failed to provide at least a reasonable degree of
evidence to causally link exotic animal performances to public
safety. There was insufficient examination of any evidence to
rationally support the secondary purpose of protection of the
public and therefore I cannot find a proportional relationship
between the deleterious and salutary effects of the
measures.
The answer to this
question is Yes.
DISPOSITION
[154]
In conclusion, I find that the City of Windsor
By-law was ultra vires Council and must be struck down for
the reasons given. Should I be mistaken with respect to my
application of McLachlin J.’s dissent in Shell, I find that
in any event the By-law violates the Applicant’s s. 2(b)
Charter right in that there is no rational connection
between the By-law and its objective as there is no evidence that
the animal performances in question create a danger to the
public.
[155]
The Applicants shall have their costs. If the parties are unable to
agree I may be spoken to.
(Original signed
by Richard Gates J.)
__________________________
Richard C.
Gates
Justice
Released: September 7,
2004
COURT FILE
NO.: 03-CV-000781
|
ONTARIO
SUPERIOR COURT OF
B E T W E E
XENTEL DM INCORPORATED, OUTDOOR
Plaintiff
–
THE CORPORATION OF THE CITY OF
Defendant
REASONS FOR
Richard C. Gates,
|
Released: September 7,
2004
 |
 |
 |