Judgment of the Court
The judgment of the Court was delivered by
(a) display of merchandise;
(b) operation of boulevard cafes;
(c) installation of bicycle stands;
(d) holding of sidewalk sales.
Schedule "A": the city of Toronto, the city of North York
The city of Toronto exercised its delegated power by enacting By-law 618-80. Section 1(1) of that By-law reads as follows:
1.(1) An owner or occupant of land used for commercial or industrial purposes which abuts on the sidewalk or untravelled portion of a Metropolitan road within the City of Toronto may apply to the Commissioner of Public Works and the Environment to lease or license the use of such sidewalk and untravelled portion of the Metropolitan road within the City of Toronto for the purposes of:
(a) display of merchandise;
(b) operation of boulevard cafes;
(c) installation of bicycle stands;
(d) holding of sidewalk sales.
The effect of By-law 618-80 is that only vendors who own or occupy abutting property can apply for licences to sell on the street.
The Court of Appeal held that the statutory basis for s. 11 of Metro By-law 211-74 was to be found in ss. 314(1), para. 1 and 210, para. 140 of the Municipal Act, R.S.O. 1990, c. M.45 (formerly ss. 315, para. 1 and 210, para. 134):
314. -- (1) The councils of all municipalities may pass by-laws:
1. For prohibiting or regulating the obstructing, encumbering, injuring or fouling of highways or bridges.
210. By-laws may be passed by the councils of local municipalities:
...
140. For prohibiting and abating public nuisances.
This appeal also raises the issue of the applicability of s. 310 of the Municipal Act, which states:
310. By-laws may be passed by the council of every local municipality,
(a)for leasing or licensing the use of untravelled portions of highways under the jurisdiction of the council, except highways that are extensions or connecting links of the King's Highway, to the owners or occupants of adjoining property for such consideration and upon such terms and conditions as may be agreed;
(b)for regulating and controlling the use, including the use for parking purposes, of untravelled portions of highways under the jurisdiction of the council that are not extensions or connecting links of the King's Highway, which are leased or in respect of which a licence is granted under clause (a).
The appellant was also charged with the following Criminal Code offence:
Criminal Code , R.S.C., 1985, c. C-46 :
129. Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
...
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.
Other relevant legislation includes the following:
Municipal Act, s. 327 (formerly s. 326):
327. Where any by-law of a municipality or of a local board thereof, passed under the authority of this or any other general or special Act, is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.
Police Act, R.S.O. 1980, c. 381, s. 57 [rep. 1990, c. 10, s. 148(1)]:
57. The members of police forces appointed under Part II, except assistants and civilian employees, are charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the by-laws of the municipality, and apprehending offenders, and commencing proceedings before the proper tribunal, and prosecuting and aiding in the prosecuting of offenders, and have generally all the powers and privileges and are liable to all the duties and responsibilities that belong to constables.
Provincial Offences Act, R.S.O. 1990, c. P.33 (formerly R.S.O. 1980, c. 400):
3.--(1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.
(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and,
(a) an offence notice indicating the set fine for the offence; or
(b) a summons
in the form prescribed under section 13.
23. -- (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.
Criminal Code , s. 495 :
495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence;
III. Judgments in the Courts Below
1. Provincial Offences Court (By-law Charge)
Draper Prov. Ct. J. dealt with two challenges raised by the defence to the validity of the by-law scheme. The appellant submitted that Metro did not have jurisdiction to control the sidewalks adjacent to Metro roads, because, based on the wording of the Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62 (formerly R.S.O. 1980, c. 314), the sidewalk running along Yonge Street was not a Metropolitan road. Judge Draper found that Yonge Street had been legally designated a Metropolitan road in accordance with the Municipality of Metropolitan Toronto Act. After considering case law and pertinent legislation, he concluded that the term "road" as used in the Municipality of Metropolitan Toronto Act, was equivalent to the term "road allowance" used in the by-law in question. The term "road allowance" was held to include the sidewalks in the Metro road system, including Yonge Street where the by-law offence took place.
The appellant also alleged that s. 11a of Metro By-law 211-74 violated s. 15(1) of the Canadian Charter of Rights and Freedoms . The appellant contended that street vendors were subject to discrimination under the licensing regime because, unlike owners and occupiers of adjoining property, they were not eligible for leases or licences to expose goods for sale. Judge Draper noted that the municipality had an essential duty to preserve pedestrian access to sidewalks. He observed that s. 11 of Metro By-law 211-74 was authorized by s. 210 of the Municipal Act and that the licensing regime provided Metro with the means to restrict commercial use of sidewalks in order to meet this primary obligation. He concluded that the by-law did not single out the appellant for discriminatory treatment and was, therefore, not in violation of s. 15 of the Charter . The appellant was convicted under s. 11 of Metro By-law 211-74, fined $2,000, and ordered not to sell flowers on a specified portion of Yonge Street for the two years of his probation.
In dealing with the criminal charge, Paris Prov. Ct. J. found that the appellant had been provided with notice that he risked criminal sanction if he remained on the sidewalk in contravention of the constable's order to move on. The fact that the appellant had remained on the advice of his employer was not in itself a defence but was a matter to be considered on sentencing. The appellant was convicted but granted a conditional discharge with one year's probation.
On appeal from the by-law infraction conviction, Lang Dist. Ct. J. found that Metro By-law 211-74 was intra vires the regulatory power of Metro under ss. 210, para. 73, 210, para. 140, and 314(1), para. 1 (formerly ss. 210, para. 66, 210, para. 134, and 315, para. 1) of the Municipal Act. While declining to apply the similarly situated analysis employed by the trial judge, she went on to reject the appellant's s. 15 Charter argument. She noted that any discrimination suffered by the appellant was not founded upon an enumerated ground under s. 15(1). She also found that no evidence had been adduced in support of the contention that street vendors formed a class of persons subject to economic disadvantage such that they might be characterized as an analogous group under s. 15. She dismissed the appellant's appeal from his conviction under the by-law.
In dismissing the appeal from the obstruction charge, Crossland Dist. Ct. J. determined that Constable Coulis had been acting in the execution of his duty as set out in s. 57 of the Police Act, in enforcing the by-law and in attempting to prevent a continued breach of the by-law. He held that re-charging the appellant with by-law infractions would have been to no avail and that the officer had no means of preventing further breaches other than to lay the obstruction charge.
Footnotes
- [1] * Stevenson J. took no part in the judgment.
Cases cited
- 62 C.C.C. (3d) 147 62 C.C.C. (3d) 147 ¶ 5