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How foolish can the city councils in Toronto and Mississauga become?

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In the last couple of days, the Cities of Mississauga and Toronto have passed by-laws banning the sale, possession and consumption of products containing shark fins. While the motivation to do something against the practices of obtaining these shark fins might be understandable, nevertheless, the behavior of the councillors passing such by laws can only be described as anti-democratic and childish.

Instead of providing support and political pressure to pass laws against such products where it is constitutional to enact such laws, these councillors behave like dictators who have total disregard to the constitution of this country and are drunken in the own feeling of power. In the end, these by-laws that establish substantial fines up to $100,000 for violations must be declared by the courts of the lands invalid due to be ultra vires, and the cities will have wasted lots of money in form of legal costs that could have been better used for legitimate purposes.

What does it mean for a by-law to be ultra vires? Ultra vires means beyond power. In this case, it means that a governmental body has exceeded its authority. The authority of governmental bodies is carefully defined on several levels of the law in Canada. Constitutional law in Canada gives the federal and provincial government powers that enable them to enact laws. In turn, the legislative bodies of the federal and provincial governments can delegate some of their powers to other bodies (corporations) and enable them to enact secondary laws often called statutory instruments, These can be regulations decided by the Governor-in-Council, or by-laws enacted by municipalities (which are a special form of corporations).

In Ontario the Municipal Act, 2001 enables most municipalities to enact such by-laws, the City of Toronto Act, 2006 does the same for the city of Toronto.

In order for a municipality to be authorized to enact a by-law, it must be given such an authority by either one of those acts, or another act that compliant with the Canadian constitution transfers such power to the municipality. The mere vote of a democratically elected city council does not make the result of such a vote (i.e. the passing of a by-law) a democratic act. Only the compliance with the constitution raises such a vote to a democratic event. Without it, a city council passing an act that is ultra vires is nothing more than a bunch of anarchists that thumb their noses to the law and order established by the Constitution of Canada.

For example, a municipality would not have the authority to enact a law that would disallow the press inside its municipality to criticize the action of the council. This would clearly be violation of the Charter Rights granted by the Constitution Act 1982, Part 1, Section 2(b). A municipality cannot override the fundamental rights granted in the Canadian Charter of Rights and Freedoms. Any such act would be ultra vires.

The Constitution Act, 1867 section 91 (2) clearly provides the federal government with the authority to regulate trade and commerce. In Citizen's Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96 the federal power was somewhat balanced with provincial powers (in particular in regard of section 92(13) giving provinces the exclusive authority to legislate property and civil rights in the province). However, Sir Montague Smith set out in the Judicial Committee of the Privy Council that international and inter-provincial trade as well as "general regulation of trade affecting the whole dominion" remained under the authority of the federal government.

It is very clear that the trade of shark fins falls under the authority of the federal government since it is subject to international trade and hence international trade agreements. This automatically makes the by-laws passed in Toronto and Mississauga ultra vires.

In addition to this section 121 of the Constitution Act 1867, prohibits inter-provincial trade barriers.

In Attorney-General for Manitoba v. Manitoba Egg and Poultry Association et al., [1971] SCR 689 it has been decided that provinces cannot restrict the trade, consumption or usage of food products traded from other provinces. A Provincial legislature may not exercise powers of regulation, direction or control, in respect of trade, if such exercise is, in essence and purpose, related to a Provincial boundary and impedes the free flow of trade across Canada. The degree of regulation, direction or control which is lawful would depend upon the factual situation and it would be inappropriate to attempt, in vacuo, a judicial definition. The law passed by Manitoba was declared ultra vires. It is absolutely foolish of the city councils of Toronto and Mississauga to believe their by-laws restricting trade related to municipal boundaries would be upheld if not even provinces that enable municipalities through legislation to pass by-laws, have the authority to enact such regulations in regards to the provincial boundaries.

There is nothing that the cities of Toronto or Mississauga could come up with that would differentiate them from any other municipality in Canada in terms of a reason why products containing shark fins should not be traded, consumed or possessed in their municipality but the same would not be valid in the other where such a by-law does not exists.

Furthermore, nobody has publicly explained which legislation would give a municipality the authority to regulate or ban such products in the first place. Nothing in the Municipal Act 2001 or the City of Toronto Act, 2006 grants such an authority. Passing such by-laws is extremely misleading and clearly violates the rights of the citizens of the municipalities who pass such ridiculous by-laws. Councilors should rather use their time and taxpayer's money for the betterment of their citizens, not for the anarchic attempt to assume non-exiting authority and enact authoritarian laws robbing citizens of their rights. What will be the next step in this direction? Prohibition of the consumption, trade and possession of any meats because the majority of one municipality's council are vegan? This is the new doctrine of enacting by-laws by the cities of Toronto and Mississauga.

This analysis does not take anything away from the outrage about the way shark fins are harvested. However, none of this outrage justifies the obvious violation of constitutional law that creates anarchic situations. In the balance of importance, the constitution is far more important and the aim to prevent unjustifiable killing of sharks must be addressed at the place that constitutionally allows it, the federal government, either through import regulations, are international treaties or trade agreements.

DISCLAIMER: Before all those shark hugger, environmental extremists, trolls, or other people are tempted to leave comments about the practice of harvesting shark fins and the importance to stop this practice. This is not the point of this article. The author has never eaten any product containing shark fins, nor has any intention to do so. However, this article merely looks at the legal aspects of the issue and the dangers of violating constitutional boundaries.

Update: In this Globe & Mail article Councillor Glenn De Baeremaeker compares his unconstitutional by-law with anti-smoking by-laws. However, this comparison is clearly smoke and mirrors. Smoking causes health risks for third parties and hence regulatory powers can be derived. So far nobody has been able to reasonably claim third party health risk in regards of shark fins.

Furthermore, there has not been any blanket ban on sale or possession of tobacco or cigarette products within a municipality. However, maybe that is what Councillor Glenn De Baeremaeker next aim may be.

Update2: In this article some more interesting facts are stated. 1) The Municipality of Brantford was actually the first foolish municipality enacting such a ban. 2) City staff of both Toronto and Mississauga apparently told their respective city councils of the illegality of their by-laws, which would mean that those city councillors cannot plead incompetence, but have to face the fact that they are intentionally violating the law they are supposed to uphold. 3) Why are those city council not banning diamonds due to the fact that it is impossible to know if a diamond is a blood diamond. I guess the diamond lobby is far more powerful than the immigrant population that is targeted by the acts of the councils who very likely possible to result in a human rights complaint.

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