Focus On

BYLAWS AND RESOLUTIONS - Enforcement of bylaws - Grounds for invalidity - Canadian Charter of Rights and Freedoms - Ultra vires - Federal jurisdiction - Provincial jurisdiction

Wednesday, March 08, 2017 @ 8:34 AM  

Lexis Advance® Quicklaw®
Petition by the City of Abbotsford for declarative and injunctive relief to enforce its Business Licence Bylaw and Zoning Bylaw against the respondents, Mary Jane's Glass & Gifts & Briere. Until recently, the respondents operated a medical marijuana dispensary within the City. The City filed a petition for declarations the respondents were in breach of the Bylaws, with orders restraining them from carrying on business or selling marijuana without a business licence or City exemption. The respondents challenged the constitutional validity of the Bylaws based on recent Federal Court jurisprudence that held regulations requiring users to obtain medical marijuana only from licensed producers violated their s. 7 Charter rights. The respondents sought a declaration that the Bylaws restricted access to medical marijuana and were of no force and effect to the extent they infringed ss. 7 and 15 of the Charter. At the commencement of the hearing, the respondents advised they had closed their business and consented to orders that they would not operate or carry on a similar business in the City. An adjournment was refused and the hearing proceeded on the Bylaw breach and constitutional issues without submissions from the respondents.

HELD: Petition allowed. There was no dispute that a marijuana dispensary was a business within the scope of the Business Licence Bylaw. The Zoning Bylaw specifically prohibited the dispensing, packaging and sale of marijuana in any zone within the City. The permitted uses table of the Zoning Bylaw did not permit retail sale of cannabis or cannabis products. In the absence of any argument to the contrary, the respondents were in breach of the Bylaws. The City was granted the declaratory relief sought, with the injunctive relief consented to by the respondents. With respect to the constitutional challenge, the pith and substance and dominant features of the Zoning Bylaw regulated land and building use rather than criminal matters. Any overlap with the federal criminal law jurisdiction was incidental. The doctrine of interjurisdictional immunity did not apply. There was no operational conflict that triggered the doctrine of paramountcy. The federal law governing access to medical marijuana did not authorize access through marijuana dispensaries. Therefore, the respondents' position that the Bylaws gave rise to a Charter breach was based on speculation regarding a future challenge to the regulations, and was thus irrelevant to the proceedings. The Bylaws were valid and enforceable.

Abbotsford (City) v. Mary Jane’s Glass & Gifts Ltd., [2017] B.C.J. No. 274, British Columbia Supreme Court, J.M. Gropper J., February 14, 2017. Digest No. 3641-007