R. v. Keshane, 2011 ABQB 525

Court of Queen ’ s Bench of Alberta Citation: R. v. Keshane, 2011 ABQB 525 Date: 20110824 Docket: 101172617S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Renada Lee Keshane Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ Appeal from the Decision by The Honourable Judge D.M. Groves Dated the 10 th day of September, 2010 (Docket: A23269643Z) I. Introduction [ 1 ] This is an appeal of a Provincial Court decision which held that

section 7 of City of Edmonton Bylaw 14614, titled Public Places Bylaw (the “Bylaw”), is ultra vires the City. The challenged

section provides that: “[a] person shall not participate in a fight or

similar physical confrontation in a public place.” “Public place” under s. 2(

j) of the Bylaw means “any property, whether publicly or privately owned, to which members of the public have access as of right or by express or implied invitation, whether on payment of any fee or not.” II. Facts [ 2 ] On May 27, 2009, the respondent Ms. Renada Lee Keshane was slapped by an unidentified male while she stood outside a bar located in Edmonton. She went back into the bar and later returned outside and kicked the male. The two parties then became engaged in a fist fight on the sidewalk. The police arrived and issued a violation ticket to the respondent for ‘fighting in public’. The respondent at trial conceded that she was involved in a fight. The trial judge found that

section 7 of the Bylaw violates the Constitution Act, 1867 , (UK), 30 & 31 Victoria, c 3 , by infringing upon federal jurisdiction over criminal law. She accordingly dismissed the charge: R v Keshane , 2010 ABPC 275 (“PC Decision”). The City appealed. [ 3 ] Earlier in this appeal, the respondent applied to enter fresh evidence. The application was granted by Associate Chief Justice Rooke who admitted fourteen additional documents as “extrinsic evidence”. Rooke, ACJ also ordered that the appellant give notice of the appeal to the provincial and federal Ministers of Justice.

Notice was given and both Justice Ministers advised that they would not participate in the appeal. III. Trial Decision [ 4 ] The trial judge found that the intrinsic evidence gleaned from a plain reading of the impugned Bylaw provision indicated that the purpose of the

section is to deal with public fighting. The extrinsic evidence filed by the City at trial indicated that the there was a perceived need to close a ‘gap’, by allowing police to issue a violation ticket for public fighting in situations in which the Criminal Code of Canada , R.S.C. 1985, c. C-46 would not apply. Further, there was a focus on simpler procedural requirements for police associated with a violation ticket as opposed to a criminal charge. The trial judge concluded that the purpose of

section 7 was “to allow the police to issue violation tickets to discourage fighting in public.” [ 5 ] The trial judge went on to consider the legal and practical effects of law. While the City argued that

section 7 was not intended to capture criminal activity, the trial judge noted that the Bylaw does not limit the definition of “fighting”. Violation tickets may be and are issued in relation to conduct that could fall within the Criminal Code definition of “assault” or “causing a disturbance”; the trial judge concluded that this had in fact occurred in the case before her. In her view “the most significant effect of

section 7 is that people who are committing criminal offences are being issued violation tickets.” [ 6 ] Tickets issued under

section 7 carry a mandatory minimum fine of $500.00 for a first offence and $1000.00 for any subsequent offence. A person issued a violation ticket can make a voluntary fine payment without the necessity of a court appearance.

The trial judge concluded that the practical effect is that many people pay the fine, even though the charge might have been dismissed. [ 7 ] The trial judge found that the challenged bylaw provision possesses all the prerequisites of criminal law: “a valid criminal law purpose backed by a prohibition and a penalty.” The double aspect doctrine could not save the provision, as it did not relate to control of property or licensed establishments. Rather, it related to the safe and orderly conduct of people in public, which is already regulated by the Criminal Code . She concluded that

section 7 was in pith and substance criminal law, and infringed upon federal jurisdiction under s. 91(27) of the Constitution Act, 1867 . [ 8 ] The trial judge rejected the City’s argument that

section 7 should be read down to keep its application within provincial constitutional limits. She held that this remedy would be difficult to apply because of the breadth and vagueness of the term “fighting” found within

section 7. She noted that she did not have authority to make a formal declaration that

section 7 is of no force and effect; however, as she had determined that the offence violated the Constitution Act, 1867 , the charge must be dismissed. IV. Standard of Review

[9] The issue on appeal is whether

section 7 of the Public Places Bylaw is intra vires the City’s jurisdiction. No issue is takenwith the constitutionality of the Municipal Government Act R.S.A. 2000, c. M-26 (MGA), nor with the authority of the City under theMGA. The sole concern is the constitutionality of

section 7. It is common ground that the standard of review in relation to constitutionalissues is correctness: Consolidated Fastfrate Inc v Western Canada Council of Teamsters, 2009 SCC 53 at para 26, [2009] 3 SCR 407. V. Issues [10] The appellant submits that the trial judge erred: 1) in determining the pith and substance of

section 7 of the Bylaw when she: (

a) failed to consider intrinsic evidence of purpose contained in the Bylaw; (

b) misconstrued the extrinsic evidence of purpose; (

c) failed to determine the purpose of the Bylaw; (

d) placed undue emphasis on the Criminal Code in determining the legal effect of the Bylaw; and (

e) improperly failed to consider the Provincial Offences Procedure Act, RSA 2000, c P-34 [“POPA”] in determining the effect of theBylaw. 2) by improperly applying an “occupying the field” analysis to the constitutional question; 3) by failing to consider or apply the presumption of constitutionality; and 4) by failing to properly consider or apply the doctrine of “reading down”. [11] The respondent defends the trial judge’s reasons and further submits that even if the trial judge erred in law in certainrespects, this appeal should be dismissed on the basis that the ultimate conclusion was correct. VI.

Discussion [12] The parties are in agreement regarding the applicable legal principles. [13] The first step in determining whether a legislative provision is ultra vires under the Constitution Act, 1867, ss. 91 and 92 is todetermine its “matter” or characterize the “pith and substance” of the provision: Reference re Assisted Human Reproduction Act, 2010SCC 61 at paras 19, 189 & 192, [2010] 3 SCR 457 (“Assisted Human Reproduction Reference”); Quebec (Attorney General) vCanadian Owners and Pilots Association, 2010 SCC 39 at para 16, [2010] 2 SCR 536 (“COPA”); Quebec (Attorney General) vLacombe, 2010 SCC 38 at para 20, [2010] 2 SCR 453 (“Lacombe”).

Another way of describing this is to identify the “mischief” that alaw was designed to address: Reference re Firearms Act (Can), 2000 SCC 31 at para 17, [2000] 1 SCR 783 (“Firearms Reference”).The second step is to determine which level of government has jurisdiction to enact laws in relation to this matter: Assisted HumanReproduction Reference at para 19; Lacombe at para 24. [14] When a particular provision within a statute is challenged, the focus is on the subject of the impugned provision: COPA atpara 15; Canada (Attorney General) v Canadian National Transportation Ltd, (SCC), [1983] 2 SCR 206 at 270, 3DLR (4th) 16. 1.

The first step - characterization of the “pith and substance” A. Law

[15] A pith and substance analysis looks at both the purpose of the legislation and its effect. In order to implement this, Lebel, J inKitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31 at paras 53 - 54, [2002] 2 SCR146 (“Kitkatla”) suggests that: First, to determine the purpose of the legislation, the Court may look at both intrinsic evidence, such as purpose clauses, or extrinsicevidence, such as Hansard or the minutes of parliamentary committees. ...

Second, in looking at the effect of the legislation, the Court may consider both its legal effect and its practical effect.

In other words, theCourt looks to see, first, what effect flows directly from the provisions of the statute itself; then, second, what “side” effects flow fromthe application of the statute which are not direct effects of the provisions of the statute itself. [16] The court is not bound by a purpose clause, but may find it to be a useful statement of legislative intent: Chatterjee v Ontario(Attorney General), 2009 SCC 19 at para 17, [2009] 1 SCR 624 (“Chatterjee”). [17] Extrinsic evidence of purpose is gleaned from the proceedings of the legislative body that enacted the relevant legislation:Kitkatla at para 53.

In this case, there is no official record of those proceedings. However, there are documents which indicate how theBylaw came to be enacted and report on its use since enactment. Some of these documents were filed by the City at the trial of thismatter; others were admitted by Rooke ACJ as fresh evidence on this appeal. [18] Legal effect refers to how the legislation affects the rights and liabilities of those subject to its terms, and is determined fromthe terms of the legislation itself: R v Morgentaler, (SCC), [1993] 3 SCR 463 at para 25, 107 DLR (4th) 537(“Morgentaler”).

On the other hand, evidence of practical effect: ... is not ... restricted to the four corners of the legislation ... the court "will look beyond the direct legal effects to inquire into the socialor economic purposes which the statute was enacted to achieve", its background and the circumstances surrounding its enactment ... and,in appropriate cases, will consider evidence of the second form of "effect", the actual or predicted practical effect of the legislation inoperation (Morgentaler at para 26). [19] “Merely incidental”effects do not affect a pith and substance analysis: COPA at para 18; Global Securities Corp v BritishColumbia (Securities Commission), 2000 SCC 21 at para 23, [2000] 1 SCR 494. “The ‘dominant purpose’ of the legislation is decisive.Its secondary objectives and effects have no impact on its constitutionality”: Canadian Western Bank v Alberta, 2007 SCC 22 at para28, [2007] 2 SCR 3 (“CWB”).

Thus, evidence of the practical effect of a law may be of limited assistance. Practical effect is contextdependant. In one context “practical effect may reveal the true purpose of the legislation”; in another, “it may be incidental and entirelyirrelevant even though it is drastic”: Morgentaler at para 31. B. Parties’ Positions 1. Intrinsic evidence [20] The appellant argues that the trial judge failed to consider the purpose clause in

section 1 of the Bylaw which states that:“[t]he purpose of this bylaw is to regulate the conduct and activities of people in public places to promote the safe, enjoyable, andreasonable use of such property for the benefit of all citizens of the City.” [21] The respondent observes that the Bylaw deals with a diverse set of subjects such as littering, public urination, public fights,bullying, firing projectiles in a public place, distributing handbills in a hotel and smoking in public places.

There is no identifiable singletheme or unity of subject matter in this list, save the broad purpose of prohibiting and punishing certain public or quasi-public activitiesthat the City finds undesirable or bothersome.

[22] The respondent also argues that it is significant that the predecessors of this Bylaw had no purpose

section and it appears theEdmonton City Council (“Council”) was retrospectively assigning an overarching purpose in the current version to unrelated assortments of prohibitions.[1] 2.

Extrinsic evidence [23] The appellant argues that the extrinsic evidence shows that the purpose of Council, at the urging of the Edmonton PoliceService (“EPS”), was to regulate non-criminal activities that were interfering with citizens’ ability to enjoy public places. [24] The extrinsic evidence admitted on this appeal shows that the process that led to the enactment of the Bylaw started with aninternal EPS memorandum drafted by a Constable and directed to the EPS Legal Advisors’ Office.

The memorandum referred to aproblem with “fights occurring in and around licensed premises” and outlined shortcomings of available tools to deal with the problem.Assault provisions of the Criminal Code were not useful for consensual fights. The existing bylaw prohibitions on jostling and harassingpedestrians were also inadequate in relation to consensual fights (Bylaw 5590,

Part 4). [25] The memorandum suggested that consensual fights could lead to charges for causing a disturbance under s. 175(1)(a)(

i) ofthe Criminal Code. However, there were concerns about the excessive nature of criminal charges for the fights in question, including:the extensive nature of the report required regarding a Criminal Code offence, the requirement of a mandatory court appearance, and thefact that many of those charged will retain counsel to contest the charges. The proposed solution was a bylaw prohibiting fights in apublic place. [26] The next piece of extrinsic evidence is a report that came to the Community Services Committee of Council on November 2,1998.

That report, drafted by a solicitor for the City, outlined the problem of fights that do not attach any criminal sanction, noting thatconsensual fights are not assaults and that causing a disturbance is only an appropriate charge “in limited circumstances.” The legalopinion in this report was likely guided by the decisions of the Supreme Court of Canada in R v Jobidon, (SCC), [1991]2 SCR 714 and R v Lohnes, (SCC), [1992] 1 SCR 167 (“Lohnes”) dealing respectively with consensual fights andcausing a disturbance.

The report also noted that a bylaw charge “would not leave the lasting stigma of a Criminal Code conviction.”Finally, the report discussed the procedure involved in a Criminal Code charge and suggested that a violation ticket would be a moreefficient way to handle the nuisance of public fights. [27] The Community Services Committee recommended that Council consider the proposed bylaw. When the proposed bylawcame before it, Council sought further information from the Police Commission. [28] A new report was presented to Council on January 19, 1999.

It cited as benefits of the proposed bylaw, the closing of alegislative gap, and the creation of an effective tool to control an undesirable activity. The report indicated that the bylaw “is not intendedto replace the use of the Criminal Code” but rather provide a tool where criminal charges are “not sustainable” or “not warranted by thecircumstances”. [29] Council suggested that the Chief of Police consider withdrawing the bylaw and putting forth other alternatives to address theproblem.

The matter went before the Police Commission on February 17, 1999 which considered another report on the issue from theEPS Legal Advisors. This report supported the bylaw as a means to address a community concern, consensual fighting in public places,in “the most minimal way possible”. [30] The Police Commission passed a motion supporting the bylaw which was sent back to Council on April 20, 1999. Councilenacted Bylaw 11879, the predecessor of the challenged Bylaw. [31] In

summary, the appellant submits that the reviewed extrinsic evidence shows that the Bylaw was aimed at nuisance fights innight club districts of the City. By “nuisance fights”, the appellant refers to fights for which criminal charges are either “inapplicable” or“inappropriate”.

[ 32 ] The respondent submits that it is telling that the Constable who drafted the initial EPS memorandum requesting the creation of a “fighting in public” bylaw focussed his concern on the paperwork an officer was required to complete, the inconvenience to the accused resulting from a criminal charge under the Criminal Code , and the increased chances of the accused contesting a criminal charge.

In the Constable’s view, the advantage of the proposed bylaw was not only its application to consensual fights, but also its administrative convenience. [ 33 ] The respondent also points to similar comments in various reports prepared regarding the proposed bylaw, including the November 2, 1998 report and the February 17, 1999 report. [ 34 ] The respondent also refers to a March 2007 vote by Council to increase the fine associated with

section 7. A report supporting the fine increase suggested that it would make a “bold statement that inappropriate behaviour will not be tolerated.” The respondent argues that this statement implies that the fighting offence is not only intended to deter this conduct, but also denounce it. 3. Purpose:

Summary [ 35 ] The appellant argues that the trial judge failed to reach a conclusion on the purpose of the Bylaw when rather than asking the question “why”, she looked at “what” the Bylaw did and held that its purpose was “to allow the police to issue violation tickets to discourage fighting in public”: PC Decision, para 39. The appellant contends that the intrinsic and extrinsic evidence indicate that the purpose of

section 7 was to ensure that public space was safe and enjoyable by addressing nuisance fights. [ 36 ] The respondent contends that thematically the purposes of the Bylaw were: (

i) consensual fights particularly occurring around bars were a concern to the EPS; (ii) the existing provisions of the Criminal Code were less than ideal tools for dealing with consensual fights, because an assault charge was not available when fights were consensual, and a “causing a disturbance” charge might be difficult to prove in the absence of evidence of actual disturbance; and (iii) a bylaw offence to prohibit fighting in public was intended to deter, denounce and punish fighting in public while avoiding problems of proof and minimizing the drain on police resources associated with laying Criminal Code charges for such behaviour. 4.

Legal effect [ 37 ] The appellant argues that the trial judge erred in failing to consider the legal effect of the Bylaw. Instead, she focussed on how those subject to the Bylaw may also be subject to the Criminal Code . [ 38 ] The legal effect of the Bylaw is determined by interpreting its terms. The term “fight or other similar physical confrontation” should be interpreted to include all physical interactions that are confrontational in nature.

The Bylaw is limited to public places, defined as places “to which members of the public have access as of right or by express or implied invitation.” The legal effect should also take into account how the Bylaw is enforced. The Bylaw creates an offence that is prosecuted under the POPA , s. 2.

The defence of due diligence would apply to a prosecution under the bylaw. [ 39 ] Therefore, the appellant argues, the legal effect of the Bylaw is to prohibit physical confrontations in public places unless reasonable care is taken to avoid those confrontations. [ 40 ] The respondent notes the mandatory minimum fine provisions of the Bylaw, and submits that the legal effect is to prohibit fighting in places where the public has a right of access and to enforce the prohibition with a meaningful financial penalty.

5. Practical effect [ 41 ] The appellant does not deny that in some cases, conduct which could result in criminal charges may result instead in the issuance of a violation ticket under the Bylaw. This is conceded to be a practical effect of the Bylaw. But the appellant argues that this is a merely incidental effect, and does not determine the pith and substance of

section 7.

The appellant contends that the relevant factors for a pith and substance analysis are that fights in public places have a public nuisance aspect, and that not all fights involve criminal conduct. [ 42 ] As evidence of the practical effect of the Bylaw, the appellant points to an EPS service directive on April 23, 1999 that the fighting bylaw is for “situations where a criminal charge is not appropriate” and that criminal charges should be laid “where the facts suggest that a criminal charge is appropriate.” Further, statistical analyses of violation tickets issued between April 23, 1999 and March 31, 2003 indicate that the Bylaw is being used primarily for fights in night club districts. [ 43 ] Finally, the appellant submits that voluntary payment of those accused of contravening the Bylaw has far different consequences from a guilty plea to a criminal offence.

The penalty is a fine payment. The liberty of the subject is not at stake. (It may become an issue if the fine is not paid, but that is related to collection of the penalty; it is not the penalty: R v Wu , 2003 SCC 73 , at paras 51 , 60, [2003] 3 SCR 530.) In contrast, sentencing options under the Criminal Code include the prospect of imprisonment. [ 44 ] The respondent argues that evidence of practical effect of the Bylaw is found in a 2007 report from the City’s Planning and Development Department which recommended increased fines in order to reduce “the requirements for Criminal Charges”.

The report expressed concerns about how the “processing times associated with actual charges affect the availability of Officers on the street.” A 2003 EPS report also commented that the fighting bylaw was an effective tool to deal with fights in public places, especially around licensed establishments at closing time, noting that “in these types of situations, enforcement under the bylaw is a practical alternative to prosecuting under the criminal code [sic] for causing a disturbance.” [ 45 ] The respondent concludes that the practical effect is that

section 7 of the Bylaw is “sometimes used as an alternative to criminal charges in circumstances where those charges are legally justifiable, but where the police wish to avoid the paperwork, administrative hassle and difficulties of proof associated with a Criminal Code charge, while still imposing sufficient punishment to deter offenders.” 6. Pith and Substance:

Summary [ 46 ] The appellant submits that the analysis of purpose and effect shows that the essential character of

section 7 the Bylaw is to provide enjoyable and safe public places by regulating nuisance fights. [ 47 ] The respondent submits that the fighting provision of the Bylaw is directed at “maintaining peace and order, primarily outside nightclubs but also in all other places to which the public has an express or implied right of access, by deterring and punishing fights and other physical altercations, regardless of whether the physical contact was consensual, by using the administratively expedient process of issuing a bylaw ticket.” C.

Analysis on the first step - characterization of the “pith and substance ” [ 48 ] As noted earlier, the parties are in agreement as to the applicable legal principles. They agree, as well, as to the evidence that may be considered by the court in addition to the terms of the Bylaw. 1. Intrinsic evidence

[ 49 ] I agree with the appellant that the purpose clause of the Bylaw should be considered and supports the view that

section 7, in common with other provisions of the Bylaw, is aimed at regulating conduct in order to make public places in the City safe and enjoyable for public use. While not binding on the court, a purpose clause may be a useful statement of legislative intent: Chatterjee at para 17 . There is nothing in the case law, and no reason in principle, why this would not apply to a purpose clause later added to legislation. The purpose clause is a statement by the body with jurisdiction to enact, retain, amend or repeal the legislation of its understanding of the purpose of the legislation.

There is also, in my view, no reason to reject that statement in this case. The respondent argues that the Bylaw deals with a diverse set of subjects without an identifiable theme. I disagree. There is a common theme regarding the conduct that is prohibited in public places under the Bylaw (for example, littering, urinating, fighting, bullying, firing projectiles and smoking). These are not merely activities that the City finds undesirable, as the respondent would have it, they are by their nature activities that would clearly and obviously interfere with the safe and enjoyable use of public places. 2.

Extrinsic evidence [ 50 ] There are two themes that are repeated in the extrinsic evidence: one, an issue regarding street fighting, particularly in areas around licensed establishments; and, two, a concern that current criminal law provisions do not effectively or efficiently deal with the first issue, especially when the fighting is consensual. [ 51 ] Accordingly, the extrinsic evidence is capable of supporting either parties’ view of the pith and substance of

section 7. The appellant relies on the first theme as evidence that the purpose of

section 7, in common with the rest of the Bylaw, is to deal with conduct that threatens the safe and enjoyable use of public places. The respondent observes that fighting in public was already the subject of the criminal law offences of assault and causing a disturbance, and that the real “mischief” addressed by

section 7 was the perceived defects associated with the criminal law. 3. Purpose:

Summary [ 52 ] I agree with the appellant that identifying the purpose of the Bylaw requires primarily a consideration of “why”, not “what” the Bylaw does. The intrinsic evidence of purpose is that the Bylaw is aimed at providing safe and enjoyable public places. This purpose is reflected in the genesis of the process that added

section 7 to the Bylaw: it arose from a concern with fighting in the street, especially consensual fighting and especially in the area of licensed premises. This focus makes it clear that the real concern arising from this conduct was its impact on the public place.

The focus was not on protecting individuals, but on protecting areas of concentrated public use. [ 53 ] The analysis of the shortcomings of criminal law in dealing with this concern does not alter the purpose of the law; it does not become a law aimed at altering or remedying criminal law simply because of a perception that the criminal law does not provide an adequate or appropriate solution to the identified problem. In purpose , at least,

section 7 of the Bylaw is about resolving the problem of fights interfering with the use of public places. Issues identified by the respondent regarding how the problem is addressed will be addressed in relation to the effect of the law. 4. Legal effect [ 54 ] The parties do not really differ as to the legal effect of

section 7: both agree that it prohibits fighting in public places. The prohibition applies to fighting broadly defined, not just consensual fights. The prohibition is enforced with a financial penalty. 5. Practical effect [ 55 ] There is common ground between the parties that one practical effect of

section 7 is that, as observed by the trial judge, persons who have or may have committed criminal offences are issued violation tickets. This arises from the broad definition of fighting, which would include a non-consensual fight (i.e., the offence of assault) and the possibility or even likelihood that a fight on a public street may constitute the offence of causing a disturbance (as found by the trial judge, at PC Decision, para 58). [ 56 ] There is also no dispute that another practical effect of

section 7, again identified by the trial judge, is that persons issued

violation tickets may pay the fine under the voluntary fine payment option without appearing in court, even though the charge mighthave been dismissed in court. [57] The appellant argues that the significance of these effects is limited by a police service directive that the Bylaw should beused only where criminal charges are “not appropriate” and by the fact that offenders are subject to only a monetary penalty. In my view,neither of these factors could save the Bylaw if it were otherwise criminal law.

The exercise of discretionary authority cannot render anunconstitutional law constitutional: Saumur v City of Quebec, (SCC), [1953] 2 SCR 299 at 339; adopted by Laskin CJ,dissenting in Nova Scotia Board of Censors v McNeil, (SCC), [1978] 2 SCR 662 at 672-73 (“McNeil”). Further, thepotential for imprisonment is not a requirement of criminal law. The prerequisites of criminal law are a valid criminal law purposebacked by a prohibition and a penalty. The penalty may be financial. [58] The respondent has cited evidence supporting increased fines under

section 7 to reduce “the requirements for CriminalCharges” and evidence that the Bylaw is perceived by police to be a “practical alternative” to criminal charges. The trial judge found thatthe case before her was one in which criminal charges could have been laid. I am satisfied that the respondent has properly characterizedthe practical effect that

section 7 of the Bylaw is “sometimes used as an alternative to criminal charges in circumstances where thosecharges are legally justifiable.” The respondent cites some of the reasons why police might issue a Bylaw ticket, “to avoid thepaperwork, administrative hassle and difficulties of proof associated with a Criminal Code charge”, there may be other reasons,including an assessment that the stigma of a criminal charge is not appropriate in particular circumstances.

The extrinsic evidenceindicates that not only is the Bylaw used as an alternative to criminal charges, but that this use was contemplated when the Bylaw wasenacted. In my view, this significant and contemplated practical effect is relevant to the determination of the pith and substance of section7. 6. Pith and Substance:

Summary [59] The appellant argues that in pith and substance

section 7 provides enjoyable and safe public places by regulating nuisancefights. While the purpose of

section 7 is indeed to provide enjoyable and safe public places,

section 7 does not “regulate” fights, itprohibits them. Further, it does not prohibit only “nuisance” fights, it prohibits all fights in public places. The Bylaw does not attempt todefine “nuisance” fights, and the only definition offered by the appellant is that nuisance fights are those for which criminal charges areeither “inapplicable” or “inappropriate”. [60] The respondent argues that the fighting provision of the Bylaw is directed at maintaining peace and order in public places bydeterring and punishing fights through the administratively expedient process of issuing a bylaw ticket.

A focus on securing “peace andorder”, rather than safe and enjoyable public areas, not only overlooks the intrinsic evidence of purpose; it may also overstate thecircumstances which the Bylaw was intended to address. As to the administrative convenience of issuing a Bylaw ticket, this is only oneof a number of reasons why police might choose the alternative of a Bylaw ticket over criminal charges. [61] In my view the pith and substance of

section 7 is best captured by including the “why” of the Bylaw along with the “how” asstated by the trial judge.

Section 7 is directed at providing safe and enjoyable public places by deterring public fights through theissuance of bylaw tickets. 2. The second step - assignment to heads of legislative power A. Law [62] The second step in a constitutional challenge is the assignment of the matter to a head of power under ss. 91 or 92 of theConstitution Act, 1867 and the resulting determination as to which level of government has jurisdiction to enact laws in relation to thematter: Lacombe at para 24, Chatterjee at para 24. [63] The primary dispute here is whether the law is appropriately assigned to the federal power over criminal law under s. 91(27)

or provincial authority with respect to property and civil rights under s. 92(13). [64] The criminal law power is “broad and plenary”; there is no defined “domain” of criminal law : RJR-MacDonald Inc vCanada (Attorney General), (SCC), [1995] 3 SCR 199 at para 28, 100 CCC (3d) 449; Reference Re Board ofCommerce Act and Combines and Fair Prices Act, 1919, (UK JCPC), [1922] 1 AC 191 at 198-99, [1922] 1 WWR 20(“Board of Commerce ”); Proprietary Articles Trade Association v Attorney-General for Canada, (UK JCPC),[1931] AC 310 at 324 (“PATA”) It is noted that the statement in Board of Commerce was repudiated in PATA: see, Peter W Hogg,Constitutional Law of Canada, 5th ed, Supp (Scarborough, Ont: Thomson Carswell, 2007) at 18-3 - 18-4.

The hallmarks of a criminallaw are: (

i) a prohibition, (ii) backed by a penalty, that is (iii) enacted for a criminal law purpose: R v Hydro-Québec, (SCC), [1997] 3 SCR 213 at paras 35,118, 122, 151 DLR (4th) 32; Firearms Reference at para 27; Assisted Human ReproductionReference at paras 40-41 and 230-34. [65] The “ordinary though not exclusive” purposes of criminal law purposes are: “public peace, order, security, health, morality”:Reference re Validity of

Section 5 (

a) Dairy Industry Act, (SCC), [1949] SCR 1 at para 145, 1948 CarswellNat 62 perRand, J Criminal law is typically directed against “some evil or injurious or undesirable effect upon the public”: para 142. [66] While the imposition of a penalty is one of the definitional features of criminal law, provincial legislatures may also enactpenal sanctions.

The Constitution Act, 1867, s. 92(15) authorizes: “the imposition of punishment by fine, penalty, or imprisonment forenforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in thissection.” Professor Hogg comments that, while this provision is an ancillary power, “authorizing the creation of provincial offences onlyfor the purpose of enforcing law which are authorized under some other head of provincial power”, it has resulted in “a substantialdegree of concurrent provincial jurisdiction to enact penal laws which are indistinguishable from federal criminal laws”: Hogg at 18-3. [67] This overlap in federal and provincial powers is a feature of the “double aspect” doctrine, which recognizes that some subjects“for one purpose and in one aspect fall within federal jurisdiction” and “for another purpose and in another aspect fall within provincialcompetence”: CWB at para 30; see also Hogg at 15-11; and Hodge v the Queen, 1883 9 App Cas 117, 130 (PC). [68] The overlap requires courts, as in this case, “to draw a distinction between a valid provincial law with an ancillary penalty anda provincial law which is invalid as being in pith and substance a criminal law.

The elusiveness of that distinction creates uncertaintyabout the scope of provincial power under s. 92(15) as well as the scope of federal power under s. 91(27)”: (Hogg at 18-31). [69] The Supreme Court of Canada has addressed that elusive distinction in a number of decisions. According to Professor Hogg,the “dominant tendency of the case law has been to uphold provincial penal legislation” (Hogg at 18-31). [70] In O’Grady v Sparling, (SCC), [1960] SCR 804 (“O’Grady”), the Court upheld the provincial offence ofdriving without due care and attention.

Judson J for the majority of the Court referred to a number of factors in reaching this conclusion.He noted that there were differences in the nature of the provincial offence and the Criminal Code offence of dangerous driving. Thepower of the provincial legislature to enact laws for the regulation of highway traffic was undoubted, and the offence of careless drivingwas similar in character to other laws relating to conduct on the road. A provincial law did not become criminal law merely because itconsisted of a prohibition and imposed a penalty.

Further, constitutional jurisprudence had rejected the concept of a particular “domain”or area of criminal law. The provincial law was valid as it was in pith and substance about traffic regulation. This result was laterreaffirmed in Mann v The Queen, [1966] SCR 823. [71] The same result was reached in relation to a provincial offence of failing to remain at the scene of an accident: Stephens vThe Queen, (SCC), [1960] SCR 823 (“Stephens”).

Despite the similarity of the law to the criminal offence of failing tostop at the scene of an accident ‘with intent to escape civil or criminal liability’, the two offences were found to differ in purpose andeffect. The provincial law was enacted to create a duty to stop, render assistance and give information. On the other hand, the criminallaw created an offence to fail to stop if done with a specified intent. [72] The Supreme Court also upheld offences under the Ontario Securities Act for furnishing false information or violating otherprovisions of the Act.

As the main object of the Act was in relation to regulation of the securities industry, the incidental offences werewithin provincial jurisdiction: Smith v The Queen, (SCC), [1960] SCR 776.

[73] These cases were relied upon in by the majority of the Court in McNeil at 662, which upheld the provincial offence ofexhibiting a film which had not been authorized by the provincial censorship board, and in Dupond v City of Montreal, (SCC), [1978] 2 SCR 770 (“Dupond”), which upheld a City of Montreal bylaw prohibiting the holding of any assembly, parade orgathering in the City during a period of unrest.

Both laws were held to relate to “matters of a merely local or private nature in theprovince” under s. 92(16) of the Constitution Act, 1867; local standards of propriety in the case of the censorship law and a local concernrelating to large and numerous demonstrations in Montreal during the summer of 1969. The censorship law was also justified as inrelation to the regulation of business under s. 92(13). [74] It is noteworthy that in McNeil one provision of the censorship law was struck down. Regulation 32 prohibited the exhibitionof an “indecent or improper” performance.

This provision was found to be indistinguishable from the Criminal Code offence of publicindecency. [75] The tendency to uphold provincial offences did not carry the day in Westendorp v The Queen (SCC), [1983] 1SCR 43 (“Westendorp”), in which the Supreme Court “unexpectedly” (according to Professor Hogg’s assessment, at 18-33) struck downa Calgary bylaw prohibiting a person from remaining on the street or approaching another person on the street for the purpose ofprostitution. [76] The Calgary prostitution offence was added to the Calgary “Street Bylaw”, which controlled various street activities includingsoliciting and carrying on businesses on the street.

A first offence resulted in a fine of between $100 and $500 or in default of paymentimprisonment for up to 60 days; subsequent offences resulted in a fine of between $300 and $500 or in default of payment imprisonmentfor up to 6 months. [77] The Supreme Court held that, both from its nature and the scale of the associated penalty, the prostitution offence wascompletely different from other provisions of the bylaw.

Unlike other bylaw offences, it did not deal with congregation of persons orobstructions on the street, rather it referred to what the congregating or obstructing persons said - i.e. the offer of sexual services. It dealt,“not with a public nuisance, but with the evil of prostitution”, a matter of public morality that was beyond the competence of theprovincial legislature.

The Supreme Court held that the Alberta Court of Appeal decision upholding the bylaw established: . . . a concurrency of legislative power, going beyond any double aspect principle, and leaving it open to a province or a municipalityauthorized by a province to usurp exclusive federal legislative power. If a province or municipality may translate a direct attack onprostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs.

And, may itnot, on the same view, seek to punish assaults that take place on city streets as an aspect of street control. [78] Rio Hotel Ltd. v New Brunswick (Liquor Licensing Board) (SCC), [1987] 2 SCR 59 (“Rio Hotel ”) is apost-Westendorp decision of the Supreme Court of Canada that considered an offence under provincial liquor legislation. The LiquorLicensing Board made liquor licences conditional on the prohibition of nude entertainment. Violating the conditions of the licenseconstituted an offence under the law.

The Court upheld the law as in relation to property and civil rights within the province and mattersof a purely local nature.

Dickson CJ for the majority distinguished the case from Westendorp in that the prostitution bylaw “bore norelation, either in subject-matter or in the scale of penalties, to the remainder of the by-law”, while the liquor licence conditions were partof a comprehensive scheme of regulation of the sale of liquor. [79] A concurring judgment in Rio Hotel by Estey J (concurred in by Lamer J, as he then was) included a comment relied upon bythe trial judge that, while a province could cancel a liquor licence on grounds of a Criminal Code conviction, it is not “open to theprovince to reenact the criminal provision and accomplish the same result by effectively ‘convicting’ the licensee of a criminal offencealready existing in federal law, under its own process and in its own forum”: para 21. [80] In support of this conclusion, Estey J noted that McNeil had struck down a provincial regulation that was indistinguishablefrom a Criminal Code offence: This provision would have led to the problem of enforcement of criminal law in the guise of a provincial regulatory scheme.

It therebycarried the legislative activities of the province into the realm of s. 91(27) and hence its condemnation. (Rio Hotel at para 32).

[81] Estey J also commented on Westendorp that “conduct relating to prostitution is a classic or traditional crime of great antiquitythat clearly falls within the mandate of Parliament”: para 33. Westendorp was distinguishable from Dupond in that the latter related to“the efficient operation of the streets and the prevention of conditions which in turn could give rise to disorderly conduct on a largescale”, involving regulation of the streets and the prevention of crime, both valid provincial objects.

In contrast, the thrust of the bylaw inWestendorp was “control of activity historically recognized as criminal and while the focus of the by-law was on the streets, it could not,except on a colourable basis, be described as street traffic legislation.” [82] Estey J provided the following

summary of factors relevant to the distinction between a valid provincial law with an ancillarypenalty and a provincial law which is invalid as being in pith and substance a criminal law, at paras 39-40: The segregation of the federal and the provincial powers in all the authorities cited above relates to two different situations. The firstsituation concerns the regulation of licensed premises, and the provincial enactment in question goes to the imposition of conditions to bemaintained by the licensee in order to maintain his licence.

The second situation occurs where a province purports to append penalties toa valid provincial undertaking such as the regulation of streets in a municipality. In the former case, it is much easier to determineprovincial validity because the reference to conduct is only in relation to the operation of an activity which properly falls withinprovincial competence. Thus the licensing program is part of a general provincial regulatory program. Consequently, the provinciallegitimacy is found in s. 92(13) and/or (16).

In the second category the problem is rendered more difficult by the fact that the provincialregulation reaches outside premises owned or controlled by a provincial licensee. In that circumstance, the province again must find avalid provincial regulatory program and must confine the offences created in support of that program to those which are reasonablynecessary for that purpose. The longer the penalty and the closer the terminology comes to describing conduct traditionally criminal, the more doubtful the validityof the provincial enactment.

The exclusive right in Parliament to legislate with reference to criminal law and criminal procedure may notbe eroded by provincial legislation disguised as that which is necessary to give effect to an otherwise valid provincial program. InWestendorp ... the municipality failed to demonstrate the existence of such a program, but in Dupond ... the Court was able to discern theexistence of such legitimate provincial activity.

In Rio 1 ... despite the fact that the impugned legislation was part of a valid provinciallicensing scheme, the provision in question was found to be indistinguishable from the like provision of the Code. Therefore, as inWestendorp ... the legislation clearly invaded the exclusive criminal jurisdiction of Parliament and was ultra vires the province.However, in this appeal, the impugned legislation cannot be characterized as indistinguishable from the provisions of the Code.

It is,rather, a valid provincial regulation that forms an important and integral part of a valid provincial licensing scheme. [83] R v Racette, (SK CA), [1988] 2 WWR 318, 61 Sask R 248 (SKCA) is a post-Westendorp decision of theSaskatchewan Court of Appeal which found a provincial offence for driving with a blood alcohol content exceeding 80 milligrams ofalcohol in 100 millilitres of blood to be ultra vires the province.

The majority of the Court held that it was difficult to see the real needfor a repetition of existing valid Criminal Code offences by the provincial legislation. [84] In Racette, Gerwing, JA writing for the majority of the Saskatchewan Court of Appeal, reviewed case law relating to thevalidity of provincial offences in relation to highways, observing that the Supreme Court of Canada has often held that “the provinciallegislature can validly prohibit conduct on the highways under a penalty as long as it was done for a valid provincial purpose” and that“the simple imposition of a penalty does not invalidate provincial highway regulation nor move it within the sphere of criminal law if itwas in fact enacted for a valid provincial purpose”: para 161.

However, the provincial law in this case did not encourage safe driving onhighways as it merely repeated standards existing in the Criminal Code. Further, the provincial law had a second, evidentiary component,in that it permitted the taking and evidentiary use of a blood sample without the consent of the accused. Gerwing JA concluded (at paras181-183): Here, despite the long-standing history of double purpose with respect to protection of users of the highways, I am of the view that thetrue purpose of this legislation is indeed to enter into the field of criminal law.

Indeed, if re-enactment of federal driving offences withrespect to liquor can be justified there is no reason that, to use the analogy adopted by Laskin C.J.C., some incursion might not beattempted into drug-related laws or other matters under a colourable guise of this nature. Although the highway power has along-standing and well documented history, it cannot serve to cover legislation which is in fact in relation to the criminal law.

While the appellant argued that the offence and evidentiary components were both designed to protect members of the public who mightbe affected by impaired drivers, and while this is a wholly desirable objective, in my view an examination of the

section and its historydoes not in fact show that to be the true purpose or intent. It is in fact legislation in relation to the criminal law and is designed to enforce

a federal statute in circumstances where the federal statute, on its face as it then stood, could not be enforced. As noted, with a strong history of the Supreme Court of Canada endorsement of the provincial legislation with respect to safety on highways, I believe it is only in the clearest case of provincial legislation purporting to be within this area that another purpose should be found.

Here, however, where there is a repetition of an offence, which is clearly criminal law, for no manifest purpose, together with an expanded enforcement mechanism for the federal provision, I can only categorize this as legislation in relation to criminal law. B. Parties ’ Positions [ 85 ] The appellant submits that the dominant purpose of the Bylaw is to maintain safe and enjoyable public places, protecting people and property and limiting the nuisances to which citizens are exposed, which is within the provincial jurisdiction.

In certain fights there is likely to be some overlap with the Criminal Code prohibition on morally offensive fights, but this is permitted and expected as it is difficult to legislate in fields as broad as property and civil rights without having some overlap into other heads of power: CWB at para 28. [ 86 ] The appellant argues that the trial judge failed to consider whether the matter of fights in public places has two aspects. While some fights in public places could be regulated by the Criminal Code , fights have two aspects: a public nuisance aspect and a morality aspect.

The nuisance aspect is properly regulated by the Bylaw. The Bylaw addresses all fights in public spaces, while the Criminal Code provisions apply to a narrower class of fights. The City notes that it is significant that there is a Criminal Code exception from assault for consensual fights, and that there is case law which indicates that not all fights in public places fall under Criminal Code , s. 175(1) (a)(

i) on causing a disturbance: R v (VB) JG , 2002 NSCA 65 , 205 NSR (2d) 391.

As the Criminal Code does not prohibit all fights, the Bylaw would apply to fights which are not covered by the Criminal Code . [ 87 ] The analytical approach of the trial judge, who considered fights to be the sole jurisdiction of the federal government, is described by the appellant as an “occupying the field” reasoning which, it submits, is obsolete: Chatterjee at para 35 . [ 88 ] The appellant argues that the trial judge improperly relied on the statements of Estey J in Rio Hotel at para 21 to conclude that in order to be valid provincial law, legislation must not only relate to an aspect of the subject matter within provincial jurisdiction, but must also limit its application to licensed establishments or the control of property: PC Decision, paras 77-79.

It argues that the province has the jurisdiction to impose fines on matters relating to provincial heads of power, and the imposition of a fine under the impugned Bylaw does not change its essential character. [ 89 ] The appellant also argues that the trial judge misapplied Westendorp , which is distinguishable. The scope of activities that the impugned Bylaw is aimed at differs from those in the Calgary bylaw considered in Westendorp . The purpose of the Calgary bylaw was moral, while the purpose of

section 7 is to keep public places safe and accessible.

Further, the Supreme Court of Canada described the Calgary bylaw as a “colourable attempt” to address prostitution whereas the Council which enacted the Bylaw in this appeal “was aware of the limits of the Criminal Code in addressing fights in its consideration of the Bylaw and passed a Bylaw to cover aspects of fighting not addressed in the Criminal Code ”. [ 90 ] The respondent acknowledges that the federal criminal law power and provincial power over property and civil rights do overlap; and that when this occurs, the court is required to identify the dominant feature of the impugned provision: Chatterjee at para 29 .

However, the purpose and effects of the Bylaw provision do not point to the regulation of property and civil rights as the dominant feature. The evidence before this court suggests that it was intended to “achieve the purposes of the Criminal Code without the perceived difficulties associated with laying charges under the Code ” and to fill a “legislative gap” in the Criminal Code (Respondent’s Brief, para 55). [ 91 ] It is clear that

section 7 includes a prohibition and a penalty. With regard to the third feature of criminal law, the respondent argues that

section 7 was created to deter and punish public violence, which relates to the criminal law purposes of public peace, order and security. [ 92 ] The respondent submits that in determining whether a law is a criminal law, the court should consider whether similar

provisions have traditionally fallen within the criminal law: Firearms Reference at para 32. She argues that prohibitions of fights and public disturbances have historically come within criminal law power. Canada’s original Criminal Code , SC 1892, c 29, s. 90 prohibited “participating in an affray”, defined as “the act of fighting in any public street or highway, or fighting to the alarm of the public in any other place to which the public have access.” Affray remained an offence until 1947, under the Criminal Code , RSC 1927, c 36, s. 100. Parliament’s decision to de-criminalize certain public fights does not alter the breadth of the federal criminal law power. [ 93 ]

Section 7 of Bylaw is broadly drafted, and applies regardless of whether fights constitute a public nuisance or interfere with the public’s use of a place. Public fights are treated as intrinsically a threat to public order, safety and security, regardless of whether the public is actually affected by the fight. The respondent acknowledges that

section 7 affects how individuals may use a public place, but contends that this is an incidental consequence of any prohibition that applies in a public place.

She maintains that the dominant feature of the provision is the preservation of public peace and order. [ 94 ] The respondent distinguishes Rio Hotel on the basis that the provincial liquor licensing regulations were upheld as an “important and integral part of a valid provincial licensing scheme, while the impugned Bylaw provision here is neither tied to a provincial regulatory jurisdiction nor directly linked to an area of provincial jurisdiction. [ 95 ] She argues that the broad scope of the Bylaw reaches beyond public streets and includes any place to which the public has access.

She argues that this expansion beyond the streets suggests a colourable attempt to legislate in relation to criminal law, noting that in Racette the fact that the provincial law applied to areas other than highways supported the conclusion that it was a colourable attempt by the province to legislate in relation to criminal law. [ 96 ] The respondent distinguishes Dupond on the basis that the bylaw in that case was passed for reasons peculiar to Montreal at the relevant time and related to the use of public space in exceptional circumstances where there were reasonable grounds to believe riotous conduct might occur if demonstrations were permitted.

She argues that in the present appeal the impugned Bylaw provision does not deal with matters unique to the City of Edmonton and remains in force for an indefinite time. Secondly, the respondent says that Beetz, J in Dupond noted that the bylaw was a preventive measure and not a punitive measure. She argues that the Bylaw provision in this appeal is punitive. [ 97 ] The respondent argues that Westendorp supports her position that the province (and therefore the City) do not have jurisdiction to prohibit an action that causes disorder or a breach of public peace simply because it occurs in a public place.

The power to prohibit public nuisance or protect free use of public spaces does not justify a “mini- Criminal Code .” She points to the cautionary statement by Laskin CJC that courts should not “establish a concurrency of legislative power, going beyond any double aspect doctrine” which may lead to provincial or municipal laws which “seek to punish assaults that take place on city streets as an aspect of street control”: Westendorp at para 21 . C.

Analysis on the second step - assignment to heads of legislative power [ 98 ] The impact of Westendorp is central to this case, because of the similarities in the challenged laws (in the sense that both are municipal street bylaws), and because it is one of relatively few cases striking down provincial penal laws as criminal law. [ 99 ] It is important to keep in mind that Westendorp did not purport to change the law: neither the case itself, nor the subsequent Supreme Court of Canada decision in Rio Hotel suggested that there was anything in Westendorp that would draw into question the continued validity of previous case law, including O ’Grady , Stephens and Dupond .

Professor Hogg concludes that Westendorp is simply “a reminder that the provincial power to create offences under s. 92(15) is not as broad as the federal power to create offences under s. 91(27) ” and that the provincial law must be “safely anchored in property and civil rights or some other head of provincial power” (Hogg at 18-33). [ 100 ] Cases such as O ’Grady , Stephens and Dupond have created a significant area of concurrency in relation to controlling conduct on highways, streets and public places.

Given the very broad nature of the criminal law power on the one hand, and the extensive authority of the province with respect to property and civil rights and matters of a local nature on the other hand, it is not surprising that this is a context in which the double aspect doctrine has operated. These are subjects which when addressed for one purpose fall within provincial power, and for another purpose fall within federal power.

[ 101 ] There are limits to the double aspect doctrine, as noted by Laskin CJC in Westendorp in the cautionary statement referred to by the respondent. Describing those limits is as difficult as describing the line between criminal law and provincial penal laws. Professor Hogg adopts the explanation proposed in WR Lederman, Continuing Canadian Constitutional Dilemmas , (Toronto: Butterworths, 1981) at 244, that the double aspect doctrine applies when “the contrast between the relative importance of the two features is not so sharp”.

In other words, Professor Hogg notes, the double aspect doctrine “is the course of judicial restraint. When the court finds that the federal and provincial characteristics of a law are roughly equal in importance, then the conclusion is that law of that kind may be enacted by either Parliament or a Legislature”: Hogg at 15-12. [ 102 ] Professor Lederman explained the court’s choice between determining that a challenged law is exclusively within federal or provincial power, or has a double aspect, as follows (at p 244): Where [overlapping] occurs, either one of two things has then been done.

First, the feature of the challenged law relevant to a provincial class of powers has been completely ignored as only an “incidental affectation” of the provincial sphere, and the law concerned has been classed only by that feature of it relevant to a federal class of laws. Thus, in spite of the logical overlap the decision is made that only the federal Parliament has power to enact the challenged law. Obviously this decision involves a judgment that the provincial feature of the law is quite unimportant relative to its federal feature.

On the other hand if the federal feature be deemed quite unimportant relative to the provincial feature, then the converse decision would be made. But if the contrast between the relative importance of the two features is not so sharp, what then? Here we come upon the double-aspect theory of

interpretation, which constitutes the second way in which the courts have dealt with inevitably overlapping categories. When the court considers that the federal and provincial features of the challenged rule are of roughly equivalent importance so that neither should be ignored respecting the division of legislative powers, the decision is made that the challenged rule could be enacted by either the federal Parliament or a provincial legislature. [ 103 ] How sharp is the contrast in this case? The respondent acknowledges that the Bylaw incidentally affects property and civil rights, because it affects the ways in which property is used. She contends, however, that the dominant feature of

section 7 is the preservation of public peace and order. The appellant submits that fighting in public places has two aspects: a public nuisance aspect (provincial) and a morality aspect (federal) and that the dominant purpose of

section 7 is to maintain safe and enjoyable public places, which is within the provincial jurisdiction. The fact that both parties to this appeal are able to present compelling arguments that “fighting in public places” could either relate to criminal law or to property and civil rights or matters of a local nature may in itself be some indication that the federal and provincial aspects of this subject are “roughly equal in importance”: Hogg at 15-12. [ 104 ] The respondent has argued that historically, public fighting constituted the criminal offence of “participating in an affray”.

Even though the offence has been repealed, it would seem that there is no reason to believe that it would not be within Parliament’s power to re-enact it.

But this does not change the potential application of the double aspect doctrine, which would recognize the regulation of public fighting as within the authority of both the provincial legislatures and Parliament, provided the law in question has, respectively, a provincial or federal purpose. [ 105 ] Westendorp makes it clear that the mere fact that a law is restricted in its application to public places is not sufficient to make the law in pith and substance about the regulation of those places.

Even though the bylaw’s application was restricted to streets, the Court found that it was not in pith and substance about street regulation. The prostitution offence was not directed at street problems, such as congregating persons or obstructions, rather it was concerned with what the congregating or obstructing persons said. This was an indication that the bylaw was not really about nuisance, but morality.

The fact that the penalties associated with the prostitution offence were of a different scale that penalties that applied to other forms of obstructions, was another indication that the bylaw was addressed to something other than obstruction. [ 106 ] A violation of

section 7 results in the imposition of what are characterized by both the respondent and the trial judge as substantial fines: a minimum of $500.00 for a first offence and $1000.00 for any subsequent offences. However, these fines apply not only to

section 7, but also to other offences in public places: sections 5 (urination and defecation), 9 (possession of a loaded weapon or launching or firing a projectile) and 13 (violation of property owner’s obligation to prohibit smoking). These offences result in larger fines than other offences in the bylaw, but it is significant that fighting is only one of a group of offences attracting the more significant penalties.

This is one way in which this case differs from Westendorp . [ 107 ] The respondent observed that when the City Council voted to increase the fine penalty in the Bylaw, it had before it a report approved by the Chief of Police which suggested that the increase would make a “bold statement that inappropriate behaviour will not be tolerated.” She inferred from this that the fighting offence was not only intended to deter such conduct, but also to denounce it. This may

be, but the statement should not be taken out of its context: the increased penalty applied to several forms of inappropriate conduct. The view that conduct such as public urination or defecation or the permission of public smoking should “not be tolerated” certainly does not mean that laws prohibiting or even denouncing these acts are in pith and substance criminal. [ 108 ] The respondent and the trial judge both note, as well, that failure to pay the fine can result in imprisonment for not more than six months. Again, this applies to several forms of conduct as well as fighting.

Further, I accept the appellant’s submission that this is an option available (in limited circumstances) to the Crown for enforcement of fines. It is not a penalty for the offences: R v Wu at paras 51, 60 . Finally, I note that even if this were characterized as a penalty, it is within provincial jurisdiction to assign a penalty, including imprisonment, for provincial purposes: Constitution Act, 1867 , s. 92(15) ; R v Wason , [1890] OJ No. 50 at para 113, 17 OAR 221 (Ont CA) ; O ’ Grady at 807-10, 816. [ 109 ]

Section 7 also differs from the prostitution bylaw in that the nature of the prohibited conduct does not stand apart from other conduct prohibited in the Bylaw. In Westendorp , the focus of the offence on what was said, rather than congregations or obstructions as such, stood out from other sections of the bylaw.

In this case, the prohibited conduct of fighting, in common with other forms of prohibited conduct (littering, urinating, bullying, firing projectiles and smoking) are all activities that by their very nature interfere with the safe and enjoyable use of public places. [ 110 ] The respondent and the trial judge focus on the overlap or connection between public fighting and the criminal offences of assault and causing a disturbance, and rely on the comment in Westendorp suggesting that it would be constitutionally invalid should “a province or municipality . . . seek to punish assaults that take place on city streets as an aspect of street control”: at para 21.

Estey J, writing for himself and Lamer J (as he then was) in Rio Hotel also seems to have referred to similar concerns when he stated that prostitution was a “classic or traditional crime of great antiquity that clearly falls within the mandate of Parliament”.

He also focused on the degree of similarity of the provincial offence to a Criminal Code offence, stating that “the closer the terminology comes to describing conduct traditionally criminal, the more doubtful the validity of the provincial enactment”: at para 40. [ 111 ] I take from these comments the view that it is unlikely that there will be a valid provincial purpose in regulating conduct that is the subject of certain “traditional” criminal offences. As to the similarity of a provincial offence to a Criminal Code offence, the case law suggests that this is significant for at least two reasons.

First, the definition of prohibited conduct presumably reflects the underlying purpose of its prohibition. If the provincial and federal offences are aimed at different purposes, this should be reflected in differences, even subtle differences, in the

definitions of prohibited conduct, such as the provincial offence of careless driving as opposed to the criminal offence of dangerous driving ( O ’Grady ; Mann ), or the provincial offence of failing to remain at the scene of an accident as opposed to the criminal offence of failing to stop at the scene of an accident with intent to escape civil or criminal liability ( Stephens ).

Second, if the provincial offence is indistinguishable from the criminal offence, a court may conclude that the real purpose of the duplication was to provide an alternative provincial form of enforcement of the criminal law ( McNeil , as interpreted by Estey J in Rio Hotel ; Racette ). [ 112 ] In this case there is an overlap between the Bylaw offence of public fighting and two criminal offences: assault and causing a disturbance. [ 113 ] The Bylaw offence is distinctly different from the criminal offence of assault, and intentionally so. The essence of the offence of assault is physical contact without consent.

Section 7 of the Bylaw, on the other hand, prohibits both consensual and non-consensual public fighting. This is reflective of the clearly different purposes or aspects of the offence of assault and the Bylaw offence. In my view, the Westendorp comment regarding provincial or municipal prohibition of assaults does not apply given the very different nature of the Bylaw offence. [ 114 ] With regard to the offence of causing a disturbance, in my view neither the Westendorp comment nor Estey J’s concern regarding “traditional” criminal offences have any application.

Regulating this type of conduct clearly can relate to provincial purposes ( Dupond ). On the other hand, there is a greater degree of similarity between the Bylaw offence and this criminal offence. The extent of the difference is not completely clear.

Section 7 does not require proof that a disturbance was caused; while the Criminal Code offence does. Some of the proponents of the Bylaw offence expressed the view that fighting in the street around night clubs, the particular concern which led to the enactment of

section 7, would not necessarily involve causing a disturbance. The trial judge reviewed the law and concluded that it would: “even if the bystanders watching these fights are not disturbed, there are others outside in the vicinity would be: other patrons attempting to enter or exit the night club, the night club owners, managers, and staff; nearby business and restaurant owners, their patrons and staff”: PC Decision at para 60.

[ 115 ] While the trial judge’s assessment may be correct that in the majority or even great majority of cases public fighting could result in a criminal charge for causing a disturbance, there are still different elements of the offences that in my view are reflective of the different purposes of the laws. As stated by McLachlin J (as she then was) in Lohnes , the criminal offence is concerned not with mere annoyance or mental upset, but with “an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public” (at para 30).

This more serious level of disturbance is required given the “proper goals and limits of the criminal law” (at para 29). The City’s purpose, in contrast, is to ensure not only safe, but also enjoyable, public places for the benefit of all members of the public. This is broader than the criminal purpose as described in Lohnes . [ 116 ] The trial judge relied on the concurring judgment of Estey J in Rio Hotel as support for her conclusions. With respect, I disagree.

Estey J did not call into question the validity of previous case law upholding provincial penal laws relating to the streets, in fact he specifically distinguished Dupond from Westendorp . He did not suggest that there could not be overlap, even significant overlap, between provincial penal laws and criminal offences. His concerns related to provincial offences that prohibit “traditionally criminal” conduct and to provincial offences that are “indistinguishable” from criminal offences, neither of which is the case with respect to

section 7. Estey J also did not limit the application of the double aspect doctrine to the restriction or control of private property or licensed establishments. To the contrary, he stated that provincial penal laws may relate to any “valid provincial regulatory program” provided that “the offences created in support of the program . . . are reasonably necessary for that purpose” (at para 39).

In my view, the Bylaw, as a comprehensive municipal regulation with the purpose of providing safe and enjoyable public places in the City, is such a program, and the offences created in it, including the fighting offence, are “reasonably necessary” for that purpose. [ 117 ] The respondent argued that Racette supports her position; I find to the contrary that it provides support for the validity of

section 7. Gerwing JA observed that there is “a long-standing history of double purpose with respect to protection of users of the highways”, and stated that it was “only in the clearest case of provincial legislation purporting to be within this area that another purpose should be found”: at paras 181 and 183. Racette thus supports Professor Hogg’s characterization of the double aspect doctrine, in the context of highway regulation, as the course of judicial restraint: Hogg at 15-12.

In my view, the provision of safe and enjoyable public places is another context in which the provincial (or municipal) and federal aspects of laws are roughly equal in importance and judicial restraint is the appropriate approach. Dupond is an example of such restraint. While there may be the “clearest cases” in which another purpose should be found, as occurred in Westendorp , this case is not among them. VII. Conclusion [ 118 ] I find that

section 7 of the City of Edmonton’s Public Places Bylaw, Bylaw 14614 dealing with “fighting in a public place”, in pith and substance, relates to the purpose of providing safe and enjoyable public places for the benefit of all residents of and visitors to the City, which is within provincial legislative authority as either or both a matter of property and civil rights in the province under s. 92(13) of the Constitution Act, 1867 or a matter of merely local nature under s. 92(16) .

The Bylaw offence created for this purpose is valid pursuant to s. 92(15). [ 119 ] In view of the foregoing, I do not find it necessary to consider the application of the doctrine of presumption of constitutionality or the doctrine of “reading down.” VIII. Disposition [ 120 ] The appeal is allowed. The dismissal of the charge against the respondent by the Provincial Court is set aside. A conviction for the offence of fighting in a public place is entered and the minimum fine of $500 is accordingly imposed. Heard on the 2 nd day of May, 2011. Dated at the City of Edmonton, Alberta this 24 th day of August, 2011.

J.M. Ross J.C.Q.B.A. Appearances: Scott McAnsh City of Edmonton Law Branch for the Crown/Appellant Dane F. Bullerwell Pringle, MacDonald & Bottos for the Respondent [1] The City of Edmonton originally enacted the Public Places Bylaw , City of Edmonton Bylaw No. 7608. In April 1999, Bylaw No. 7608 was amended by A Bylaw to Amend Bylaw No 7608, the Public Places Bylaw , City of Edmonton Bylaw No. 11879 and a new

section 406 was added to Bylaw No. 7608 which created the offence of “fighting in a public place”. Both Bylaw No. 7608 and Bylaw No. 11879 technically constitute “Bylaw 7608”. In May 2007, the current Public Places Bylaw , City of Edmonton Bylaw No 14614 was passed, and by its s. 33, repealed Bylaw No 7608.