Corporation (City of Brampton) v. Mister Twister Inc. et al., 2011 ONCJ 271

Citation: Corporation (City of Brampton) v. Mister Twister Inc. et al. , 2011 ONCJ 271 IN THE MATTER OF an application for a declaration that ss. 2 and 11 and

Schedule M-2 of City of Brampton By-Law 1-2002 (Licensing) and s. 14(1) of City of Brampton By-Law 93-93 (Traffic and Parking) have by their purpose or effect infringed the applicants’ mobility rights guaranteed under s. 6(2) of the Charter, and therefore, of no force or effect by virtue of s. 52 of the Constitution Act, 1982 , for charges laid under By-Law 1-2002 (Licensing), By-Law 93-93 (Traffic and Parking), and the Provincial Offences Act, R.S.O. 1990, c.

P.33 Between The Corporation of the City of Brampton Respondent (prosecutor) and Mister Twister Inc., Amadeus Blazys, Todorka Dimitrova, and Kelly Roach Applicants (defendant) Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Ruling S. 6(2) Application Argued: February 3, 2011 (ruling reserved) Ruling on Application Rendered: May 20, 2011

Counsel: Sue Bauman, prosecutor for the City of Brampton (respondent) Charles Wagman, counsel for the applicants (defendants) Charges (44): For the defendant, Mister Twister Inc.: • offering goods for sale from a highway, contrary to s. 14(1)of City of Brampton By-law 93-93 (14 counts) and • operating/permitting to be operated a refreshment vehicle without a license, contrary to s. 66 of City of Brampton By-law 1-2002 (10counts). For the defendant, Amadeus Blazys: • operating/permitting to be operated a refreshment vehicle without a license, contrary to s. 66 of City of Brampton By-law 1-2002 (9counts).

For the defendant, Todorka Dimitrova: • offering goods for sale from a highway, contrary to s. 14(1)of City of Brampton By-law 93-93 (4 counts), • operating/permitting to be operated a refreshment vehicle without a license, contrary to s. 66 of City of Brampton By-law 1-2002 (2counts), and • failing to comply with a probation order, contrary to s. 75 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (4 counts). For the defendant, Kelly Roach: • offering goods for sale from a highway, contrary to s. 14(1)of City of Brampton By-law 93-93 (1 count). Cases Considered or Referred To: A & L Investments Ltd. v.

Ontario, (ON CA), [1997] O.J. No. 4199 (QL), 36 O.R. (3d) 127 (O.C.A.), per Abella,Laskin and Goudge JJ.A. Black v. Law Society of Alberta, (SCC), [1989] 1 S.C.R. 591 (S.C.C.). Canadian Egg Marketing Agency v. Richardson, (SCC), [1998] 3 S.C.R. 157 (S.C.C.). Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5 (S.C.C.). Dywidag Systems International, Canada Ltd. v. Zutphen Brothers Construction Ltd., (SCC), [1990] S.C.J. No. 27 (QL),1 S.C.R. 705 (S.C.C.). Irwin Toy Ltd. v. Quebec (A.G.), (SCC), [1989] 1 S.C.R. 927 (S.C.C.).

Law Society of Upper Canada v. Skapinker, (SCC), [1984] 1 S.C.R. 357 (S.C.C.). MacKay v. Manitoba (SCC), [1989] 2 S.C.R. 357, [1989] S.C.J. No. 88 (QL) (S.C.C.). O'Neill v. Law Society of New Brunswick (1993), (NB KB), 141 N.B.R. (2d) 1 (N.B.Q.B.). Parkdale Hotel Limited v. A.G. Canada et al. (1986), (FC), 27 D.L.R. (4th) 19 (F.C.T.D.). R. v. 974649 Ontario Inc. (Dunedin), 2001 SCC 81 , [2001] 3 S.C.R. 575, 159 C.C.C. (3d) 321 (S.C.C.). R. v. Big M Drug Mart, (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17 (QL) (S.C.C.). R. v. Collins (1987), (SCC), 33 C.C.C. (3d) 1 (S.C.C.). R. v.

Conway, 2010 SCC 22 , [2010] 1 S.C.R. 765, S.C.J. No. 22 (QL) (S.C.C.). R. v. Giagnocavo, [1995] O.J. No. 1632 (QL) (O.C.A.), per Goodman, Finlayson and Weiler JJ.A. R. v. Laba (1992), (ON CA), 74 C.C.C. (3d) 538 (O.C.A.), per Robins, Tarnopolsky and Labrosse JJ.A. R. v. Lyne, [1997] O.J. No. 5635 (QL) (O.C.A), per Houlden, Doherty, Weiler JJ.A. R. v. Martin, [1991] O.J. No. 3703 (QL) (O.C.A.), per Lacourcière, Finlayson and Griffiths JJ.A. R. v. Mills, (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39 (QL) (S.C.C.). R. v. O'Malley Electric Ltd. (1987), (NS CA), 77 N.S.R. (2d) 344 (N.S.C.A.). R. v.

Quesnel (1985), (ON CA), 53 O.R. (2d) 338, 24 C.C.C. (3d) 78 (O.C.A.) per Blair, Grange and Finlayson JJ.A.; leave to appeal refused (S.C.C., May 22, 1986) R. v. Wholesale Travel Inc. (1991), (SCC), 67 C.C.C. (3d) 193 (S.C.C.). Thompson Newspapers Ltd. v. Canada (1990), (SCC), 54 C.C.C. (3d) 417 (S.C.C.). Siemens v. Manitoba (Attorney General), 2003 SCC 3 , [2003] 1 S.C.R. 6, [2002] S.C.J. No. 69 (QL) (S.C.C.).

Slaight Communications Inc. v. Davidson (1989), (SCC), 59 D.L.R. (4th) 416 (S.C.C.). W.K.L. v. The Queen (1991), (SCC), 64 C.C.C. (3d) 321, [1991] S.C.J. No. 40 (QL) (S.C.C.). Wilson v. British Columbia (Medical Services Commission) (1988), (BC CA), 53 D.L.R. (4th) 171 (B.C.C.A.). Statutes, Regulations and Rules Cited: Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52. Canadian Charter of Rights and Freedoms as

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), ch.11, ss. 6, 6(2), 6(2)(a), 6(2)(b), 6(3), 7, 24(1), 24(2). Provincial Offences Act, R.S.O. 1990, c. P-33, ss. 29(1), 75. Municipal Act, 2001, S.O. 2001, c. 25, ss. 8, 9, 10, 11(2)(6), 11(3)(1), 11(3(11), 20, 27(1), 151 (1), 151(5) and 160. By-Laws Cited: The Corporation of the City of Brampton By-Law No. 1-2002 (Licensing), ss. 2, 2(2) 5(a), 11, 12, 12(8), 13, 66, 73, 74; Appendix A;and ss. 2, 6, 7, 7(1), 18, 20, and 23 of

Schedule “M-2”. The Corporation of the City of Brampton By-Law No. 93-93 (Traffic and Parking), ss. 14(1), 59. Reference Material Considered or Cited: A.W. Bryant, S.N. Lederman & M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham,Ontario: LexisNexis Canada Inc., 2009). Elizabeth Foster, "Corporations and constitutional guarantees" (1990) 31: 4 Cah. de droit 1125. Dale Gibson, The Law of the Charter: General Principles (Toronto, Canada: The Carswell Company Limited, 1986). Ian Greene, The Charter of Rights (Toronto, Canada: James Lorimar & Company, 1989). P.

Hogg, Constitutional Law of Canada (4th ed), vol. 2 (Toronto, Canada: Carswell - Thomson Professional Publishing, 1997) (loose-leaf). R.J. Sharpe and K. Roach, The Charter of Rights and Freedoms, 4th ed. (Toronto, Canada: Irwin Law Inc., 2009). 1. INTRODUCTION

1. INTRODUCTION [ 1 ] First, imagine it’s a hot and steamy summer day and you find yourself in the City of Brampton. Now, think of how satisfying it would be to have an ice cream cone as a respite against that sweltering heat …. Alas, I scream, you scream, we all scream for ice cream …. unless you are a person who wishes to operate a mobile ice cream truck in the City of Brampton.

Then, as the applicants in this proceeding, Mister Twister Inc., Amadeus Blazys, Todorka Dimitrova , and Kelly Roach, would suggest, it would not be people who love ice cream that you would be hearing crying out for ice cream, but the screaming voices would be from the people who wish to earn a living operating ice cream trucks in Brampton -- shouting about their rights being denied. [ 2 ] The genesis of this proceeding began during a span of several months in May to August of 2009, when the applicants were charged with committing numerous offences under s. 66 of City of Brampton Bylaw No. 1-2002 (the “Licensing Bylaw”) and under s. 14(1) of City of Brampton Bylaw No. 93-93 (the “Traffic and Parking Bylaw”) for selling of goods from a mobile ice cream truck on a highway within the City of Brampton and without having obtained a municipal license to do so.

In addition, the applicant, Todorka Dimitrova , during this period was also charged with four counts of breaching a probation order issued pursuant to s. 75 of the Provincial Offences Act , R.S.O 1990, c. P.33. In total, the applicants were charged with committing 44 offences during that period. [ 3 ] In response to these 44 charges, the applicants have brought an application for a constitutional remedy at the “pre-evidence” stage of their trial for what they claim has been an infringement of their mobility rights guaranteed by s. 6(2) of the Charter .

In particular, they seek declarations or a finding from this trial court that: (

a) sections 2, 11, and

Schedule M2 of the City of Brampton Bylaw No. 1-2002 are inconsistent with s. 6(2) of the Charter and of no force or effect, and (

b) that subsection 14(1) of the City of Brampton Bylaw No. 93-93 is inconsistent with s. 6(2) of the Charter and of no force or effect. [ 4 ] As for the basis of their Charter challenge, the applicants contend the City of Brampton does not allow ice cream trucks to operate there, which effectively prevents them from pursuing the gaining of a livelihood in Brampton.

Furthermore, the applicants claim the City of Brampton achieves its policy of not allowing ice cream trucks to operate in Brampton by not issuing any municipal licenses at all to anyone who wishes to sell ice cream from a mobile ice cream vehicle within its borders, and then its enforcement branch lays charges against ice cream truck operators or vendors for selling goods on a highway under the Traffic and Parking Bylaw and for not having a municipal license, which is required, under the Licensing Bylaw.

To elaborate, t he crux of the applicants’ argument that the impugned bylaws are constitutionally invalid and have infringed their Charter rights follow this reasoning: since the City of Brampton has a policy of not issuing licenses to anyone who wish to operate an ice cream truck within its boundaries, despite the fact that most municipalities in Ontario and in Canada allow such commercial activity to occur through a municipal licensing scheme, then this unfair policy and the effect of the penal provisions contained in the Licensing Bylaw and the Traffic and Parking Bylaw, when functioning in concert, infringe on the applicants’ “mobility rights” to pursue the gaining of a livelihood in Brampton, which is guaranteed under s. 6(2) of the Charter. [ 5 ] In addition, even though the applicants are seeking to have particular sections or parts of Brampton’s Licensing Bylaw and its Traffic and Parking Bylaw rendered inoperative by virtue of s. 52(1) of the Constitution Act, 1982 , they do not criticize the jurisdiction of the City of Brampton to regulate mobile ice cream vehicles operating within its boundaries through a licensing scheme, which they submit would protect the health and safety of the public, but do take umbrage with the complete prohibition against ice cream trucks operating in that municipality. [ 6 ] Moreover, the applicants submit that a licensing scheme that would regulate mobile ice cream vehicles and its operators would adequately protect any concerns about public safety or health, since municipal licenses are already used to regulate many trades, callings, businesses or occupations operating within the City of Brampton, as well as in other municipalities, including those which permit ice cream trucks to operate within their borders. [ 7 ] However, the applicants are not seeking a similar declaration of invalidity for s. 66 of the Licensing Bylaw for the charges of operating or permitting to be operated a refreshment vehicle without a license, but do seek to have the charges laid under s. 66 dismissed, since the charges laid under s. 66 do stem from or derive from the impugned bylaws that are being challenged for their constitutional validity. [ 8 ] On the other hand, the prosecution submits the applicants have failed to prove on a balance of probabilities that there is a

nexus between the applicants as a class of citizens or permanent residents protected under s. 6(2) of the Charter and the operation or effect of the impugned bylaws. Above all, the prosecution argues the bylaws in question do not infringe on the applicants’ ability to earn a living based on their citizenship or permanent residence status in Canada or based on the province of their residence, which it submits is what s. 6(2) is really intended to protect.

Moreover, the prosecution submits that none of the provisions being impugned under the Licensing Bylaw or the Traffic and Parking Bylaw restrict the issuance of a municipal license or denies the ability of a person to work or pursue employment based on that person’s citizenship or permanent residence status or based on their province of residency. Furthermore, the prosecution submits that citizens, permanent residents, and aliens alike, are all treated the same under both the Licensing Bylaw and the Traffic and Parking Bylaw.

The prosecution also emphasizes that the mobility rights protected by s. 6(2) of the Charter do not include a guarantee of a person’s right to work, or that citizens or permanent residents have an absolute right to engage in their choice of profession free from restrictions.

Accordingly, the prosecution submits that the applicants have failed to prove that the impugned bylaws through their purpose or effect violate the applicants’ s. 6(2) mobility rights, and as a result, asks that this application for a declaration of constitutional invalidity and a finding that the bylaws in question to be of no force or effect be dismissed. [ 9 ] Lastly, this application was heard on February 3, 2011. After argument on the application was completed, I reserved my decision and adjourned the matter to May 20, 2011, to render my ruling. These, therefore, are the written reasons of my ruling. 2.

BACKGROUND [ 10 ] For this regulatory proceeding, the corporate applicant, Mister Twister Inc. , has been charged with 14 counts of offering goods for sale from a highway in the City of Brampton on May 6, May 8, May 15, May 23, June 2 (2 counts), July 1, July 4, July 16, July 18, July 20, July 20, July 29, and August 9 in 2009, contrary to s. 14(1) of City of Brampton Bylaw No. 93-93 (the “Traffic and Parking Bylaw”).

Furthermore, it has been charged with 10 counts of operating a refreshment vehicle or permitting it to be operated without a license in the City of Brampton on June 2 (2 counts), July 1, July 4, July 16, July 18, July 19, July 20, July 29, and August 9 in 2009, contrary to s. 66 of City of Brampton Bylaw No. 1-2002 (the “Licensing Bylaw”). [ 11 ] Mister Twister Inc., is a corporation duly incorporated in the Province of Ontario, and has been in the business of selling ice cream from mobile ice cream vehicles since April 1984, as attested to by Amadeus Blazys , one of the individual applicants, in an affidavit sworn on October 29, 2010, and filed in support of this application.

Blazys also attests that he is still a shareholder of Mister Twister Inc., and until May 2009, had been its President.

In addition, Blazys, himself, has been charged with nine counts of operating a refreshment vehicle or permitting it to be operated without a license on June 2 (2 counts), July 1, July 4, July 16, July 18, July 19, July 20, and July 29 in 2009, contrary to s. 66 of City of Brampton Bylaw No. 1-2002. [ 12 ] The address for Mister Twister Inc, which is set out in the informations, is 3080 Lakeshore Boulevard West in the City of Toronto. [ 13 ] Furthermore, Blazys attests that he is a resident of the City of Mississauga and has applied on many occasions for a municipal license to sell ice cream from ice cream trucks, and on every occasion that he applied he had been informed that the City of Brampton will not issue a license to ice cream trucks.

In addition, he attests that for each time he attended at the offices of the City of Brampton to apply for a license he had been refused an application form and told that the City of Brampton will not even allow him to fill out an application for a license. Blazys also attests that on account of his involvement in the ice cream business he is aware of the City of Brampton’s policy of not issuing licenses to ice cream trucks, which he states has been in place for quite some time.

He also feels that the City of Brampton’s position on not issuing licenses to him, or to anyone for that matter, interferes with his right to carry on his business in the City of Brampton, and as such, believes that the Brampton bylaws on which he has been charged under, infringe on his right to pursue the gaining of a livelihood in Brampton.

He further believes that the City of Brampton has gone too far in prohibiting the sale of ice cream from ice cream trucks absolutely in Brampton. [ 14 ] And, as for the applicant, Todorka Dimitrova , she has been charged with four counts of offering goods for sale from a highway on May 23, May 24, July 20, and July 29 in 2009, contrary to s. 14(1) of City of Brampton Bylaw No. 93-93, and with four counts of failing to comply with a probation order on May 23, May 24, July 20 and July 29 in 2009, contrary to s. 75 of the Provincial Offences Act , R.S.O. 1990, c.

P.33, and with two counts of operating a refreshment vehicle or permitting it to be operated without a license on July 20 and July 29 in 2009, contrary to s. 66 of City of Brampton Bylaw No. 1-2002. [ 15 ] Furthermore, in her affidavit sworn on October 29, 2010, and filed in support of this application, Dimitrova attests that she is an employee of Mister Twister Inc. where she operates one of the Mister Twister ice cream trucks. In addition, she attests that she is a permanent resident of Canada and has applied to become a Canadian citizen.

She also states in her affidavit that she resides in the City of Mississauga. Moreover, she feels that the City of Brampton’s position on not issuing licenses to anyone to operate ice cream trucks in Brampton has interfered with her right to carry on her business in the City of Brampton, and further believes that the Brampton bylaws that she has been charged under infringe on her ability to earn a livelihood in Brampton. She also believes that the City of Brampton has

gone too far in prohibiting the sale of ice cream from ice cream trucks absolutely in Brampton. [ 16 ] In addition, the applicant, Kelly Roach , whose address on the information reveals a residence in Mississauga, has been charged with one count of offering goods for sale from a highway on May 15, 2009, contrary to s. 14(1) of City of Brampton Bylaw No. 93-93. [ 17 ] The applicants are not challenging the constitutional validity of s. 66 of City of Brampton Bylaw No. 1-2002 (the “Licensing Bylaw”), which is the bylaw that prohibits a person from carrying on or engaging in particular trades, callings, businesses, or occupations within the city limits of Brampton unless that person has a valid license for that activity. [ 18 ] The 44 charges were laid under

Part III informations, sworn on various dates in 2009. After appearances in the assignment court and a judicial pretrial being conducted on April 27, 2010, the hearing of this application regarding the constitutional validity of the impugned Brampton bylaws was then set for February 3, 2011. The Applicants’ Notice of Motion, Factum, Motion Record, and Book of Authorities were filed with the court on November 1, 2010.

However, the Corporation of the City of Brampton, as the respondent, did not serve its Motion Record and Book of Authorities on the applicants until just a few days before the hearing date of February 3, 2011. [ 19 ] For this application, the applicants also served their Factum, Brief of Authorities, and Motion Record on the Attorneys General of Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Alberta, Saskatchewan, Manitoba, British Columbia, Quebec, and New Brunswick, and on the City of Brampton by Purolator Courier on October 29, 2010; and on the Attorney General for Canada in Ottawa and in Toronto and on the Attorney General for Ontario by Ultimate Express Courier And Logistics on October 29, 2010. [ 20 ] At the hearing, the applicants were represented by legal counsel.

Although the applicants’ motion record did not include the name of the applicant, Kelly Roach, counsel for the applicants at the commencement of the hearing indicated that he was also representing and appearing for Kelly Roach. [ 21 ] Counsel for the applicants then waived the arraignment for the 44 charges and proceeded with the application at the pre- evidence stage of the trial for a declaration or finding that certain sections or parts of the City of Brampton Licensing Bylaw and the Traffic and Parking Bylaw are inconsistent with s. 6(2) of the Charter , and therefore, of no force or effect by virtue of s. 52 of the Constitution Act, 1982 . [ 22 ] In support of their application and their claim that their mobility rights under s. 6(2) of the Charter have been infringed or denied, the applicants rely on affidavits from Amadeus Blazys and Todorka Dimitrova, both sworn on October 29, 2010, and a printout obtained on May 31, 2009, from the webpage located online at http://www.marketwire.com/press-release/City-of-Brampton- 351271.html (s ee Appendix “1” attached to this ruling), of a communication dated August 11, 2000, 1:50 ET, purportedly issued by the City of Brampton, about the licensing of ice cream trucks in the City of Brampton, entitled “City of Brampton: Rocky Road for Ice Cream Trucks”. [ 23 ] And, in responding to the applicants’ claim that no licenses are issued at all for ice cream trucks, the City of Brampton did not tender any evidence on whether it does or does not issue a municipal license to someone who applies to operate a mobile ice cream truck in Brampton. [ 24 ] Moreover, no viva voce evidence had been adduced by either party in this application. 3.

APPLICABLE LAW [ 25 ] The applicants, Mister Twister Inc., Todorka Dimitrova , and Kelly Roach were charged with “ offering goods for sale from a highway”, contrary to subsection 14(1) of City of Brampton Bylaw No. 93-93 (the “Traffic and Parking Bylaw”). The penalty

section of this bylaw is contained in s. 59. In response to these charges, the applicants seek to have subsection 14(1) declared inconsistent with s. 6(2) of the Charter and of no force or effect by virtue of s. 52(1) of the Constitution Act, 1982 . Subsection 14(1) and s. 59 provide that: SALE OF GOODS ON A HIGHWAY

14(1) No person shall display any goods, merchandise, products, refreshments, foodstuffs or flowers or sell or offer for sale by retail any goods if the place of offering or sale is in a highway over which the City of Brampton has jurisdiction. … 59 Any person who contravenes any of the provisions of this bylaw is guilty of an offence and upon conviction is liable to a fine as provided for in the Provincial Offences Act . [ 26 ] In addition, the applicants, Mister Twister Inc., Todorka Dimitrova , and Amadeus Blazys were charged with “ operating a refreshment vehicle or permitting it to be operated without a license”, contrary to s. 66 of City of Brampton Bylaw No. 1-2002 (the “Licensing Bylaw”).

The penalty sections in this bylaw are contained in ss. 73 and 74. However, the applicants are not seeking to have s. 66 declared to be of no force or effect. S ections 66, 73 and 74, provides: GENERAL PROHIBITIONS (By-law 133-2006) … 66. No person shall, within the limits of the City of Brampton, carry on or engage in any of the said trades, callings, businesses or occupations referred to in the schedules unless he or she possesses a valid license for this activity. … 73.

Every person who contravenes this by-law, and every director or officer of a corporation, who concurs in such contravention, is guilty of an offence and upon conviction is liable to a fine of not more than $25,000, exclusive of costs. 74. If a corporation is convicted under

Section 73, the maximum penalty, exclusive of costs, is $50,000 instead of $25,000. [ 27 ] Furthermore, the applicant, Todorka Dimitrova , is charged with four counts of “ fail to comply with a probation order”, contrary to s. 75 of the Provincial Offences Act , R.S.O. 1990, c. P.33, which provides: Breach of probation order 75. Where a defendant who is bound by a probation order is convicted of an offence constituting a breach of condition of the order and, (

a) the time within which the defendant may appeal or make a motion for leave to appeal against that conviction has expired and the defendant has not taken an appeal or made a motion for leave to appeal; (

b) the defendant has taken an appeal or made a motion for leave to appeal against the conviction and the appeal or motion for leave has been dismissed or abandoned; or (

c) the defendant has given written notice to the court that convicted the defendant that the defendant elects not to appeal, or where the defendant otherwise wilfully fails or refuses to comply with the order, the defendant is guilty of an offence and upon conviction the court may, (

d) impose a fine of not more than $1,000 or imprisonment for a term of not more than thirty days, or both, and in lieu of or in addition

to the penalty, continue the probation order with such changes or additions and for such extended term, not exceeding an additional year, as the court considers reasonable; or (

e) where the justice presiding is the justice who made the original order, in lieu of imposing the penalty under clause (d), revoke the probation order and impose the sentence the passing of which was suspended upon the making of the probation order. [ 28 ] As previously indicated, the applicants, in response to these charges laid under the City of Brampton Bylaw No. 1-2002 (the “Licensing Bylaw”), seek to have sections 2 and 11 and

Schedule M2 of that bylaw declared inconsistent with s. 6(2) of the Charter and of no force or effect by virtue of s. 52(1) of the Constitution Act, 1982 . Clearly, those particular sections or parts of Bylaw No. 1-2002 being impugned by the applicants, also govern other trades or activities, such as driving schools or tow truck operators, and are not specifically relevant to the applicants’ claim of a Charter infringement. However, there are provisions in the impugned sections and

Schedule of the Licensing Bylaw that specifically mention refreshment vehicles, which dispense ice cream, as a Class D refreshment vehicle, and it would be only those specific provisions that would be rendered inoperative if they were found to be inconsistent with the Charter [ emphasis is mine below ]: 2.

A license shall be taken out by : ( 1) every person who carries on the business of teaching persons to operate motor vehicles and every driving instructor employed in such business (M-1); (2) every person who operates and every person who drives a vehicle from which refreshments are sold for consumption by the public (M-2); (3) every owner and every driver of a tow truck (M-3); (4) every person who owns or operates or drives a limousine (M-4); (5) every person who owns a taxicab or an accessible taxicab; every person who owns or operates a taxi brokerage; and every person who drives a taxicab or an accessible taxicab (M-5); (6) every plumbing contractor, plumber, drain contractor, heating contractor, steam or hot water heating installer, or warm air heating installer (S-1); (7) every foodhandler as defined in

Schedule S-4; (8) every person who owns or keeps a place of public assembly and amusement (S-5); (9) every owner or keeper of a circus or traveling exhibition (S-6); (10) every person who, for hire or gain, deals in second hand goods, including precious metals, electronics, sporting goods and jewellery (S-7); (11) every person who exercises the trade of a pawnbroker (S-8); (12) every keeper of a shop or place where animals or birds for use as pets are sold or kept for sale (S-9);

(13) every person who owns or operates a vehicle facility (S-10); (14) every person who owns or operates a salvage shop or salvage yard (S-11); (15) every person engaged in the business of building renovator other than persons whose principal business is the construction of buildings or structures (S-12); (16) every owner and every operator of an adult entertainment parlour (S-13); (17) every person who offers for sale or offers for rent adult videos (S-14); (18) every person who sells or offers for sale tobacco products to the public (S-15); (19) every special occasion vendor (S-16); (20) every person who owns or operates a flea market (S-17); (21) every person who sells or offers for sale fireworks (S-18); (22) every person operating a bingo lottery, raffle lottery, or lottery scheme as defined in

Schedule S-19; (23) driveway paving contractor (S-20); (24) every person who distributes or causes the distribution of newspapers in a newspaper box; (S-21); (25) every pool installation contractor (S-22); (26) every owner or operator of a horse riding establishment(S-23); (27) every sign distributor (S-25); (28) every person who owns or operates a body-rub parlour and every person who performs, offers, or solicits a body-rub at a body-rub parlour in the pursuance of a trade, calling, business or occupation (S-26); (29) every person who owns or operates a business which offers personal aesthetic procedures (S-27); (30) every person who owns or operates a lodging house or supportive lodging house (S-28).” …

PRODUCE LICENSE ON DEMAND (By-law 50-2008) 11. Every person listed below shall keep the license on his or her person, and upon request of the License Issuer or the Police, produce the license and any other required documents .

Schedule M-1: Driving school instructor

Schedule M-2: Refreshment vehicle Class A – Coffee truck operator Refreshment vehicle Class B – Ice cream bike operator Refreshment vehicle Class C – Hot dog/Chip operator Refreshment vehicle Class D – Ice cream truck operator

Schedule M-3: Tow truck operator Tow truck driver

Schedule M-4: Limousine driver

Schedule M-5: Accessible taxicab driver Taxi driver

Schedule S-1: Electrical, plumbing and heating contractors

Schedule S-4: Food handler

Schedule S-7: Second hand goods dealer

Schedule S-8: Pawnbroker

Schedule S-11: Keeper of salvage shop

Schedule S-12: Building renovator

Schedule S-13: Adult entertainment parlour operator

Schedule S-16: Special Occasion Vendor

Schedule S-17: Person operating market as defined in S-17

Schedule S-18: Persons selling fireworks

Schedule S-19: Persons operating a bingo lottery, raffle lottery or lottery scheme

Schedule S-20: Driveway paving contractor

Schedule S-22: Pool installation contractor

Schedule S-26: Body Rub establishment operator Body Rub establishment attendant …

SCHEDULE M-2 TO BY-LAW 1–2002 Relating to Owners, Operators, and Drivers of Vehicles from which Refreshments are Sold for Consumption by the Public (amended by By-laws 142-2002, 154-2005, 243-2005, 1-2007, 50-2008) 1. For the purposes of this Schedule:

“special event” shall mean an event which is sponsored, authorized or conducted by the City of Brampton, or on behalf of the City of Brampton, or on behalf of a registered not-for-profit or registered charity or other community group with the approval of the City of Brampton (By-law 142-2002). 2.

A refreshment vehicle license may be issued restricted to one or more of the following classifications: Class A: A refreshment vehicle from which the food or refreshments sold are prepared in a commissary or a place other than the refreshment vehicle, but which is not exclusively a vendor of factory pre-packaged frozen products. Class B: A refreshment vehicle which is non-motorized and does not require a health certificate from the Region’s Medical Officer of Health because it is exclusively a vendor of factory pre-packaged frozen products.

Class C: A refreshment vehicle which is stationary in a permanent location and from which any food or refreshment sold is prepared or apportioned at the vehicle. Class D: A motorized refreshment vehicle which sells soft or hard ice cream prepared or apportioned at the vehicle but which is not stationary in a permanent location (By-law 243-2005). 3. No owner or operator of a refreshment vehicle shall permit or allow any person other than a licensed driver employed by the owner or operator to drive the refreshment vehicle (By-law 1-2007). 4. Every owner and operator of a class (

A) refreshment vehicle shall ensure that the licensee’s phone number is visibly displayed on both sides of the refreshment vehicle. 5. No person shall stop any refreshment vehicle to sell refreshments within 100 metres of the entrance or exit to any school grounds, public park, or intersection, or within 30 metres of any school ground, or public park. 6. No person shall stop any refreshment vehicle on a highway to sell refreshments unless servicing a construction site or work crew, and in no case shall the duration of such stop exceed ten (10) minutes . 7. No person shall stop a Class D refreshment vehicle to sell refreshments on any property zoned residential.

(1) Notwithstanding any other provision in by-law, a licensed Class D refreshment vehicle may sell in a public park subject to the following: • That the licensee has entered into a signed agreement with the City of Brampton; and • That the site specific location from which the vehicle is permitted to sell be approved by the Commissioner of Community Services and form part of the agreement with the City of Brampton; and • That the hours operation form part of the agreement with the City of Brampton

(2) No person shall sell or offer for sale refreshments in contravention of the signed agreement with the City of Brampton.

8. No person shall locate any Class C refreshment vehicle to sell refreshments on any property without the written permission of the property owner or occupant, clearly identifying the location and zoning of the property and confirmation from the occupant of the property that the licensee has full access to the washroom facilities. 9. All refreshments sold from a refreshment vehicle shall be clean, fresh and wholesome. 10. Every person selling or handling refreshments shall wear clean clothes, be clean and neat in appearance, and have clean hands. 11. Every refreshment vehicle shall be equipped with either: (

a) a metal refuse container with a self-closing lid which shall be kept at all times in a clean and sanitary condition and emptied at least once daily; or (

b) a disposable litter container which shall be replaced daily, and such containers shall be used for the disposal of all refuse. 12. (

a) Every owner of a refreshment vehicle, except for Class B, non motorized, and Class C, stationary in a permanent location, shall equip it with a device that issues an audible warning when the vehicle is placed in reverse gear (By-law 154-2005); (

b) No person shall disconnect or disable the device required in

Section 12(a) (By-law 154-2005); (

c) No person shall drive a refreshment vehicle that is not equipped with the device required in

Section 12(a) (By-law 154-2005); (

d) Section 12(

a) and 12(

c) of

Schedule M-2 do not come into effect until July 1, 2005 (By-law 154-2005). 13. Every owner, operator or driver of a refreshment vehicle shall comply with the provisions of this Schedule. 14. Every Class A refreshment vehicle: (

a) shall be sufficiently sound construction to provide reasonable protection against dust, dirt, flies, and other injurious matter or things; (

b) shall have a light coloured interior, and shall be repainted or refinished as often as the License Issuer may require; and (

c) shall have all surfaces covered with a suitable impervious material, free of holes, cracks or crevices, and the surface thereof shall be readily washable and shall be kept clean and in good condition. 15. Every owner or operator of a Class A refreshment vehicle shall ensure that all sandwiches, cakes, doughnuts, hot dogs, hamburgers, pies, and other similar foods shall be wrapped and sold in individual servings, and the date of preparation shall be clearly and legibly marked as such on or affixed to the wrapper of all such foods. 16.

No person licensed in respect of a Class A refreshment vehicle shall sell any refreshments not prepared, assembled and wrapped in a commissary approved by the Medical Officer of Health. 17.

(1) Prior to the issuance of the license, every applicant for a Class A refreshment vehicle license shall furnish to the License Issuer (By-law 1-2007):

(

a) the source of supply of refreshments to be sold from the vehicle; and, (

b) the Medical Officer of Health’s approval of the refreshment vehicle.

(2) After being issued the license, the license holder shall (By-law 1-2007): (

a) notify the License Issuer forthwith of any change in source of supply; and, (

b) refrain from selling or permitting to be sold from the vehicle any refreshments from a source of supply other than that specified by license holder to the License Issuer. 18. Every owner and every operator of a refreshment vehicle to which a Class C or Class D license has been issued shall produce from the Medical Officer of Health an approval for the vehicle to which the license is issued. 19. No person licensed in respect of a Class C refreshment vehicle shall sell any meat product that is not pre-cooked. 20. Every owner and every operator in respect of a Class A, Class C and Class D refreshment vehicle shall ensure that: (

a) all condiments, shall be dispensed from containers approved by the License Issuer; (

b) only single-service disposable cups, plates, containers, forks, spoons and serviettes provided in dispensers approved by the License Issuer or individually wrapped shall be used in the sale of refreshments; (

c) all milk and any cold perishable foodstuffs sold from the vehicle shall be kept in dry storage at a temperature no higher than 5 degrees Celsius and shall be sold only in individual, disposable containers; (

d) the vehicle shall be equipped so as to maintain hot prepared foods at a temperature of not less than 66 degrees Celsius and such foods shall be kept so heated; and (

e) no prepared foods other than those kept in unopened cans shall be sold more than twenty-four (24) hours after their preparation. 21. No person shall solicit business to a refreshment vehicle through the use of any noise-making device. 22. No person shall locate any Class C refreshment vehicle to sell refreshments on any property located within the area identified as the Brampton Downtown Business Area as indicated on Appendix H to By-law 1-2002 (By-law 142-2002, 50-2008). 23. (By-law 142-2002)

(1) A license may be issued in conjunction with a Special Event; provided all relevant criteria of the Licensing By-law are met;

(2) An applicant for a license issued in conjunction with a Special Event shall file with the License Issuer a letter from the Special Event Organizer confirming that the refreshment vehicle will operate in conjunction with the Special Event, and indicating where and when the

Special Event will occur;

(3) A license issued in conjunction with a Special Event is valid only for the duration of the Special Event, and where the Special Event occurs periodically throughout the year, the license is valid only on those periodic occasions;

(4) Notwithstanding sections 5, 8 and 22 a person who holds a license with respect to a Special Event may sell refreshments on the property on which the Special Event occurs. 24.

Every refreshment vehicle and all parts and equipment for use in the dispensing of refreshments shall be kept in a clean and sanitary condition and in good repair (By-law 50-2008). [ 29 ] Furthermore, if a person’s right or freedom guaranteed by the Charter has been infringed or denied, then they may apply to a court of competent jurisdiction to obtain a remedy under s. 24(1) of the Charter: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 30 ] In addition, s. 52 of the Constitution Act, 1982 provides that any law inconsistent with the Constitution of Canada, to the extent of the inconsistency, is of no force or effect: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. 4.

ISSUES [ 31 ] To decide whether the remedy sought in this application should be granted or denied, the following issues have to be resolved: (

a) Does this court have the jurisdiction or power to grant the remedy of declaring the impugned bylaws to be of no force or effect by virtue of s. 52 of the Constitution Act, 1982 , if they are inconsistent with s. 6(2) of the Charter? (

b) Do the mobility rights under s. 6(2) of the Charter that concern pursuing the gaining of a livelihood apply to a corporation? (

c) Do the mobility rights under s. 6(2) of the Charter only encompass mobility and pursuing the gaining of a livelihood between different provinces or do they also encompass mobility and pursuing the gaining of a livelihood between different municipalities within one province? (

d) Who has the burden of proof in establishing that the City of Brampton does not issue licenses at all to any ice cream trucks to operate in that municipality? (

e) How much weight can the court place on affidavit evidence relied upon to prove the Charter infringement? (

f) Does the news release dated August 11, 2000, and entitled, “ City of Brampton: Rocky Road for Ice Cream Trucks!”, clearly indicate that the City of Brampton does not issue licenses at all to ice cream trucks to operate in that municipality?

(

g) Can it be reasonably inferred that the refusal of the City of Brampton to provide an application form to one of the applicants or not permit that applicant to complete the form for a municipal license to operate an ice cream truck in that municipality mean that it does not issue licenses at all to anyone for ice cream trucks? (

h) Is there any credible and trustworthy evidence that the City of Brampton does not issue licenses at all to ice cream trucks to operate in that municipality? (

i) In the circumstances, is it appropriate to consider this application regarding the constitutional validity of specific City of Brampton bylaws at the pre-evidence stage of the trial instead of considering it at the end of the trial after a proper factual or evidentiary foundation has been established? (

j) If it is not inappropriate to decide this Charter application at the pre-evidence stage of the trial, then have the applicants proven on a balance of probabilities that their mobility rights associated with pursuing the gaining of a livelihood in any province guaranteed under s. 6(2) of the Charter been infringed or denied? 5. ANALYSIS [ 32 ] Of the 44 charges facing the applicants, 21 were laid under Brampton’s Licensing Bylaw and 19 laid under its Traffic and Parking Bylaw.

Additionally, the applicant, Todorka Dimitrova , faces four charges of breaching a probation order issued pursuant to s. 75 of the Provincial Offences Act .

As part of their defence to the 44 charges, the applicants are seeking to have specific provisions of these two bylaws, from which the charges emanate, declared of no force or effect by virtue of s. 52 of the Constitution Act, 1982 , for the contention that their s. 6(2) mobility rights in pursuing the gaining of a livelihood in Brampton have been infringed by the operation or effect of these bylaws, which they claim is based on the fact that the City of Brampton does not issue licenses at all to anyone to operate ice cream trucks in Brampton. [ 33 ] Now before considering whether this application should succeed or fail, it has to be first determined whether this court has the jurisdiction or the power to grant such a remedy of declaring that specific Brampton bylaws are of no force or effect, if the applicants’ Charter rights under s. 6(2) have been infringed or denied.

If this trial court does have such jurisdiction and power to grant such a remedy for an infringement of the applicants’ Charter rights, then the scope and purpose of the mobility rights guaranteed under s. 6(2) will then have to be examined to determine if this constitutionally protected right has indeed been infringed or denied, in light of the applicants’ argument that is focused on their mobility rights within the province of Ontario and not based on movement from one province to another province. [ 34 ] Additionally, such applications regarding the constitutionality of legislation that is grounded on a Charter violation are normally brought and argued by defendants at the end of the trial, after a factual foundation has been properly established.

Therefore, it will also have to be resolved whether it is appropriate in the circumstances to consider this application at the pre-evidence stage of the trial of these charges and not at the end of the trial. If it is inappropriate to do so at this stage, then the trial will be conducted before the ruling on the application will be rendered. [ 35 ] However, if it is not improper at this stage to rule on the application without a proper factual foundation, then this application will be dealt with prior to hearing evidence on the 44 charges.

City of Brampton’s jurisdiction to enact bylaws governing the operation of ice cream trucks in Brampton [ 36 ] To begin, like for many businesses, trades, or occupations that a person wants to operate in a particular municipality, a license issued by that municipality is generally required before they are permitted to operate there. The City of Brampton is no different. A municipality’s jurisdiction in Ontario to enact bylaws concerning matters of a local nature comes from the Municipal Act, 2001 , S.O. 2001, c. 25, which is a provincially enacted statute.

From that statute, the City of Brampton obtains its general powers to act and to respond to municipal issues under ss. 8, 9, and 10, and to enact bylaws that specifically concern the health and safety of persons under s. 11(2)(6), to enact bylaws related to parking and traffic on highways within its jurisdiction under s. 11(3)(1), and to enact bylaws related to business licensing and businesses carried on in the municipality under s. 11(3)(11) and s. 20 [ emphasis is mine below ]: GENERAL MUNICIPAL POWERS

Scope of powers 8

(1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues. Ambiguity

(2) In the event of ambiguity in whether or not a municipality has the authority under this or any other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include, rather than exclude, powers the municipality had on the day before this Act came into force. Scope of by-law making power

(3) Without limiting the generality of subsections (1) and (2), a by-law under sections 10 and 11 respecting a matter may, (

a) regulate or prohibit respecting the matter; (

b) require persons to do things respecting the matter; (

c) provide for a system of licences respecting the matter. Scope of by-laws generally

(4) Without limiting the generality of subsections (1), (2) and (3) and except as otherwise provided, a by-law under this Act may be general or specific in its application and may differentiate in any way and on any basis a municipality considers appropriate. Exception (5) Subsection (4) does not apply with respect to a by-law made under Parts VII, VIII, IX, X, XI and XIII. Powers of a natural person 9. A municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act. Broad authority, single-tier municipalities 10

(1) A single-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public.

By-laws

(2) A single-tier municipality may pass by-laws respecting the following matters: 1. Governance structure of the municipality and its local boards. 2. Accountability and transparency of the municipality and its operations and of its local boards and their operations. 3. Financial management of the municipality and its local boards. 4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act. 5. Economic, social and environmental well-being of the municipality. 6. Health, safety and well-being of persons. 7.

Services and things that the municipality is authorized to provide under subsection (1). 8. Protection of persons and property, including consumer protection. 9. Animals. 10. Structures, including fences and signs. 11. Business licensing. One power not affecting another

(3) The power to pass a by-law respecting a matter set out in a paragraph of subsection (2) is not limited or restricted by the power to pass a by-law respecting a matter set out in another paragraph of subsection (2). … Spheres of Jurisdiction Broad authority, lower-tier and upper-tier municipalities 11(1) A lower-tier municipality and an upper-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public, subject to the rules set out in subsection (4).

By-laws ( 2) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting the following matters: 1. Governance structure of the municipality and its local boards. 2. Accountability and transparency of the municipality and its operations and of its local boards and their operations. 3. Financial management of the municipality and its local boards. 4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act. 5. Economic, social and environmental well-being of the municipality. 6.

Health, safety and well-being of persons . 7. Services and things that the municipality is authorized to provide under subsection (1). 8. Protection of persons and property, including consumer protection.

By-laws re: matters within spheres of jurisdiction

(3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction: 1. Highways, including parking and traffic on highways. 2. Transportation systems, other than highways. 3. Waste management. 4. Public utilities. 5. Culture, parks, recreation and heritage. 6. Drainage and flood control, except storm sewers. 7. Structures, including fences and signs. 8. Parking, except on highways. 9. Animals. 10. Economic development services. 11. Business licensing. Rules

(4) The following are the rules referred to in subsections (1), (2) and (3): 1. If a sphere or part of a sphere of jurisdiction is not assigned to an upper-tier municipality by the Table to this section, the upper-tier municipality does not have the power to pass by-laws under that sphere or part and does not have the power to pass by-laws under subsection (1) or (2) that, but for this paragraph, could also be passed under that sphere or part. 2.

If a sphere or part of a sphere of jurisdiction is assigned to an upper-tier municipality exclusively by the Table to this section, its lower-tier municipalities do not have the power to pass by-laws under that sphere or part and do not have the power to pass by-laws under subsection (1) or (2) that, but for this paragraph, could also be passed under that sphere or part. 3.

If a sphere or part of a sphere of jurisdiction is assigned to an upper-tier municipality non-exclusively by the Table to this section, both the upper-tier municipality and its lower-tier municipalities have the power to pass by-laws under that sphere or part. 4. If a lower-tier municipality has the power under a specific provision of this Act, other than this section, or any other Act to pass a by- law, its upper-tier municipality does not have the power to pass the by-law under this section. 5.

If an upper-tier municipality has the power under a specific provision of this Act, other than this section, or any other Act to pass a by-law, a lower-tier municipality of the upper-tier municipality does not have the power to pass the by-law under this section. 6. Paragraphs 4 and 5 apply to limit the powers of a municipality despite the inclusion of the words “without limiting sections 9, 10 and 11” or any similar form of words in the specific provision. 7.

The power of a municipality with respect to the following matters is not affected by paragraph 4 or 5, as the case may be: i. prohibiting or regulating the placement or erection of any sign, notice or advertising device within 400 metres of any limit of an upper-tier highway, ii. any other matter prescribed by the Minister. … 20. The general licensing powers are found at s. 151 of the Municipal Act and they permit a municipality to license, regulate and govern businesses carried on in the municipality.

Section 154 provides that a municipality may define in which areas adult entertainment services parlours may operate and it may limit the number of licences granted.

… [ 37 ] Additionally, ss. 151(1) and 160 of the Municipal Act, 2001 grants a municipality, such as the City of Brampton, the authority to set up a system of licensing to regulate and govern businesses carried on in that municipality: Powers re licences 151(1) Without limiting sections 9 , 10 and 11 , a municipality may provide for a system of licences with respect to a business and may, (

a) prohibit the carrying on or engaging in the business without a licence; (

b) refuse to grant a licence or to revoke or suspend a licence; (

c) impose conditions as a requirement of obtaining, continuing to hold or renewing a licence; (

d) impose special conditions on a business in a class that have not been imposed on all of the businesses in that class in order to obtain, continue to hold or renew a licence; (

e) impose conditions, including special conditions, as a requirement of continuing to hold a licence at any time during the term of the licence; (

f) license, regulate or govern real and personal property used for the business and the persons carrying it on or engaged in it; and (

g) require a person, subject to such conditions as the municipality considers appropriate, to pay an administrative penalty if the municipality is satisfied that the person has failed to comply with any part of a system of licences established by the municipality. … Other by-laws 160. Sections 9, 10, 11 and 150 to 159 apply, with necessary modifications, to municipalities in the exercise of a power to pass by-laws licensing businesses under any

section of this Act or any other Act. [ 38 ] Furthermore, s. 151(5) of the Municipal Act, 2001 grants a municipality the authority to set up a system of licensing or permits in respect to any activity, matter or thing for which a bylaw can be passed under ss. 9, 10 or 11, as if it were a system of licences with respect to a business: Application re system of licences 151(5) Subsections (1) to (4) apply with necessary modifications to a system of licences with respect to any activity, matter or thing for which a by-law may be passed under sections 9, 10 and 11 as if it were a system of licences with respect to a business. [ 39 ] In addition, s. 27(1) of the Municipal Act, 2001 specifically grants municipalities t he power to enact bylaws respecting such activities as parking, traffic, and selling goods on a highway that is within that particular municipality and for which it has jurisdiction over: By-laws 27(1) Except as otherwise provided in this Act, a municipality may pass by-laws in respect of a highway only if it has jurisdiction over the highway.

[40] Ergo, the Municipal Act, 2001 gives the City of Brampton authority to enact bylaws that govern or restrict the operation of icecream trucks in Brampton and to enact bylaws that require a person to obtain a license to operate the business of selling ice cream from amotorized ice cream vehicle in Brampton.

And, it is these same bylaws set out in the Licensing Bylaw and the Traffic and ParkingBylaw that specifically regulate the business or operation of mobile ice cream vehicles in the City of Brampton that are being challengedby the applicants for infringing their mobility rights. [41] However, despite the City of Brampton’s legislative authority in enacting bylaws regulating and licensing the operation ofmotorized ice cream vehicles within its borders, the applicants contend that the City of Brampton does not issue any municipal licensesat all to any person that wishes to sell ice cream in Brampton from ice cream trucks, and it is this policy of absolutely not issuinglicenses, they argue, that effectively infringes on their s. 6(2) mobility rights related to pursuing the gaining of a livelihood.

To reiterate,the applicants do not object to a licensing scheme that would protect public health and safety and regulate ice cream trucks operating inBrampton, just to the fact that no licenses are issued at all to ice cream truck vendors.

Furthermore, as a response to or in defence of the44 charges, the applicants are seeking a constitutional remedy for what they say is an infringement of their mobility rights, by seeking adeclaration that particular sections of the Licensing Bylaw and of the Traffic and Parking Bylaw infringe these rights and are of no forceor effect by virtue of s. 52 of the Constitution Act, 1982. (

A) DOES THIS COURT HAVE THE JURISDICTION OR POWER TO GRANT THE REMEDY OF DECLARING THEIMPUGNED BYLAWS TO BE OF NO FORCE OR EFFECT BY VIRTUE OF S. 52 OF THE CONSTITUTION ACT, 1982, IFTHEY ARE INCONSISTENT WITH S. 6(2) OF THE CHARTER? [42] To declare a particular bylaw or parts of a bylaw to be inconsistent with the Charter and of no force or effect is a profound task,and not taken lightly by any court, considering there is a presumption that laws are constitutional and that legislators do not enact lawsthat violate the Charter or the Constitution of Canada: R. v. Mills (SCC), [1999] S.C.J. No. 68 (QL) (S.C.C.).

Furthermore, because of the importance of this task, Justices McLachlin and Iacobucci in R. v. Mills, at para. 56, remind those courtswhich are presented with these types of applications that they must presume that lawmaking bodies intend to enact constitutionally validlegislation, and as such, they should strive where possible to give effect to that intention: Thus courts must presume that Parliament intended to enact constitutional legislation and strive, where possible, to give effect to thisintention. [43] Furthermore, in Slaight Communications Inc. v.

Davidson (1989), (SCC), 59 D.L.R. (4th) 416 (S.C.C.), at p.444, Lamer J., in explaining a court’s role in interpreting legislation, emphasized that a court should not interpret legislation, which isopen to more than one

interpretation, so as to make it inconsistent with the Charter and hence of no force or effect [emphasis is minebelow]: As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of theinconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe theCharter, unless, of course, that power is expressly conferred or necessarily implied. Such an

interpretation would require us to declarethe legislation to be of no force or effect, unless it could be justified under s. 1. Although this court must not add anything to legislationor delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpretlegislation that is open to more than one

interpretation so as to make it inconsistent with the Charter and hence of no force or effect. [44] In any case, before this court could even declare any of the impugned Brampton bylaws to be inconsistent with the Charter andof no force or effect, it must have the necessary jurisdiction and power to grant the remedy sought by the applicants.

Ergo, beforeconsidering the merits of the applicants’ argument that the impugned bylaws are constitutionally invalid, a review of this court’sjurisdiction to grant the remedy sought by the applicants must be first undertaken. [45] To start, there are several sources of constitutional or Charter remedies available to any person whose Charter rights have beeninfringed or denied. Recently, Justice Abella, writing for the Supreme Court of Canada, in R. v. Conway, 2010 SCC 22 , [2010]1 S.C.R. 765, S.C.J.

No. 22 (QL), at para. 2, noted that a remedy could be sought under either s. 24(1) or s. 24(2) of the Charter or unders. 52(1) of the Constitution Act, 1982: There are two provisions in the Charter dealing with remedies: s. 24(1) and s. 24(2). Section 24(1) states that anyone whose Charterrights or freedoms have been infringed or denied may apply to a "court of competent jurisdiction" to obtain a remedy that is"appropriate and just in the circumstances".

Section 24(2) states that in those proceedings, a court can exclude evidence obtained inviolation of the Charter if its admission would bring the administration of justice into disrepute. A constitutional remedy is alsoavailable under s. 52(1) of the Constitution Act, 1982, which states that the Constitution is the supreme law of Canada, and that any lawinconsistent with its provisions is, to the extent of the inconsistency, of no force or effect.

[46] The applicants in this Charter challenge are not seeking a remedy under s. 24 of the Charter but a remedy under s. 52(1) of theConstitution Act, 1982. The circumstances for using the s. 52(1) remedy was considered by the Supreme Court of Canada in R. v. BigM Drug Mart, (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17 (QL).

After considering whether the accused in R. v.Big M Drug Mart had been seeking a dismissal of the charges based on an invalid statute, seeking a declaration of unconstitutionality, orseeking a s. 24 remedy, Justice Dickson in writing for the majority, concluded at paras. 37, 38, 39, 46 and 47, that any accused whethercorporate or individual may defend against a charge by arguing that the law, under which the charge had been brought, to beunconstitutionally invalid and of no force or effect by reason of s. 52 of the Constitution Act, 1982, and that recourse to s. 24 would beunnecessary when the challenge is based on the unconstitutionality of the legislation [emphasis is mine below]: Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under theCharter have been infringed.

It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, thechallenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on thechallenging party is irrelevant.

Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to bedrawn from this principle is that no one can be convicted of an offence under an unconstitutional law. The respondent did not come tocourt voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional. If it had been engaged insuch "public interest litigation" it would have had to fulfill the status requirements laid down by this Court in the trilogy of "standing"cases (Thorson v.

Attorney General of Canada, (SCC), [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v. McNeil, (SCC), [1976] 2 S.C.R. 265, Minister of Justice of Canada v. Borowski, (SCC), [1981] 2 S.C.R. 575) butthat was not the reason for its appearance in Court. Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is broughtis constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(

a) of the Charter and byreason of s. 52 of the Constitution Act, 1982, it is of no force or effect. ... The appellant overlooks the fact that it has always been open to provincial courts to declare legislation invalid in criminal cases. No onemay be convicted of an offence under an invalid statute. The respondent Big M was commanded by Her Majesty the Queen to face prosecution for a violation of

an Act of Parliament. It came tocourt, not for the purpose of having the Act declared unconstitutional, but in order to secure a dismissal of the charges against it. TheProvincial Court Judge was not called upon to make either a prerogative declaration or a s. 24(1) order. He simply was asked to preventa violation of the fundamental principle of constitutional law embodied in s. 52(1) by dismissing the charges. [47] Moreover, Justice Dickson instilled in R. v.

Big M Drug Mart, at para. 143, that once a court or tribunal finds a piece oflegislation to be inconsistent with the Constitution, s. 52 gives the court or tribunal not only the power, but the duty, to regard theinconsistent legislation, to the extent of the inconsistency, as being no longer in force or effect: If a court or tribunal finds any statute to be inconsistent with the Constitution, the overriding effect of the Constitution Act, 1982, s.52(1), is to give the court not only the power, but the duty, to regard the inconsistent statute, to the extent of the inconsistency, as beingno longer "of force or effect". [48] Furthermore, Dale Gibson in his tome, The Law of the Charter: General Principles (Toronto, Canada: The Carswell CompanyLimited, 1986), at p. 186, emphasized that the court's obligation when faced with unconstitutional laws is to recognize their invalidity: The most drastic consequence of the Constitution's supremacy is that all laws inconsistent with it are invalid to the extent of theinconstancy.

As we have seen, courts have no choice when faced with unconstitutional laws but to recognize their invalidity, whether ornot that may be "appropriate and just in the circumstances. [49] Moreover, for a particular court or tribunal that finds itself with the task of deciding whether it has the jurisdiction or power togrant the type of remedy that is being sought by the applicants, the Supreme Court of Canada in R. v. Mills, (SCC),[1986] 1 S.C.R. 863, S.C.J. No. 39 (QL), at paras. 53 and 56, explained that only a court of competent jurisdiction has the power todeclare laws to be of no force or effect.

The Supreme Court further concluded that the court of competent jurisdiction is generally thetrial court and then outlined the three conditions that needed to be fulfilled in order for a court or tribunal to be a court of competent

jurisdiction, namely that the court or tribunal in question has the (1) jurisdiction over the person; (2) jurisdiction over the subject matter;and (3) jurisdiction to grant the remedy: For those reasons, and to summarize, I am of the view that: - A court of competent jurisdiction in an extant case is a court that has jurisdiction over the person, the subject matter and has, underthe criminal or penal law, jurisdiction to grant the remedy; - As a general rule, the court of competent jurisdiction is the trial court; - A judge presiding at a preliminary inquiry is a court of competent jurisdiction to determine whether there has been a violation, butonly if the order sought is the exclusion of evidence under s. 24(2). … … I have come to the conclusion that the preferable, alas somewhat more complex, alternate solution to this problem is to acknowledge: 1 - Pre-trial motions to the trial court, and 2 - Original concurrent jurisdiction in the superior court, in cases extant before lower courts. [50] Accordingly, this court, as the trial court, has both the statutory and territorial jurisdiction to try the applicants in this proceedingfor the 44 charges, as well as the necessary jurisdiction incidental to the trial process to grant the remedy of declaring the impugnedbylaws to be of no force or effect, if the impugned bylaws are inconsistent with s. 6(2) of the Charter.

In particular, s. 73 of the LicensingBylaw provides that every person who contravenes any provision of that Bylaw is guilty of an offence and upon conviction is liable to afine of not more than $25,000, unless the offender is a corporation in which the fine provided for in s. 74 would be not more than$50,000; while s. 59 of the Traffic and Parking Bylaw provides that every person who contravenes any provision of that Bylaw is guiltyof an offence and upon conviction is liable to a fine as provided for in the Provincial Offences Act. In addition, s. 29(1) of the ProvincialOffences Act, R.S.O. 1990, c.

P.33, provides that a proceeding in respect of an offence shall be heard and determined by the OntarioCourt of Justice sitting in the county or district in which the offence occurred or in the area specified in the transfer agreement madeunder

Part X of the Act. [51] In addition, the Supreme Court of Canada and other appellate courts have found this court to be a court of competentjurisdiction for granting a Charter or constitutional remedy: R. v. Giagnocavo, [1995] O.J. No. 1632 (QL) (O.C.A.); R. v. Lyne, [1997]O.J. No. 5635 (QL) (O.C.A); R. v. 974649 Ontario Inc. (Dunedin) (2001), 2001 SCC 81 , 159 C.C.C. (3d) 321 (S.C.C.). [52] However, what, if any, are the limits on this court in using this power to deal with invalid legislation?

In Cuddy Chicks Ltd. v.Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5, at para 17, the Supreme Court of Canada confirmed thatonly a superior court has prerogative jurisdiction to formally declare legislation to be constitutionally invalid, while a statutory tribunal orstatutory court confronted with invalid legislation may only treat the legislation to be invalid for the purposes of the matter before it: the jurisdiction of the Board is limited in at least one crucial respect: it can expect no curial deference with respect to constitutionaldecisions.

Furthermore, a formal declaration of invalidity is not a remedy which is available to the Board. Instead, the Board simplytreats any impugned provision as invalid for the purposes of the matter before it.

Given that this is not tantamount to a formaldeclaration of invalidity, a remedy exercisable only by the superior courts, the ruling of the Board on a Charter issue does not constitutea binding legal precedent, but is limited in its applicability to the matter in which it arises. [53] Accordingly, since this court, the Ontario Court of Justice, is a court created by statute, it has no inherent or prerogative powersto formally declare legislation to be constitutionally invalid.

However, despite this court’s lack of power to formally declare legislationto be constitutionally invalid, it does have the power, albeit limited, to declare provisions that infringe on the applicants’ Charter rights tobe inoperative, but only as it applies to these applicants. By the same token, this court’s declaration of inoperability would have noprecedential effect.

[ 54 ] In sum, the applicants’ situation is not unlike the situation that arose in R. v. Big M Drug Mart , in that the applicants are defending against the 44 charges by seeking to have the charges, including the charges laid under s. 66 of the Licensing Bylaw, dismissed based on the laws under which the 44 charges arose being constitutionally invalid. (

B) THE SCOPE OF THE MOBILITY RIGHTS CONTAINED IN S. 6(2) OF THE CHARTER [ 55 ] Since this court has the power and jurisdiction to declare the impugned bylaws to be inoperative in respect to the applicants if the bylaws are inconsistent with the Constitution, the scope and purpose of the rights in s. 6(2) will now have to be examined to determine whether the applicants’ mobility rights in pursuing the gaining of a livelihood have been infringed or denied by the purpose or effect of the bylaws in question. [ 56 ] To start with, the mobility rights contained in s. 6(2)(

b) of the Charter under the heading, “Rights to move and gain livelihood”, provide that every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to pursue the gaining of a livelihood in any province.

However, the rights under s. 6(2) are themselves limited under s. 6(3) by “ any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence” and “any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services” [ emphasis is mine below ]: Mobility Rights Mobility of citizens 6

(1) Every citizen of Canada has the right to enter, remain in and leave Canada. Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (

a) to move to and take up residence in any province; and (

b) to pursue the gaining of a livelihood in any province . Limitation

(3) The rights specified in subsection (2) are subject to (

a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (

b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. Affirmative action programs (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of

conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province isbelow the rate of employment in Canada. [57] Also, along with examining the scope and purpose of the mobility rights guaranteed under s. 6(2), a determination will alsohave to be made on whether corporations can claim the protection of this constitutional guarantee, since one of the applicants, MisterTwister Inc., is a corporation.

This issue needs to be addressed as some Charter rights have been adjudged to only be applicable tohuman persons because of their inherent nature while other rights have been held to apply to both artificial persons and human beings. For instance, it has been held that a corporation cannot be deprived of life, liberty, or security of the person guaranteed under s. 7 of theCharter. Hence, the rights under s. 7 of the Charter can only be claimed by human beings: Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927 (S.C.C.); Thompson Newspapers Ltd. v.

Canada (1990), (SCC), 54 C.C.C.(3d) 417 (S.C.C.); R. v. Wholesale Travel Inc. (1991), (SCC), 67 C.C.C. (3d) 193 (S.C.C.).

(1) Do the mobility rights related to pursuing the gaining of a livelihood, which are guaranteed under s. 6(2) of the Charter,applicable to a corporation? [58] First of all, s. 6(2) of the Charter provides that every citizen of Canada and every person who has the status of a permanentresident of Canada has the right to move to and take up residence in any province and to pursue the gaining of a livelihood in anyprovince. [59] Since s. 6(2) refers to “citizens” and to persons who have the status of “a permanent resident”, do the mobility rights guaranteedunder s. 6(2) apply to artificial persons, such as the corporate applicant, Mister Twister Inc.? [60] On that question, the applicants argue that since business people are legally permitted to conduct their business through thestructure of a corporation, then for the applicants who are at least natural persons, the City of Brampton’s policy of not issuing municipallicenses to anyone who wishes to earn a living operating a mobile ice cream truck in Brampton have negatively affected them, therebyinfringing on the mobility rights of all the applicants, whether they are natural or artificial persons. [61] However, the question of whether the s. 6(2) protection applies to corporations had been raised and clarified in Parkdale HotelLimited v.

A.G. Canada et al. (1986), (FC), 27 D.L.R. (4th) 19. At para. 49, Justice Joyal of the Federal Court ofCanada in Parkdale Hotel Limited concluded that the ambit of the mobility rights guaranteed under s. 6(2) is only applicable to humansor natural persons and not to corporations. In arriving at this conclusion, Joyal J. made reference to the livelihood wording contained inthe French version of s. 6, which expresses the right “de gagner leur vie dans toute province” or the right to make a living in anyprovince: The wording of

section 6 makes it clear to me that corporations do not come within the ambit of its protection and consequently, thecorporate plaintiff would have no status. Subsection 6(2) provides that: … Prima facie, the protection is limited to physical persons. Furthermore, the "livelihood" provision in paragraph 6(2)(

b) is expressed inthe French version of the Charter as the right "de gagner leur vie dans toute province" (my emphasis). This text adds to theinterpretation of the

section and, in my view, the door is closed to corporations. [62] Furthermore, s. 6(4) of the Charter refers to “individuals … who are socially or economically disadvantaged“ in its reference tothe provisions contained in s. 6(2) and s. 6(3).

Hence, the explicit references in s. 6(2) to individuals being “socially or economicallydisadvantaged”, to the gaining of “a livelihood”, and to “every citizen of Canada and every person who has the status of a permanentresident in Canada”, which relate to only what humans or natural persons could actually attain or suffer, further illustrates a corporationdoes not come within the ambit of its protection. [63] Therefore, the right to pursue the gaining of a livelihood in any province logically refers to human individuals or physicalpersons, who are living beings and who have concerns about making a living in order that they can, for example, obtain food or shelter inorder to sustain life or to stay alive, whereas corporations, who are artificial persons, could exist perpetually without the need for food orshelter.

Furthermore, corporations are statutory creatures and remain in existence until either dissolved or wound up by operation of law.

[ 64 ] Although courts and legal commentators have concluded that s. 6(2) of the Charter does not apply to corporations, one writer has commented on the possibility that s. 6(2) could encompass corporations and has pondered about the logic of restricting the

interpretation of s. 6 to only protect natural persons, and has also suggested that s. 6(2) should be interpreted to include corporations. Specifically, in her article, “Corporations and constitutional guarantees" , Les Cahiers de droit, vol. 31, no. 4, 1990, p. 1125-1152 , Elizabeth Foster, at pp. 1135-1138, has acknowledged the prevailing

interpretation of s. 6 is that its protection is not open to corporations, but then provides a logical, although not persuasive, argument for corporations to be inc

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