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Proposal to ban the sale of drug paraphernalia in Esquimalt

The Township of Esquimalt is considering a bylaw to restrict the sale of drug paraphernalia within three kilometres of a school.  I’m not going to offer my opinion on the draft bylaw right now. That said, I am familiar with Smith v. St. Albert (City), 2012 ABQB 780, a recent decision about a bong store selling drug paraphernalia in Alberta. It shares some similarities with the situation in Esquimalt. If you are looking for a quick summary, read paragraphs 24 to 27:

[24] The practical effect of the bylaw is to preclude the licencing or successful operation of what have become colloquially known as bong or head shops. That is what the Mayor implicitly suggested in his letter of July 22, 2011, to the mayors of the surrounding municipalities.

[25] It is possible that the health and welfare of St. Albert’s citizens may be improved by the effect of the impugned bylaw in the sense that St. Albert residents may not have easy access to some of the tools which may assist their involvement with narcotics, and because of that, they may give up on such involvement. However, I think that indirect effect is quite uncertain.

[26] A further practical effect of the amending bylaw is that the delict addressed by ineffective Criminal Code prohibitions is more effectively addressed by the amending bylaw. The imposition of criminal type consequences is a further tool to enhance effectiveness. Of course, criminal law type penalties are plainly within the authority of the province to enact, for a legitimate and constitutional provincial purpose.

[27] In my view, in legal effect and in practical effect, the impugned bylaw is about criminal law, a power which is plainly beyond the competence of the municipality. Therefore, both in terms of purpose and in terms of effect, the amending bylaw is legislation in relation to criminal law. As such it is ultra vires the municipality and must be struck down.