COURT OF APPEAL FOR BRITISH COLUMBIA
| Citation: |
Royal City Jewellers & Loans Ltd. v. New Westminster (City), |
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2007 BCCA 398 |
Date: 20070726
Docket: CA033828
Between:
Royal City Jewellers & Loans Ltd.
Appellant
(Petitioner)
And
The City of New Westminster
Respondent
(Respondent)
And
The Attorney General of British Columbia and The B.C. Civil Liberties Association
Intervenors
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Before: |
The Honourable Madam Justice Huddart |
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The Honourable Madam Justice Saunders |
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The Honourable Mr. Justice Chiasson |
| H. Silber |
Counsel for the Appellant |
| J. Yardley and C.S. Murdy
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Counsel for the Respondent |
| B.B. Olthuis |
Counsel
for the Intervenor, |
| J. Penner |
Counsel
for the Intervenor, |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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23 and 24 April 2007 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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26 July 2007 |
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Written Reasons by: |
| The Honourable Madam Justice Huddart |
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Concurred in by: |
| The Honourable Madam Justice Saunders The Honourable Mr. Justice Chiasson |
Reasons for Judgment of the Honourable Madam Justice Huddart:
[1] Royal City Jewellers & Loans Ltd. (“Royal City”) appeals from an order dismissing its petition for a declaration that those portions of a bylaw requiring second hand dealers (including pawnbrokers) to collect personal information from all persons from whom a second hand article is received or bought and to disclose that information to the police are unenforceable and invalid. In its petition, Royal City asserts the disclosure provisions are outside the authority delegated to the appellant (“New Westminster”) by s. 59(1)(b) of the Community Charter, S.B.C. 2003, c. 26 (“Community Charter”) or any other enactment and violate its privacy rights protected by the Personal Information Protection Act, S.B.C. 2003, c. 63 (“PIPA”) and the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (“FIPPA”).
[2] At the hearing of its petition, Royal City further argued that the purpose and effect of the Bylaw was to render the second hand dealer an “agent of police” and thus to stray into the exclusive federal domain of criminal law and procedure. For this submission, Royal City relied on the reasoning in Fredericton (The City of) and The Re-Purchase Shop Inc. (3 December 2003), Fredericton (N.B.P.C.), aff’d (on grounds unrelated to this appeal) 2005 NBQB 359, 289 N.B.R. (2d) 248.
[3] Finally, Royal City submitted, the Bylaw mandates an illegal search and seizure of private information contrary to s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).
[4] Under the Bylaw, all licensed pawnbrokers and second hand dealers in New Westminster (of whom Royal City is admittedly one) are to keep a book or computer record containing, inter alia, the following information in relation to all items received:
- the description of the item, the price paid, the date and time of the receipt, and the name of the staff person receiving the item and
- the name and address, means of identification and description of the person from whom the item is received and the license plate number and description of the vehicle in which such person arrived.
[5] The record must be produced immediately on request for inspection by a police constable or for use as evidence in court. A record containing the same information must also be made each day and a copy delivered to the Chief Constable by 9:30 a.m. on the following business day.
[6] The resulting information database gives the police “access to second hand transactions by information management tools designed to support the analytical and investigative requirements and needs of police officers”. The record discloses two such management systems. The XTRACT database system allows police to compare automatically CPIC and PRIME-BC stolen item databases with the full database of second hand items to suggest potential matches daily. That system includes personal information of the person who pawned the item (name, address, occupation, birth date, height, build and weight, photo ID type and number). The LEADS system also allows the police to see this personal information, but only after an officer forms a suspicion of a crime involving the item based on the description of the item. The LEADS suspicion-based approach results in a one-day lag in the ability of the police to investigate further.
[7] Royal City provides short term loans on security of personal property, the majority of which are for amounts less than $200. It advocates the use of the LEADS system, asserting that less than 1% of the items pawned at its shop are determined by the police to be stolen.
[8] The chambers judge rejected Royal City’s petition in its entirety: (2006), 55 B.C.L.R. (4th) 162, 2006 BCSC 203.
[9] She rejected the notion that the pith and substance of the Bylaw is criminal law on the basis it does not create a criminal offence and is not otherwise within the jurisdiction of Parliament. Rather, she found, it is directed to the manner in which the second hand trade is carried on and the investigation and prevention of crime, an aspect of providing good government and fostering the well-being of the community.
[10] On the administrative law issue, she rejected the interpretation of s. 59(1)(b)(i) of the Community Charter put forward by the appellant, holding that it is for the municipal council to define the scope of the required notice to the police.
[11] On the privacy issue, she held that FIPPA was the governing statute because Royal City was collecting the information “on behalf of a public body” (New Westminster), and that the exception in s. 26 applies, because that collection was either “expressly authorized by or under an Act” (s. 26(a)) or “for the purposes of law enforcement” (s. 26(b)). She then opined that the Bylaw would also not offend PIPA if it were the governing legislation.
[12] Finally, the chambers judge was not persuaded the Bylaw offends the Charter. Even if entry into Royal City’s premises and the inspection and copying of its records amounts to a “seizure”, she did not see the information contained in those records as the kind of information section 8 of the Charter protects. Moreover, the record did not suggest that any particular individual’s privacy was violated nor did it contain facts on which to make the contextual analysis adopted in R. v. Plant, [1993] 3 S.C.R. 281, 84 C.C.C. (3d) 203. Alternatively, she commented (at para. 48):
In any case, if such an analysis were made, I would conclude that the manner by which the information is sought is minimally intrusive to the petitioner's customers. As in Plant (supra), the information does not intrude into the "biographical core of personal information" of either the petitioner or its customers, or reveal "intimate details of the lifestyle and personal choices of the individual". Thus no s. 8 protection is available.
[13] Royal City, supported by the intervenor, the B.C. Civil Liberties Association (“BCCLA”), finds error in her reasoning on all issues. Additionally, the BCCLA takes the position that the mandated collection of personal information offends provincial privacy legislation and s. 8 of the Charter. The Attorney General asks whether Royal City has standing to allege that the Bylaw infringes the privacy rights of others under provincial legislation. New Westminster raises the issue whether Royal City has standing to challenge the Bylaw as contrary to s. 8 of the Charter, and submits that, in any event, the record is not sufficient for this Court to consider that argument.
The impugned legislation
[14] Counsel devoted little space or time to the meaning of s. 59(1)(b) of the Community Charter in their written or oral submissions, preferring to discuss the interpretation of that provision and the Bylaw in their submissions on the division of powers and privacy issues. Because I see this appeal as turning on the interpretation of the empowering legislation and the Bylaw, I will begin by setting down the relevant provisions of each.
Community Charter
Part 1 — Principles, Purposes and Interpretation
1 (1) Municipalities and their councils are recognized as an order of government within their jurisdiction that
(a) is democratically elected, autonomous, responsible and accountable,
(b) is established and continued by the will of the residents of their communities, and
(c) provides for the municipal purposes of their communities.
(2) In relation to subsection (1), the Provincial government recognizes that municipalities require
(a) adequate powers and discretion to address existing and future community needs,
(b) authority to determine the public interest of their communities, within a legislative framework that supports balance and certainty in relation to the differing interests of their communities,
. . .
3 The purposes of this Act are to provide municipalities and their councils with
(a) a legal framework for the powers, duties and functions that are necessary to fulfill their purposes,
(b) the authority and discretion to address existing and future community needs, and
(c) the flexibility to determine the public interest of their communities and to respond to the different needs and changing circumstances of their communities.
4 (1) The powers conferred on municipalities and their councils by or under this Act or the Local Government Act must be interpreted broadly in accordance with the purposes of those Acts and in accordance with municipal purposes.
(2) If
(a) an enactment confers a specific power on a municipality or council in relation to a matter, and
(b) the specific power can be read as coming within a general power conferred by or under this Act or the Local Government Act,
the general power must not be interpreted as being limited by that specific power, but that aspect of the general power that encompasses the specific power may only be exercised subject to any conditions and restrictions established in relation to the specific power.
. . .
7 The purposes of a municipality include
(a) providing for good government of its community,
(b) providing for services, laws and other matters for community benefit,
. . .
(d) fostering the economic, social and environmental well-being of its community.
Municipal powers
8 (3) A council may, by bylaw, regulate, prohibit and impose requirements in relation to the following:
. . .
(g) the health, safety or protection of persons or property in relation to matters referred to in section 63 [protection of persons and property];
(h) the protection and enhancement of the well-being of its community in relation to the matters referred to in section 64 [nuisances, disturbances and other objectionable situations];
. . .
(6) A council may, by bylaw, regulate in relation to business.
. . .
Division 9 — Business Regulation
59 (1) A council may, by bylaw, do one or more of the following:
. . .
(b) in relation to persons engaged in the business activity of purchasing, taking in barter or receiving used or second hand goods,
(i) require such persons, after purchasing, taking in or receiving used or second hand goods, to notify the chief constable who has jurisdiction in the municipality within the time period established by the bylaw, and
(ii) prohibit such persons from altering the form of, selling, exchanging or otherwise disposing of those goods during the time period established by the bylaw;
Schedule 1
Definitions and Rules of Interpretation
1 In this Act and in a bylaw or resolution under this Act:
. . .
"regulate" includes authorize, control, inspect, limit and restrict, including by establishing rules respecting what must or must not be done, in relation to the persons, properties, activities, things or other matters being regulated;
The Bylaw
[15] On August 25, 1997, under the authority granted by s. 8(6) and s. 59(1)(b) of the Community Charter, New Westminster adopted A Bylaw to Regulate Second Hand Dealers within the City of New Westminster (Bylaw 6408,1997). Included are these impugned provisions:
4. Every Second Hand Dealer must keep and use in his business a book or a computer record, known as the Second Hand Dealers' Register, containing in the English language the following:
(i) a correct account and description of each Second Hand Article bought, taken in trade, barter or pawn, or otherwise received in the course of business, including all descriptive marks, the make, model and serial numbers, be they stamped, engraved or on a label, and any other letters, numbers or names, or combinations thereof, on each article;
(ii) the precise minute, hour, and day of the receipt of each article;
(iii) the full name, address, and description of the person from whom the second hand article is received or bought, and confirmation of same by picture identification including the type and serial or registration number of the identification used;
(iv) whenever possible, the make, description, and provincial licence number of any motor vehicle used for delivery of such Second Hand Articles received or bought, with the exception of those persons who arrive via public transit or taxi cab; in such cases as the Second Hand Dealer is operating a drive-in facility, such as a scrap yard or junk yard, the recording of vehicle descriptive information shall be mandatory;
(v) in cases where only a single item is exchanged, the exact price paid for that item. In cases of multiple item exchanges to a total of less than $400, a total price only will be required. In cases where the total price exceeds $400, the price paid for each Second Hand Article will be required.
(vi) the name, initials or staff number of the staff person who takes in the item; and
no Second Hand Dealer shall permit any page or any entry made in the Register to be erased, obliterated, defaced or removed.
5. Every Second Hand Dealer must produce immediately, upon request, during business hours, the Second Hand Dealers' Register for inspection by the Chief Constable or any Constable and, upon request, give the Second Hand Dealers' Register for inspection elsewhere or for use as evidence in Court. Under some circumstances, at the discretion of the Chief Constable or the Constable requiring such evidence, an exact photocopy [or] printout of the specific page or pages of the Register, signed and dated by the Chief Constable or the Constable as an exact copy of the register, may be sufficient for investigative or Court purposes. In addition, every Second Hand Dealer must keep within his shop any Second Hand Dealers' Register that contains any entries which are less than 24 months old.
6. Other than in cases where the Second Hand Dealers' Register is maintained as a computer record, every Second Hand Dealer must keep a book labelled and known as the “Second Hand Dealers’ Interim Register” in which must be recorded the same information as in the Second Hand Dealers’ Register during those times when the Second Hand Dealers’ Register has been removed from the premises for inspection or Court purposes. Upon return of the Second Hand Dealers’ Register, all information in the Interim Register must be transferred to the Second Hand Dealers’ Register.
7. Every Second Hand Dealer shall maintain within his shop and must keep open all books and documents relative to the operation of the business during business hours for inspection by the Chief Constable or any Constable and, upon request, must give the books and documents, or in the case of records maintained on a computer data base, an exact copy of that data base for inspection elsewhere or for use in Court.
8. In addition to the Second Hand Dealer's Register, for each business day every Second Hand Dealer shall complete a form in accordance with Schedule "A" to this bylaw which shall include all of the information included within the Second Hand Dealers' Register as set out in Section 4. Each completed form shall then be delivered to the Chief Constable no later than 9:30 a.m. of the business day following the business day for which the form has been completed. The Chief Constable may designate the format for the transfer of this information and may direct that it be communicated to his office by means of the Internet, fax or other telecommunications system. In any such case that the Chief Constable directs the information be transmitted via computer media, he may also direct the program which will be utilized in order to ensure unanimity between all Second Hand Dealers.
Discussion
[16] I propose to begin with a consideration of the administrative law issue because I have reached the conclusion that it is determinative of the appeal. In my view, New Westminster exceeded the powers given to it by the Legislature when it enacted the Bylaw. Consideration of this issue must begin with the interpretation of s. 59(1)(b).
[17] The first rule in interpreting words contained in a statute is that set down in Bell Express Vu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, applied with respect to enabling powers of local governments in United Taxi Drivers' Fellowship of Southern Alberta v. Calgary, [2004] 1 S.C.R. 485, 2004 SCC 19, at paras. 6 and 8. As that rule applies to this case, the words of s. 59 (1)(b) of the Community Charter are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and the object of the Act and the intention of the Legislature. This rule is consistent with “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects” mandated by s. 8 of the Interpretation Act, R.S.B.C. 1996, c. 238 and with the edict in s. 4 of the Community Charter, that it “must be interpreted broadly in accordance with [its purposes] and in accordance with municipal purposes”.
[18] Royal City’s complaint about the chambers judge’s interpretation of s. 59(1)(b) focuses on what I will call the “notification power”. It argues that the notification authorized under the Community Charter is restricted to the occurrence of the transaction and a description of the goods involved, and does not extend to the identity, description or biographical information of the person from whom they were received. In other words, Royal City argues s. 59(1)(b) enables New Westminster to require that Second Hand Dealers notify its Chief Constable of the taking in of second hand goods and provide the police with a description of those goods; it does not enable a municipal council to require or permit the disclosure of any personal information about the person who provided them.
[19] About that submission, the chambers judge wrote:
¶ 30 I reject [Royal City’s] submission. I accept [New Westminster’s] submission that in considering the meaning of s. 59[(1)](b)(i), the "guiding principle is the lawmaker's intention" (Montreal (Ville) v. 2952-1366 Québec inc., 2005 SCC 62 (S.C.C.)). Rather than relying on the literal meaning of the language used, the meaning of the language must be determined by considering the purpose of the enactment.
¶ 31 Section 59 of the Community Charter does not define "notify" nor does it otherwise prescribe what the Chief Constable is to be notified of. I am satisfied that the purpose of this notification requirement, however it is interpreted, is to protect the public interest. As [New Westminster's] counsel submits, the scope of the notification is for Council to determine, bearing in mind those portions of the Community Charter which address "existing and future public needs" (s. 3(b)), "municipal purposes" (s. 4(1)), and "fostering the economic, social and environmental well being of its community" (s. 7(d)). All of these factors must be considered in light of providing the municipal Council with the "flexibility to determine the public interest" (s. 3(c)).
¶ 32 In my view since s. 59 of the Community Charter allows a municipality the general power to regulate business and to "require and prohibit" certain undertakings, including pawnbrokers and second hand goods operations, it follows that providing such establishments authority to "notify" the police must go beyond simply providing the police with a description of the goods taken in pawn. There is no basis for such a restrictive interpretation of s. 59, particularly when the local government is provided with jurisdiction to prevent crime (see Bedard [v. Dawson, [1923] S.C.R. 681]).
[20] I begin by noting that the general power to “regulate” business is found in s. 8(6) of the Community Charter, not s. 59. It seems likely the powers to “require” and “prohibit” were specified in s. 59 with relation to certain aspects of certain businesses to remove any doubt as to whether the power to “establish rules” about “what must or must not be done” included the power to require notice to the police or to prohibit disposition of a second hand good. I also note that nowhere in the Community Charter can I find any delegation of the power to “require and prohibit” either pawn-brokers or second hand goods operations. Thus I cannot accept the reasoning of the chambers judge in para. 32 of her reasons. However, I do accept her view that the Legislature has granted municipal councils a general power to regulate business in the public interest. I also accept her view that the intention of the municipal council in enacting the bylaw was to assist the police in the prevention and investigation of crime and thereby to serve the public interest.
[21] Without evidence of the motive or intent of the New Westminster council in passing the Bylaw, I infer from the evidence of the police use of the data collected under it that New Westminster considers the buying, selling and pawning of second hand goods to be a legal, but suspect activity (to adopt a useful expression from a report published by the Office of the Information and Privacy Commissioner for British Columbia entitled Local Governments and the Growth of Surveillance (August 30, 2006)), and thus a business that requires close control to prevent or deter fencing of stolen property.
[22] While the primary effect of the Bylaw is to assist police in locating stolen property and identifying those who seek to dispose of it, and more generally, to distinguish individuals engaged in legal but suspect activities from the general public, the data collection it facilitates also provides the police with an unrestrained opportunity to monitor clients of a second hand business and to otherwise use and disseminate all the recorded information without restriction.
[23] In my respectful opinion, the compelled collection and disclosure of personal information about borrowers and sellers for limitless purposes requires a remarkable and unintended stretching of the limited power the Legislature first delegated to a municipal council in 1957 by s. 442 of the Municipal Act, S.B.C. 1957, c. 42. Prior to the 1957 Municipal Act, the only municipal power specific to pawnbrokers and second hand dealers was a general regulating and licensing power.
[24] A brief legislative history of the notification requirement will be helpful. The provision with which this appeal is concerned has its origins in a 1934 notification requirement for transactions involving “second-hand jewellery”. (Municipal Act Amendment Act, 1934, S.B.C. 1934, c. 53, s. 4) In 1957, the provisions in respect of second hand jewellery and second hand goods were collapsed into a single provision and the notification requirement was made to apply to second hand dealers.
[25] Before being combined, the two provisions read (Municipal Act, R.S.B.C. 1948, c. 232):
PART II.
POWERS REQUIRED TO BE EXERCISED BY BYLAW.
Division (1). - General
58. In every municipality the Council may from time to time make, alter, and repeal by-laws not inconsistent with any law in force in the Province for any of the following purposes, that is to say:
. . .
(155) For licensing and regulating second-hand stores, junk stores or shops, and persons owning, keeping, or maintaining such stores or shops, and fixing the sum to be paid for such licence, and for determining the duration of or revoking any such license, and for prohibiting the granting of such licence to any applicant who is not, in the opinion of Council, a fit and proper person to receive such licence:
(156) For requiring all jewellers and other licensed persons purchasing, taking in barter, or receiving used or second-hand jewellery, to notify the office of the police having jurisdiction in the municipality within twenty-four hours after the purchasing, taking, or receiving of the same, and not to alter the form of or to sell, exchange, or otherwise dispose of such jewellery within seventy-two hours after the hour of so purchasing, taking, or receiving:
[Emphasis added.]
[26] The combined provision in the 1957 Municipal Act stated:
PART X
LICENSING AND REGULATING.
. . .
442. The Council may by by-law provide:
. . .
(j) For requiring all licensed persons purchasing, taking in barter, or receiving used or second-hand goods to notify the Chief Constable having jurisdiction in the municipality within twenty-four hours after the purchasing, taking, or receiving of the same, and not to alter the form of, or to sell, exchange, or otherwise dispose of, such goods within seventy-two hours after the hour of so purchasing, taking, or receiving:
The 1957 provision is not significantly different from s. 59(1)(b) of the Community Charter.
[27] The notification power is a specific power that “can be read as coming within” the general power to regulate business granted by s. 8(6). Indeed, it must be read that way if regard is had to the other powers conferred by s. 59 within the part of the Community Charter entitled “Division 9 – Business Regulation”. Thus, s. 4(2) applies and
. . . the general power must not be interpreted as being limited by that specific power, but that aspect of the general power that encompasses the specific power may only be exercised subject to any conditions and restrictions established in relation to the specific power.
[Emphasis added.]
[28] The coordinate clause is fundamental. But s. 59(1)(b) does not impose any explicit conditions or restrictions in relation to the notification power. It makes clear that the general power to regulate a business includes the power to require notification of the police of the “taking in or receiving of used or second hand goods” and the power to prohibit alteration or disposition of those goods during a fixed time period. Necessarily implicit in the notification power must be the power to require disclosure of information identifying the goods. In my view, the fundamental question on this appeal is whether disclosure of some or all of the additional information can be seen as implicit in or necessarily incidental to that power, in the context of all the provisions of the Community Charter designed to give a municipality broad powers to protect the local public interest.
[29] New Westminster asks this Court to find its interpretation of s. 59(1)(b) of the Community Charter reasonable in the context of its powers and duties. It reasons that the prevention of conditions that foster crime comes within its power to regulate business and is the purpose underlying the grant of the notification power in relation to second hand goods. It suggests the listing of goods on their receipt is not enough to accomplish that purpose because, without reference to the person providing the good, the listing has no deterrent effect. Moreover, prompt automatic disclosure to the police is needed to provide an “efficient and appropriate means” by which the police may investigate potential crimes and reunite stolen goods with their owners; a requirement for “after-the-fact” warrants to review the list against missing or stolen property would be inefficient. In New Westminster’s view, any improper use of the information disclosed can be remedied on an application under ss. 7 and 24 of the Charter by the person whose rights are affected.
[30] In support of these propositions, New Westminster cites Bédard v. Dawson, [1923] S.C.R. 681 at 684-85, 40 C.C.C. 404, Patterson v. British Columbia (Attorney General) (1999), 70 B.C.L.R. (3d) 240 at paras. 21-25, 29, 60-61, 1999 BCCA 645 and Perry v. Vancouver (City) (1990), 48 B.C.L.R. (2d) 342 (S.C.), rev’d (1994), 88 B.C.L.R. (2d) 328 (C.A.), leave to appeal to S.C.C. refused (13 October 1994).
[31] From the perspective of Royal City and the BCCLA, in addition to its facilitation of the investigation of property theft, the Bylaw effectively creates for the police a database of personal information that permits a “fishing expedition” among the class of persons who use pawn brokers for credit as others use a bank. This, they argue, the Legislature did not intend to authorize or sanction, as is apparent when s. 59(1)(b) is read together with the provisions of FIPPA and PIPA.
[32] The first difficult question for this Court is whether the chambers judge erred in finding in the purpose of the general power (to regulate business in the public interest) reason to reject what she called a “restrictive” interpretation of the notification power. I do not accept that epithet. In my view, the ordinary meaning to be taken from s. 59(1)(b) in its context is that to which I adverted earlier in these reasons. The Legislature is conferring on municipal councils the specific power to require pawn brokers and others dealing in second hand goods to notify the local police of the receipt of goods, thereby ensuring the power to regulate business includes the power to require the listing of those goods, undoubtedly, as both parties and the intervenors agree, for the purposes of deterring the fencing of stolen property and returning such goods to their owners.
[33] While there is no mention in s. 59(1)(b) of the persons from whom those goods were received, I agree with New Westminster that the deterrent effect of listing goods would be minimal if the identity of the person delivering the goods was not obtained, verified and recorded. Thus, it is possible to see the recording of the borrower/seller’s name and address and the means of verifying identity (photo ID) as necessarily incidental to the Legislature’s purpose in delegating the notification power to municipal councils. However, the mandatory transfer of that personal information (in respect of borrowers and sellers) to municipal police, even in the complete absence of any criminal suspicion, is not necessarily incidental to that purpose. Moreover, a link between the Legislature’s deterrent purpose and the other personal information required to be obtained and recorded is not evident. The record discloses no reason, related to the deterrent purpose of s. 59 (1)(b) or the Bylaw or otherwise, for the inclusion of occupation, birth date, height, build, or weight of the borrower/seller or the particulars of the vehicle in which the goods arrived at the business premises (“the additional information”).
[34] While it is arguable the additional information is useful in the investigation of potential property crimes and perhaps in locating persons of interest to the police for a variety of reasons, there is nothing in the Community Charter to suggest that municipal councils have either the duty or the power to require the creation of databases for these purposes. Such a requirement goes far beyond any reasonable understanding of either the general power to regulate (or make rules about the conduct of) a business activity or the specific power to require certain suspect businesses to provide information about transactions to the local police. Indeed, I question whether any municipality ever considered such a wide-ranging bylaw before the arrival of the computer. Certainly, the benefits in efficiency of data analysis New Westminster’s counsel emphasized in his oral submissions would not have been a factor in the enactment of the original provision in 1957.
[35] In my view, New Westminster, like the City of Fredericton, stretched the ordinary meaning of the words of s. 59(1)(b) and the purpose they reflect beyond what they can reasonably bear in an attempt to take advantage of the communication and analytical ability of computers to provide its police with an added investigative tool. However socially desirable such an initiative might be, the design of such a tool would ordinarily be influenced by considerations that underlie the provincial and federal privacy protection legislation and undoubtedly its authorization would be the express subject of a provision in the Community Charter. Thus, I conclude the requirement to collect, record and transmit that additional information to the police is beyond the power of New Westminster, because it is not granted by the Community Charter or any other enactment.
[36] The next question is whether the disclosure to the police of the information regarding the identity of the borrower/seller is necessarily (or even reasonably) incidental to the purpose of the grant of the notification power. My answer flows directly from my reasoning on the provision of the additional information. The Legislature did not provide specifically for the collection or transmission to the police of any personal information about the borrower/seller of the second hand goods. There is no evident link between the automatic transmission of the identity of the borrower/seller to the police and the preventive or deterrent purpose underlying the s. 59(1)(b) grant of power to a municipal council. The deterrence comes with the requirement to divulge and prove one’s identity when disposing of goods and the knowledge a record is being made and kept. The automatic transmission of that information to the police is for reasons of efficiency in police investigation, not incidental to the deterrent purpose of s. 59(1)(b). It follows I am also persuaded the requirement to provide the personal information to the police is beyond New Westminster’s delegated authority.
[37] The next question is whether the parts of the Bylaw within New Westminster’s legislative competence can be saved by severing the illegal parts as permitted by s. 262(1) of the Local Government Act, R.S.B.C. 1996, c. 323. The appellant seeks a declaration that ss. 5, 6, 7 and 8 (the disclosure provisions) of the Bylaw are ultra vires in whole or at least insofar as they require disclosure of the information obtained under s. 4 (iii) and (iv) of the Bylaw.
[38] Taking the advice found in Ian Mac F. Rogers, Q.C., The Law of Canadian Municipal Corporations, 2nd. ed., looseleaf (Toronto: Thomson Canada Limited, 2003) at 1034.6-1034.8, I have decided the Bylaw is not amenable to severance. While I am persuaded New Westminster would likely have passed a bylaw that comes within its authority, and the good can be relatively easily distinguished from the bad, I have not found it possible to formulate the Bylaw so that it “will still remain a perfect and complete by-law capable to being enforced,” without making policy decisions that are not appropriate for this Court. The parts are sufficiently inter-related that the whole must be quashed, in my view.
[39] For these reasons, I would allow the appeal and quash the Bylaw, with costs to the appellant in this Court and the Supreme Court.
“The Honourable Madam Justice Huddart”
I agree:
“The Honourable Madam Justice Saunders”
I agree:
“The Honourable Mr. Justice Chiasson “