R. v. Konahov

R. v. Konahov Collection Decisions of the Court of Appeal Date 2004-01-16 Docket numbers C38445 Judges Weiler, Karen Merle Magnuson; Abella, Rosalie Silberman; Simmons, Janet M. Subject Criminal Decision Content DATE: 20040116 DOCKET: C38445 COURT OF APPEAL FOR ONTARIO WEILER, ABELLA and SIMMONS JJ.A. BETWEEN: HER MAJESTY THE QUEEN (As represented by The Corporation of the City of Brantford) Appellant - and - ALEKSANDAR SASHA KONAKOV Respondent Larry G. Tansley and Patricia A. Lester, for the appellant Joseph W. Irving and Neil C. Searles, Intervenors Aleksandar Sasha Konakov,the respondent in person Heard: November 18, 2003 On appeal from the order of Justice W. Brian Stead of the Ontario Court of Justice dated April 11, 2002. WEILER J.A.: [1] This appeal concerns the validity of the City of Brantford's ("the City") omnibus zoning By-law No. 160-90 ("the By-law"), passed pursuant to paragraph 1 of s. 34(1) of the Planning Act, R.S.O. 1990, c. P.13. The By-law does not provide for the existence of a body rub parlour as a specific use in any area of the City. [2] Mr. Konakov operates a body rub parlour at 450 St. Paul Street in the City under the name of Marilyn. As a result of a complaint, the City met with Mr. Konakov and then sent him a letter dated April 18, 2000. It states in part: All property within the City of Brantford is regulated by Zoning Bylaw 160-90 which does not permit a Body Rub Parlour at any location. …. During our meeting, we advised you that you may make application to have Zoning Bylaw 160-90 amended to permit this use and provided you with the necessary application form. We also advised you that an application must be accompanied by written consent from the property owner and further that there is no guarantee that your application will be approved. In addition, I advised you at this meeting that this illegal use must cease immediately and not commence operation again unless your application for rezoning of the property is approved to permit this use. The City also sent a copy of the letter to the registered owners of the property. [3] Mr. Konakov did not cease to operate the body rub parlour and the City charged him with violating the By-law. At his trial before Justice of the Peace Shortell, he argued that the By-law was invalid for being vague and prohibitory. The Justice of the Peace held that, "[A] Municipality does not have the power to prohibit what is an otherwise lawful activity." He held the By-law invalid and dismissed the charges against Mr. Konakov. Having decided that the By-law was invalid because it was prohibitory, he did not deal with the vagueness argument. [4] The City appealed. It argued that the Justice of the Peace referred to and relied on a decision respecting the Municipal Act, R.S.O. 1990, c. M.45 in his reasons and did not consider the differences in wording of the Planning Act. [5] The powers of "licensing, regulating, governing, classifying and inspecting" contained in s. 225 of the Municipal Act relating to adult entertainment parlours do not include the power to prohibit what is an otherwise lawful activity: Treesann Management Inc. v. Richmond Hill (Town) (2000), 47 O.R. (3d) 221 (Ont. C.A.). Section 34(1) of the Planning Act, on the other hand, does allow a local municipality to pass a by-law, "For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas". [6] Justice Stead rejected the City's argument that By-law 160-90 was a valid exercise of its power under s. 34(1) of the Planning Act. He held at paras. 7 and 8: To allow a municipality this unfettered discretion could, in my opinion, lead to potentially absurd results. It gives them the power to decide they do not want any churches or gas stations or any number of otherwise lawful activities within their corporate limits and thus pass bylaws to prohibit them entirely. Surely this could not have been the intent of the legislature when it enacted the Planning Act. I believe that the legislature in allowing the municipality to prohibit land uses within its boundaries intended that the same be used to regulate the use of land within the municipality by prohibiting land uses in areas within its limits, but not to prohibit entirely within its boundaries what is otherwise a lawful activity. The same, in my opinion, is an unreasonable interpretation of s. 35 of the Planning Act and leads to absurd results. I fail to see how a prohibitory bylaw passed under the guise of a licence is different from one passed under a zoning bylaw. [7] With respect to the appeal judge, the issue before him was whether the City had the authority to pass the By-law at issue, not whether the By-law was reasonable. The decision of Rogers v. City of Toronto (1915), 33 O.L.R. 89 cited with approval in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 at para. 94 stands for the proposition that, in reviewing the exercise of municipal power on the basis of jurisdiction to pass a by-law, courts ought not to assess the reasonableness of a particular exercise of municipal power. That is a different issue. Further, the doctrine of unreasonableness permitting the declaration of invalidity of municipal by-laws is a limited one such as where it can be shown that the by-law was enacted in bad faith or discriminates in a manner that was unrelated to a valid planning purpose: R. v. Bell, [1979] 2 S.C.R. 212; Re H.G. Winton Ltd. and Borough of North York (1979) 88 D.L.R. (3d) 733 (Ont. Div. Ct.). See also Canadian Municipal and Planning Law (Ontario: Carswell, 1983) by Stanley Makuch at 201 and 207. A by-law, otherwise enacted for proper municipal purposes, is not unreasonable or invalid merely because it contains a moral element: Nova Scotia (Board of Censors) v. MacNeil, [1978] 2 S.C.R. 662. [8] In the end, the appeal judge appears to have decided the appeal on the basis that the zoning By-law in issue was no different than "a prohibitory by-law passed under the guise of a licence." For the reasons that follow I would respectfully disagree with the appeal court judge's characterization and conclusion respecting the By-law. [9] I begin by noting that the party challenging a by-law's validity bears an evidentiary burden of proving that it is ultra vires: see Kuchma v. Tache [Rural Municipality], [1945] S.C.R. 234 at 239, and Montréal (City) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368 at 395. [10] The proper approach to assessing the validity of a municipal by-law is set out in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, where, in dealing with the validity of a by-law purporting to ban the use of pesticides throughout the City, L'Heureux-Dubé J. stated: In R. v. Sharma, [1993] 1 S.C.R. 650, at p. 668, this Court recognized "the principle that, as statutory bodies, municipalities 'may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation' (Makuch, Canadian Municipal and Planning Law (1983), at p. 115)". Included in this authority are "general welfare" powers, conferred by provisions in provincial enabling legislation, on which municipalities can draw. As I. M. Rogers points out, "the legislature cannot possibly foresee all the powers that are necessary to the statutory equipment of its creatures.... Undoubtedly the inclusion of 'general welfare' provisions was intended to circumvent, to some extent, the effect of the doctrine of ultra vires which puts the municipalities in the position of having to point to an express grant of authority to justify each corporate act" (The Law of Canadian Municipal Corporations (2nd ed. (loose-leaf)), Cum. Supp. to vol. 1, at p. 367). [11] Similarly, in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 at para. 36, the Supreme Court quoted with approval the following statement by McLachlin J. in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 at 244: Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which this Court referred to in Greenbaum, [[1993] 1 S.C.R. 674] and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives [emphasis added by McLachlin J.]. [12] With this background in mind, it is appropriate to consider what a zoning by-law does. In "An Introduction to Zoning Enabling Legislation" (1962) 40 Can. Bar Rev. 1 at 2, Professor J.B. Milner states: A zoning by-law does two things, usually: it classifies and segregates into particular districts or areas or zones the various uses of land and buildings that are permitted by the by-law, all other uses being prohibited; and it regulates the permitted uses in varying degrees depending upon attendant circumstances. [13] The By-law in question is an example of the more open-ended or "omnibus" provisions that allow municipalities to respond expeditiously to challenges facing local communities concerning the use of land. As I.M. Rogers elaborates in The Law of Canadian Municipal Corporations, Cum. Supp to vol. 2, 2nd ed., loose- leaf (Toronto: Carswell, 1971) at § 138.11: Councils in Ontario are authorized by the Planning Act to regulate by by-law, for or except for certain specified purposes, the use of land within the municipality or within such areas or abutting on such highways or parts thereof as are defined in the particular by-law. The council can prescribe only one purpose in a by-law as a permitted use. Conversely it can in its by-law single out and prohibit a single use. Such by-laws are exclusionary ones and prohibit any use of land or building except for those defined as permitted uses so that any use that is not specifically permitted is excluded. A by-law which prohibits all uses except permitted uses does not make it prohibitory. It is a sensible and convenient way of regulating zones within the municipality. [emphasis added] [14] Where, for example, an area is zoned for agricultural uses, a municipality has the power to refuse to amend its zoning by-law to allow a church to be built where the proposed use does not comply with the official plan, zoning by-laws, government policies and the proposed use is available in an adjacent town: Jehovah's Witnesses v. South Easthope (Township) (1995), 32 O.M.B.R. 143. The fact that some churches were permitted in other agricultural zones did not amount to impermissible discrimination under the Canadian Charter of Rights and Freedoms respecting religious freedom because this freedom is subject to the limitation that the rights and freedoms of others be considered. [15] The current official plan for Brantford does not include any specific policies related to a body rub parlour. The use, however, can be considered to be a personal service use which is included in the list of uses under the "General Commercial" land use designation in the Official Plan. [16] The City's Comprehensive Zoning By-law No. 160-90 was enacted pursuant to s. 34 of the Planning Act and affects all lands within the corporate limits of the City. The By-law includes 33 categories of zones. Each category identifies specific uses that are permitted. Uses that are not specifically identified or permitted in the zone category are prohibited. The exclusionary nature of such zoning by-laws means that not all uses will be permitted. [17] The respondent argues that the By-law in question imposes an impermissible absolute ban on body rub parlours. This is because the By-law, while defining a body rub parlour, does not specifically permit body rub parlours in any zone. Instead, the respondent would be required to, first, obtain the consent of the owner of the premises to operate a body rub parlour and, second, to apply to Municipal Council for an amendment to the By-law respecting commercial uses which would have the effect of permitting him to operate a body rub parlour. This is not the same as if council passed a by-law positively banning body rub parlours in all zones. It may be inferred that the purpose of an omnibus by-law requiring an application for a site-specific amendment is to enable council to consider the impact of the proposed use on a case by case basis having regard to considerations such as whether the proposed use would be suitable and compatible with other properties in the area, affect property values,[1] create a nuisance or would otherwise affect the general welfare of its citizens. In addition, conditions designed to meet concerns relating to the proposed use, could be imposed as a prerequisite to approval of the proposed use. [18] Through zoning by-laws a municipality chooses the type of uses it will permit in certain or all parts of land under its jurisdiction and so long as there are proper planning grounds or standards to warrant these distinctions, this is a valid exercise of jurisdiction. A municipality will not be permitted to invoke the implicit power granted in order to enact by-laws that are in fact related to ulterior objectives: Spraytech, supra. Such a by-law must be approached with caution. The City had jurisdiction to enact the By-law it did subject to the purpose of the By-law being shown to be an improper one. [19] Support for my conclusion is found in the decision in Cunningham v. Regina (City) (1994), 110 D.L.R. (4th) 640 (Sask. C.A.) and the text Municipalities and Canadian Law: Defining the Authority of Local Governments (Saskatoon, Saskatchewan: Purich Publishing, 1996) by Felix Hoehn. [20] In Cunningham, supra, the Court held that the city of Regina had the power to prohibit an adult cabaret from operating throughout the municipality pursuant to the Planning and Development Act, 1983 S.S. c. P-13.1. Section 73 of the Act stated, "a zoning By-law may… contain provisions: (a) prescribing with respect to each district…(ii) if necessary, the prohibited uses of land or buildings or prohibited forms of development" [emphasis added]. Lane J.A. held at p. 644: Municipalities, in the interest of their inhabitants and after appropriate consideration, list the permitted uses for each zone with all other uses being prohibited. Indeed, it would be practically impossible to require municipalities to create a list of every possible use of land. The combined operation of ss. 66 and 73(a)(ii) give municipal council broad general powers to adopt a zoning by-law; however, those powers expressly include the power to prohibit uses. In my view, s. 73(a)(ii) simply confirms the general scheme; that is, uses are prohibited unless permitted. Council having made such a decision, the court ought to defer to council's determination of the public interest. [21] Academic commentary on this decision has been critical of the Court's extrapolation of the power to prohibit a legal use in every district from the power to prohibit a legal use in "each district": see Municipalities and Canadian Law, supra, at 163-165 and Ryan Remple's article, "1994 Survey of Decisions of the Saskatchewan Court of Appeal" (1995) 59 Sask. L. Rev. 1 at 12. [22] The wording of s. 34(1) of the Planning Act does not present such a problem. Hoehn states at pp. 165-166: Comparable legislation in some other jurisdictions contains wording that could more readily support an interpretation that the prohibition of a use from all areas is within the scope of the zoning power. Ontario, for instance, allows the prohibition of land uses "within the municipality or within any defined area or areas"[2] He cautions however, at p. 166: Even in those jurisdictions where a general power to prohibit a land use is expressly conferred, the prohibition of a use may still be ultra vires if it is discriminatory or in bad faith. Similarly, if a general ban of a use is motivated by considerations of morality, then it may be ultra vires as an infringement of the criminal law power. One might, for instance, speculate that an absolute prohibition of strip clubs may be motivated more by moral objections to the use than by objections strictly related to land use planning. This point was not argued in Cunningham and it appears that no evidence of council's motivation was presented to court. So too, here, there has been no evidence as to council's motivation presented to the court or argument on it. [23] To ensure that a body rub parlour could not operate under the definition of "health club" or "home occupation" and to clarify the difference between a body rub parlour and a licenced practitioner such as a registered massage therapist or health professional defined under the Regulated Health Professionals Act, S.O. 1991, c. 18, a definition of a body rub parlour was added to the omnibus By-law in 1993. The core of the zoning By-law, that an application must be made for site-specific amendment to the By-law to permit a prohibited use, remained. Prior to this amendment, Council repealed a By-law enacted under the Municipal Act that had stipulated the licensing requirements for a body rub parlour. I am not prepared to infer any improper discriminatory purpose to Council from the mere fact of these amendments. [24] The respondent relies on the decision of this Court in Treesann, supra, which held that a by-law enacted under the Municipal Act could not offer an illusory licensing scheme that prohibited adult entertainment parlours in the Town. Carthy J.A., on behalf of the Court, held that the by-law was prohibitory and beyond the authority of the municipality. As I have indicated, the wording of the two pieces of legislation indicates that the powers conferred under the Municipal Act are different than the powers conferred under the Planning Act and these differences must be accorded meaning. Furthermore, the type of by-law at issue here is not, as the passage cited from Rogers, supra, indicates, characterized as a prohibitory by-law. I also note that the use at issue in Treesann involved an existing use and the by-law in issue affected existing rights. Here we are not dealing with an existing right or non conforming use. Further, in Treesann, Carthy J.A. commented at p. 226 that the applicant was "still faced with the prospect that the Town will process proper by-laws, with due process, and directed to its original purpose of eliminating adult entertainment from the Yonge corridor." [25] In the event that the respondent obtains the consent of the owner to operate a body rub parlour and applies for an amendment to the By-law and the City denies the application, the respondent has a right of appeal to the Ontario Municipal Board: Russell v. Toronto (City), [2000] 52 O.R. (3d) 9 (C.A.). The Ontario Municipal Board has jurisdiction to deal with the validity of a by-law: Toronto (City) v. Goldlist Properties Inc., [2003] O.J. No. 3931 (C.A.). It would also have jurisdiction to deal with a refusal to amend the By-law to permit a site specific use on the basis the refusal was not related to a legitimate planning purpose or otherwise amounted to impermissible discrimination. [26] Before us, there was no dispute that if the City had jurisdiction to enact the By-law in issue, the respondent was guilty as charged of operating a body rub parlour in a C8 General Commercial Zone prohibited under s. 9.8.1 of Zoning By-law No. 160-90 and contrary to s. 67 of the Planning Act. Having found that the City had the jurisdiction, for the reasons given I would allow the appeal, set aside the acquittal and order that a conviction be registered. RELEASED: January 16, 2004 ("KMW") "Karen M. Weiler J.A." "I agree R. S. Abella J.A." "I agree Janet M. Simmons J.A." [1] Zoning by-laws are remedial in character in that one of their objects is to preserve existing property from depreciation: Toronto (City) v. Williams (1912), 27 O.L.R. 186 at 191 (H.C.J. Div Ct.); Re Dinnick and McCallum (1913), 11 D.L.R. 509 (Ont. Sup. Ct. App. Div.). [2] It is important to appreciate the distinction between a by-law which prohibits any use of land and a by-law which prohibits a specific type of use from all areas of the municipality. For instance, in Soo Mill & Lumber Co. Ltd. v. City of Sault Ste. Marie, [1973] 2 O.R. 110 (C.A.) aff’d [1975] 2 S.C.R. 78, the court considered the validity of an official plan which temporarily designated certain areas under a “holding category” - effectively prohibiting any use of the land. The By-law was nonetheless upheld. See also Hartel Holdings Co. Ltd. v. Calgary (City), [1984] 1 S.C.R. 337.