R. v. Sharma, [1993] 1 S.C.R. 650

Des Raj Sharma Appellant

v.

Her Majesty The Queen Respondent

and

Municipality of Metropolitan Toronto Respondent

Indexed as: R. v. Sharma

File No.: 22332.

1992: April 28; 1993: February 25.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Stevenson* and Iacobucci JJ.

on appeal from the court of appeal for ontario

Municipal law ‑‑ Municipal by‑laws ‑‑ Validity ‑‑ Municipal by‑law scheme purporting to license street vending ‑‑ Licences for sidewalk use available only to owners or occupiers of abutting property ‑‑ Whether distinction between street vendors and owner/occupant vendors authorized by legislation ‑‑ Municipality of Metropolitan Toronto By‑laws 97‑80, 211‑74 ‑‑ City of Toronto By‑law 618‑80 ‑‑ Municipal Act, R.S.O. 1990, c. M.45, s. 310.

Criminal law ‑‑ Wilfully obstructing peace officer ‑‑ Street vendor disobeying peace officer's order to remove wares from sidewalk ‑‑ Peace officer seeking to enforce municipal by‑law later found to be ultra vires ‑‑ Whether conviction for obstructing a peace officer can stand -- Criminal Code, R.S.C., 1985, c. C‑46, s. 129.

Appellant, a flower vendor in Toronto, was charged with exposing goods for sale on the street without a licence contrary to s. 11 of Metro By‑law 211‑74. Through By‑law 97‑80, Metro delegated to the city of Toronto the authority to license the use of sidewalks. Pursuant to this delegated authority, Toronto By‑law 618‑80 allows an owner or occupant of abutting land to apply for a licence to use the sidewalk. Since appellant does not own or occupy abutting land he could not apply for a licence. He was also charged with obstructing a peace officer contrary to s. 129 of the Criminal Code after he failed to obey the officer's instruction to pack up his display and move on. He was convicted of both offences. The District Court upheld the convictions. The Court of Appeal, in a majority judgment, dismissed the appellant's further appeal on both charges. It concluded that the regulatory distinction between street vendors and store vendors did not detract from the scheme's validity because regulatory schemes, by their very nature, are not intended to permit all persons to participate in the regulated activity. On the criminal charge, it found that the police officer had both common law and statutory authority to enforce the by‑law, and that the existence of other avenues of relief did not erode this authority.

Held: The appeal should be allowed. The appellant's convictions on the by‑law and criminal charges should be set aside and acquittals entered instead.

The power to pass municipal by‑laws does not entail that of enacting discriminatory provisions unless the enabling legislation authorizes such discriminatory treatment. Discrimination in the municipal law sense is no more permissible between than within classes. The general reasonableness or rationality of the distinction is not at issue: discrimination can only occur where the enabling legislation specifically so provides or where the discrimination is a necessary incident to exercising the power delegated by the province. Here, the distinctions between free‑standing street vendors and owner/occupant vendors contained in Metro By‑law 97‑80 and City of Toronto By‑law 618‑80 are not authorized by the Municipal Act and these by‑laws are accordingly ultra vires the municipalities. For the reasons given in R. v. Greenbaum, s. 11 of Metro By‑law 211‑74 is also ultra vires the municipality.

In charging the appellant with obstructing a peace officer, the officer in question was attempting to enforce s. 11 of Metro By‑law 211‑74. Since that provision has been held to be ultra vires the municipality, the appellant's conviction for obstructing a peace officer cannot stand. Further, even if s. 11 of Metro By‑law 211‑74 were valid, the power to arrest in order to enforce the by‑law cannot be inferred in the face of clear language in the Municipal Act and the Provincial Offences Act setting out more moderate means of dealing with repeated infractions. The officer had no authority, either at common law or under statute, to arrest the appellant for failing to comply with an order to desist from conduct prohibited by the by‑law and could not circumvent the lack of an arrest power by charging him with obstruction.

Cases Cited

Applied: R. v. Greenbaum, [1993] 1 S.C.R. 000; distinguished: R. v. Biron, [1976] 2 S.C.R. 56; referred to: R. v. Varga (1979), 51 C.C.C. (2d) 558; Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Johanson v. The King (1947), 3 C.R. 508.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 15(1).

City of Toronto By‑law 618‑80, s. 1(1).

Criminal Code, R.S.C. 1970, c. C‑34, s. 118.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 129, 495.

Municipal Act, R.S.O. 1980, c. 302, ss. 210, paras. 66, 134; 310; 315, para. 1; 326.

Municipal Act, R.S.O. 1990, c. M.45, ss. 210, paras. 73, 140; 310; 314(1), para. 1; 327.

Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62 [formerly R.S.O. 1980, c. 314], s. 90.

Municipality of Metropolitan Toronto By‑law 97‑80, s. 1(1), Schedule "A".

Municipality of Metropolitan Toronto By‑law 211‑74, ss. 11, 11a, Schedule "A".

Police Act, R.S.O. 1980, c. 381, s. 57 [rep. 1990, c. 10, s. 148(1)].

Provincial Offences Act, R.S.O. 1980, c. 400, ss. 3, 23.

Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 3, 23.

Authors Cited

Makuch, Stanley M. Canadian Municipal and Planning Law. Toronto: Carswell, 1983.

Rogers, Ian MacF. The Law of Canadian Municipal Corporations, vol. 1, 2nd ed. Toronto: Carswell, 1971.

APPEAL from a judgment of the Ontario Court of Appeal (1991), 44 O.A.C. 355, 77 D.L.R. (4th) 334, 62 C.C.C. (3d) 147, 3 C.R. (4th) 195, 3 M.P.L.R. (2d) 1, affirming a decision of Lang Dist. Ct. J. (1989), 7 W.C.B. (2d) 430, affirming appellant's conviction of violating a municipal by‑law and a decision of Crossland Dist. Ct. J. affirming his conviction of obstructing a police officer. Appeal allowed.

Alan D. Gold, for the appellant.

Milan Rupic, for the respondent Her Majesty The Queen.

George Monteith and Robert Avinoam, for the respondent the Municipality of Metropolitan Toronto.

//Iacobucci J.//

The judgment of the Court was delivered by

Iacobucci J. -- This appeal raises two issues. The first is the validity of municipal by-laws which purport to license street vending under which the appellant was charged (the by-law charge). The second is whether the appellant should have been convicted on a charge of wilfully disobeying the instructions of a police officer when the police officer sought to enforce a municipal by-law, later found to be ultra vires, by ordering the appellant to desist from conduct prohibited by the by-law (the criminal charge).

I. Facts

The facts are basically quite simple. On March 24, 1988, the appellant, Des Raj Sharma, was employed as a flower vendor in the city of Toronto, Ontario. He was displaying his wares on Yonge Street near Dundas Street when he was approached by Constable Coulis of the Metropolitan Toronto Police. Constable Coulis informed the appellant that exposing goods for sale on the street without a licence violated s. 11 of Municipality of Metropolitan Toronto By-law 211-74. The appellant was issued a Provincial Offences ticket and instructed to pack up his display and move on. Constable Coulis allowed the appellant a brief grace period to check with his employer or lawyer if he was uncertain about moving, but told him that if he was still there when the officer returned, he would face criminal charges of obstructing the police.

The appellant contacted his employer and was told that he was not to move. The appellant was still operating on the street upon Constable Coulis's return. Accordingly, the appellant was charged with obstructing a peace officer contrary to s. 129 of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 118). He was convicted of both offences under the by-law charge and the criminal charge in Provincial Court. His appeals to District Court were dismissed. A further appeal on both charges to the Ontario Court of Appeal, heard in conjunction with an appeal in R. v. Greenbaum (reasons in which are being released concurrently herewith), was also dismissed, Arbour J.A. dissenting: (1991), 44 O.A.C. 355, 77 D.L.R. (4th) 334, 62 C.C.C. (3d) 147, 3 C.R. (4th) 195, 3 M.P.L.R. (2d) 1. The matter comes to this Court by way of leave, [1991] 1 S.C.R. xiv.

II. Relevant Statutory Authority

The Municipality of Metropolitan Toronto ("Metro") is a municipal corporation governed by the provisions of the Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62. Within Metro, there are a number of area municipalities, one of which is the city of Toronto. Metro's powers are exercised by its council by enacting by-laws. Two of these by-laws purport to confer upon area municipalities the power to license street vendors: Metro By-laws 211-74 and 97-80. Sections 11 and 11a of Metro By-law 211-74 provide:

11. No person shall, without lawful authority, place or expose goods, wares or merchandise or articles of any kind upon any metropolitan road allowance or hang or put up any goods, wares or merchandise, or other articles outside of any building so that the same shall project over any portion of a metropolitan road allowance.

11a (1) The council of each of the area municipalities set out in Schedule "A" to this By-Law is hereby empowered to lease or license the use of sidewalks and untravelled portions of Metropolitan roads within those portions of such area municipality in which land may be used for commercial or industrial purposes, to the owners or occupants of adjoining property for such purposes as the said council may by lease or license permit, and for such consideration and upon such terms and conditions as may be agreed. [Section 11a was added through Metro By-law 115-77.]

Schedule "A": the Borough of East York, the Borough of Etobicoke, the Borough of North York, the Borough of Scarborough, and the Borough of York

Section 11a(1) permits scheduled area municipalities to grant licences to the owners or occupiers of property which abuts Metropolitan roads. The city of Toronto was removed from Schedule "A" in March of 1978, with the result that s. 11a had no application to the city of Toronto at the time the appellant was charged.

However, through Metro By-law 97-80, Metro delegated to scheduled area municipalities the authority to lease or license the use of sidewalks and untravelled portions of Metropolitan roads. The city of Toronto was included in Schedule "A" to this by-law. Metro By-law 97-80 provides:

1. (1) Notwithstanding the provisions of By-law No. 211-74, as amended, the Council of each of the area municipalities set out in Schedule "A" to this By-law is hereby empowered to lease or license the use of sidewalks and untravelled portions of Metropolitan roads within those portions of such area municipality in which land may be used for commercial or industrial purposes to the owners in possession or the occupants of adjoining properties for the purposes of:

(a) display of merchandise;

(b) operation of boulevard cafes;

(c) installation of bicycle stands;

(d) holding of sidewalk sales.

Schedule "A": the city of Toronto, the city of North York

The city of Toronto exercised its delegated power by enacting By-law 618-80. Section 1(1) of that By-law reads as follows:

1.(1) An owner or occupant of land used for commercial or industrial purposes which abuts on the sidewalk or untravelled portion of a Metropolitan road within the City of Toronto may apply to the Commissioner of Public Works and the Environment to lease or license the use of such sidewalk and untravelled portion of the Metropolitan road within the City of Toronto for the purposes of:

(a) display of merchandise;

(b) operation of boulevard cafes;

(c) installation of bicycle stands;

(d) holding of sidewalk sales.

The effect of By-law 618-80 is that only vendors who own or occupy abutting property can apply for licences to sell on the street.

The Court of Appeal held that the statutory basis for s. 11 of Metro By-law 211-74 was to be found in ss. 314(1), para. 1 and 210, para. 140 of the Municipal Act, R.S.O. 1990, c. M.45 (formerly ss. 315, para. 1 and 210, para. 134):

314. -- (1) The councils of all municipalities may pass by-laws:

315. For prohibiting or regulating the obstructing, encumbering, injuring or fouling of highways or bridges.

316. By-laws may be passed by the councils of local municipalities:

317. For prohibiting and abating public nuisances.

This appeal also raises the issue of the applicability of s. 310 of the Municipal Act, which states:

310. By-laws may be passed by the council of every local municipality,

(a)for leasing or licensing the use of untravelled portions of highways under the jurisdiction of the council, except highways that are extensions or connecting links of the King's Highway, to the owners or occupants of adjoining property for such consideration and upon such terms and conditions as may be agreed;

(b)for regulating and controlling the use, including the use for parking purposes, of untravelled portions of highways under the jurisdiction of the council that are not extensions or connecting links of the King's Highway, which are leased or in respect of which a licence is granted under clause (a).

The appellant was also charged with the following Criminal Code offence:

Criminal Code, R.S.C., 1985, c. C-46:

129. Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

is guilty of

(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(e) an offence punishable on summary conviction.

Other relevant legislation includes the following:

Municipal Act, s. 327 (formerly s. 326):

327. Where any by-law of a municipality or of a local board thereof, passed under the authority of this or any other general or special Act, is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.

Police Act, R.S.O. 1980, c. 381, s. 57 [rep. 1990, c. 10, s. 148(1)]:

57. The members of police forces appointed under Part II, except assistants and civilian employees, are charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the by-laws of the municipality, and apprehending offenders, and commencing proceedings before the proper tribunal, and prosecuting and aiding in the prosecuting of offenders, and have generally all the powers and privileges and are liable to all the duties and responsibilities that belong to constables.

Provincial Offences Act, R.S.O. 1990, c. P.33 (formerly R.S.O. 1980, c. 400):

3.--(1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.

(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and,

(a) an offence notice indicating the set fine for the offence; or

(b) a summons

in the form prescribed under section 13.

23. -- (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.

Criminal Code, s. 495:

495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence;

III. Judgments in the Courts Below

1. Provincial Offences Court (By-law Charge)

Draper Prov. Ct. J. dealt with two challenges raised by the defence to the validity of the by-law scheme. The appellant submitted that Metro did not have jurisdiction to control the sidewalks adjacent to Metro roads, because, based on the wording of the Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62 (formerly R.S.O. 1980, c. 314), the sidewalk running along Yonge Street was not a Metropolitan road. Judge Draper found that Yonge Street had been legally designated a Metropolitan road in accordance with the Municipality of Metropolitan Toronto Act. After considering case law and pertinent legislation, he concluded that the term "road" as used in the Municipality of Metropolitan Toronto Act, was equivalent to the term "road allowance" used in the by-law in question. The term "road allowance" was held to include the sidewalks in the Metro road system, including Yonge Street where the by-law offence took place.

The appellant also alleged that s. 11a of Metro By-law 211-74 violated s. 15(1) of the Canadian Charter of Rights and Freedoms. The appellant contended that street vendors were subject to discrimination under the licensing regime because, unlike owners and occupiers of adjoining property, they were not eligible for leases or licences to expose goods for sale. Judge Draper noted that the municipality had an essential duty to preserve pedestrian access to sidewalks. He observed that s. 11 of Metro By-law 211-74 was authorized by s. 210 of the Municipal Act and that the licensing regime provided Metro with the means to restrict commercial use of sidewalks in order to meet this primary obligation. He concluded that the by-law did not single out the appellant for discriminatory treatment and was, therefore, not in violation of s. 15 of the Charter. The appellant was convicted under s. 11 of Metro By-law 211-74, fined $2,000, and ordered not to sell flowers on a specified portion of Yonge Street for the two years of his probation.

2. Provincial Court (Criminal Division) (Criminal Charge)

In dealing with the criminal charge, Paris Prov. Ct. J. found that the appellant had been provided with notice that he risked criminal sanction if he remained on the sidewalk in contravention of the constable's order to move on. The fact that the appellant had remained on the advice of his employer was not in itself a defence but was a matter to be considered on sentencing. The appellant was convicted but granted a conditional discharge with one year's probation.

3. District Court of Ontario (1989), 7 W.C.B. (2d) 430 (By-law Charge)

On appeal from the by-law infraction conviction, Lang Dist. Ct. J. found that Metro By-law 211-74 was intra vires the regulatory power of Metro under ss. 210, para. 73, 210, para. 140, and 314(1), para. 1 (formerly ss. 210, para. 66, 210, para. 134, and 315, para. 1) of the Municipal Act. While declining to apply the similarly situated analysis employed by the trial judge, she went on to reject the appellant's s. 15 Charter argument. She noted that any discrimination suffered by the appellant was not founded upon an enumerated ground under s. 15(1). She also found that no evidence had been adduced in support of the contention that street vendors formed a class of persons subject to economic disadvantage such that they might be characterized as an analogous group under s. 15. She dismissed the appellant's appeal from his conviction under the by-law.

4. District Court of Ontario (Criminal Charge)

In dismissing the appeal from the obstruction charge, Crossland Dist. Ct. J. determined that Constable Coulis had been acting in the execution of his duty as set out in s. 57 of the Police Act, in enforcing the by-law and in attempting to prevent a continued breach of the by-law. He held that re-charging the appellant with by-law infractions would have been to no avail and that the officer had no means of preventing further breaches other than to lay the obstruction charge.

5. Ontario Court of Appeal (1991), [62 C.C.C. (3d) 147](https://www.canlii.org/en/on/onca/doc/1991/1991canlii8349/1991canlii8349.html)

The appellant's appeals on both charges were heard together at the Ontario Court of Appeal. An appeal in R. v. Greenbaum, [1993] 1 S.C.R. 000, which also dealt with the validity of the impugned by-law scheme, was heard separately by the Court of Appeal, which issued one set of reasons for all three appeals.

On behalf of the majority, Osborne J.A. began by pointing out that the lower courts had erred in failing to note that the city of Toronto was not one of the scheduled municipalities referred to in s. 11a of Metro By-law 211-74. However, he found that error had little significance because the combined effect of Metro By-laws 211-74 and 97-80, and City of Toronto By-law 618-80, was to include the city of Toronto in the scheme. Both the majority and the dissent found that these by-laws had been validly enacted under ss. 210, para. 140 and 314(1), para. 1 (formerly ss. 210, para. 134, and 315, para. 1) of the Municipal Act and that the Charter arguments were without merit.

Before the Court of Appeal, the appellant argued that the licensing scheme was discriminatory in the municipal law or administrative law sense because it impermissibly distinguished between street vendors and owners or occupants of property adjoining the street. Osborne J.A. considered the distinction in the context of the nuisance addressed. He found that Metro had a legitimate interest in keeping its roads and sidewalks unobstructed and that the broad purpose of Metro By-law 211-74 was to prohibit and regulate that interest. As for the distinction between street vendors and store vendors, he found that any distinction in treatment was not discriminatory because the two were different classes of vendors (at pp. 156-57):

In my opinion, there are significant differences between street vendors, such as the appellants, and vendors who own or occupy abutting commercial property; owner/occupant vendors may, by licence issued on occasion, under the provisions of By-law 618-80, display their goods and wares on the sidewalk and hold sidewalk sales, within defined areas. They generally seek short term specific uses of an abutting sidewalk. They are required to pay business property and utility taxes. Street vendors are not. Owners and occupants of abutting properties are required to clear sidewalks of ice and snow. Street vendors have no such obligation. I think that it is entirely reasonable to draw a distinction between store vendors and street vendors such as the appellants. They are not members of the same class.

Osborne J.A. distinguished both R. v. Varga (1979), 51 C.C.C. (2d) 558 (Ont. C.A.), and Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368, from the present case because in those cases the municipalities had impermissibly discriminated within a class specified by the provincial legislature. He concluded that the regulatory distinction between street vendors and store vendors did not detract from the scheme's validity because regulatory schemes, by their very nature, are not intended to permit all persons to participate in the regulated activity.

On the criminal charge, Osborne J.A. found that the police officer had both common law and statutory authority to enforce the by-law, founded upon the decision of this Court in Johanson v. The King (1947), 3 C.R. 508, and s. 57 of the Police Act. He rejected the contention that the obstruction charge amounted to double jeopardy for the same act and that the prevention of a repetition or continuation of the appellant's breach of Metro By-law 211-74 should have been achieved by resort to the offences and penalties contained within the by-law itself, or by resort to injunctive relief as contemplated by s. 327 (formerly s. 326) of the Municipal Act. He held that the existence of other avenues of relief did not erode the officer's authority to seek to enforce the by-law.

In her dissent, Arbour J.A. disagreed with the majority's conclusion that Metro By-law 97-80 and City of Toronto By-law 618-80 were not discriminatory. Arbour J.A. held that, even if the distinction between free-standing street vendors and owners/occupiers of abutting property was reasonable, this was not conclusive of the by-laws' validity. She stated that it is a well-established rule of administrative law that the power to enact by-laws does not include the power to enact discriminatory by-laws unless the enabling legislation provided for the discrimination directly or by necessary implication. She defined discrimination in the administrative law sense as the drawing of a distinction by a subordinate authority that is not authorized by the enabling legislation, relying upon the decision of this Court in Montréal (City of) v. Arcade Amusements Inc., supra. In her view, the issue to be addressed was not whether the distinction in the by-laws was reasonable given the context of the nuisance involved, but whether the distinction is authorized. She noted that what has been called the "neutral rule of discrimination" has often been used to strike down seemingly innocuous municipal legislation. She referred to the holding of this Court in Montréal (City of) v. Arcade Amusements Inc., supra, as follows (at pp. 164-65):

... distinctions...are often perfectly reasonable in the narrow sense that they are wise, rational or judicious; none the less, they must also be reasonable in the legal sense that their wisdom is reserved to the sovereign, rather than the subordinate, legislator.

Applying the doctrine to the case before her, Arbour J.A. found at p. 168 that:

. . . none of the provisions of the Municipal Act authorize, directly or by necessary implication, the distinction drawn in the by-laws between two classes of street vendors. The power to regulate the obstruction or incumbrance of highways does not provide authority for municipalities to discriminate between classes of persons who would be permitted to encumber the roads.

Arbour J.A. concluded that s. 11 of Metro By-law 211-74, Metro By-law 97-80 and City of Toronto By-law 618-80 created a discriminatory licensing scheme which could only be corrected by striking down the prohibition contained in s. 11 of Metro By-law 211-74 as well as Metro By-law 97-80 and City of Toronto By-law 618-80. Arbour J.A. therefore held that s. 11 of Metro By-Law 211-74, Metro By-law 97-80 and City of Toronto By-law 618-80 were ultra vires the powers conferred on Metro and the city of Toronto by the Municipal Act and would have ordered that they be quashed.

Arbour J.A. also reached a different conclusion with respect to the appellant's conviction under the Criminal Code. Given the invalidity of the by-law which the appellant was alleged to have breached, she held that the conviction itself could not stand. She went on to state, however, that the charge of obstruction should fail even if the by-law had survived scrutiny. In the absence of a specific statutory direction or binding judicial authority asserting that the peaceful repetition or continuation of an infraction against the by-law in question could be brought to an end under the threat of a criminal sanction, the use of the criminal charge of obstruction could not be justified (at pp. 169-70):

The specific powers of enforcement of provincial statutes and regulations as well as municipal by-laws are contained in the Provincial Offences Act, R.S.O 1980, c. 400. When Constable Coulis found the appellant apparently infringing s. 11 of By-law 211-74, he was empowered, by virtue of ss. 3 and 23 of the Provincial Offences Act, to issue a certificate of offence, together with an offence notice or a summons, or to lay an information before a justice of the peace, who may then have issued a summons.

She continued (at p. 170):

There are no provisions, either in By-law 211-74 or in the Provincial Offences Act, empowering the police to arrest without a warrant nor to obtain an arrest warrant for that offence....

In my view, the deliberate legislative choice not to permit arrest for this kind of municipal offence cannot be circumvented by a police officer ordering the accused to desist from the conduct constituting infringement of the by-law, thereby exposing the accused to liability for the Criminal Code offence of obstruction and thus triggering the arrest powers contained in s. 495 of the Code....

Arbour J.A (at pp. 170-71) held that such broad powers of arrest to enforce municipal by-laws could not be found in s. 57 of the Police Act:

The general duties contained in s. 57 of the Police Act are clearly subject to the specific statutory power given to the police to direct them as to how to discharge these general duties. For instance, the general duty to apprehend offenders cannot be relied upon to expand on the statutorily limited powers of arrest without a warrant; the general duty to prevent crime cannot expand the statutory authority of the police to search, seize or wire-tap. In the same way, the general duty to enforce municipal by-laws must be read subject to the limited enforcement powers contained in the by-laws themselves, in the Provincial Offences Act or in any other relevant legislation, as well as in the common law powers incidental to them, such as the power to search as an incident to a valid arrest.

Here the legislature has not seen fit to provide for a mechanism by which the conduct prohibited by s. 11 of the by-law can be immediately brought to a halt. A police officer may invite a person to desist. He or she may issue a new summons if the offence is being repeated. However, the continuation of such conduct, absent circumstances amounting to a breach of the peace or interfering with the authority of the police officer to issue the summons, cannot amount to obstruction, in my opinion, even after the alleged offender has been warned to stop his activities.

The legislature has addressed the problem of repetition or continuation of infractions to municipal by-laws in s. 326 of the Municipal Act, which provides that:

326. Where any by-law of a municipality or of a local board thereof, passed under the authority of this or any other general or special Act, is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.

Arbour J.A rejected the argument of the respondents that Johanson v. The King, supra, provides common law authority for an arrest. She distinguished that case on the basis that the by-law under which Johanson and Daniluk had been convicted contained a specific requirement of "obedience to police officers". She took the view that subsequent decisions of this Court and others did not grant as expansive an interpretation of the ratio of Johanson v. The King as that for which the respondents contended. She would have set aside the conviction and entered an acquittal.

IV. Analysis

1. The By-law Charge

I agree with Arbour J.A. that this case is governed by the decision of this Court in Montréal (City of) v. Arcade Amusements Inc., supra, with respect to the discrimination in the by-law scheme. In that case, the Court held that the power to pass municipal by-laws does not entail that of enacting discriminatory provisions (i.e., of drawing a distinction) unless in effect the enabling legislation authorizes such discriminatory treatment. See also Rogers, The Law of Canadian Municipal Corporations (2nd ed. 1971), at pp. 406.3-406.4:

It is a fundamental principle of municipal law that by-laws must affect equally all those who come within the ambit of the enabling enactment. Municipal legislation must be impartial in its operation and must not discriminate so as to show favouritism to one or more classes of citizens. Any by-law violating this principle so that all the inhabitants are not placed in the same position regarding matters affected by it is illegal.

The general principle does not apply where the enabling statute clearly specifies that certain persons or things may be excepted from its operation or expressly authorizes some form of discrimination.

The rule against discriminatory by-laws is an outgrowth of 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).

The Court of Appeal found that free-standing street vendors and owners/occupiers of property abutting sidewalks are in different classes and could reasonably be treated differently in the licensing scheme. However, in Montréal (City of) v. Arcade Amusements Inc., supra, this Court recognized that discrimination in the municipal law sense was no more permissible between than within classes (at pp. 405-6). Further, the general reasonableness or rationality of the distinction is not at issue: discrimination can only occur where the enabling legislation specifically so provides or where the discrimination is a necessary incident to exercising the power delegated by the province (Montréal (City of) v. Arcade Amusements Inc., supra, at pp. 404-6). Sections 210, para. 73, 210, para. 140 and 314(1), para. 1 of the Municipal Act, do not, in my view, authorize any discriminatory treatment, between free-standing street vendors and those owning or occupying abutting property, in Metro By-law 97-80 and City of Toronto By-law 618-80.

Before this Court, the respondent argued that the discrimination in Metro By-law 97-80 and City of Toronto By-law 618-80 might find express authorization in s. 310(a) of the Municipal Act. For ease of reference, s. 310 is reproduced again:

310. By-laws may be passed by the council of every local municipality,

(a)for leasing or licensing the use of untravelled portions of highways under the jurisdiction of the council, except highways that are extensions or connecting links of the King's Highway, to the owners or occupants of adjoining property for such consideration and upon such terms and conditions as may be agreed;

(b)for regulating and controlling the use, including the use for parking purposes, of untravelled portions of highways under the jurisdiction of the council that are not extensions or connecting links of the King's Highway, which are leased or in respect of which a licence is granted under clause (a).

The respondent argued that the phrase "untravelled portions of highways" includes the sidewalks adjacent to highways. If sidewalks are "untravelled portions of highways," the respondent argues that s. 310(a) does authorize a distinction between owners or occupants of adjoining property and other persons. Through application of the expressio unius est exclusio alterius rule, the reference to owners or occupants in the provision implies that a by-law may be passed excluding all other persons from the leasing and licensing scheme.

I do not agree with the respondent's submissions on this point. While the Municipal Act does not define "untravelled portions of highways", s. 310(b) suggests that the phrase refers to untravelled portions of the part of the highway reserved for vehicular traffic, rather than the sidewalk, inasmuch as it permits usage of such untravelled portions for parking purposes. This conclusion is supported by s. 90 of the Municipality of Metropolitan Toronto Act, which empowers Metro to delegate to area municipalities the power to license use of "sidewalks and untravelled portions of Metropolitan roads" (emphasis added). The by-law provisions themselves indicate that there is a distinction between "untravelled portions of highways" and sidewalks. Metro By-law 97-80, which delegates to the city of Toronto the authority to enact a licensing scheme, provides as follows:

1. (1) Notwithstanding the provisions of By-law No. 211-74, as amended, the Council of each of the area municipalities set out in Schedule "A" to this By-law is hereby empowered to lease or license the use of sidewalks and untravelled portions of Metropolitan roads within those portions of such area municipality in which land may be used for commercial or industrial purposes to the owners in possession or the occupants of adjoining properties for [enumerated purposes]. [Emphasis added.]

City of Toronto By-law 618-80 contains similar language. There would have been no need to refer to sidewalks in these provisions if sidewalks were included in "untravelled portions" of roads or highways.

I conclude, therefore, that s. 310 of the Municipal Act does not expressly authorize a distinction between free-standing street vendors and owner/occupant vendors. The distinctions contained in Metro By-law 97-80 and City of Toronto By-law 618-80 are therefore not authorized by the Municipal Act and those by-laws are accordingly ultra vires the municipalities.

For the reasons given by the Court in R. v. Greenbaum, [1993] 1 S.C.R. 000, released concurrently with the reasons in the case at bar, I am also of the view that s. 11 of Metro By-law 211-74 is ultra vires the municipality. Therefore I need not address the question whether or not Arbour J.A. was correct when she held that "the illegal discrimination contained in the licensing system can only be corrected by striking down the prohibition contained in s. 11 of By-law 211-74" (p. 169). In other words, I need not decide whether s. 11 of Metro By-law 211-74 is severable from the by-laws impugned herein. I would therefore order that the appellant's conviction on the by-law charge be set aside and that an acquittal be entered instead.

2. The Criminal Charge

I also agree with Arbour J.A. that the appellant's conviction for obstructing a peace officer in the execution of his duty to enforce municipal by-laws must also be set aside and an acquittal entered. In charging the appellant with obstructing a peace officer, Constable Coulis was attempting to enforce s. 11 of Metro By-law 211-74. However, s. 11 of Metro By-law 211-74 has been held by this Court in R. v. Greenbaum to be ultra vires the municipality. As a result, the conviction of the appellant for obstructing a peace officer cannot stand.

The respondent, the Attorney General of Ontario, argued that this issue was governed by the decision of this Court in R. v. Biron, [1976] 2 S.C.R. 56. In that case, the accused was convicted of resisting arrest on a charge of creating a disturbance, even though he was acquitted on the disturbance charge itself. In his defence, the accused submitted that the arrest itself was unlawful since he had not in fact been committing an offence at the time. A majority of this Court rejected that argument. Martland J. stated, at p. 75:

The power of arrest...has to be exercised promptly, yet, strictly speaking, it is impossible to say that an offence is committed until the party arrested has been found guilty by the courts. If this is the way in which this provision [now s. 495 of the Criminal Code] is to be construed, no peace officer can ever decide, when making an arrest without a warrant, that the person arrested is "committing a criminal offence". In my opinion...the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence.

The decision in R. v. Biron, supra, did not concern the power of arrest without a warrant where police officers believe themselves to be enforcing legislation which is later found ultra vires. Biron deals with apparent perpetration of an offence, not apparent offences, and as such it cannot be relied upon to confer on police the power to charge someone with obstruction where there is an apparent violation of a law which itself is invalid.

In my view, Arbour J.A. was correct in holding that, even if s. 11 of Metro By-law 211-74 were valid, the police cannot circumvent the lack of an arrest power for a violation of the by-law by ordering someone to desist from the violation and then charging them with obstruction. The power to arrest in order to enforce the by-law cannot be inferred in the face of clear language in the Municipal Act and the Provincial Offences Act setting out more moderate means of dealing with repeated infractions. The officer had no authority, either at common law or under statute, to arrest the appellant for failing to comply with an order to desist from conduct prohibited by the by-law. The power to arrest without a warrant for disobeying an order to desist from conduct prohibited by s. 11 of Metro By-law 211-74 cannot be founded upon the language of Metro By-law 211-74, nor on ss. 3 and 23 of the Provincial Offences Act, nor on s. 57 of the Police Act. Johanson v. The King, supra, has no application in the absence of a statutory duty of obedience to police officers. The police constable in this case indeed had an obligation to enforce the by-law. The legislature defined the enforcement power as ticketing the offender, and the appellant did not obstruct the constable in the performance of this duty. The power of arrest cannot be derived as a matter of common law from the officer's duty to enforce the by-law given the legislature's definition of what such enforcement entails. The words of Arbour J.A., at p. 170, are apt:

In my view, the deliberate legislative choice not to permit arrest for this kind of municipal offence cannot be circumvented by a police officer ordering the accused to desist from the conduct constituting infringement of the by-law, thereby exposing the accused to liability for the Criminal Code offence of obstruction and thus triggering the arrest powers contained in s. 495 of the Code...

V. Disposition

For the foregoing reasons, I would allow the appeal, and I would order that the appellant's convictions both on the by-law charge and on the criminal charge be set aside and acquittals entered instead.

Appeal allowed.

Solicitors for the appellant: Gold & Fuerst, Toronto.

Solicitor for the respondent Her Majesty The Queen: The Attorney General for Ontario, Toronto.

Solicitor for the respondent the Municipality of Metropolitan Toronto: H. W. O. Doyle, Toronto.

• Stevenson J. took no part in the judgment.