Municipalities and the charter.

• Author: McKay-Panos, Linda
• Position: FEATURE on municipal law

There are several very large cities in Canada. Together with smaller centres, these are governed by councils with the power to pass bylaws on a variety of topics that can affect large numbers of people. Bylaws affect our everyday lives because they deal with common activities, from shovelling snow to picking up after the family dog. Thus, from time to time, people who are subject to bylaws wish to challenge them. When the validity of a bylaw is suspect, a legal challenge would normally arise in one of three ways:

* a person whose interests are affected by the bylaw has questioned the bylaw's validity by making an application to a court;

* a person charged with violating the bylaw is disputing its validity; or

* a person believes his/her rights under the Canadian Charter of Rights and Freedoms (Charter) have been violated and wants the legislation reviewed.

There are a number of grounds for challenging a bylaw; for example, alleging that the subject matter of the bylaw is not under the authority of the municipality, or alleging that the wording of the bylaw is so vague that it is nearly impossible to comply with it. Also, because municipalities are considered governments under Charter s. 32, they are subject to the Charter and to challenges that bylaws or actions are unconstitutional. Laws that are inconsistent with the Charter will be found to be of no force or effect, and if governmental actions or legislation are found to infringe Charter rights and freedoms, complainants may be awarded one or more of several remedies, including damages.

There are two general steps involved in making a Charter challenge to a government law or action. First, a person who is alleging an infringement of a right or freedom under the Charter must establish that the legislation or government action, either by its purpose or by its effect, violates his or her rights. To fulfill this step, the court looks at the purpose of the right or freedom and whether the purpose or effect of the legislation or government action infringes that right or freedom. Second, if the court determines that the right or freedom has been infringed, the government then must show that the infringement is justified under Charter s. 1 as being a limit prescribed by law and that it is reasonable and justifiable within a free and democratic society. If the government does not satisfy the court that the infringement is justified, the act or legislation is found to be unconstitutional.

There...