R. v. Westendorp, (1983) 46 N.R. 30 (SCC)

• Judge: Laskin, C.J.C, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Court: Supreme Court of Canada
• Case Date: Tuesday January 25, 1983
• Jurisdiction: Canada (Federal)
• Citations: (1983), 46 N.R. 30 (SCC);20 MPLR 267;41 AR 306;23 Alta LR (2d) 289;32 CR (3d) 97;1983 CanLII 1 (SCC);[1983] 1 SCR 12;[1983] 1 SCR 43;2 CCC (3d) 330;[1983] 2 WWR 385;46 NR 30;[1983] SCJ No 6 (QL);1983 CanLII 135 (SCC);144 DLR (3d) 259

R. v. Westendorp (1983), 46 N.R. 30 (SCC)

MLB headnote and full text

R. v. Westendorp and Attorney General of New Brunswick et al. (intervenors)

Indexed As: R. v. Westendorp

Supreme Court of Canada

Laskin, C.J.C, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.

January 25, 1983.

Summary:

The accused was charged with prostitution under a bylaw of the City of Calgary. The trial judge acquitted the accused on the ground that the bylaw was not validly enacted by the city, because prostitution was a criminal matter reserved to Parliament under s. 91(27) of the B.N.A. Act. The Crown appealed. The Alberta Court of Appeal in a judgment reported 35 A.R. 228 allowed the appeal and convicted the accused. The court held that prostitution is a nuisance over which the City Council had authority to enact bylaws by virtue of s. 152(1)(a) of the Municipal Government Act, R.S.A. 1970, c. 246, which Act was authorized by s. 92 of the B.N.A. Act. The accused appealed. The Supreme Court of Canada allowed the appeal and restored the acquittal on the ground that the bylaw was an ultra vires invasion of the federal jurisdiction over criminal law.

Constitutional Law - Topic 6443

Federal jurisdiction - Criminal law - Matters criminal in nature - Prostitution control - The Supreme Court of Canada held that a Calgary City bylaw making it an offence to be on a street for the purpose of prostitution was an unconstitutional invasion of the federal jurisdiction over criminal law.

Constitutional Law - Topic 2602

Determination of validity of statutes - Intrinsic aids in determining legislative subject matter - Recitals - The City of Calgary passed a bylaw making it an offence to be on a street for the purpose of prostitution - Recitals preceeding the bylaw expressed the problem in terms of nuisance - The Supreme Court of Canada struck down the bylaw as an ultra vires invasion of the federal jurisdiction over criminal law and held that the recitals' description of the problem as a nuisance could not validate the criminal substance of the bylaw itself - See paragraphs 11, 18.

Cases Noticed:

Switzman v. Elbling, [1957] S.C.R. 285, dist. [para. 16].

Bédard v. Bédard, [1923] S.C.R. 681, dist. [para. 16].

Dupond v. Montreal, [1978] 2 S.C.R. 770; 19 N.R. 478, dist. [para. 17].

Statutes Noticed:

Calgary City Bylaws, sect. 3, sect. 4, sect. 5, sect. 6 [para. 10]; sect. 6.1 [paras. 11, 12].

Counsel:

Anthony Managh, Christopher Bixby, Craig Sparrow and Barbara Mcisaac, for the appellant;

Wm. Henkel, Q.C., and Inge Freund, for the respondent;

Keith McCormick, for the Attorney General of New Brunswick;

H.R. Eddy, for the Attorney General of British Columbia;

Cheryl Crane, for the Attorney General of Saskatchewan.

This case was heard on December 2, 1982, at Ottawa, Ontario, before LASKIN, C.J.C., RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD, LAMER and WILSON, JJ., of the Supreme Court of Canada.

On January 25, 1983, LASKIN, C.J.C., delivered the following judgment for the Supreme Court of Canada: